F. Freedom of Expression, Assembly and Petition I.

Scope Dichotomy between print and broadcast media EN BANC FRANCISCO CHAVEZ, Petitioner, - versus RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), Respondents. G.R. No. 168338 February 15, 2008 DECISION

copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the AntiWiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.[9] 4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10] 5. On June 11, 2005, the NTC issued this press release: [11]

PUNO, C.J.: A. Precis In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. B. The Facts 1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7] 2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8] 3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS xxx xxx xxx

Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and

television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators. 6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information. Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: [12] NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same.

Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern,[14] petitioner specifically asked this Court: [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. [15] Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate the telecommunications industry. [17] It was also stressed that most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. [18] D. THE PROCEDURAL THRESHOLD: LEGAL STANDING To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forwardneither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press. It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions. [19] But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. [20] Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is

C. The Petition Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.[13]

fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press. But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. [33] Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual selffulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wideopen. [35] Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence.[36] When atrophied, the right becomes meaningless.[37] The right belongs as well -- if not more to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. [40] The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed.

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH, OF EXPRESSION AND OF THE PRESS No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.[24] Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights,[25] were considered the necessary consequence of republican institutions and the complement of free speech. [26] This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.[27] In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.[30] For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant. E.1. ABSTRACTION OF FREE SPEECH Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which it was held: At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any

E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society.[43] The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our jurisdiction slander or libel, lewd and obscene speech, as well as fighting words are not entitled to constitutional protection and may be penalized.[45] Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudence whether here or abroadwill reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. [47] Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; [48] (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, extremely serious and the degree of imminence extremely high. [50] As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. [51] E.3. IN FOCUS: FREEDOM OF THE PRESS Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily

grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52] The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience. Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a periodical publication are liable for damages, be they private individuals or public officials. E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENTNEUTRAL AND CONTENT-BASED REGULATIONS Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3) freedom of access to information; [54] and (4) freedom of circulation.[55] Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations. At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution. Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the

government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. [57] Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid,[58] and any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows, [59] it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against. Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;[60] or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The cast of the restriction determines the test by which the challenged act is assayed with. When the speech restraints take the form of a contentneutral regulation, only a substantial governmental interest is required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approachsomewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner: A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [64] On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66]

With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.[67] As formulated, the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.[68] The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. [69] Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. [71] The regulation, therefore, must be reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. [72] Thus, when the prior restraint partakes of a contentneutral regulation, it is subjected to an intermediate review. A content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. [74] Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one objecta specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression. E.5. Dichotomy of Free Press: Print v. Broadcast Media Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media. The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes. The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited First Amendment protection,[75] and U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the

scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its unique accessibility to children.[78] Because cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have applied to other media, nor go so far as to demand that such regulations serve compelling government interests,[79] they are decided on whether the governmental restriction is narrowly tailored to further a substantial governmental interest,[80] or the intermediate test. As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show thatas we have deviated with the American conception of the Bill of Rights[81] we likewise did not adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints. Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule[83] Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus: [84] xxx xxx xxx

clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the

the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. (7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted] It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that the test for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of media, whether print or broadcast. Indeed, a close reading of the abovequoted provisions would show that the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to newspaper and print media, it was not as to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. [85] In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures: All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown..It cannot be denied though that the

State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press.[89] This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC[92] treated a restriction imposed on a broadcast media as a reasonable condition for the grant of the medias franchise, without going into which test would apply. That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.[93]

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expressionin terms of diversitycomes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. [94] The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the

broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. [98] F. The Case At Bar Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media. This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to

prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation. The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late. In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press SO ORDERED.

2. Aspects Freedom from censorship or prior restraint G.R. No. L-64261 December 26, 1984

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO and J. BURGOS MEDIA SERVICES, INC., petitioners, vs. THE CHIEF OF STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF, PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ET AL., respondents. ESCOLIN, J.: Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction is the validity of two [2] search warrants issued on December 7, 1982 by respondent Judge Ernani Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal [Quezon City], under which the premises known as No. 19, Road 3, Project 6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, business addresses of the "Metropolitan Mail" and "We Forum" newspapers, respectively, were searched, and office and printing machines, equipment, paraphernalia, motor vehicles and other articles used in the printing, publication and distribution of the said newspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possession and control of petitioner Jose Burgos, Jr. publisher-editor of the "We Forum" newspaper, were seized. Petitioners further pray that a writ of preliminary mandatory and prohibitory injunction be issued for the return of the seized articles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute or successors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the other accused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose Burgos, Jr. et al. 1 In our Resolution dated June 21, 1983, respondents were required to answer the petition. The plea for preliminary mandatory and prohibitory injunction was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion of the Solicitor General in behalf of respondents. At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatory injunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned case until final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer for preliminary prohibitory injunction was rendered moot and academic. Respondents would have this Court dismiss the petition on the ground that petitioners had come to this Court without having previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, before impugning the validity of the warrants before this Court, should have filed a

motion to quash said warrants in the court that issued them. 3 But this procedural flaw notwithstanding, we take cognizance of this petition in view of the seriousness and urgency of the constitutional issues raised not to mention the public interest generated by the search of the "We Forum" offices, which was televised in Channel 7 and widely publicized in all metropolitan dailies. The existence of this special circumstance justifies this Court to exercise its inherent power to suspend its rules. In the words of the revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v. Raymundo, 4 "it is always in the power of the court [Supreme Court] to suspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...". Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that while said search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June 16, 1983 or after the lapse of a period of more than six [6] months. Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier. It is negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 5 Petitioners, in their Consolidated Reply, explained the reason for the delay in the filing of the petition thus: Respondents should not find fault, as they now do [p. 1, Answer, p. 3, Manifestation] with the fact that the Petition was filed on June 16, 1983, more than half a year after the petitioners' premises had been raided. The climate of the times has given petitioners no other choice. If they had waited this long to bring their case to court, it was because they tried at first to exhaust other remedies. The events of the past eleven fill years had taught them that everything in this country, from release of public funds to release of detained persons from custody, has become a matter of executive benevolence or largesse Hence, as soon as they could, petitioners, upon suggestion of persons close to the President, like Fiscal Flaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at least of the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were further encouraged to hope that the latter would yield the desired results. After waiting in vain for five [5] months, petitioners finally decided to come to Court. [pp. 123-124, Rollo] Although the reason given by petitioners may not be flattering to our judicial system, We find no ground to punish or chastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidently negate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting the charge of laches against them. Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of the seized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the search warrants.

We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. and he can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not and cannot in any way affect the validity or invalidity of the search warrants assailed in this petition. Several and diverse reasons have been advanced by petitioners to nullify the search warrants in question. 1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of the applicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of the Rules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselves conceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge of Col. Abadilla and his witnesses. 2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed to the execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointed only one place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This assertion is based on that portion of Search Warrant No. 20- 82[b] which states: Which have been used, and are being used as instruments and means of committing the crime of subversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon City. The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issued because the purpose and intent were to search two distinct premises. It would be quite absurd and illogical for respondent judge to have issued two warrants intended for one and the same place. Besides, the addresses of the places sought to be searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the team which executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is more apparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the said warrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b]. In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and when he knows that the judge who issued the warrant intended the building described in the affidavit, And it has also been said that the executing officer may look to the affidavit in the official court file to resolve an ambiguity in the warrant as to the place to be searched." 8 3. Another ground relied upon to annul the search warrants is the fact that although the warrants were directed

against Jose Burgos, Jr. alone, articles b belonging to his copetitioners Jose Burgos, Sr., Bayani Soriano and the J. Burgos Media Services, Inc. were seized. Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a search warrant, to wit: Sec. 2. Personal Property to be seized. A search warrant may be issued for the search and seizure of the following personal property: [a] Property subject of the offense; [b] Property stolen or embezzled and other proceeds or fruits of the offense; and [c] Property used or intended to be used as the means of committing an offense. The above rule does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, one of the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than the person in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequence, and it is sufficient that the person against whom the warrant is directed has control or possession of the property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to have in relation to the articles and property seized under the warrants. 4. Neither is there merit in petitioners' assertion that real properties were seized under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tend directly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. v. Castillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomes immobilized when placed by the owner of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person having only a temporary right, unless such person acted as the agent of the owner. In the case at bar, petitioners do not claim to be the owners of the land and/or building on which the machineries were placed. This being the case, the machineries in question, while in fact bolted to the ground remain movable property susceptible to seizure under a search warrant. 5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. Abadilla Intelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla which conducted a surveillance of the premises prior to the filing of the application for the search warrants on December 7, 1982. It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis for the finding of a probable cause upon which a warrant

may validly issue in accordance with Section 3, Article IV of the 1973 Constitution which provides: SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. We find petitioners' thesis impressed with merit. Probable cause for a search is defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. And when the search warrant applied for is directed against a newspaper publisher or editor in connection with the publication of subversive materials, as in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularity the alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, the broad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment and other paraphernalia, news publications and other documents which were used and are all continuously being used as a means of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mere conclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify a finding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant and it was a grave error for respondent judge to have done so. Equally insufficient as basis for the determination of probable cause is the statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro U. Tango, "that the evidence gathered and collated by our unit clearly shows that the premises above- mentioned and the articles and things abovedescribed were used and are continuously being used for subversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-Fire Movement, Movement for Free Philippines, and April 6 Movement." 13 In mandating that "no warrant shall issue except upon probable cause to be determined by the judge, ... after examination under oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less than personal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the facts within the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince the committing magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence of probable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets the test of sufficiency established by this Court in Alvarez case. Another factor which makes the search warrants under consideration constitutionally objectionable is that they are in the nature of general warrants. The search warrants describe the articles sought to be seized in this wise:

1] All printing equipment, paraphernalia, paper, ink, photo (equipment, typewriters, cabinets, tables, communications/recording equipment, tape recorders, dictaphone and the like used and/or connected in the printing of the "WE FORUM" newspaper and any and all documents communication, letters and facsimile of prints related to the "WE FORUM" newspaper. 2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives and piurposes of the subversive organization known as Movement for Free Philippines, Light-a-Fire Movement and April 6 Movement; and, 3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materials and propaganda, more particularly, 1] 2] 3] Toyota-Corolla, colored yellow with Plate No. NKA 892; DATSUN pick-up colored white with Plate No. NKV 969 A delivery truck with Plate No. NBS 524;

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang." In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instruments concerning the Communist Party in Texas," was declared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize any evidence in connectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a search warrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the Connecticut General Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and therefore invalid. 17 The description of the articles sought to be seized under the search warrants in question cannot be characterized differently. In the Stanford case, the U.S. Supreme Courts calls to mind a notable chapter in English history: the era of disaccord between the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions to search where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Reference herein to such historical episode would not be relevant for it is not the policy of our government to suppress any newspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to state security. As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "We Forum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with the further result that the printing and publication of said newspapers were discontinued. Such closure is in the nature of previous restraint or censorship abhorrent to the freedom of the press guaranteed under the fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state

of being is patently anathematic to a democratic framework where a free, alert and even militant press is essential for the political enlightenment and growth of the citizenry. Respondents would justify the continued sealing of the printing machines on the ground that they have been sequestered under Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of any person, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ... in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It is doubtful however, if sequestration could validly be effected in view of the absence of any implementing rules and regulations promulgated by the Minister of National Defense. Besides, in the December 10, 1982 issue of the Daily Express, it was reported that no less than President Marcos himself denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982. Thus: The President denied a request flied by government prosecutors for sequestration of the WE FORUM newspaper and its printing presses, according to Information Minister Gregorio S. Cendana. On the basis of court orders, government agents went to the We Forum offices in Quezon City and took a detailed inventory of the equipment and all materials in the premises. Cendaa said that because of the denial the newspaper and its equipment remain at the disposal of the owners, subject to the discretion of the court. 19 That the property seized on December 7, 1982 had not been sequestered is further confirmed by the reply of then Foreign Minister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed to President Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, Minister Romulo stated: 2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close the paper's printing facilities and confiscate the equipment and materials it uses. 21 IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-82[b] issued by respondent judge on December 7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction for the return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released to petitioners. No costs. SO ORDERED. G.R. No. 56515 April 3, 1981 UNITED DEMOCRATIC OPPOSITION (UNIDO), petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), respondent.

Constitution of the Philippines of 1973 proposed by the Batasang Pambansa, from the resolutions of the respondent Commission on Elections dated March 18 and March 22, 1981. As alleged in the petition: 3. Respondent COMELEC issued three (3) Resolutions all dated March 5, 1981, to wit: (1) Resolution No. 1467 providing for Rules and Regulations for 'equal opportunity' on public discussions and debates on the plebiscite questions to be submitted to the people on April 7, 1981; (2) Resolution No.1468 providing "equal time on the use of the broadcast media (radio and television) in the plebiscite campaign"; and (3) Resolution No.1469 providing for "equal space on the use of the print media in the 1981 plebiscite of April 7, 1981". The pertinent portions of said Resolutions Nos. 1467, 1468 and 1469 are attached to this Petition as Annexes "A", "A- l" and "A2" respectively; (P. 2, Petition.) The questioned resolutions are as follows: RESOLUTION NO. 1467 RULES AND REGULATIONS ON PUBLIC DISCUSSIONS AND DEBATES ON THE PLEBISCITE QUESTIONS The Commission on Elections, pursuant to the powers vested in it by the Constitution, the 1978 Election Code and pertinent enactments of the Batasang Pambansa, RESOLVED to promulgate the following rules and regulations governing free discussions and debates on the plebiscite questions to be submitted to the people on April 7, 1981. (Annex "A", Petition.) xxx xxx xxx

RESOLUTION NO. 1468 The Commission on Elections, by virtue of the powers conferred upon it by the Constitution, the 1978 Election Code and pertinent enactments of the Batasang Pambansa, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations to govern the use of broadcast media in the 1981 plebiscite. I. GENERAL PROVISIONS

SECTION 1. Policy. (1) These rules and regulations are intended to insure that broadcast time for campaign purposes equal as to duration and quality shall be available to all supporters or oppositors, political parties, groups or aggrupations at the same rates or given free of charge. (2) Radio and television stations shall not be allowed to schedule any non-political program or permit any sponsor to manifestly favor or oppose any side of the 1981 plebiscite issues or to unduly or repeatedly refer to or include in the program or broadcast any supporter or oppositor and/or political party, group or aggrupation favoring or opposing any side of the 1981 plebiscite issues.

BARREDO, J.: Appeal by the UNIDO, a political organization or aggrupation campaigning for "NO" votes to the amendments to the

(3) In all instances, the right of radio and television stations to broadcast accounts of significant or newsworthy events and views on matters of public interest shall not be unpaired. (Annex "A-1", Petition.) xxx xxx xxx

Manila, and we hereby request that the same be covered by radio and television from 9:30 to 11:30 P.M. We trust that the radio and. television facilities win be directed to comply with this request. 5. Respondent COMELEC issued its Resolution of March 18, 1981 quoting the above letters of petitioner UNIDO, but held that they "cannot be granted and the same is hereby denied." Said COMELEC Resolution appears as Excerpts from the Minutes of the Session of the Commission Held on March 19, 1981', a copy of which is hereto attached to form an integral part of this Petition as Annex "B"; (Pp. 2-3, Petition.) Said Annex "B" reads thus: EXCERPT FROM THE MINUTES OF THE SESSION OF THE COMMISSION HELD ON MARCH 18,1981 (UNDER THE SAME QUORUM) xxx xxx xxx

RESOLUTION NO. 1469 The Commission on Elections, pursuant to its powers under the Constitution, the 1978 Election Code, and pertinent enactments of the Batasang Pambansa, RESOLVED to promulgate, as it hereby promulgates, the following rules and regulations on the use of the print media, the printing and dissemination of printed political propaganda in the campaign for or against the 1981 plebiscite questions. I. GENERAL PROVISIONS

SECTION 1. Policy The policy herein is to enable individual supporters, oppositors, political parties, groups or aggrupations when they so desire, to purchase or avail of advertising space for campaign purposes under the following rules and regulations which assure that available advertising space in the print media shall be, as far as practicable, equitably allocated. SECTION 2. Comelec Supervision. The Commission on Elections shall recognize the principle of self-regulation in the print media and shall exercise as far as practicable only minimal supervision over the print media leaving the enforcement of these rules and regulations largely to the Ministry of Public Information. (Annex "A-2", Petition.) 4. Petitioner UNIDO addressed a letter dated 10 March 1981 to respondent COMELEC, which reads: Your Resolutions Nos. 1467, 1468 and 1469, all promulgated on March 5, 1981, provided for equal opportunity "on public discussion and debates on the plebiscite", equal time "on the use of the broadcast media in the plebiscite campaign" and equal space "on the use of the print media in the 1981 plebiscite". The newspapers this morning have announced that President Marcos will lead the campaign for "Yes" votes on the proposed constitutional amendments in the April 7 plebiscite in his nationwide "Pulong-Pulong sa Pangulo" radio-television program on Thursday, March 12, from 9:30 to 11:30 P.M., which will be carried live by 26 television and 248 radio stations throughout the country. The undersigned, in behalf of the United Democratic Opposition (UNIDO), hereby demand exactly the same number of TV and radio stations all over the country at the earliest possible date, to campaign for 'No' votes in the forthcoming plebiscite. Likewise, on 17 March 1981, petitioner thru its undersigned legal counsel addressed its second letter to respondent Commission on Elections, which reads: Pursuant to the letter of UNIDO dated 10 March 1981 requesting for equal opportunity, the same prime time and number of TV and radio stations all over the country which were utilized by President Marcos last March 12 from 9:30 to 11:30 P.M., we wish to state that on Saturday, March 21, the UNIDO will hold a public meeting at the Plaza Miranda, Quiapo,

81-54. In the matter of the letter-request of the United Democratic Opposition (UNIDO) for free coverage by "TV and Radio Stations all over the country" of its campaign for "No" votes in the forthcoming plebiscite. Before the Commission is a "demand" of the United Democratic Opposition (UNIDO) for coverage by 'TV and radio stations all over the country' of its campaign for 'No' votes in the forthcoming plebiscite. This 'demand' is contained in a letter dated 10 March 1981, received by the Commission on Elections on March 11, 1981, signed by Gerardo Roxas and J.B. Laurel, Jr., quoted in full as follows: 10 March 1981 The Commission on Elections Manila Gentlemen: Your Resolution Nos. 1467, 1468 and 1469, all promulgated on March 5, 1981, provide for equal opportunity "on public discussion and debate on the plebiscite", equal time on the use of the broadcast media in the plebiscite campaign and equal space on the use of the print media in the 1981 plebiscite The newspapers this morning have announced that President Marcos will lead the campaign for "Yes" votes on the proposed constitutional amendments in the April 7 plebiscite in his nationwide "Pulong-Pulong sa Pangulo" radio television program on Thursday, March 12, from 9:30 to 11:30 P.M., which will be carried five by 26 television and 248 radio stations throughout the country. The undersigned, in behalf of the United Democratic Opposition (UNIDO), hereby demand exactly the same opportunity, the same prime tune and the same number of TV and radio stations all over the country at the earliest possible date, to campaign for 'No' votes in the forthcoming plebiscite. Very truly yours, (SGD.) GERARDO ROXAS

(SGD.) J. B. LAUREL, JR. Subsequently, on 17 March 1981, the Legal Counsel of the UNIDO, Ambrosio Padilla, reiterated the UNIDO desire for coverage by media, "the same prime time and number of TV and radio stations all over the country which were utilized by President Marcos last March 12 from 9:30 to 11:30 P.M." In this letter, the legal counsel manifested that the UNIDO wants media coverage for its projected "public meeting at the Plaza Miranda, Quiapo, Manila . . . . from 9:30 to 11:30 P.M." on Saturday, March 21. The letter of the UNIDO Legal Counsel reads 17 March 1981 The Commission on Elections Manila Attention: CHAIRMAN VICENTE M. SANTIAGO, JR. Gentlemen: Pursuant to the letter of UNIDO dated 10 March 1981 requesting for equal opportunity, the same prime time and number of TV and radio stations all over the country which were utilized by President Marcos last March 12 from 9:30 to 11:30 P.M., we wish to state that on Saturday, March 21, the UNIDO will hold a public meeting at the Plaza Miranda, Quiapo, Manila, and we hereby request that the same be covered by radio television from 9:30 to 11:30 P.M. We trust that the radio and television facilities will be directed to comply with this request. Very truly yours, (SGD.) AMBROSIO PADILLA Legal Counsel, UNIDO After due and careful deliberation, this Commission holds, and hereby rules, that the demand of the UNIDO cannot be granted and the same is hereby denied. It is the considered view of this Commission that when President Marcos conducted his 'pulong-pulong' or consultation with the people on March 12, 1981, he did so in his capacity as President Prime Minister of the Philippines and not as the head of any political party. Under the Constitution, the 'Prime Minister and the Cabinet shall be responsible . . . . for the program of government and shall determine the guidelines of national policy' (Art. IX, Sec. 2 ). 'This Commission takes judicial notice of the fact that the proposed amendments, subject of the President's remarks in the 'Pulong-Pulong Pambansa' last March 12, 1981, were initiated under the leadership of Mr. Marcos as President/Prime Minister in the exercise of his constitutional prerogative aforecited. In fact, it was President/Prime Minister Ferdinand E. Marcos who issued the special call for the Batasang Pambansa to convene as a constituent assembly to propose amendments to the Constitution (Proclamation No. 2040 dated December 5, 1980). It cannot be denied that seeking constitutional changes through the means sanctioned by the Constitution constitutes a

program of government imbued with the nature of highest importance. The President/Prime Minister initiated this program of constitutional remaking. It is, therefore, his corrollary prerogative to enlighten the people on the sense, significance, necessity and nuance of the constitutional amendments which he wanted the people to support. It would be an Idle, if not absurd proposition, to declare that the President/Prime Minister is 'responsible for the program of government and the guidelines of policy' and yet deprive him of the right and opportunity to inform and enlighten the people of the rationale of such initiatives without at the same time granting the same right to the opposition. Under our Constitution the President/Prime Minister has no counter-part, not even the Opposition still waiting in the uncertain wings of power. This, precisely, was what President Marcos sought to accomplish through the "Pulong-Pulong Pambansa" last March 12, 1981. In the letter dated March 10, 1981 by Messrs. Roxas and Laurel, it was claimed that the program was the nationwide "Pulong-Pulong sa Pangulo" (Emphasis supplied). This is an admission that the "Pulong-Pulong" was for the "Pangulo", not as head of a political party but as President/Prime Minister. This program "Pulong-Pulong sa Pangulo" is of long standing and has been used by President/Prime Minister Marcos to bring to the attention of the people certain matters that need to be understood by them. For instance, the President used this program once to explain to the people the increase in the price of gasoline and other petroleum products. The program 'Pulong-Pulong sa Pangulo' is not a political or partisan vehicle but an innovative system of participatory democracy where the President as leader of the nation enunciates certain programs or policies and thereafter subjected to interrogation by panelists (common men and women) in various strategic places. This is why the title is 'Pulong-Pulong'. It is not a one way arrangements; its format is intended to result in effective multi-way consultation between the leader of the nation and the people. The UNIDO or any of its leaders does not have the same constitutional prerogatives vested in the President/Prime Minister as above discussed. As such, it has no right to 'demand' equal coverage by media accorded President Marcos. The UNIDO, however, is free to enter into appropriate contracts with the TV or radio stations concerned. This Commission, however, cannot direct these media to grant free use of their facilities. First of all, the Comelec cannot assume dictatorial powers and secondly, the rule of equal time for campaigning as to duration and quality is not applicable under the circumstances of this case, for the reasons above-stated. WHEREFORE, premises considered, the "demand" of the UNIDO is hereby denied. Let the Executive Director cause the implementation of this resolution. SO ORDERED. xxx xxx xxx

This is to certify that the foregoing is a true and correct excerpt from the minutes of the Session of the Commission held on March 18, 1981. (Sgd). RUPERTO P. EVANGELISTA Secretary of the Commission. 6. Petitioner UNIDO thru its undersigned counsel addressed its letter dated March 20, 1981 as its "motion for reconsideration" of the COMELEC Resolution of March 18, 1981 (Annex "B") and submitted six (6) reasons why said Resolution should be reconsidered, and the request or demand of petitioner should be granted for nationwide coverage of its public meeting at Plaza Miranda on Saturday, March 21, 1981, similar or equal to the nationwide coverage of the "PulongPulong" of March 12, 1981. A copy of said letter of March 20, 1981 as petitioner's motion for reconsideration is hereto attached to form an integral part of this Petition as Annex 'C'; Annex "C" follows: March 20, 1981 The Commission on Elections Manila Gentlemen: UNIDO respectfully submits this Motion for Reconsideration of the COMELEC Resolution of March 18, 1981, which denied the letters of UNIDO dated March 10 and 17, 1981 on the following considerations: 1. The Resolution states that the coverage of the "Pulong-Pulong" on March 12, 1981 was extended to Pres. Marcos "in his capacity as President/Prime Minister and not as head of any political party", who is "responsible ... for the program of government and shall determine the guidelines of national policy". But the radio and television coverage on March 12th, did not deal with any "program of government" nor any 'guideline of national policy". The subject matter of said "Pulong-Pulong" were a campaign for the approval of the constitutional amendments proposed by the Interim Batasang Pambansa, for ratification of the people with their "YES" votes. 2. As announced by President Marcos himself and as stated in the letter of UNIDO of March 10, "President Marcos will lead the campaign for "YES" votes on the proposed constitutional amendments in the April 7 plebiscite". The radio and television facilities throughout the country on March 12 was used by President Marcos in his capacity as political leader of the KBL political party, and not in his capacity as President/Prime Minister. 3. The Resolution states that Mr. Marcos 'initiated the amendments, he convened the Batasang Pambansa as a constituent assembly, and he initiated this program of constitutional remaking'. When the proposed amendments were passed by the Batasan under his leadership, his function as President/Prime Minister was completed. His campaign for the ratification by the people of said amendments was no longer President/Prime Minister, but as the political leader of KBL as the dominant political party in the Interim Batasang Pambansa.

4. The Resolution states that the name "Pulong-Pulong sa Pangulo" is an admission that the television and radio coverage of said program on March 12, was utilized by Mr. Marcos 'not as head of a political party but as President/Prime Minister. The nature of said program is not determined by its name but by the subject matter thereof. In fact, it may be considered as a misuse of said program as political campaign for the purpose of inducing "YES" votes. 5. The Resolution states that COMELEC "cannot direct these media to grant free use of their facilities", but UNIDO "is free to enter into appropriate contracts with the TV or radio stations concerned". But Pres. Marcos campaigning for "YES" votes did not enter into such contracts, but had "free use" of said facilities. For the Resolution to require UNIDO to pay for time in a national radio and TV coverage is to impose an "impossible" financial condition. 6. The Resolution states that "COMELEC cannot assume dictatorial powers". The COMELEC as a constitutional body has the constitutional right and power to have its Resolutions Nos. 1497, 1498 and 1499 on equal opportunity, equal space and equal time respected and obeyed by all. Otherwise, said Resolutions will be only in form without any substance. In view of the foregoing, UNIDO respectfully prays that the Resolution of March 19, 1981 denying the request and demand of UNIDO for equal time, be reconsidered. It is likewise prayed that the letter requests of UNIDO be granted for nationwide coverage of its public meeting at Plaza Miranda on Saturday, March 21, 1981. Very truly yours, SGD.) AMBROSIO PADILLA Legal Counsel, UNIDO 7. Respondent COMELEC RESOLVED TO DENY for lack of merit' the letter-motion for reconsideration (Annex "C") in its Resolution of March 22, 1981 as per its "Excerpts from the Minutes of the Session of the Commission Held on March 21, 1981". A copy of said Excerpt-Resolution of March 21, 1981 is hereto attached to form an integral part of this Petition as Annex "D"; Annex "D" reads thus: EXCERPT FROM THE MINUTES OF THE SESSION OF THE COMMISSION HELD ON MARCH 21, 1981 (UNDER THE SAME QUORUM) xxx xxx xxx

81.56. Considering the allegations in the letter-motion for reconsideration, dated and filed on March 20, 1981, by the UNIDO thru counsel, and there being no strong or cogent reasons to disturb the findings and conclusions in the Resolution sought to be reconsidered, the Commission RESOLVED to DENY the said letter-motion for reconsideration for lack of merit. Let the Executive Director inform the parties concerned of this resolution.

SO ORDERED. xxx xxx xxx

reiterate, that the more the people are adequately informed about the proposed amendments, their exact meaning, implications and nuances, the better. Herein lies the apparent plausibility of petitioner's pose. There are, however, certain norms which even petitioner and those that compose it know very well that this Court, all the amplitude of its prerogatives notwithstanding cannot disregard. Denial of due process is considered generally as the first and the most valued right of everyone under the Bill of Rights. For this Court to mandate the Comelec, assuming We had such power, having in view the constriction of the Supreme Court's authority over the actuations of the Comelec under the new constitution as discoursed by Us in Aratuc vs. Comelec, G.R. Nos. L-49705-09, February 8, 1979, 88 SCRA 251, petitioner evidently overlooks the fact that the television and radio stations they refer to in their petition who will be directly affected by any injunction of the Comelec upon Our orders are not parties to this case. It is elementary, to state the obvious, that in the premises, We would be over-reaching the bounds of our constitutional powers if We acceded to petitioner request, absent such indispensable parties. In fact, petitioner has not shown, for apparently they have not done so, that they have requested any TV or radio station to give them the same time and style of "pulong-pulong" as that which they afforded the President on March 21, 1981 and that their request has been denied. No doubt the Constitution and the Election Code provisions as well as the general Comelec resolution cited by petitioner's counsel may be availed of, but since, We have not been informed of the circumstances under which the President was accorded the privilege which petitioner wants to be equally granted to them, We are not even in a position to determine under what definite terms the order prayed for should be issued by Us, considering there are other groups and aggrupations not to speak of individuals who are similarly situated as petitioner who would also want to be heard. We are afraid We would be expecting from the TV and radio networks more than what conceivably the Charter, the law and the Comelec resolutions contemplate, if We granted what UNIDO wants and did less for those other oppositors to the amendments who may come to Us. Anent the equal time, equal space and equal quality of exposure claimed by petitioner, it should be informative to quote the pertinent constitutional provisions, laws and Comelec resolutions: Section 5 of Article XII-C of the Constitution circumscribes the relevant powers of the Comelec this wise: SEC. 5. 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, may be supervised or regulated by the Commission during the election period for the purpose of ensuring free, orderly, and honest elections. Section 41 of the Election Code of 1978 pertinently reads as follows: SEC. 41. Regulation of election propaganda through mass media. (a) The Commission shall promulgate rules and regulations regarding the sale of air time for political purposes during the campaign period to insure that time equal as to

This is to certify that the foregoing is a true and correct excerpt from the minutes of the session of the Commission held on March 21, 1981. (SGD.) RUPERTO P. EVANGELISTA Secretary of the Commission The basic grounds of the present appeal are stated in the petition thus: 9. Said COMELEC Resolutions. Annexes "B" and "D", are also contrary to the Constitution and the law, and moreover, are unjust, unfair and inequitable, for said Resolutions violate the basic principles of equality, good faith and fair play, and they are not conducive to insure free, orderly and honest elections; 10. The request and/or demand of petitioner for equal broadcast media of its public meeting or rally at the Plaza Miranda last Saturday, March 21, 1981 (ante par. 4) was arbitrarily denied by respondent COMELEC in its Resolutions (Annexes "B" and "D"). As the political campaign of the Kilusan ng Bagong Lipunan (KBL) for "YES" votes used all the radios and televisions in the Pulong Pulong of its political leader, President Ferdinand E. Marcos, the political campaign for "NO" votes of petitioner UNIDO should and must be granted the same right and equal use of the same facilities for the remaining days of the political campaign for "NO" votes up to the plebiscite on April 7, 1981; These grounds were eloquently expanded by distinguished counsel for petitioner, Senator Ambrosio Padilla, during the hearing held in the afternoon of Tuesday, March 31, 1981. Much as it is indeed desirable and idealistic that the widest and fullest opportunity to be heard and explain their side should be given to those opposed to the proposed constitutional amendments, there are certain inexorable rules and principles that govern the situation at hand which, no matter in what direction one's sympathies may be inclined, have to be observed in the best interests of all concerned as this Court sees them. Indubitably, the proposed changes of the Charter are of deep and transcendental importance, since they will affect not only the structure of government and the democratic institutions and ideals vis-a-vis the presidential and parliamentary systems to which our people have been exposed up to the present, and they could outlast most of us and our children and our children's children. Quite a number of those Ideals and institutions are fondly cherished and enshrined as sacred by some respectable elements in the country, admittedly as knowledgeable and patriotic as those who are advocating their alteration or modification. It is obvious that the proposed constitutional changes are purported to establish rather drastic innovations in the distribution of at least the executive and legislative powers of the national government, in an avowedly indigenous manner more responsive and attuned not only to the mores, modes and idiosyncracies of our people and the prevailing national and international circumstances, which evidently require unusual means to preserve and defend the state and the territorial integrity of the country, albeit such proposed reforms maintain fundamentally the republican and democratic character of our system of government. Thus, We

duration and quality is available to all candidates for the same office or political parties, groups or aggrupations at the same rates or given free of charge; that such rates are reasonable and not higher than those charged other buyers or users of air time for non-political purposes; that the provisions of this Code regarding the limitation of expenditures by candidates and contributions by private persons and certain classes of corporations, entities and institutions are effectively enforced; that said radio broadcasting and television stations shall not be allowed to schedule any program or permit any sponsor to manifestly favor or oppose any candidate or political party, group or aggrupation by unduly or repeatedly referring to or including said candidate and/or political party, group or aggrupation respecting, however in all instances the right of said stations to broadcast accounts of significant or newsworthy events and views on matters of public interest. Sections 7 and 8 of Comelec Resolution No. 1468 read thus: SEC. 7. Free air time. Any radio broadcasting or television station that grants free of charge the use of air time to any supporter, oppositors political party, group or aggritpution shall also give similar air time free of charge to other supporters, oppositors, political party group or aggrupations except when such use of air -time is part of a news program or coverage involving a newsworthy event. A radio, television station giving air time free of charge to any supporter, oppositor, political party/group for campaign purposes shall inform the Commission of such fact within two days from the use of such free time. SEC. 8. Failure to agree on equal time. In case the supporter, oppositor, political party group and the radio-television station, despite mediation by the Ministry of Public Information, cannot agree on the equal time to be sold or given free, the controversy shall be referred to the Commission whose decision on the matter shall be final and immediately executory. To begin with, We cannot agree with the restrictive literal interpretation the Solicitor General would want to give to the "free orderly and honest elections" clause of Section 5, Article XII- C above-quoted. Government Counsel posits that the said clause refers exclusively to the manner in which the elections are conducted, that is to say, with the manner in which the voters are supposed to be allowed to vote. Perhaps, such a theory may hold insofar as ordinary elections of officials are concerned. But the Court views the provision as applicable also to plebiscites, particularly one relative to constitutional amendments. Be it borne in mind that it has been one of the most steadfast rulings of this Court in connection with such plebiscites that it is indispensable that they be properly characterized to be fair submission by which is meant that the voters must of necessity have had adequate opportunity, in the light of conventional wisdom, to cast their votes with sufficient understanding of what they are voting on. We are of the firm conviction that the charter's reference to honest elections connotes fair submission in a plebiscite. It cannot be otherwise, for then the importance of suffrage for the election of officials would be more significantly valued than voting on the ratification of the constitution or any amendment thereof. We cannot yield to such an unorthodox constitutional concept that relegates the fundamental law of the land which is the source of all powers of the government to a level less valued than the men who would run the same. When a voter either gives or denies his assent to a change of the existing charter of

his rights and liberties and the existing governmental form as well as the powers of those who are to govern him, he virtually contributes his little grain of sand to the building of the nation and renders his share in shaping the future of its people, including himself, his family and those to come after them. Indeed, nothing can be of more transcerdental importance than to vote in a constitutional plebiscite. In consequence of the foregoing considerations, We opine and so hold that the provisions of all election laws regulating propaganda through the mass media, for example, Section 41 of the Election Code of 1978, must be deemed applicable to plebiscites. Therefore, it is the duty of the Comelec to see to it that the sale of air time by TV and radio stations insures that time equal as to duration and quality is available to all candidates for the same office or political parties, groups or aggrupations at the same rates or given free of charge. We cannot share the Solicitor General's submission that the above view would subvert or curtail correspondingly the freedom of speech and of the press to which the TV and radio station owners are entitled. Rather, it is Our considered opinion and We so hold that if such be the effect of the Comelec regulations, it is because they must have been contemplated to precisely constitute an exception to freedom of speech and press clause, on account of considerations more paramount for the general welfare and public interest, which exceptions after all would operate only during limited periods, that is, during the duration of the election Campaign fixed in the charter itself and/or by law. The Solicitor General points, however, to the explicit proviso in Section 41 to the effect that the equal-time-equal-space privilege must "respect, in all instances the right of said stations to broadcast accounts of significant or newsworthy events and views on matters of public interest", and suggests that the TV and radio stations may not be blamed for considering the "Pulong-Pulong sa Pangulo" as coming within said proviso. In other words, it is contended that such choice by them may not then be subjected to the equal time equal space regulations. On the other hand, counsel for petitioner maintains that it is not fair to deem the President's "Pulong-Pulong" as a "significant and noteworthy (an) events and views on matters of public interest" just because the President campaigned for "Yes" votes, while a "Pulong-Pulong" by those who would appeal for "No" votes cannot be similarly characterized. Our holding in respect to such conflicting contentions is that, while it may not be exactly proper to say, as the Comelec resolution in question puts it, that "(u)nder our Constitution, the President-Prime Minister has no counterpart, not even the Opposition still waiting in the uncertain wings of power", it is undeniable and but natural that the head of state of every country in the world must from the very nature of his position, be accorded certain privileges not equally available to those who are opposed to him in the sense that, since the head of state has the grave and tremendous responsibility of planning and implementing the plan of government itself, either by virtue of the popular mandate given to him under the corresponding provisions of the Constitution and the laws or any other duly recognized grant of power and authority, the opposition cannot be placed at par with him, since logically the opposition can only fiscalize the administration and punctualize its errors and shortcomings to the end that when the duly scheduled time for the people to exercise their inalienable power to make a better choice, the opposition may have the chance to make them accept the alternative they can offer.

Therefore, when the head of state is afforded the opportunity or when he feels it incumbent upon him to communicate and dialogue with the people on any matter affecting the plan of government or any other matter of public interest, no office or entity of the government is obliged to give the opposition the same facilities by which its contrary views may be ventilated. lf the opposition leaders feel any sense of responsibility in the premises to counter the administration, it is up to them and they are free to avail of their own resources to accomplish their purpose. But surely, it is not for the administration to hand them on a silver platter the weapon they need. We are not aware that there is any existing system of government anywhere in the world which is mandated to be so accommodating and generous to the opponents of the current administrators of the national affairs. In instances where the head of state is at the same time the president of the political party that is in power, it does not necessarily follow that he speaks with two voices when he dialogues with the governed. Unquestionably, there are matters of vital public interest wherein partisan considerations could in some degree be involved, but then such partisan interest would be purely secondary. The President/Prime Minister of the Philippines is the political head of all the people. His is the sacred responsibility to protect and defend the security of all the people, the stability of the government and the integrity of the national territory, not only for the tenure to which he has been elected but for all times. When, as in the instant situation, he deems it warranted by the circumstances to present to them a plan of government which includes the modification of the existing structure of government together with its concomitant allocation of governmental powers, it is not only his right but his duty to take the people directly into his confidence and impart to them to the fullest measure of his capacity and by all available adequate means the reasons therefor and the corrollarily advantages thereof to their welfare. The opposition, if it opines otherwise, has naturally the indisputable right to make every effort to thwart his objective. But, surely, this is far from saying that it is the duty of the administration to generously grant to them the means to wage their campaign against it. The long and short of the foregoing is that it is not true that in speaking as he did in the "Pulong-Pulong sa Pangulo" on March 21, 1981, he spoke not only as President-Prime Minister but also as head of the KBL, the political party now in power. It was in the former capacity that he did so. If in any way, what he said would induce the people to accept the proposed amendments, his exposition of the advantages thereof was not to promote the interest of that party but to improve the quality of the government thereby to enable him or anyone who may be chosen by the people to take his place to better serve the welfare not only of the KBL but of all of us, including those who are minded, for reasons of their own, to oppose the amendments. In any event, petitioner has failed to persuade Us that the grant of the prayer in its petition compellingly pertains to it under the provisions of the Constitution, the Election Code of 1978 and the general resolutions and regulations of respondent Comelec regarding equal opportunity among contending political parties, groups, aggrupations or individuals. The Comelec has indeed the power to supervise and regulate the mass media in such respect, but such authority arises only when there is a showing that any sector or member of the media has denied to any party or person the

right to which it or he is entitled. What is more, there are other political parties similarly situated as petitioner. To grant to petitioner what it wants, it must necessarily follow that such other parties should also be granted. As already indicated earlier, that would be too much to expect from the media that has also its own right to earn its wherewithal. But most importantly, the Comelec is not supposed to dictate to the media when its prerogatives in the premises is not invoked in the proper manner, that is, after denial to the petitioner by the media is shown. And then, it is an inalienable right of the sector or member of the media concerned to be duly heard as an indispensable party. Thus, for being beyond what the charter, the laws and pertinent Comelec regulations contemplate, for being more than what the opposition is duly entitled vis-a-vis the duty, obligation and/or privilege inherent in the head of state to directly dialogue with the sovereign people when the occasion demands, for being impractical under prevailing circumstances, and for its failure to join in the instant petition indispensable parties, thereby depriving the Court of jurisdiction to act, and for these alone among other reasons which there is hardly time to state herein, the prayer in the instant petition cannot be granted. WHEREFORE, the appeal herein is dismissed, without costs. [G.R. No. 132231. March 31, 1998] EMILIO M. R. OSMEA and PABLO P. GARCIA, petitioners, vs. THE COMMISSION ON ELECTIONS, respondent. DECISION MENDOZA, J.: This is a petition for prohibition, seeking a reexamination of the validity of 11(b) of R.A. No. 6646, the Electoral Reforms Law of 1987, which 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.[1] Petitioners are candidates for public office in the forthcoming elections. Petitioner Emilio M. R. Osmea is candidate for President of the Philippines, while petitioner Pablo P. Garcia is governor of Cebu Province, seeking reelection. They contend that events after the ruling in National Press Club v. Commission on Elections[2] have called into question the validity of the very premises of that [decision].[3] There Is No Case or Controversy to Decide, Only an Academic Discussion to Hold NPC v. COMELEC upheld the validity of 11(b) of R.A. No. 6646 against claims that it abridged freedom of speech and of the press.[4] In urging a reexamination of that ruling, petitioners claim that experience in the last five years since the decision in that case has shown the undesirable effects of the law because the ban on political advertising has not only failed to level the playing field, [but] actually worked to the grave disadvantage of the poor candidate[s][5] by depriving them of a medium which they can afford to pay for while their more affluent rivals can always resort to other means of reaching voters like airplanes, boats, rallies, parades, and handbills. No empirical data have been presented by petitioners to back up their claim, however. Argumentation is made at the theoretical and not the practical level. Unable to show the experience and subsequent events which they claim

invalidate the major premise of our prior decision, petitioners now say there is no need for empirical data to determine whether the political ad ban offends the Constitution or not.[6] Instead they make arguments from which it is clear that their disagreement is with the opinion of the Court on the constitutionality of 11(b) of R.A. No. 6646 and that what they seek is a reargument on the same issue already decided in that case. What is more, some of the arguments were already considered and rejected in the NPC case.[7] Indeed, petitioners do not complain of any harm suffered as a result of the operation of the law. They do not complain that they have in any way been disadvantaged as a result of the ban on media advertising. Their contention that, contrary to the holding in NPC, 11(b) works to the disadvantage of candidates who do not have enough resources to wage a campaign outside of mass media can hardly apply to them. Their financial ability to sustain a long drawn-out campaign, using means other than the mass media to communicate with voters, cannot be doubted. If at all, it is candidates like intervenor Roger Panotes, who is running for mayor of Daet, Camarines Norte, who can complain against 11(b) of R.A. No. 6646. But Panotes is for the law which, he says, has to some extent, reduced the advantages of moneyed politicians and parties over their rivals who are similarly situated as ROGER PANOTES. He claims that the elimination of this substantial advantage is one reason why ROGER PANOTES and others similarly situated have dared to seek an elective position this coming elections.[8] What petitioners seek is not the adjudication of a case but simply the holding of an academic exercise. And since a majority of the present Court is unpersuaded that its decision in NPC is founded in error, it will suffice for present purposes simply to reaffirm the ruling in that case. Stare decisis et non quieta movere. This is what makes the present case different from the overruling decisions[9] invoked by petitioners. Nevertheless, we have undertaken to revisit the decision in NPC v. COMELEC in order to clarify our own understanding of its reach and set forth a theory of freedom of speech. No Ad Ban, Only a Substitution of COMELEC Space and COMELEC Time for the Advertising Page and Commercials in Mass Media The term political ad ban, when used to describe 11(b) of R.A. No. 6646, is misleading, for even as 11(b) prohibits the sale or donation of print space and air time to political candidates, it mandates the COMELEC to procure and itself allocate to the candidates space and time in the media. There is no suppression of political ads but only a regulation of the time and manner of advertising. Thus, 11(b) states: Prohibited Forms of Election Propaganda. In addition to the forms of election propaganda prohibited in Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: .... (b) for any newspapers, radio broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the

Commission as provided under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period. On the other hand, the Omnibus Election Code provisions referred to in 11(b) read: SEC. 90. Comelec space. - The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as Comelec Space wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated. (Sec. 45, 1978 EC). SEC. 92. Comelec time. - The Commission shall procure radio and television time to be known as Comelec Time which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Sec. 46, 1978 EC) The laws concern is not with the message or content of the ad but with ensuring media equality between candidates with deep pockets, as Justice Feliciano called them in his opinion of the Court in NPC, and those with less resources.[10] The law is part of a package of electoral reforms adopted in 1987. Actually, similar effort was made in 1970 to equalize the opportunity of candidates to advertise themselves and their programs of government by requiring the COMELEC to have a COMELEC space in newspapers, magazines, and periodicals and prohibiting candidates to advertise outside such space, unless the names of all the other candidates in the district in which the candidate is running are mentioned with equal prominence. The validity of the law was challenged in Badoy, Jr. v. COMELEC.[11] The voting was equally divided (5-5), however, with the result that the validity of the law was deemed upheld. There is a difference in kind and in severity between restrictions such as those imposed by the election law provisions in question in this case and those found to be unconstitutional in the cases cited by both petitioners and the Solicitor General, who has taken the side of petitioners. In Adiong v. COMELEC[12] the Court struck down a regulation of the COMELEC which prohibited the use of campaign decals and stickers on mobile units, allowing their location only in the COMELEC common poster area or billboard, at the campaign headquarters of the candidate or his political party, or at his residence. The Court found the restriction so broad that it encompasses even the citizens private property, which in this case is a privately-owned car.[13] Nor was there a substantial governmental interest justifying the restriction. [T]he constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, Section 1 in relation to Article IX(c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the

paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance.[14] Mutuc v. COMELEC[15] is of a piece with Adiong. An order of the COMELEC prohibiting the playing of taped campaign jingles through sound systems mounted on mobile units was held to be an invalid prior restraint without any apparent governmental interest to promote, as the restriction did not simply regulate time, place or manner but imposed an absolute ban on the use of the jingles. The prohibition was actually content-based and was for that reason bad as a prior restraint on speech, as inhibiting as prohibiting the candidate himself to use the loudspeaker. So is a ban against newspaper columnists expressing opinion on an issue in a plebiscite a content restriction which, unless justified by compelling reason, is unconstitutional.[16] Here, on the other hand, there is no total ban on political ads, much less restriction on the content of the speech. Given the fact that print space and air time can be controlled or dominated by rich candidates to the disadvantage of poor candidates, there is a substantial or legitimate governmental interest justifying exercise of the regulatory power of the COMELEC under Art. IX-C, 4 of the Constitution, which provides: The commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful, and credible elections. The provisions in question involve no suppression of political ads. They only prohibit the sale or donation of print space and air time to candidates but require the COMELEC instead to procure space and time in the mass media for allocation, free of charge, to the candidates. In effect, during the election period, the COMELEC takes over the advertising page of newspapers or the commercial time of radio and TV stations and allocates these to the candidates. Nor can the validity of the COMELEC take-over for such temporary period be doubted.[17] In Pruneyard Shopping Center v. Robbins,[18] it was held that a court order compelling a private shopping center to permit use of a corner of its courtyard for the purpose of distributing pamphlets or soliciting signatures for a petition opposing a UN resolution was valid. The order neither unreasonably impaired the value or use of private property nor violated the owners right not to be compelled to express support for any viewpoint since it can always disavow any connection with the message. On the other hand, the validity of regulations of time, place and manner, under well-defined standards, is well-nigh beyond question.[19] What is involved here is simply regulation of this nature. Instead of leaving candidates to advertise freely in the mass media, the law provides for allocation, by the COMELEC, of print space and air time to give all candidates equal time

and space for the purpose of ensuring free, orderly, honest, peaceful, and credible elections. In Gonzales v. COMELEC,[20] the Court sustained the validity of a provision of R.A. No. 4880 which in part reads: SEC. 50-B. Limitation upon the period of Election Campaign or Partisan Political Activity. - It is unlawful for any person whether or not a voter or candidate, or for any group, or association of persons, whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term Candidate refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term Election Campaign or Partisan Political Activity refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office which shall include: (a) Forming Organizations, Associations, Clubs, Committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) Holding political conventions, 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 or party; . . . In Valmonte v. COMELEC,[21] on the other hand, the Court upheld the validity of a COMELEC resolution prohibiting members of citizen groups or associations from entering any polling place except to vote. Indeed, 261(k) of the Omnibus Election Code makes it unlawful for anyone to solicit votes in the polling place and within a radius of 30 meters thereof. These decisions come down to this: the State can prohibit campaigning outside a certain period as well as campaigning within a certain place. For unlimited expenditure for political advertising in the mass media skews the political process and subverts democratic self-government. What is bad is if the law prohibits campaigning by certain candidates because of the views expressed in the ad. Content regulation cannot be done in the absence of any compelling reason. Law Narrowly Drawn to Fit Regulatory Purpose The main purpose of 11(b) is regulatory. Any restriction on speech is only incidental, and it is no more than is necessary to achieve its purpose of promoting equality of opportunity in the use of mass media for political advertising. The restriction on speech, as pointed out in NPC, is limited both as to time and as to scope. Petitioners and the dissenters make little of this on the ground that the regulation, which they call a ban, would be useless any other time than the election period. Petitioners state: [I]n testing the reasonableness of a ban on mountain-skiing, one

cannot conclude that it is limited because it is enforced only during the winter season.[22] What makes the regulation reasonable is precisely that it applies only to the election period. Its enforcement outside the period would make it unreasonable. More importantly, it should be noted that a ban on mountain skiing would be passive in nature. It is like the statutory cap on campaign expenditures, but is so unlike the real nature of 11(b), as already explained. Petitioners likewise deny that 11(b) is limited in scope, as they make another quaint argument: A candidate may court media to report and comment on his person and his programs, and media in the exercise of their discretion just might. It does not, however, follow that a candidates freedom of expression is thereby enhanced, or less abridged. If Pedro is not allowed to speak, but Juan may speak of what Pedro wishes to say, the curtailment of Pedros freedom of expression cannot be said to be any less limited, just because Juan has the freedom to speak.[23] The premise of this argument is that 11(b) imposes a ban on media political advertising. What petitioners seem to miss is that the prohibition against paid or sponsored political advertising is only half of the regulatory framework, the other half being the mandate of the COMELEC to procure print space and air time so that these can be allocated free of charge to the candidates. Reform of the Marketplace of Ideas, Not Permissible? Petitioners argue that the reasoning of NPC is flawed, because it rests on a misconception that Art. IX-C, 4 mandates the absolute equality of all candidates regardless of financial status, when what this provision speaks of is equality of opportunity. In support of this claim, petitioners quote the following from the opinion of the Court written by Justice Feliciano: The objective which animates Section 11(b) is the equalizing, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign war chests.[24] The Court meant equalizing media access, as the following sentences which were omitted clearly show: Section 11(b) prohibits the sale or donation of print space and air time for campaign or other political purposes except to the Commission on Elections (Comelec). Upon the other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to procure Comelec space in newspapers of general circulation in every province or city and Comelec time on radio and television stations. Further, the Comelec is statutorily commanded to allocate Comelec space and Comelec time on a free of charge, equal and impartial basis among all candidates within the area served by the newspaper or radio and television station involved.[25] On the other hand, the dissent of Justice Romero in the present case, in batting for an uninhibited market place of ideas, quotes the following from Buckley v. Valeo: [T]he 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.[26] But do we really believe in that? That statement was made to justify striking down a limit on campaign expenditure on the theory that money is speech. Do those who endorse the view that government may not restrict the speech of some in order to enhance the relative voice of others also think that the campaign expenditure limitation found in our election laws[27] is unconstitutional? How about the principle of one person, one vote,[28] is this not based on the political equality of voters? Voting after all is speech. We speak of it as the voice of the people - even of God. The notion that the government may restrict the speech of some in order to enhance the relative voice of others may be foreign to the American Constitution. It is not to the Philippine Constitution, being in fact an animating principle of that document. Indeed, Art. IX-C, 4 is not the only provision in the Constitution mandating political equality. Art. XIII, 1 requires Congress to give the highest priority to the enactment of measures designed to reduce political inequalities, while Art. II, 26 declares as a fundamental principle of our government equal access to opportunities for public service. Access to public office will be denied to poor candidates if they cannot even have access to mass media in order to reach the electorate. What fortress principle trumps or overrides these provisions for political equality? Unless the idealism and hopes which fired the imagination of those who framed the Constitution now appear dim to us, how can the electoral reforms adopted by them to implement the Constitution, of which 11(b) of R.A. No. 6646, in relation to 90 and 92 are part, be considered infringements on freedom of speech? That the framers contemplated regulation of political propaganda similar to 11(b) is clear from the following portion of the sponsorship speech of Commissioner Vicente B. Foz: MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment or utilization of 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, there is a provision that during the election period, the Commission may regulate, among other things, the rates, reasonable free space, and time allotments for public information campaigns and forums among candidates for the purpose of ensuring free, orderly, honest and peaceful elections. This has to do with the media of communication or information.[29] On the Claim that the Reforms Have Been Ineffectual Petitioners contend that 11(b) is not a reasonable means for achieving the purpose for which it was enacted. They claim that instead of levelling the playing field as far as the use of mass media for political campaign is concerned, 11(b) has abolished it. They further claim that 11(b) does not prevent rich candidates from using their superior resources to the disadvantage of poor candidates. All this is of course mere allegation. As stated in the beginning, what petitioners claim to be the nations experience

with the law is merely argumentation against its validity. The claim will not bear analysis, however. Assuming that rich candidates can spend for parades, rallies, motorcades, airplanes and the like in order to campaign while poor candidates can only afford political ads, the gap between the two will not necessarily be reduced by allowing unlimited mass media advertising because rich candidates can spend for other propaganda in addition to mass media advertising. Moreover, it is not true that 11(b) has abolished the playing field. What it has done, as already stated, is merely to regulate its use through COMELEC-sponsored advertising in place of advertisements paid for by candidates or donated by their supporters. It is finally argued that COMELEC Space and COMELEC Time are ineffectual. It is claimed that people hardly read or watch or listen to them. Again, this is a factual assertion without any empirical basis to support it. What is more, it is an assertion concerning the adequacy or necessity of the law which should be addressed to Congress. Well-settled is the rule that the choice of remedies for an admitted social malady requiring government action belongs to Congress. The remedy prescribed by it, unless clearly shown to be repugnant to fundamental law, must be respected.[30] As shown in this case, 11(b) of R.A. 6646 is a permissible restriction on the freedom of speech, of expression and of the press. Dissenting, Justice Panganiban argues that advertising is the most effective means of reaching voters. He adverts to a manifestation of the COMELEC lawyer that the Commission is not procuring [Comelec Space] by virtue of the effects of the decision of this Honorable Court in the case of Philippine Press Institute (PPI) vs. Comelec, 244 SCRA 272.[31] To be sure, this Court did not hold in PPI v. COMELEC that it should not procure newspaper space for allocation to candidates. What it ruled is that the COMELEC cannot procure print space without paying just compensation. Whether by its manifestation the COMELEC meant it is not going to buy print space or only that it will not require newspapers to donate free of charge print space is not clear from the manifestation. It is to be presumed that the COMELEC, in accordance with its mandate under 11(b) of R.A. No. 6646 and 90 of the Omnibus Election Code, will procure print space for allocation to candidates, paying just compensation to newspapers providing print space. In any event, the validity of a law cannot be made to depend on the faithful compliance of those charged with its enforcement but by appropriate constitutional provisions. There is a remedy for such lapse if it should happen. In addition, there is the COMELEC Time during which candidates may advertise themselves. Resolution No. 2983-A of the COMELEC provides: SEC. 2. Grant of Comelec Time. Every radio broadcasting and television station operating under franchise shall grant the Commission, upon payment of just compensation, at least thirty (30) minutes of prime time daily, to be known as Comelec Time, effective February 10, 1998 for candidates for President, Vice-President and Senators, and effective March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasis added) Failure of Legislative Remedy Bespeaks of More than Congressional Inaction

The fact is that efforts have been made to secure the amendment or even repeal of 11(b) of R.A. No. 6646. No less than five bills[32] were filed in the Senate in the last session of Congress for this purpose, but they all failed of passage. Petitioners claim it was because Congress adjourned without acting on them. But that is just the point. Congress obviously did not see it fit to act on the bills before it adjourned. We thus have a situation in which an act of Congress was found by this Court to be valid so that those opposed to the statute resorted to the legislative department. The latter reconsidered the question but after doing so apparently found no reason for amending the statute and therefore did not pass any of the bills filed to amend or repeal the statute. Must this Court now grant what Congress denied to them? The legislative silence here certainly bespeaks of more than inaction. Test for Content-Neutral Restrictions[33] In Adiong v. COMELEC[34] this Court quoted the following from the decision of the U.S. Supreme Court in a case sustaining a Los Angeles City ordinance which prohibited the posting of campaign signs on public property: A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118[1984])[35] This test was actually formulated in United States v. OBrien. [36] It is an appropriate test for restrictions on speech which, like 11(b), are content-neutral. Unlike content-based restrictions, they are not imposed because of the content of the speech. For this reason, content-neutral restrictions are tests demanding standards. For example, a rule such as that involved in Sanidad v. COMELEC,[37] prohibiting columnists, commentators, and announcers from campaigning either for or against an issue in a plebiscite must have a compelling reason to support it, or it will not pass muster under strict scrutiny. These restrictions, it will be seen, are censorial and therefore they bear a heavy presumption of constitutional invalidity. In addition, they will be tested for possible overbreadth and vagueness. It is apparent that these doctrines have no application to content-neutral regulations which, like 11(b), are not concerned with the content of the speech. These regulations need only a substantial governmental interest to support them. [38] A deferential standard of review will suffice to test their validity. Justice Panganibans dissent invokes the clear-and-presentdanger test and argues that media ads do not partake of the real substantive evil that the state has a right to prevent and that justifies the curtailment of the peoples cardinal right to choose their means of expression and of access to information. The clear-and-present-danger test is not, however, a sovereign remedy for all free speech problems. As has been pointed out by a thoughtful student of constitutional law, it was originally formulated for the criminal law and only later appropriated for free speech cases. For the criminal law is necessarily concerned with the line at which innocent

preparation ends and a guilty conspiracy or attempt begins. [39] Clearly, it is inappropriate as a test for determining the constitutional validity of laws which, like 11(b) of R.A. No. 6646, are not concerned with the content of political ads but only with their incidents. To apply the clear-and-presentdanger test to such regulatory measures would be like using a sledgehammer to drive a nail when a regular hammer is all that is needed. The reason for this difference in the level of justification for the restriction of speech is that content-based restrictions distort public debate, have improper motivation, and are usually imposed because of fear of how people will react to a particular speech. No such reasons underlie content-neutral regulations, like regulations of time, place and manner of holding public assemblies under B.P. Blg. 880, the Public Assembly Act of 1985. Applying the OBrien test in this case, we find that 11(b) of R.A. No. 6646 is a valid exercise of the power of the State to regulate media of communication or information for the purpose of ensuring equal opportunity, time and space for political campaigns; that the regulation is unrelated to the suppression of speech; that any restriction on freedom of expression is only incidental and no more than is necessary to achieve the purpose of promoting equality. ________________ The Court is just as profoundly aware as anyone else that 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. But it is precisely with this awareness that we think democratic efforts at reform should be seen for what they are: genuine efforts to enhance the political process rather than infringements on freedom of expression. The statutory provision involved in this case is part of the reform measures adopted in 1987 in the aftermath of EDSA. A reform-minded Congress passed bills which were consolidated into what is now R.A No. 6646 with near unanimity. The House of Representatives, of which petitioner Pablo P. Garcia was a distinguished member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor, while the Senate approved it 19-0. [40] In his recent book, The Irony of Free Speech, Owen Fiss speaks of a truth that is full of irony and contradiction: that the state can be both an enemy and a friend of speech; that it can do terrible things to undermine democracy but some wonderful things to enhance it as well.[41] We hold R.A. No. 6646, 11(b) to be such a democracy-enhancing measure. For Holmess marketplace of ideas can prove to be nothing but a romantic illusion if the electoral process is badly skewed, if not corrupted, by the unbridled use of money for campaign propaganda. The petition is DISMISSED. SO ORDERED. G.R. No. 102653 March 5, 1992

PHILIPPINE PRESS INSTITUTE represented by ZOILO DEJARESCO, JR., as its Past Chairman and President, and FRAULIN A. PEASALES as its Corporate Secretary, petitioners, vs. COMMISSION ON ELECTIONS, represented by HON. CHRISTIAN MONSOD, its Chairman; HON. GUILLERMO CARAGUE and HON. ROSALINA S. CAJUCOM, respondents. G.R. No. 102983 March 5, 1992

KAPISANAN NG MGA BRODKASTERS SA PILIPINAS; MAKATI BROADCASTING NETWORK; MOLAVE BROADCASTING NETWORK; MASBATE COMMUNITY BROADCASTING CO., INC., RADIO MINDANAO NETWORK, INC.; ABS-CBN BROADCASTING CORP.; FILIPINAS BROADCASTING; RADIO PILIPINO CORP.; RADIO PHILIPPINES NETWORK, INC.; EAGLE BROADCASTING CORP.; MAGILIW COMMUNITY BROADCASTING CO., INC.; for themselves and in behalf of the mass media owners as a class; ANDRE S. KHAN; ARCADIO M. CARANDANG, JR.; MALOU ESPINOSA MANALASTAS; MIGUEL C. ENRIQUEZ; JOSE ANTONIO K. VELOSO; DIANA G. DE GUZMAN; JOSE E. ESCANER, JR.; RAY G. PEDROCHE; PETER A. LAGUSAY; ROBERT ESTRELLA; ROLANDO RAMIREZ; for themselves as voters and in behalf of the Philippine electorate as a class; ORLANDO S. MERCADO and ALEJANDRO de G. RODRIGUEZ; for themselves as prospective candidates and in behalf of all candidates in the May 1992 election as a class, petitioners, vs. COMMISSION ON ELECTIONS, respondent.

FELICIANO, J.: In the three (3) consolidated Petitions before us, the common question raised by petitioners is the constitutionality of Section 11 (b) of Republic Act No. 6646. Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating space and time for political advertisements; two (2) individuals who are candidates for office (one for national and the other for provincial office) in the coming May 1992 elections; and taxpayers and voters who claim that their right to be informed of election issues and of credentials of the candidates is being curtailed. It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and violates the constitutional guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (b) amounts to censorship, because it selects and singles out for suppression and repression with criminal sanctions, only publications of a particular content, namely, media-based election or political propaganda during the election period of 1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide adequate channels of public information and public opinion relevant to election issues. Further, petitioners contend that Section 11 (b) abridges the freedom of speech of candidates, and that the suppression of media-based campaign or political propaganda except those appearing in the Comelec space of the newspapers and on Comelec time of radio and television

NATIONAL PRESS CLUB, petitioner, vs. COMMISSION ON ELECTIONS, respondent. G.R. No. 102925 March 5, 1992

broadcasts, would bring about a substantial reduction in the quantity or volume of information concerning candidates and issues in the election thereby curtailing and limiting the right of voters to information and opinion. The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of Republic Act No. 6646, known as the Electoral Reforms Law of 1987: Sec. 11 Prohibited Forms of Election Propaganda. In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful; xxx xxx xxx

No one seriously disputes the legitimacy or the importance of the objective sought to be secured by Section 11 (b) (of Republic Act No. 6646) in relation to Sections 90 and 92 (of the Omnibus Election Code). That objective is of special importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution between the economic elite and the rest of society, and by the prevalence of poverty, with the bulk of our population falling below that "poverty line." It is supremely important, however, to note that objective is not only a concededly legitimate one; it has also been given constitutional status by the terms of Article IX(C) (4) of the 1987 Constitution which provides as follows: Sec. 4. The Commission [on Elections] 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 governmentowned 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) The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization of the franchises or permits for the operation of media of communication and information. The fundamental purpose of such "supervision or regulation" has been spelled out in the Constitution as the ensuring of "equal opportunity, time, and space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in connection with "public information campaigns and forums among candidates." 1 It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C) (4) which may be seen to be a special provision applicable during a specific limited period i.e., "during the election period." It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the press in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process by which the people identify those who shall have governance over them. Thus, it is frequently said that these rights are accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press are not unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law." 2 The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in

b) for any newspapers, radio broadcasting or television station, other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from his work as such during the campaign period. (Emphasis supplied) Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P. Blg. 881, known as the Omnibus Election Code of the Philippines, which provide respectively as follows: Sec. 90. Comelec space. The Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the Commission among all candidates within the area in which the newspaper is circulated. xxx xxx xxx

Sec. 92. Comelec time. The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. (Emphasis supplied) The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of rich and poor candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests." Section 11 (b) prohibits the sale or donation of print space and air time "for campaign or other political purposes" except to the Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the Omnibus Election Code require the Comelec to procure "Comelec space" in newspapers of general circulation in every province or city and "Comelec time" on radio and television stations. Further, the Comelec is statutorily commanded to allocate "Comelec space" and "Comelec time" on a free of charge, equal and impartial basis among all candidates within the area served by the newspaper or radio and television station involved.

respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-honored one that a statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of clearly and convincingly proving that assertion. 3 Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the police power of the State and the requisites for constitutionally valid exercise of that power. The essential question is whether or not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or regulation of the operations of communication and information enterprises during an election period, or whether such act has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional repression of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the permissible bounds of supervision or regulation of media operations during election periods. In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of the limitations resulting from the particular measure being assayed upon freedom of speech and freedom of the press are essential considerations. It is important to note that the restrictive impact upon freedom of speech and freedom of the press of Section 11 (b) is circumscribed by certain important limitations. Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. By its Resolution No. 2328 dated 2 January 1992, the Comelec, acting under another specific grant of authority by the Constitution (Article IX [C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as the relevant election period. Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows that it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, 4 of print space and air time for "campaign or other political purposes." Section 11 (b) does not purport in any way to restrict the reporting by newspapers or radio or television stations of news or newsworthy events relating to candidates, their qualifications, political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report or commentary other coverage that, in responsible media, is not paid for by candidates for political office. We read Section 11 (b) as designed to cover only paid political advertisements of particular candidates. The above limitation in scope of application of Section 11 (b) that it does not restrict either the reporting of or the expression

of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates for office constitutes the critical distinction which must be made between the instant case and that of Sanidad v. Commission on Elections. 5 In Sanidad, the Court declared unconstitutional Section 19 of Comelec Resolution No. 2167 which provided as follows: Sec. 19. Prohibition on Columnists, Commentators or Announcers During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues. Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite mandated by R.A. No. 6766 on the ratification or adoption of the Organic Act for the Cordillera Autonomous Region. The Court held that Resolution No. 2167 constituted a restriction of the freedom of expression of petitioner Sanidad, a newspaper columnist of the Baguio Midland Courier, "for no justifiable reason." The Court, through Medialdea, J., said: . . . [N]either Article, IX-C of the Constitution nor Section 11 [b], 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in the plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis." 6 (Emphasis partly in the original and partly supplied) There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts from its prohibition the purchase by or donation to the Comelec of print space or air time, which space and time Comelec is then affirmatively required to allocate on a fair and equal basis, free of charge, among the individual candidates for elective public offices in the province or city served by the newspaper or radio or television station. Some of the petitioners are apparently apprehensive that Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal basis among the several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by unequal or unfair allocations effected by Comelec will have appropriate judicial remedies available, so long at least as this Court sits. Until such time, however, the Comelec is entitled to the benefit of the presumption that official duty will be or is being regularly carried out. It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral Commission 7 that the possibility of abuse is no argument against the concession of the power or authority involved, for there is no power or authority in human society that is not susceptible of being abused. Should it be objected that the Comelec might refrain from procuring "Comelec time" and "Comelec space," much the same considerations should be borne in mind. As earlier noted, the Comelec is commanded by statute to buy or "procure" "Comelec time" and "Comelec space" in mass media, and it must be presumed that Comelec will carry out that statutory duty in this connection, and if it does fail to do so, once again, the candidate or candidates who feel aggrieved have judicial remedies at their disposal.

The points that may appropriately be underscored are that Section 11 (b) does not cut off the flow of media reporting, opinion or commentary about candidates, their qualifications and platforms and promises. Newspaper, radio broadcasting and television stations remain quite free to carry out their regular and normal information and communication operations. Section 11 (b) does not authorize any intervention and much less control on the part of Comelec in respect of the content of the normal operations of media, nor in respect of the content of political advertisements which the individual candidates are quite free to present within their respective allocated Comelec time and Comelec space. There is here no "officious functionary of [a] repressive government" dictating what events or ideas reporters, broadcasters, editors or commentators may talk or write about or display on TV screens. There is here no censorship, whether disguised or otherwise. What Section 11 (b), viewed in context, in fact does is to limit paid partisan political advertisements to for a other than modern mass media, and to "Comelec time" and "Comelec space" in such mass media. Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves. The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article IX(C) (4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio and television time that the resources of the financially affluent candidates are likely to make a crucial difference. Here lies the core problem of equalization of the situations of the candidates with deep pockets and the candidates with shallow or empty pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the statutory mechanism which Section 11 (b) brings into operation is designed and may be expected to bring about or promote equal opportunity, and equal time and space, for political candidates to inform all and sundry about themselves, cannot be gainsaid. My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to his strained rival." True enough Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election Code, place political candidates on complete and perfect equality inter se without regard to their financial affluence or lack thereof. But a regulatory measure that is less than perfectly comprehensive or which does not completely obliterate the evil sought to be remedied, is not for that reason alone constitutionally infirm. The Constitution does not, as it cannot, exact perfection in governmental regulation. All it requires, in accepted doctrine, is that the regulatory measure under challenge bear a reasonable nexus with the constitutionally sanctioned objective. That the supervision or regulation of communication and information media is not, in itself, a forbidden modality is made clear by the Constitution itself in Article IX (C) (4). It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves may be seen to be not unduly repressive or unreasonable. For, once again, there is nothing in Section 11 (b) to prevent media reporting of and commentary on pronouncements, activities, written statements of the

candidates themselves. All other fora remain accessible to candidates, even for political advertisements. The requisites of fairness and equal opportunity are, after all, designed to benefit the candidates themselves. Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be totally disregarded. Realistically, the only limitation upon the free speech of candidates imposed is on the right of candidates to bombard the helpless electorate with paid advertisements commonly repeated in the mass media ad nauseam. Frequently, such repetitive political commercials when fed into the electronic media themselves constitute invasions of the privacy of the general electorate. It might be supposed that it is easy enough for a person at home simply to flick off his radio of television set. But it is rarely that simple. For the candidates with deep pockets may purchase radio or television time in many, if not all, the major stations or channels. Or they may directly or indirectly own or control the stations or channels themselves. The contemporary reality in the Philippines is that, in a very real sense, listeners and viewers constitute a "captive audience." 8 The paid political advertisement introjected into the electronic media and repeated with mind-deadening frequency, are commonly intended and crafted, not so much to inform and educate as to condition and manipulate, not so much to provoke rational and objective appraisal of candidates' qualifications or programs as to appeal to the non-intellective faculties of the captive and passive audience. The right of the general listening and viewing public to be free from such intrusions and their subliminal effects is at least as important as the right of candidates to advertise themselves through modern electronic media and the right of media enterprises to maximize their revenues from the marketing of "packaged" candidates. WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No pronouncement as to costs. SO ORDERED. G.R. No. 103956 March 31, 1992

BLO UMPAR ADIONG, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

GUTIERREZ, JR., J.: The specific issue in this petition is whether or not the Commission on Elections (COMELEC) may prohibit the posting of decals and stickers on "mobile" places, public or private, and limit their location or publication to the authorized posting areas that it fixes. On January 13, 1992, the COMELEC promulgated Resolution No. 2347 pursuant to its powers granted by the Constitution, the Omnibus Election Code, Republic Acts Nos. 6646 and 7166 and other election laws. Section 15(a) of the resolution provides: Sec. 15. Lawful Election Propaganda. The following are lawful election propaganda:

(a) Pamphlets, leaflets, cards, decals, stickers, handwritten or printed letters, or other written or printed materials not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length. Provided, That decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof. Section 21 (f) of the same resolution provides: Sec. 21(f). It is unlawful: xxx xxx xxx Prohibited forms of election propaganda.

except in the common poster areas and/or billboards provided in the immediately preceding section, at the candidate's own residence, or at the campaign headquarters of the candidate or political party: Provided, That such posters or election propaganda shall in no case exceed two (2) feet by three (3) feet in area: Provided, Further, That at the site of and on the occasion of a public meeting or rally, streamers, not more than two (2) and not exceeding three (3) feet by eight (8) feet each may be displayed five (5) days before the date of the meeting or rally, and shall be removed within twenty-four (24) hours after said meeting or rally; . . . (Emphasis supplied) Petitioner Blo Umpar Adiong, a senatorial candidate in the May 11, 1992 elections now assails the COMELEC's Resolution insofar as it prohibits the posting of decals and stickers in "mobile" places like cars and other moving vehicles. According to him such prohibition is violative of Section 82 of the Omnibus Election Code and Section 11(a) of Republic Act No. 6646. In addition, the petitioner believes that with the ban on radio, television and print political advertisements, he, being a neophyte in the field of politics stands to suffer grave and irreparable injury with this prohibition. The posting of decals and stickers on cars and other moving vehicles would be his last medium to inform the electorate that he is a senatorial candidate in the May 11, 1992 elections. Finally, the petitioner states that as of February 22, 1992 (the date of the petition) he has not received any notice from any of the Election Registrars in the entire country as to the location of the supposed "Comelec Poster Areas." The petition is impressed with merit. The COMELEC's prohibition on posting of decals and stickers on "mobile" places whether public or private except in designated areas provided for by the COMELEC itself is null and void on constitutional grounds. First the prohibition unduly infringes on the citizen's fundamental right of free speech enshrined in the Constitution (Sec. 4, Article III). There is no public interest substantial enough to warrant the kind of restriction involved in this case. There are various concepts surrounding the freedom of speech clause which we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom. All of the protections expressed in the Bill of Rights are important but we have accorded to free speech the status of a preferred freedom. (Thomas v. Collins, 323 US 516, 89 L. Ed. 430 [1945]; Mutuc v. Commission on Elections, 36 SCRA 228 [1970]) This qualitative significance of freedom of expression arises from the fact that it is the matrix, the indispensable condition of nearly every other freedom. (Palko v. Connecticut, 302 U.S. 319 [1937]; Salonga v. Pao, 134 SCRA 438 [1985]) It is difficult to imagine how the other provisions of the Bill of Rights and the right to free elections may be guaranteed if the freedom to speak and to convince or persuade is denied and taken away. We have adopted the principle that debate on public issues should be uninhibited, robust, and wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials. (New York Times Co. v. Sullivan, 376 U.S. 254, 11 L. Ed. 686 [1964]; cited in the concurring opinion of then Chief Justice Enrique Fernando in Babst v. National Intelligence Board, 132 SCRA 316

(f) To draw, paint, inscribe, post, display or publicly exhibit any election propaganda in any place, whether public or private, mobile or stationary, except in the COMELEC common posted areas and/or billboards, at the campaign headquarters of the candidate or political party, organization or coalition, or at the candidate's own residential house or one of his residential houses, if he has more than one: Provided, that such posters or election propaganda shall not exceed two (2) feet by three (3) feet in size. (Emphasis supplied) xxx xxx xxx

The statutory provisions sought to be enforced by COMELEC are Section 82 of the Omnibus Election Code on lawful election propaganda which provides: Lawful election propaganda. Lawful election propaganda shall include: (a) Pamphlets, leaflets, cards, decals, stickers or other written or printed materials of a size not more than eight and one-half inches in width and fourteen inches in length; (b) Handwritten or printed letters urging voters to vote for or against any particular candidate; (c) Cloth, paper or cardboard posters, whether framed or posted, with an area not exceeding two feet by three feet, except that, at the site and on the occasion of a public meeting or rally, or in announcing the holding of said meeting or rally, streamers not exceeding three feet by eight feet in size, shall be allowed: Provided, That said streamers may not be displayed except one week before the date of the meeting or rally and that it shall be removed within seventy-two hours after said meeting or rally; or (d) All other forms of election propaganda not prohibited by this Code as the Commission may authorize after due notice to all interested parties and hearing where all the interested parties were given an equal opportunity to be heard: Provided, That the Commission's authorization shall be published in two newspapers of general circulation throughout the nation for at least twice within one week after the authorization has been granted. (Section 37, 1978 EC) and Section 11(a) of Republic Act No. 6646 which provides: Prohibited Forms of Election Propaganda. In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or publicly exhibit any election propaganda in any place, whether private, or public,

[1984]) Too many restrictions will deny to people the robust, uninhibited, and wide open debate, the generating of interest essential if our elections will truly be free, clean and honest. We have also ruled that the preferred freedom of expression calls all the more for the utmost respect when what may be curtailed is the dissemination of information to make more meaningful the equally vital right of suffrage. (Mutuc v. Commission on Elections, supra) The determination of the limits of the Government's power to regulate the exercise by a citizen of his basic freedoms in order to promote fundamental public interests or policy objectives is always a difficult and delicate task. The so-called balancing of interests individual freedom on one hand and substantial public interests on the other is made even more difficult in election campaign cases because the Constitution also gives specific authority to the Commission on Elections to supervise the conduct of free, honest, and orderly elections. We recognize the fact that under the Constitution, the COMELEC during the election period is granted regulatory powers vis-a-vis the conduct and manner of elections, to wit: Sec. 4. The Commission may, during the election period supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants special privileges, or concessions granted by the Government or any subdivision, agency, or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable equal rates therefore, for public information campaigns and forms among candidates in connection with the object of holding free, orderly, honest, peaceful and credible elections. (Article IX(c) section 4) The variety of opinions expressed by the members of this Court in the recent case of National Press Club v. Commission on Elections (G.R. No. 102653, March 5, 1991) and its companion cases underscores how difficult it is to draw a dividing line between permissible regulation of election campaign activities and indefensible repression committed in the name of free and honest elections. In the National Press Club, case, the Court had occasion to reiterate the preferred status of freedom of expression even as it validated COMELEC regulation of campaigns through political advertisements. The gray area is rather wide and we have to go on a case to case basis. There is another problem involved. Considering that the period of legitimate campaign activity is fairly limited and, in the opinion of some, too short, it becomes obvious that unduly restrictive regulations may prove unfair to affected parties and the electorate. For persons who have to resort to judicial action to strike down requirements which they deem inequitable or oppressive, a court case may prove to be a hollow remedy. The judicial process, by its very nature, requires time for rebuttal, analysis and reflection. We cannot act instantly on knee-jerk impulse. By the time we revoke an unallowably restrictive regulation or ruling, time which is of the essence to a candidate may have lapsed and irredeemable opportunities may have been lost. When faced with border line situations where freedom to speak by a candidate or party and freedom to know on the part of the

electorate are invoked against actions intended for maintaining clean and free elections, the police, local officials and COMELEC, should lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate are not antagonistic. There can be no free and honest elections if in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed. There were a variety of opinions expressed in the National Press Club v. Commission on Elections (supra) case but all of us were unanimous that regulation of election activity has its limits. We examine the limits of regulation and not the limits of free speech. The carefully worded opinion of the Court, through Mr. Justice Feliciano, shows that regulation of election campaign activity may not pass the test of validity if it is too general in its terms or not limited in time and scope in its application, if it restricts one's expression of belief in a candidate or one's opinion of his or her qualifications, if it cuts off the flow of media reporting, and if the regulatory measure bears no clear and reasonable nexus with the constitutionally sanctioned objective. Even as the Court sustained the regulation of political advertisements, with some rather strong dissents, in National Press Club, we find the regulation in the present case of a different category. The promotion of a substantial Government interest is not clearly shown. A government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id., at 377, 20 L Ed 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466 US 789, 80 L Ed 2d 772, 104 S Ct 2118 [1984]) The posting of decals and stickers in mobile places like cars and other moving vehicles does not endanger any substantial government interest. There is no clear public interest threatened by such activity so as to justify the curtailment of the cherished citizen's right of free speech and expression. Under the clear and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a writing instrument to be stilled: The case confronts us again with the duty our system places on the Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedom secured by the first Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions and it is the character of the right, not of the limitation, which determines what standard governs the choice . . . For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other context might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever

occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the greatest abuses, endangering permanent interests, give occasion for permissible limitation. (Thomas V. Collins, 323 US 516 [1945]). (Emphasis supplied) Significantly, the freedom of expression curtailed by the questioned prohibition is not so much that of the candidate or the political party. The regulation strikes at the freedom of an individual to express his preference and, by displaying it on his car, to convince others to agree with him. A sticker may be furnished by a candidate but once the car owner agrees to have it placed on his private vehicle, the expression becomes a statement by the owner, primarily his own and not of anybody else. If, in the National Press Club case, the Court was careful to rule out restrictions on reporting by newspapers or radio and television stations and commentators or columnists as long as these are not correctly paid-for advertisements or purchased opinions with less reason can we sanction the prohibition against a sincere manifestation of support and a proclamation of belief by an individual person who pastes a sticker or decal on his private property. Second the questioned prohibition premised on the statute and as couched in the resolution is void for overbreadth. A statute is considered void for overbreadth when "it offends the constitutional principle that a governmental purpose to control or prevent activities constitutionally subject to state regulations may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]). In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose. In Lovell v. Griffin, 303 US 444, 82 L ed 949, 58 S Ct 666, the Court invalidated an ordinance prohibiting all distribution of literature at any time or place in Griffin, Georgia, without a license, pointing out that so broad an interference was unnecessary to accomplish legitimate municipal aims. In Schneider v. Irvington, 308 US 147, 84 L ed 155, 60 S Ct. 146, the Court dealt with ordinances of four different municipalities which either banned or imposed prior restraints upon the distribution of handbills. In holding the ordinances invalid, the court noted that where legislative abridgment of fundamental personal rights and liberties is asserted, "the courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions," 308 US, at 161. In Cantwell v Connecticut, 310 US 296, 84 L ed 1213, 60 S Ct. 900, 128 ALR 1352, the Court said that "[c]onduct remains subject to regulation for the protection of society," but pointed out that in each case "the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." (310 US at 304) (Shelton v. Tucker, 364 US 479 [1960]

The resolution prohibits the posting of decals and stickers not more than eight and one-half (8-1/2) inches in width and fourteen (14) inches in length in any place, including mobile places whether public or private except in areas designated by the COMELEC. Verily, the restriction as to where the decals and stickers should be posted is so broad that it encompasses even the citizen's private property, which in this case is a privatelyowned vehicle. In consequence of this prohibition, another cardinal rule prescribed by the Constitution would be violated. Section 1, Article III of the Bill of Rights provides that no person shall be deprived of his property without due process of law: Property is more than the mere thing which a person owns, it includes the right to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes. Property is more than the mere thing which a person owns. It is elementary that it includes the right to acquire, use, and dispose of it. The Constitution protects these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution save by the law of the land. 1 Cooley's Bl. Com. 127. (Buchanan v. Warley 245 US 60 [1917]) As earlier stated, we have to consider the fact that in the posting of decals and stickers on cars and other moving vehicles, the candidate needs the consent of the owner of the vehicle. In such a case, the prohibition would not only deprive the owner who consents to such posting of the decals and stickers the use of his property but more important, in the process, it would deprive the citizen of his right to free speech and information: Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society that, putting aside reasonable police and health regulations of time and manner of distribution, it must be fully preserved. The danger of distribution can so easily be controlled by traditional legal methods leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the constitution, the naked restriction of the dissemination of ideas." (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L. ed. 1313 [1943]) The right to property may be subject to a greater degree of regulation but when this right is joined by a "liberty" interest, the burden of justification on the part of the Government must be exceptionally convincing and irrefutable. The burden is not met in this case. Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or display of election propaganda in any place, whether public or private, except in the common poster areas sanctioned by COMELEC. This means that a private person cannot post his own crudely prepared personal poster on his own front door or on a post in his yard. While the COMELEC will certainly never require the absurd, there are no limits to what overzealous and partisan police officers, armed with a copy of the statute or regulation, may do. The provisions allowing regulation are so loosely worded that they include the posting of decals or stickers in the privacy of one's living room or bedroom. This is delegation running riot.

As stated by Justice Cardozo in his concurrence in Panama Refining Co. v. Ryan (293 U.S. 388; 79 L. Ed. 446 [1935), "The delegated power is unconfined and vagrant . . . This is delegation running riot. No such plentitude of power is susceptible of transfer." Third the constitutional objective to give a rich candidate and a poor candidate equal opportunity to inform the electorate as regards their candidacies, mandated by Article II, Section 26 and Article XIII, section 1 in relation to Article IX (c) Section 4 of the Constitution, is not impaired by posting decals and stickers on cars and other private vehicles. Compared to the paramount interest of the State in guaranteeing freedom of expression, any financial considerations behind the regulation are of marginal significance. Under section 26 Article II of the Constitution, "The State shall guarantee equal access to opportunities for public service, . . . while under section 1, Article XIII thereof "The Congress shall give highest priority to the enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good." (Emphasis supplied) It is to be reiterated that the posting of decals and stickers on cars, calesas, tricycles, pedicabs and other moving vehicles needs the consent of the owner of the vehicle. Hence, the preference of the citizen becomes crucial in this kind of election propaganda not the financial resources of the candidate. Whether the candidate is rich and, therefore, can afford to doleout more decals and stickers or poor and without the means to spread out the same number of decals and stickers is not as important as the right of the owner to freely express his choice and exercise his right of free speech. The owner can even prepare his own decals or stickers for posting on his personal property. To strike down this right and enjoin it is impermissible encroachment of his liberties. In sum, the prohibition on posting of decals and stickers on "mobile" places whether public or private except in the authorized areas designated by the COMELEC becomes censorship which cannot be justified by the Constitution: . . . The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, either substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical. corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. (Mutuc v. Commission on Elections, supra)

The unusual circumstances of this year's national and local elections call for a more liberal interpretation of the freedom to speak and the right to know. It is not alone the widest possible dissemination of information on platforms and programs which concern us. Nor are we limiting ourselves to protecting the unfettered interchange of ideas to bring about political change. (Cf. New York Times v. Sullivan, supra) The big number of candidates and elective positions involved has resulted in the peculiar situation where almost all voters cannot name half or even two-thirds of the candidates running for Senator. The public does not know who are aspiring to be elected to public office. There are many candidates whose names alone evoke qualifications, platforms, programs and ideologies which the voter may accept or reject. When a person attaches a sticker with such a candidate's name on his car bumper, he is expressing more than the name; he is espousing ideas. Our review of the validity of the challenged regulation includes its effects in today's particular circumstances. We are constrained to rule against the COMELEC prohibition. WHEREFORE, the petition is hereby GRANTED. The portion of Section 15 (a) of Resolution No. 2347 of the Commission on Elections providing that "decals and stickers may be posted only in any of the authorized posting areas provided in paragraph (f) of Section 21 hereof" is DECLARED NULL and VOID. SO ORDERED. G.R. No. 133486 January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION ON ELECTIONS, respondent. PANGANIBAN, J.: The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary, exit polls properly conducted and publicized can be vital tools in eliminating the evils of election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in the conduct of exit polls, without transgressing in any manner the fundamental rights of our people. The Case and the Facts Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution No. 98-14191 dated April 21, 1998. In the said Resolution, the poll body RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives from conducting such exit survey and to authorize the Honorable Chairman to issue the same. The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct

radio-TV coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for national officials particularly for President and Vice President, results of which shall be [broadcast] immediately."2 The electoral body believed that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National Movement for Free Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey. On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and desist, until further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were actually conducted and reported by media without any difficulty or problem. The Issues Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agents or representatives from conducting exit polls during the . . . May 11 elections."3 In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration of the assailed Comelec Resolution. The Court's Ruling The Petition5 is meritorious. Procedural Issues: Mootness and Prematurity The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and done with. Allegedly, there is no longer any actual controversy before us. The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on the people's fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of our democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will only postpone a task that could well crop up again in future elections.6 In any event, in Salonga v. Cruz Pao, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protection given by constitutional guarantees."7 Since the fundamental freedoms of speech and of the press are being invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of data derived therefrom. The solicitor general further contends that the Petition should be dismissed for petitioner's failure to exhaust available

remedies before the issuing forum, specifically the filing of a motion for reconsideration. This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice,8 when the issue involves the principle of social justice or the protection of labor,9 when the decision or resolution sought to be set aside is a nullity,10 or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available.11 The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections. Moreover, not only is time of the essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiorari is therefore justified. Main Issue: Validity of Conducting Exit Polls An exit poll is a species of electoral survey conducted by qualified individuals or groups of individuals for the purpose of determining the probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they have officially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advance overview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls had not been resorted to until the recent May 11, 1998 elections. In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to report balanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions." It argues that the holding of exit polls and the nationwide reporting their results are valid exercises of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion and grossly violated the petitioner's constitutional rights. Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of exit surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and cause confusion as to who are the winners and the [losers] in the election," which in turn may result in "violence and anarchy." Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution;12 and relevant provisions of the Omnibus

Election Code.13 It submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulation by the State in the legitimate exercise of its police power," such as in the present case. The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying the credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in general be manipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of votes conducted by the Commission, as well as the quick count undertaken by the Namfrel. Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on the freedoms of speech and of the press. Nature and Scope of Freedoms of Speech and of the Press The freedom of expression is a fundamental principle of our democratic government. It "is a 'preferred' right and, therefore, stands on a higher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom."14 Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press.15 In the landmark case Gonzales v. Comelec,16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any matter of public interest without prior restraint. The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the people in social and political decision-making, and of maintaining the balance between stability and change.17 It represents a profound commitment to the principle that debates on public issues should be uninhibited, robust, and wide open.18 It means more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinion on any of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom encompasses the thought we hate, no less than the thought we agree with. Limitations The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all times and under all circumstances.20 They are not immune to regulation by the State in the exercise of its police power.21 While the liberty to think is absolute, the power to express such thought in words and deeds has limitations. In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining the validity of restrictions to such freedoms, as follows:

These are the "clear and present danger" rule and the "dangerous tendency" rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. . . .23 The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent.24 Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugoso25 and American Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."32 A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the time element; the danger must not only be probable but very likely to be inevitable.33 The evil sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.34 Justification for a Restriction Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the presumption is against its validity.35 And it is respondent's burden to overthrow such presumption. Any act that restrains speech should be greeted with furrowed brows,36 so it has been said. To justify a restriction, the promotion of a substantial government interest must be clearly shown.37 Thus: A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.38 Hence, even though the government's purposes are legitimate and substantial, they cannot be pursued by means that broadly

stifle fundamental personal liberties, when the end can be more narrowly achieved.39 The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the dissemination of information meant. to add meaning to the equally vital right of suffrage.40 We cannot support any ruling or order "the effect of which would be to nullify so vital a constitutional right as free speech."41 When faced with borderline situations in which the freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the right to know are unduly curtailed.42 True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in order to justify a restriction of the people's freedoms of speech and of the press, the state's responsibility of ensuring orderly voting must far outweigh them. These freedoms have additional importance, because exit polls generate important research data which may be used to study influencing factors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit poll data not only for election-day projections, but also for long-term research.43 Comelec Ban on Exit Polling In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . . an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise thereof creates a clear and present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusion considering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the results of such exit poll may not be in harmony with the official count made by the Comelec . . . is ever present. In other words, the exit poll has a clear and present danger of destroying the credibility and integrity of the electoral process." Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants are selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view of the community or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists merely of the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered from polled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate and independent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of

the elections, since the former is only part of the latter. If at all, the outcome of one can only be indicative of the other. The Comelec's concern with the possible noncommunicative effect of exit polls disorder and confusion in the voting centers does not justify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qualification as to whether the polling is disruptive or not.44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting centers.45 There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidence been presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters. Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information and ideas that could be derived from them, based on the voters' answer to the survey questions will forever remain unknown and unexplored. Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on the impact of current events and of election-day and other factors on voters' choices.1wphi1.nt In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcasting of early returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advance a state interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influences is insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they might indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating speech via an exit poll restriction.47 The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communication to gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and means to achieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys. For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the latter may refuse interviewed, and that the interview is not part of the official balloting process. The pollsters may further be required to wear distinctive clothing that would show they are not election officials.48 Additionally, they may be required to undertake an information campaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly election. For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province; (2) residences to be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of

any sort; (5) the poll results are released to the public only on the day after the elections.49 These precautions, together with the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without consequently and unjustifiably stilling the people's voice. With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit polls properly conducted and publicized can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for the elimination of election-fixing, fraud and other electoral ills. Violation of Ballot Secrecy The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is offtangent to the real issue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here. The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks thereon so as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purpose of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom they have voted for. In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing the fundamental rights of our people. WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs. SO ORDERED. G.R. No. 147571 May 5, 2001

in various fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of general circulation, which features news- worthy items of information including election surveys. 1wphi1.nt Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing 5.4 of RA. No.9006 (Fair Election Act), which provides: Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days be- fore an election. The term "election surveys" is defined in 5.1 of the law as follows: Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualifications, platforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issues during the campaign period (hereafter referred to as "Survey"). The implement 5.4, Resolution 3636, 24(h), dated March I, 2001, of the COMELEC enjoins Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates shall not be published seven (7) days be- fore an election. Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and local levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14,2001. Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedom of speech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and published the results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusion among the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate and inevitable danger to tile voting process posed by election surveys. They point out that no similar restriction is imposed on politicians from explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the day of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of election surveys, which are relatively objective. 1wphi1.nt Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as necessary to prevent the manipulation and corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibition on the publication of election survey results during the period proscribed by law bears a

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent. MENDOZA, J.: Petitioner, Social Weather Stations, Inc. (SWS), is a private nonstock, non-profit social research institution conducting surveys

rational connection to the objective of the law, i.e., the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before the national election and the last 7 days before a local election, and in scope as it does not prohibit election survey results but only require timeliness. Respondent claims that in National Press Club v. COMELEC,1 a total ban on political advertisements, with candidates being merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of RA. No. 9006 is much more limited. For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an unconstitutional abridgment of freedom of speech, expression, and the press. To be sure, 5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting the publication of election survey results affecting candidates within the prescribed periods of fifteen (15) days immediately preceding a national election seven (7) days before a local election. Because of tile preferred status of tile constitutional rights of speech, expression, and he press, such a measure is vitiated by a weighty presumption of invalidity.2 Indeed, any system of prior restraints of expression comes to this Court bearing a heavy Presumption against its constitutional validity. ...The Government thus carries a heavy burden of showing justification for in enforcement of such restraint. "'3 There, thus a reversal of the normal presumption of validity that inheres in every legislation. Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the operation of media of communication, no presumption of invalidity attaches to a measure like 5.4. For as we have pointed out in sustaining tile ban on media political advertisements, the grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring "equal opportunity, time, space, and the right to reply" as well as uniform and reasonable rates of charges for the use of such media facilities "public information campaigns and forums among candidates."4 This Court stated: The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in respect of exercises of supervisory or regulatory authority on the part of the Comelec for the Purpose of securing equal opportunity among candidates for political office, although such supervision or regulation may result in some limitation of the rights of free speech and free press.5 MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v. COMELEC,6 this test was originally formulated for the criminal law and only later appropriated for free speech cases. Hence, while it may be useful for determining the validity of laws dealing with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one in question. For such a test is concerned with questions of the gravity and imminence of the danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations.

Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and balancing the circumstances to determine whether public interest [in free, orderly, honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the rights" (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the junking" of weak and "losing" candidates by their parties, and the form of election cheating called "dagdag-bawas" and invoking the State's power to supervise media of information during the election period (pages 11-16), the dissenting opinion simply concludes: Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be seen that its limiting impact on the rights of free speech and of the press is not unduly repressive or unreasonable. In Indeed, it is a mere restriction, not an absolute prohibition, on the publication of election surveys. It is limited in duration; it applies only during the period when the voters are presumably contemplating whom they should elect and when they are most susceptible to such unwarranted persuasion. These surveys may be published thereafter. (Pages 17-18) The dissent does not, however, show why, on balance, these considerations should outweigh the value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4 is to "ensure equal opportunity, time, and space and the right of reply, including reasonable, equal rates therefor for public information campaigns and forums among candidates. " Hence the validity of the ban on media advertising. It is noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies in print and broadcast media. Indeed, to sustain the ban on the publication of survey results would sanction the censorship of all speaking by candidates in an election on the ground that the usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase the electoral process. In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing predictably results in sustaining the challenged legislation and leaves freedom of speech, expression, and the press with little protection. For anyone who can bring a plausible justification forward can easily show a rational connection between the statute and a legitimate governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro in Gonzales v. COMELEC,7 from which the dissent in this case takes its cue, was a strong one resulting in his conclusion that , 50-B of R.A. No. 4880, which limited the period of election campaign and partisan political activity, was an unconstitutional abridgment of freedom of expression. Nor can the ban on election surveys be justified on the ground that there are other countries - 78, according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is note worthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is because the United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in other countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands,

Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in political development, do not restrict the publication of election survey results. What test should then be employed to determine the constitutional validity of 5.4? The United States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien: [A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to the furtherance of that interest.8 This is so far the most influential test for distinguishing content-based from content neutral regulations and is said to have "become canonical in the review of such laws."9 is noteworthy that the O 'Brien test has been applied by this Court in at least two cases.10 Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmental interest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achieve the governmental purpose in question. Our inquiry should accordingly focus on these two considerations as applied to 5.4. >First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmental interest makes such interest "not related to the suppression of free expression." By prohibiting the publication of election survey results because of the possibility that such publication might undermine the integrity of the election, 5.4 actually suppresses a whole class of expression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio and TV commentators, armchair theorists, and other opinion takers. In effect, 5.4 shows a bias for a particular subject matter, if not viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content."11 The inhibition of speech should be upheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire, 12 thus: There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality Nor is there justification for the prior restraint which 5.4Iays on protected speech. Near v. Minnesota,13 it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional cases. No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and overthrow by force of orderly government Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot be justified on the ground that it is only for a limited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is direct, absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a period of fifteen (15) days immediately before a national election and seven (7) days immediately before a local election. .. This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to be valid in National Press Club v. COMELEC,14 and Osmea v. COMELEC.15 For the ban imposed by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional provision,16 but it also provided an alternative so that, as this Court pointed out in Osmea, there was actually no ban but only a substitution of media advertisements by the COMELEC space and COMELEC hour. Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restriction of free expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the prevention of last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such speech creates the danger of such evils. Thus, under the Administrative Code of 1987,17 the COMELEC is given the power: To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after due notice and hearing. This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by others. No principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters want to be identified with the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing the publication of survey results, which are a form of expression? It has been held that "[mere] legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal

activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions."18 To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct and total suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental interest sought to be promoted can be achieved by means other than suppression of freedom of expression. On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or resolution" within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintain that Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim that this petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing the constitutionality of various election laws, rules, and regulations.19 WHEREFORE, the petition for prohibited GRANTED and 5.4 of R.A. No. 9006 24(h) of COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. 1wphi1.nt SO ORDERED.1wphi1.nt G.R. No. 90878 January 29, 1990 PABLITO V. SANIDAD, petitioner, vs. THE COMMISSION ON ELECTIONS, respondent.

In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIEW" for the BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionality of Section 19 of Comelec Resolution No. 2167, which provides: Section 19. Prohibition on columnists, commentators or announcers. During the plebiscite campaign period, on the day before and on the plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issues. It is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedom of expression and of the press enshrined in the Constitution. Unlike a regular news reporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his column obviously and necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which he writes. Petitioner believes that said provision of COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed freedom of the press and further imposes subsequent punishment for those who may violate it because it contains a penal provision, as follows: Article XIII, Section 122, Election Offenses and Banned Acts or Activities. Except to the extent that the same may not be applicable plebiscite. the banned acts/activities and offenses defined in and penalized by the Omnibus Election Code ('Sections 261, 262, 263 and Article' XXII, B.P. Blg. 881) and the pertinent provisions of R.A. No. 6646 shall be aplicable to the plebiscite governed by this Resolution. Petitioner likewise maintains that if media practitioners were to express their views, beliefs and opinions on the issue submitted to a plebiscite, it would in fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sides of the issue. On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on Elections from enforcing and implementing Section 19 of Resolution No. 2167. We also required the respondent to comment on the petition. On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General filed its Comment. Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutional guarantees of the freedom of expression and of the press. Rather it is a valid implementation of the power of the Comelec to supervise and regulate media during election or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic of the Philippines. It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his views and/or from campaigning for or against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space and airtime. This is provided under Sections 90 and 92 of BP 881:

MEDIALDEA, J.: This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on the ground that it violates the constitutional guarantees of the freedom of expression and of the press. On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS REGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of Benguet, Mountain Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite for the ratification of said Organic Act originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtue of Comelec Resolution No. 2226 dated December 27, 1989. The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Organic Act for the Cordillera Autonomous Region.

Section 90. Comelec Space. Commission shall procure space in at least one newspaper of general circulation in every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocated, free of charge equally and impartially within the area in which the newspaper is circulated. Section 92. Comelec Time. The Commission shall procure radio and television time to be known as "Comelec Time" which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of charge, during the period of the campaign. Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A. 6646 as the basis for the promulgation of the questioned Section 19 of Comelec Resolution 2167. Article IX-C of the 1987 Constitution provides: The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for the operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessions granted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections. Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides: Prohibited forms of election Propaganda. In addition to the forms of election propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful: ... (b) for any newspaper, radio, broadcasting or television station, or other mass media, or any person making use of the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer, or personality who is a candidate for any elective office shall take a leave of absence from his work as such during the campaign period. (Emphasis ours) However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, media of communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates therefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provision is the possibility that a franchise holder may favor or give any

undue advantage to a candidate in terms of advertising space or radio or television time. This is also the reason why a "columnist, commentator, announcer or personality, who is a candidate for any elective office is required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unless required to take a leave of absence. However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis. In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some special political matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a plebiscite. Anent respondent Comelec's argument that Section 19 of Comelec Resolution 2167 does not absolutely bar petitionercolumnist from expressing his views and/or from campaigning for or against the organic act because he may do so through the Comelec space and/or Comelec radio/television time, the same is not meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify such abridgement. We hold that this form of regulation is tantamount to a restriction of petitioner's freedom of expression for no justifiable reason. Plebiscite issues are matters of public concern and importance. The people's right to be informed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion of the issues, including the forum. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not guarantee full dissemination of information to the public concerned because they are limited to either specific portions in newspapers or to specific radio or television times. ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void and unconstitutional. The restraining order herein issued is hereby made permanent. SO ORDERED.

G.R. No. L-32717

November 26, 1970

AMELITO R. MUTUC, petitioner, vs. COMMISSION ON ELECTIONS, respondent. Amelito R. Mutuc in his own behalf. Romulo C. Felizmena for respondent.

FERNANDO, J.: The invocation of his right to free speech by petitioner Amelito Mutuc, then a candidate for delegate to the Constitutional Convention, in this special civil action for prohibition to assail the validity of a ruling of respondent Commission on Elections enjoining the use of a taped jingle for campaign purposes, was not in vain. Nor could it be considering the conceded absence of any express power granted to respondent by the Constitutional Convention Act to so require and the bar to any such implication arising from any provision found therein, if deference be paid to the principle that a statute is to be construed consistently with the fundamental law, which accords the utmost priority to freedom of expression, much more so when utilized for electoral purposes. On November 3, 1970, the very same day the case was orally argued, five days after its filing, with the election barely a week away, we issued a minute resolution granting the writ of prohibition prayed for. This opinion is intended to explain more fully our decision. In this special civil action for prohibition filed on October 29, 1970, petitioner, after setting forth his being a resident of Arayat, Pampanga, and his candidacy for the position of delegate to the Constitutional Convention, alleged that respondent Commission on Elections, by a telegram sent to him five days previously, informed him that his certificate of candidacy was given due course but prohibited him from using jingles in his mobile units equipped with sound systems and loud speakers, an order which, according to him, is "violative of [his] constitutional right ... to freedom of speech." 1 There being no plain, speedy and adequate remedy, according to petitioner, he would seek a writ of prohibition, at the same time praying for a preliminary injunction. On the very next day, this Court adopted a resolution requiring respondent Commission on Elections to file an answer not later than November 2, 1970, at the same time setting the case for hearing for Tuesday November 3, 1970. No preliminary injunction was issued. There was no denial in the answer filed by respondent on November 2, 1970, of the factual allegations set forth in the petition, but the justification for the prohibition was premised on a provision of the Constitutional Convention Act, 2which made it unlawful for candidates "to purchase, produce, request or distribute sample ballots, or electoral propaganda gadgets such as pens, lighters, fans (of whatever nature), flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, cigarettes, and the like, whether of domestic or foreign origin." 3It was its contention that the jingle proposed to be used by petitioner is the recorded or taped voice of a singer and therefore a tangible propaganda material, under the above statute subject to confiscation. It prayed that the petition be denied for lack of merit. The case was argued, on November 3, 1970, with petitioner appearing in his behalf and Attorney Romulo C. Felizmena arguing in behalf of respondent.

This Court, after deliberation and taking into account the need for urgency, the election being barely a week away, issued on the afternoon of the same day, a minute resolution granting the writ of prohibition, setting forth the absence of statutory authority on the part of respondent to impose such a ban in the light of the doctrine of ejusdem generis as well as the principle that the construction placed on the statute by respondent Commission on Elections would raise serious doubts about its validity, considering the infringement of the right of free speech of petitioner. Its concluding portion was worded thus: "Accordingly, as prayed for, respondent Commission on Elections is permanently restrained and prohibited from enforcing or implementing or demanding compliance with its aforesaid order banning the use of political jingles by candidates. This resolution is immediately executory." 4 1. As made clear in our resolution of November 3, 1970, the question before us was one of power. Respondent Commission on Elections was called upon to justify such a prohibition imposed on petitioner. To repeat, no such authority was granted by the Constitutional Convention Act. It did contend, however, that one of its provisions referred to above makes unlawful the distribution of electoral propaganda gadgets, mention being made of pens, lighters, fans, flashlights, athletic goods or materials, wallets, bandanas, shirts, hats, matches, and cigarettes, and concluding with the words "and the like." 5 For respondent Commission, the last three words sufficed to justify such an order. We view the matter differently. What was done cannot merit our approval under the well-known principle of ejusdem generis, the general words following any enumeration being applicable only to things of the same kind or class as those specifically referred to. 6 It is quite apparent that what was contemplated in the Act was the distribution of gadgets of the kind referred to as a means of inducement to obtain a favorable vote for the candidate responsible for its distribution. The more serious objection, however, to the ruling of respondent Commission was its failure to manifest fealty to a cardinal principle of construction that a statute should be interpreted to assure its being in consonance with, rather than repugnant to, any constitutional command or prescription. 7 Thus, certain Administrative Code provisions were given a "construction which should be more in harmony with the tenets of the fundamental law." 8 The desirability of removing in that fashion the taint of constitutional infirmity from legislative enactments has always commended itself. The judiciary may even strain the ordinary meaning of words to avert any collision between what a statute provides and what the Constitution requires. The objective is to reach an interpretation rendering it free from constitutional defects. To paraphrase Justice Cardozo, if at all possible, the conclusion reached must avoid not only that it is unconstitutional, but also grave doubts upon that score. 9 2. Petitioner's submission of his side of the controversy, then, has in its favor obeisance to such a cardinal precept. The view advanced by him that if the above provision of the Constitutional Convention Act were to lend itself to the view that the use of the taped jingle could be prohibited, then the challenge of unconstitutionality would be difficult to meet. For, in unequivocal language, the Constitution prohibits an abridgment of free speech or a free press. It has been our constant holding that this preferred freedom 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. What respondent Commission

did, in effect, was to impose censorship on petitioner, an evil against which this constitutional right is directed. Nor could respondent Commission justify its action by the assertion that petitioner, if he would not resort to taped jingle, would be free, either by himself or through others, to use his mobile loudspeakers. Precisely, the constitutional guarantee is not to be emasculated by confining it to a speaker having his say, but not perpetuating what is uttered by him through tape or other mechanical contrivances. If this Court were to sustain respondent Commission, then the effect would hardly be distinguishable from a previous restraint. That cannot be validly done. It would negate indirectly what the Constitution in express terms assures. 10 3. Nor is this all. The concept of the Constitution as the fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government. That is to manifest fealty to the rule of law, with priority accorded to that which occupies the topmost rung in the legal hierarchy. The three departments of government in the discharge of the functions with which it is entrusted have no choice but to yield obedience to its commands. Whatever limits it imposes must be observed. Congress in the enactment of statutes must ever be on guard lest the restrictions on its authority, whether substantive or formal, be transcended. The Presidency in the execution of the laws cannot ignore or disregard what it ordains. In its task of applying the law to the facts as found in deciding cases, the judiciary is called upon to maintain inviolate what is decreed by the fundamental law. Even its power of judicial review to pass upon the validity of the acts of the coordinate branches in the course of adjudication is a logical corollary of this basic principle that the Constitution is paramount. It overrides any governmental measure that fails to live up to its mandates. Thereby there is a recognition of its being the supreme law. To be more specific, the competence entrusted to respondent Commission was aptly summed up by the present Chief Justice thus: "Lastly, as the branch of the executive department although independent of the President to which the Constitution has given the 'exclusive charge' of the 'enforcement and administration of all laws relative to the conduct of elections,' the power of decision of the Commission is limited to purely 'administrative questions.'" 11 It has been the constant holding of this Court, as it could not have been otherwise, that respondent Commission cannot exercise any authority in conflict with or outside of the law, and there is no higher law than the Constitution. 12 Our decisions which liberally construe its powers are precisely inspired by the thought that only thus may its responsibility under the Constitution to insure free, orderly and honest elections be adequately fulfilled. 13 There could be no justification then for lending approval to any ruling or order issuing from respondent Commission, the effect of which would be to nullify so vital a constitutional right as free speech. Petitioner's case, as was obvious from the time of its filing, stood on solid footing. WHEREFORE, as set forth in our resolution of November 3, 1970, respondent Commission is permanently restrained and prohibited from enforcing or implementing or demanding compliance with its aforesaid order banning the use of political taped jingles. Without pronouncement as to costs. Movie Censorship G.R. No. L-69500 July 22, 1985

JOSE ANTONIO U. GONZALEZ in behalf of MALAYA FILMS, LINO BROCKA, JOSE F. LACABA, and DULCE Q. SAGUISAG, petitioners, vs. CHAIRMAN MARIA KALAW KATIGBAK, GENERAL WILFREDO C. ESTRADA (Ret.), and THE BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION (BRMPT), respondents. Irene R. Cortes, Perfecto V. Fernandez, Haydee Yorac and Joker P. Arroyo for petitioners. The Solicitor General for respondents.

FERNANDO, C.J.: In this case of first impression, a certiorari proceeding filed on January 10, 1985, there is a persuasive ring to the invocation of the constitutional right to freedom of expression 1 of an artist and for that matter a man of letters tooas the basis for a ruling on the scope of the power of respondent Board of Review for Motion Pictures and Television and how it should be exercised. The dispute between the parties has been narrowed down. The motion picture in question, Kapit sa Patalim was classified "For Adults Only." There is the further issue then, also one of first impression, as to the proper test of what constitutes obscenity in view of the objections raised. Thus the relevance of this constitutional command: "Arts and letters shall be under the patronage of the State. 2 The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the Malaya Films, a movie production outfit duly registered as a single proprietorship with the Bureau of Domestic Trade. The respondent is the Board of Review for Motion Pictures and Television, with Maria Kalaw Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-Chairman, also named respondents. In a resolution of a sub-committee of respondent Board of October 23, 1984, a permit to exhibit the film Kapit sa Patalim under the classification "For Adults Only," with certain changes and deletions enumerated was granted. A motion for reconsideration was filed by petitioners stating that the classification of the film "For Adults Only" was without basis. 4 Then on November 12, 1984, respondent Board released its decision: "Acting on the applicant's Motion for Reconsideration dated 29 October 1984, the Board, after a review of the resolution of the sub-committee and an examination of the film, Resolves to affirm in toto the ruling of the sub-committee. Considering, however, certain vital deficiencies in the application, the Board further Resolves to direct the Chairman of the Board to Withheld the issuance of the Permit to exhibit until these deficiencies are supplied. 5 Hence this petition. This Court, in a resolution of January 12, 1985, required respondent to answer. In such pleading submitted on January 21, 1985, as one of its special and affirmative defenses, it was alleged that the petition is moot as "respondent Board has revoked its questioned resolution, replacing it with one immediately granting petitioner company a permit to exhibit the film Kapit without any deletion or cut [thus an] adjudication of the questions presented above would be academic on the case." 6 Further: "The modified resolution of the Board, of course, classifies Kapit as for-adults-only, but the petition does

not raise any issue as to the validity of this classification. All that petitioners assail as arbitrary on the part of the Board's action are the deletions ordered in the film. 7 The prayer was for the dismissal of the petition. An amended petition was then filed on January 25, 1985. The main objection was the classification of the film as "For Adults Only." For petitioners, such classification "is without legal and factual basis and is exercised as impermissible restraint of artistic expression. The film is an integral whole and all its portions, including those to which the Board now offers belated objection, are essential for the integrity of the film. Viewed as a whole, there is no basis even for the vague speculations advanced by the Board as basis for its classification. 8 There was an answer to the amended petition filed on February 18, 1985. It was therein asserted that the issue presented as to the previous deletions ordered by the Board as well as the statutory provisions for review of films and as to the requirement to submit the master negative have been all rendered moot. It was also submitted that the standard of the law for classifying films afford a practical and determinative yardstick for the exercise of judgment. For respondents, the question of the sufficiency of the standards remains the only question at issue. It would be unduly restrictive under the circumstances to limit the issue to one of the sufficiency of standards to guide respondent Board in the exercise of its power. Even if such were the case, there is justification for an inquiry into the controlling standard to warrant the classification of "For Adults Only." This is especially so, when obscenity is the basis for any alleged invasion of the right to the freedom of artistic and literary expression embraced in the free speech and free press guarantees of the Constitution. 1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effects on the perception by our people of issues and public officials or public figures as well as the prevailing cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson 9 is the "importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform. 10 There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. Our recent decision in Reyes v. Bagatsing 11 cautions against such a move. Press freedom, as stated in the opinion of the Court, "may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 12 This is not to say that such freedom, as is the freedom of speech, absolute. It can be limited if "there be a 'clear and present danger of a substantive evil that [the State] has a right to prevent. 13 2. Censorship or previous restraint certainly is not all there is to free speech or free press. If it were so, then such basic rights are emasculated. It is however, except in exceptional circumstances a sine qua non for the meaningful exercise of such right. This is not to deny that equally basic is the other important aspect of freedom from liability. Nonetheless, for the purposes of this litigation, the emphasis should rightly be on freedom from censorship. It is, beyond question, a well-settled principle in our jurisdiction. As early as 1909, in the case of United States v. Sedano, 14 a prosecution for libel, the Supreme Court of the Philippines already made clear that freedom of the press consists in the right to print what one chooses without any previous license. There is reaffirmation of

such a view in Mutuc v. Commission on Elections, 15 where an order of respondent Commission on Elections giving due course to the certificate of candidacy of petitioner but prohibiting him from using jingles in his mobile units equipped with sound systems and loud speakers was considered an abridgment of the right of the freedom of expression amounting as it does to censorship. It is the opinion of this Court, therefore, that to avoid an unconstitutional taint on its creation, the power of respondent Board is limited to the classification of films. It can, to safeguard other constitutional objections, determine what motion pictures are for general patronage and what may require either parental guidance or be limited to adults only. That is to abide by the principle that freedom of expression is the rule and restrictions the exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is against its validity. 16 3. The test, to repeat, to determine whether freedom of excession may be limited is the clear and present danger of an evil of a substantive character that the State has a right to prevent. Such danger must not only be clear but also present. There should be no doubt that what is feared may be traced to the expression complained of. The causal connection must be evident. Also, there must be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it suffice if such danger be only probable. There is the require of its being well-nigh inevitable. The basic postulate, wherefore, as noted earlier, is that where the movies, theatrical productions radio scripts, television programs, and other such media of expression are concerned included as they are in freedom of expression censorship, especially so if an entire production is banned, is allowable only under the clearest proof of a clear and present danger of a substantive evil to public public morals, public health or any other legitimate public interest. 17 There is merit to the observation of Justice Douglas that "every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor. 18 4. The law, however, frowns on obscenity and rightly so. As categorically stated by Justice Brennan in Roth v. United States 19 speaking of the free speech and press guarantee of the United States Constitution: "All Ideas having even the slightest redeeming social importance unorthodox Ideas, controversial Ideas, even Ideas hateful to the prevailing climate of opinion have the full protection of the guaranties, unless excludable because they encroach upon the limited area of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. 20 Such a view commends itself for approval. 5. There is, however, some difficulty in determining what is obscene. There is persuasiveness to the approach followed in Roth: "The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin [1868] LR 3 QB 360. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest. The Hicklin test, judging obscenity by the effect of isolated passages upon the most susceptible persons, might well encompass material legitimately treating with sex, and so it must be rejected as unconstitutionally restrictive of the freedoms of speech and press. On the other hand, the substituted standard provides safeguards adequate to withstand the charge of constitutional infirmity. 21

6. The above excerpt which imposes on the judiciary the duty to be ever on guard against any impermissible infringement on the freedom of artistic expression calls to mind the landmark ponencia of Justice Malcolm in United States v. Bustos, 22 decided in 1918. While recognizing the principle that libel is beyond the pale of constitutional protection, it left no doubt that in determining what constitutes such an offense, a court should ever be mindful that no violation of the right to freedom of expression is allowable. It is a matter of pride for the Philippines that it was not until 1984 in New York Timer v. Sullivan, 23 thirty-years later, that the United States Supreme Court enunciated a similar doctrine. 7. It is quite understandable then why in the Roth opinion, Justice Brennan took pains to emphasize that "sex and obscenity are not synonymous. 24 Further: "Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern. 25 8. In the applicable law, Executive Order No. 876, reference was made to respondent Board "applying contemporary Filipino cultural values as standard, 26 words which can be construed in an analogous manner. Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed strongly that the arts and letters "shall be under the patronage of the State. 27 That is a constitutional mandate. It will be less than true to its function if any government office or agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what passes for beauty or for reality. It is for the artist to determine what for him is a true representation. It is not to be forgotten that art and belleslettres deal primarily with imagination, not so much with ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a showing that the product of his talent rightfully may be considered obscene. As so wen put by Justice Frankfurter in a concurring opinion, "the widest scope of freedom is to be given to the adventurous and imaginative exercise of the human spirit" 28 in this sensitive area of a man's personality. On the question of obscenity, therefore, and in the light of the facts of this case, such standard set forth in Executive Order No. 878 is to be construed in such a fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a recent decision 29 citing the language of Justice Malcolm in Yu Cong Eng v. Trinidad, 30 it is "an elementary, a fundamental, and a universal role of construction, applied when considering constitutional questions, that when a law is susceptible of two constructions' one of which will maintain and the other destroy it, the courts will always adopt the former. 31 As thus construed, there can be no valid objection to the sufficiency of the controlling standard and its conformity to what the Constitution ordains. 9. This being a certiorari petition, the question before the Court is whether or not there was a grave abuse of discretion. That there was an abuse of discretion by respondent Board is evident in the light of the difficulty and travail undergone by petitioners before Kapit sa Patalim was classified as "For Adults Only," without any deletion or cut. Moreover its perception of what constitutes obscenity appears to be unduly

restrictive. This Court concludes then that there was an abuse of discretion. Nonetheless, there are not enough votes to maintain that such an abuse can be considered grave. Accordingly, certiorari does not lie. This conclusion finds support in this explanation of respondents in its Answer to the amended petition: "The adult classification given the film serves as a warning to theater operators and viewers that some contents of Kapit are not fit for the young. Some of the scenes in the picture were taken in a theater-club and a good portion of the film shots concentrated on some women erotically dancing naked, or at least nearly naked, on the theater stage. Another scene on that stage depicted the women kissing and caressing as lesbians. And toward the end of the picture, there exists scenes of excessive violence attending the battle between a group of robbers and the police. The vulnerable and imitative in the young audience will misunderstand these scenes." 32 Further: "Respondents further stated in its answer that petitioner company has an option to have the film reclassified to For-General-Patronage if it would agree to remove the obscene scenes and pare down the violence in the film." 33 Petitioners, however, refused the "For Adults Only" classification and instead, as noted at the outset, filed this suit for certiorari. 10. All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned: a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely 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. 34 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. WHEREFORE, this Court, in the light of the principles of law enunciated in the opinion, dismisses this petition for certiorari solely on the ground that there are not enough votes for a ruling that there was a grave abuse of discretion in the classification of Kapit sa Patalim as "For-Adults-Only." G.R. No. L-32066 August 6, 1979

MANUEL LAGUNZAD, petitioner, vs. MARIA SOTO VDA. DE GONZALES and THE COURT OF APPEALS, respondents. Diosdado P. Peralta for petitioner. Manuel S. Tonogbanua for private respondent.

MELENCIO-HERRERA, J.: Before us is a Petition for Review by certiorari of the Decision of the Court of Appeals in CA-G.R. No. 34703, promulgated on January 13, 1970, affirming the Decision of the Court of First Instance of Negros Occidental, dated June 30, 1964, in Civil Case No. 6414 entitled "Maria Soto Vda. de Gonzales vs. Manuel Lagunzad," for a Sum of Money and Attachment. The present controversy stems from a "Licensing Agreement" entered into by and between petitioner Manuel M. Lagunzad

and private respondent Maria Soto Vda. de Gonzales on October 5, 1961, which contract petitioner claims to be null and void for having been entered into by him under duress, intimidation and undue influence. The antecedental facts follow: Sometime in August, 1961, petitioner Manuel Lagunzad, a newspaperman, began the production of a movie entitled "The Moises Padilla Story" under the name of his own business outfit, the "MML Productions." It was based mainly on the copyrighted but unpublished book of Atty. Ernesto Rodriguez, Jr., entitled "The Long Dark Night in Negros" subtitled "The Moises Padilla Story," 1 the rights to which petitioner had purchased from Atty. Rodriguez in the amount of P2,000.00. 2 The book narrates the events which culminated in the murder of Moises Padilla sometime between November 11 and November 17, 1951. Padilla was then a mayoralty candidate of the Nacionalista Party (then the minority party) for the Municipality of Magallon, Negros Occidental, during the November, 1951 elections. Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and convicted for that murder in People vs. Lacson, et al. 3 In the book, Moises Padilla is portrayed as "a martyr in contemporary political history." Although the emphasis of the movie was on the public life of Moises Padilla, there were portions which dealt with his private and family life including the portrayal in some scenes, of his mother, Maria Soto Vda. de Gonzales, private respondent herein, and of one "Auring" as his girl friend. 4 The movie was scheduled for a premiere showing on October 16, 1961, or at the very latest, before the November, 1961 elections. On October 3, 1961, petitioner received a telephone call from one Mrs. Nelly Amante, half-sister of Moises Padilla, objecting to the filming of the movie and the "exploitation" of his life. Shown the early "rushes" of the picture, Mrs. Amante and her sister, Mrs. Gavieres, objected to many portions thereof notwithstanding petitioner's explanation that the movie had been supervised by Ernesto Rodriguez, Jr., based on his book "The Long Dark Night in Negros." On October 5, 1961, Mrs. Amante, for and in behalf of her mother, private respondent, demanded in writing for certain changes, corrections and deletions in the movie. 5 Petitioner contends that he acceded to the demands because he had already invested heavily in the picture to the extent of mortgaging his properties, 6 in addition to the fact that he had to meet the scheduled target date of the premiere showing. On the same date, October 5, 1961, after some bargaining as to the amount to be paid, which was P50,000.00 at first, then reduced to P20,000.00, 7 petitioner and private respondent, represented by her daughters and Atty. Ernesto Rodriguez, at the law office of Jalandoni and Jamir, executed a "Licensing Agreement" reading as follows: LICENSING AGREEMENT KNOW ALL MEN BY THESE PRESENTS: This Agreement, made and executed at the City of Manila, Philippines, this 5th day of October, 1961, by and between:

MANUEL M. LAGUNZAD, of legal age, married, presently engaged in the business of producing motion pictures under the style of "MML Productions" with residence at 76 Central Boulevard, Quezon City and with offices at 301 Cu Unjieng Bldg., Escolta, Manila and hereinafter referred to as LICENSEE, and MARIA SOTO VDA. DE GONZALES, of legal age, widow, resident of the Municipality of Moises Padilla, Province of Negros Occidental, represented in this Act by her Attorneys-in-fact Atty. Ernesto Rodriguez, Jr. of legal age and resident of 393FBuencamino St., San Miguel, Manila; Maria Nelly G. Amazite, of legal age and resident of 121 South 13, Quezon City; and Dolores G, Gavieres, of legal age, and resident of 511 San Rafael Street, Quiapo, Manila, also duly authorized and hereinafter referred to as LICENSOR, WITNESSETH: That, the LICENSEE is currently producing a motion picture entitled "The Moises Padilla Story" (hereinafter referred to as the PICTURE, for short) based on certain episodes in the life of Moises Padilla, now deceased: That the LICENSOR is the legitimate mother and only surviving compulsory heir of Moises Padilla, the latter not having married during his lifetime and having died without any descendants, legitimate or illegitimate; That, in the PICTURE and in all incidents thereof, such as scenarios, advertisements, etc., the LICENSEE has, without the prior consent and authority of LICENSOR, exploited the life story of Moises Padilla for pecuniary gain and other profit motives, and has, furthermore encroached upon the privacy of Moises Padilla's immediate family, and has in fact, included in the PICTURE'S cast, persons portraying some of MOISES PADILLA's kin, including LICENSOR herself; That, for and in consideration of the foregoing premises and the other covenants and conditions hereunder stated, the LICENSOR hereby grants authority and permission to LICENSEE to exploit, use, and develop the life story of Moises Padilla for purposes of producing the PICTURE, and in connection with matters incidental to said production, such as advertising and the like, as well as authority and permission for the use of LICENSOR's name in the PICTURE and have herself portrayed therein, the authority and permission hereby granted, to retroact to the date when LICENSEE first committed any of the acts herein authorized. THE CONDITIONS AND OTHER COVENANTS OF THIS AGREEMENT ARE AS FOLLOWS: 1. For and in consideration of the authority and permission hereby granted by LICENSOR to LICENSEE, LICENSEE shall pay LICENSOR, through Atty. Lope E. Adriano at the Pelaez and Jalandoni Law Office, 6th Floor, Magsaysay Bldg., San Luis, Ermita, Manila, the following: a) The sum of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, payable without need of further demand, as follows: P5,000.00 on or before Oct. 10, 1961; P10,000.00 on or before Oct. 31, 1961; and P5,000.00 on or before November 30, 1961. In default of the payment of any of these amounts as they fall due, the others become immediately due and demandable.

b) A royalty in such amount corresponding to TWO AND A HALF PER CENTUM (2- %) of all gross income or receipts derived by, and/or for and in behalf of, LICENSEE as rentals and or percentage of box office receipts from exhibitors and others for the right to exploit, use, distribute and/or exhibit the picture anywhere here in the Philippines or abroad. 2) The LICENSEE agrees to keep complete, true and accurate books of accounts, contracts and vouchers relating to the exploitation, distribution and exhibition of the PICTURE, the bookings thereof and the rentals and gross receipts therefrom, and to give to LICENSOR and/or her accredited representatives, full access at all reasonable times to all of the said books, accounts, records, vouchers and all other papers. 3) The LICENSEE shall furnish LICENSOR monthly statements in duplicate, showing in detail the gross receipts accruing from the picture, which monthly statements shall be delivered to the LICENSOR with reasonable promptness, and upon verification and approval of said statements by LICENSOR, the LICENSEE shall pay the corresponding royalties due to the LICENSOR. 4) The authority and permission herein granted is subject to the condition that LICENSEE shall change, delete, and/or correct such portions in the PICTURE as the LICENSOR may require, in writing before final printing of the PICTURE, and shall, furthermore, not be understood as a consent to anything in the picture that is, or tends to be, derogatory to the deceased MOISES PADILLA or to LICENSOR. 5) The LICENSOR shall not in any way be liable on any claim from third persons as a result of, or arising from, the manner by which the PICTURE is put together, nor on any claim arising from the production, distribution and exhibition of the PICTURE, and in the event of any such claim being asserted against LICENSOR, the LICENSEE undertakes to hold LICENSOR harmless thereon. 6) This agreement shall be binding upon the parties hereto, their representatives, administrators, successors and assigns. IN WITNESS WHEREOF, the parties have hereunto set their hands on the date and at the place first above stated. MARIA SOTO VDA. DE GONZALES MANUEL M. LAGUNZAD Licensor Licensee By: (Sgd.) ERNESTO R. RODRIGUEZ, Jr. (Sgd.) MARIA NELLY G. AMANTE (Sgd.) DOLORES G. GAVIERES Attorneys-in-fact SIGNED IN THE PRESENCE OF: LOPE E. ADRIANO ILLEGIBLE ACKNOWLEDGMENT Petitioner takes the position that he was pressured into signing the Agreement because of private respondent's demand, through Mrs. Amante, for payment for the "exploitation" of the life story of Moises Padilla, otherwise, she would "call a press

conference declaring the whole picture as a fake, fraud and a hoax and would denounce the whole thing in the press, radio, television and that they were going to Court to stop the picture." 8 On October 10, 1961, petitioner paid private respondent the amount of P5,000.00 but contends that he did so not pursuant to their Agreement but just to placate private respondent. 9 On October 14, 1961, the filming of the movie was completed. On October 16, 1961, a premiere showing was held at the Hollywood Theatre, Manila, with the Moises Padilla Society as its sponsor. 10 Subsequently, the movie was shown in different theaters all over the country. Because petitioner refused to pay any additional amounts pursuant to the Agreement, on December 22, 1961, private respondent instituted the present suit against him praying for judgment in her favor ordering petitioner 1) to pay her the amount of P15,000.00, with legal interest from the filing of the Complaint; 2) to render an accounting of the proceeds from the picture and to pay the corresponding 2-1/2% royalty therefrom; 3) to pay attorney's fees equivalent to 20% of the amounts claimed; and 4) to pay the costs. Traversing the Complaint, petitioner contended in his Answer that the episodes in the life of Moises Padilla depicted in the movie were matters of public knowledge and occurred at or about the same time that the deceased became and was a public figure; that private respondent has no property right over those incidents; that the Licensing Agreement was without valid cause or consideration and that he signed the same only because private respondent threatened him with unfounded and harassing action which would have delayed production; and that he paid private respondent the amount of P5,000.00 in October, 1961, only because of the coercion and threat employed upon him. By way of counterclaim, petitioner demanded that the Licensing Agreement be declared null and void for being without any valid cause; that private respondent be ordered to return to him the amount of P5,000.00; and that he be paid P50,000.00 by way of moral damages, and P7,500.00 as attorney's fees. Private respondent duly filed her Answer to Counterclaim alleging that the transaction between her and petitioner was entered into freely and voluntarily. On June 30, 1964, the trial Court rendered a Decision, and decreed in its dispositive portion: WHEREFORE, judgment is hereby rendered ordering the defendant Manuel Lagunzad to pay the plaintiff the sum of P15,000.00 with interest at the rate of 6% per annum from December 22, 1961 up to its complete payment; to order the defendant to render an accounting of the gross income or proceeds derived from the exhibition, use and/or rental of the motion picture of "The Moises Padilla Story" and to pay the plaintiff 2- 1/2% of said gross income; to pay the plaintiff the amount equivalent to 20% of the amount due the plaintiff under the first cause of action as attorney's fees; and to pay the costs. On appeal to the Court of Appeals, the latter Court affirmed the judgment. Reconsideration having been denied by the Court, petitioner filed the instant Petition for Review on Certiorari.

Initially, or on June 16, 1970, this Court denied the Petition for lack of merit, but resolved subsequently to give it due course after petitioner moved for reconsideration on the additional argument that the movie production was in exercise of the constitutional right of freedom of expression, and that the Licensing cement is a form of restraint on the freedom of speech and of the press. In his Brief, petitioner assigns the following errors to the appellate Court: I. THE COURT OF APPEALS ERRED IN EXERCISING JURISDICTION IN THE CASE BECAUSE THE JUDGMENT APPEALED FROM WAS INTERLOCUTORY IN NATURE AND CHARACTER; II. THE COURT OF APPEALS ERRED IN ITS FAILURE TO MAKE COMPLETE FINDINGS OF FACTS ON ALL ISSUES BEFORE IT; III. THE COURT OF APPEALS ERRED IN NOT DECLARING THE LICENSING AGREEMENT, EXHIBIT "A", NULL AND VOID FOR LACK OF, OR FOR HAVING AN ILLEGAL CAUSE OR CONSIDERATION OF CONTRACT, PETITIONER HAVING PREVIOUSLY OBTAINED THE AUTHORITY AND/OR PERMISSION PURPOSELY GRANTED TO HIM BY RESPONDENT UNDER SAID LICENSING AGREEMENT; IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING AGREEMENT, EXHIBIT "A", IS NULL AND VOID; RESPONDENT NOT HAVING HAD ANY PROPERTY NIGHTS OVER THE INCIDENTS IN THE LIFE OF MOISES PADILLA WHO WAS A PUBLIC FIGURE. V. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING AGREEMENT, EXHIBIT "A", WAS NULL AND VOID, PETITIONER'S CONSENT HAVING BEEN PROCURED BY MEANS OF DURESS, INTIMIDATION AND UNDUE INFLUENCE; VI. THE COURT OF APPEALS, IN UPHOLDING THE RIGHT TO PRIVACY OF RESPONDENT AS DEFINED IN ART. 26 OF THE NEW CIVIL CODE OVER THE RIGHT OF PETITIONER TO FILM THE PUBLIC LIFE OF A PUBLIC FIGURE, INFRINGED UPON THE CONSTITUTIONAL RIGHT OF PETITIONER TO FREE SPEECH AND FREE PRESS. We find the assigned errors bereft of merit. Petitioner's contention that because an accounting had been ordered, respondent Court of Appeals did not have jurisdiction over the case as the Decision of the lower Court was not yet final and appealable, is untenable. The doctrine enunciated in Fuentebella vs. Carrascoso 11 relied upon by petitioner, which held that whether or not the action for accounting is the principal action or is merely incidental to another, the judgment requiring such accounting cannot be final, has been abandoned in Miranda vs. Court of Appeals 12 which ruled: For the guidance of bench and bar, the Court declares as abandoned the doctrine of Fuentebella vs. Carrascoso and adopts the opposite rule that judgments for recovery with accounting are final and appealable (without need of awaiting the accounting) and would become final and executory if not appealed within the reglementary period. In other words, where there is complete adjudication and determination of the rights and obligations of the parties, as in the instant case, an order for accounting in that judgment does

not affect its final character, said accounting being merely incidental to the judgment. Petitioner's contention that respondent Court failed to make complete findings of fact on all issues raised before it is without basis. A careful study of the Decision reveals that respondent Court has substantially and sufficiently complied with the injunction that a decision must state clearly and distinctly the facts and the law on which it is based. The rule remains that the ultimate test as to the sufficiency of a Court's findings of fact is "whether they are comprehensive enough and pertinent to the issues raised to provide a basis for decision." 13 The judgment sought to be reviewed sufficiently complies with this requirement. Neither do we agree with petitioner's submission that the Licensing Agreement is null and void for lack of, or for having an illegal cause or consideration. While it is true that petitioner had purchased the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and the members of his family. As held in Schuyler v. Curtis, 14 "a privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their own rights in the character and memory of the deceased." Petitioner's averment that private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a fictional or novelized representation of a person, no matter how public a figure he or she may be. 15 In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life story of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality. 16 We also find it difficult to sustain petitioner's posture that his consent to the Licensing Agreement was procured thru duress, intimidation and undue influence exerted on him by private respondent and her daughters at a time when he had exhausted his financial resources, the premiere showing of the picture was imminent, and "time was of the essence." As held in Martinez vs. Hongkong & Shanghai Bank, 17 it is necessary to distinguish between real duress and the motive which is present when one gives his consent reluctantly. A contract is valid even though one of the parties entered into it against his own wish and desires, or even against his better judgment. In legal effect, there is no difference between a contract wherein one of the contracting parties exchanges one condition for another because he looks for greater profit or gain by reason of such change, and an agreement wherein one of the contracting parties agrees to accept the lesser of two disadvantages. In either case, he makes a choice free and untramelled and must accordingly abide by it. The Licensing Agreement has the force of law between the contracting parties and since its provisions are not contrary to law, morals, good customs, public order or public policy (Art. 1306, Civil Code), petitioner Should comply with it in good faith. Lastly, neither do we find merit in petitioner's contention that the Licensing Agreement infringes on the constitutional right of

freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint. The right of freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties." 18 It is not, however, without limitations. As held in Gonzales vs. Commission on Elections, 27 SCRA 835, 858 (1969): From the language of the specific constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however, a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition.

Productions), 1 envisioned, sometime in 1987, the for commercial viewing and for Philippine and international release, the histolic peaceful struggle of the Filipinos at EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project with local movie producer Lope V. Juban who suggested th they consult with the appropriate government agencies and also with General Fidel V. Ramos and Senator Juan Ponce Enrile, who had played major roles in the events proposed to be filmed. The proposed motion picture entitled "The Four Day Revolution" was endorsed by the Movie Television Review and Classification Board as wel as the other government agencies consulted. General Fidel Ramos also signified his approval of the intended film production. In a letter dated 16 December 1987, petitioner Hal McElroy informed private respondent Juan Ponce Enrile about the projected motion picture enclosing a synopsis of it, the full text of which is set out below: The Four Day Revolution is a six hour mini-series about People Powera unique event in modern history that-made possible the Peaceful revolution in the Philippines in 1986. Faced with the task of dramatising these rerkble events, screenwriter David Williamson and history Prof Al McCoy have chosen a "docu-drama" style and created [four] fictitious characters to trace the revolution from the death of Senator Aquino, to the Feb revolution and the fleeing of Marcos from the country. These character stories have been woven through the real events to help our huge international audience understand this ordinary period inFilipino history. First, there's Tony O'Neil, an American television journalist working for major network. Tony reflects the average American attitude to the Phihppinence once a colony, now the home of crucially important military bases. Although Tony is aware of the corruption and of Marcos' megalomania, for him, there appears to be no alternative to Marcos except the Communists. Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is quickly caught up in the events as it becomes dear that the time has come for a change. Through Angle and her relationship with one of the Reform Army Movement Colonels (a fictitious character), we follow the developing discontent in the armed forces. Their dislike for General Ver, their strong loyalty to Defense Minister Enrile, and ultimately their defection from Marcos. The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila newspaper who despises the Marcos regime and is a supporter an promoter of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a secret member of the New People's Army, and Eva--a -P.R. girl, politically moderate and very much in love with Tony. Ultimately, she must choose between her love and the revolution. Through the interviews and experiences of these central characters, we show the complex nature of Filipino society, and thintertwining series of events and characters that triggered these remarkable changes. Through them also, we meet all of the principal characters and experience directly dramatic recreation of the revolution. The story incorporates actual documentary footage filmed during the period which we hope

The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and of the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing-of-interests test." 19 The principle i requires a court to take conscious and detailed consideration of the interplay of interests observable in a given situation or type of situation." 20 In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of -freedom of expression invoked by petitioner. Taking into account the interplay of those interests, we hold that under the particular circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of expression are reached when expression touches upon matters of essentially private concern. WHEREFORE, the Petition for Review is denied and the judgment appealed from hereby affirmed. Costs against petitioner. SO ORDERED. G.R. No. 82380 April 29, 1988 AYER PRODUCTIONS PTY. LTD. and McELROY & McELROY FILM PRODUCTIONS, petitioners, vs. HON.IGNACIO M. CAPULONG and JUAN PONCE ENRILE, respondents. G.R. No. 82398 April 29, 1988 HAL MCELROY petitioner, vs. HON. IGNACIO M. CAPULONG, in his capacity as Presiding Judge of the Regional Trial Court of Makati, Branch 134 and JUAN PONCE ENRILE, respondents.

FELICIANO, J.: Petitioner Hal McElroy an Australian film maker, and his movie production company, Petitioner Ayer Productions pty Ltd. (Ayer

will capture the unique atmosphere and forces that combined to overthrow President Marcos. David Williamson is Australia's leading playwright with some 14 hugely successful plays to his credit(Don's Party,' 'The Club,' Travelling North) and 11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap'). Professor McCoy (University of New South Wales) is an American historian with a deep understanding of the Philippines, who has worked on the research for this project for some 18 months. Together with Davi Wilhamgon they have developed a script we believe accurately depicts the complex issues and events that occurred during th period . The six hour series is a McElroy and McElroy co-production with Home Box Office in American, the Australian Broadcast Corporation in Australia and Zenith Productions in the United Kingdom The proposed motion picture would be essentially a re-enact. ment of the events that made possible the EDSA revolution; it is designed to be viewed in a six-hour mini-series television play, presented in a "docu-drama" style, creating four (4) fictional characters interwoven with real events, and utilizing actual documentary footage as background. On 21 December 1987, private respondent Enrile replied that "[he] would not and will not approve of the use, appropriation, reproduction and/or exhibition of his name, or picture, or that of any member of his family in any cinema or television production, film or other medium for advertising or commercial exploitation" and further advised petitioners that 'in the production, airing, showing, distribution or exhibition of said or similar film, no reference whatsoever (whether written, verbal or visual) should not be made to [him] or any member of his family, much less to any matter purely personal to them. It appears that petitioners acceded to this demand and the name of private respondent Enrile was deleted from the movie script, and petitioners proceeded to film the projected motion picture. On 23 February 1988, private respondent filed a Complaint with application for Temporary Restraining Order and Wilt of Pretion with the Regional Trial Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof, seeking to enjoin petitioners from producing the movie "The Four Day Revolution". The complaint alleged that petitioners' production of the mini-series without private respondent's consent and over his objection, constitutes an obvious violation of his right of privacy. On 24 February 1988, the trial court issued ex-parte a Temporary Restraining Order and set for hearing the application for preliminary injunction. On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to the Petition for Preliminary Injunction contending that the mini-series fim would not involve the private life of Juan Ponce Enrile nor that of his family and that a preliminary injunction would amount to a prior restraint on their right of free expression. Petitioner Ayer Productions also filed its own Motion to Dismiss alleging lack of cause of action as the miniseries had not yet been completed. In an Order 2 dated 16 March 1988, respondent court issued a writ of Preliminary Injunction against the petitioners, the dispositive portion of which reads thus:

WHEREFORE, let a writ of preliminary injunction be issued, ordering defendants, and all persons and entities employed or under contract with them, including actors, actresses and members of the production staff and crew as well as all persons and entities acting on defendants' behalf, to cease and desist from producing and filming the mini-series entitled 'The Four Day Revolution" and from making any reference whatsoever to plaintiff or his family and from creating any fictitious character in lieu of plaintiff which nevertheless is based on, or bears rent substantial or marked resemblance or similarity to, or is otherwise Identifiable with, plaintiff in the production and any similar film or photoplay, until further orders from this Court, upon plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for whatever damages defendants may suffer by reason of the injunction if the Court should finally decide that plaintiff was not entitled thereto. xxx xxx xxx

(Emphasis supplied) On 22 March 1988, petitioner Ayer Productions came to this Court by a Petition for certiorari dated 21 March 1988 with an urgent prayer for Preliminary Injunction or Restraining Order, which petition was docketed as G.R. No. L-82380. A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate Petition for certiorari with Urgent Prayer for a Restraining Order or Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398. By a Resolution dated 24 March 1988, the petitions were consolidated and private respondent was required to file a consolidated Answer. Further, in the same Resolution, the Court granted a Temporary Restraining Order partially enjoining the implementation of the respondent Judge's Order of 16 March 1988 and the Writ of Preliminary Injunction issued therein, and allowing the petitioners to resume producing and filming those portions of the projected mini-series which do not make any reference to private respondent or his family or to any fictitious character based on or respondent. Private respondent seasonably filed his Consolidated Answer on 6 April 1988 invoking in the main a right of privacy. I The constitutional and legal issues raised by the present Petitions are sharply drawn. Petitioners' claim that in producing and "The Four Day Revolution," they are exercising their freedom of speech and of expression protected under our Constitution. Private respondent, upon the other hand, asserts a right of privacy and claims that the production and filming of the projected mini-series would constitute an unlawful intrusion into his privacy which he is entitled to enjoy. Considering first petitioners' claim to freedom of speech and of expression the Court would once more stress that this freedom includes the freedom to film and produce motion pictures and to exhibit such motion pictures in theaters or to diffuse them through television. In our day and age, motion pictures are a univesally utilized vehicle of communication and medium Of expression. Along with the press, radio and television, motion pictures constitute a principal medium of mass communication for information, education and entertainment. In Gonzales v.

Katigbak, 3 former Chief Justice Fernando, speaking for the Court, explained: 1. Motion pictures are important both as a medium for the communication of Ideas and the expression of the artistic impulse. Their effect on the perception by our people of issues and public officials or public figures as well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v. Wilson (343 US 495 [19421) is the Importance of motion pictures as an organ of public opinion lessened by the fact that they are designed to entertain as well as to inform' (Ibid, 501). There is no clear dividing line between what involves knowledge and what affords pleasure. If such a distinction were sustained, there is a diminution of the basic right to free expression. ... 4 This freedom is available in our country both to locally-owned and to foreign-owned motion picture companies. Furthermore the circumstance that the production of motion picture films is a commercial activity expected to yield monetary profit, is not a disqualification for availing of freedom of speech and of expression. In our community as in many other countries, media facilities are owned either by the government or the private sector but the private sector-owned media facilities commonly require to be sustained by being devoted in whole or in pailt to revenue producing activities. Indeed, commercial media constitute the bulk of such facilities available in our country and hence to exclude commercially owned and operated media from the exerciseof constitutionally protected om of speech and of expression can only result in the drastic contraction of such constitutional liberties in our country. The counter-balancing of private respondent is to a right of privacy. It was demonstrated sometime ago by the then Dean Irene R. Cortes that our law, constitutional and statutory, does include a right of privacy. 5 It is left to case law, however, to mark out the precise scope and content of this right in differing types of particular situations. The right of privacy or "the right to be let alone," 6 like the right of free expression, is not an absolute right. A limited intrusion into a person's privacy has long been regarded as permissible where that person is a public figure and the information sought to be elicited from him or to be published about him constitute of apublic character. 7 Succinctly put, the right of privacy cannot be invoked resist publication and dissemination of matters of public interest. 8 The interest sought to be protected by the right of privacy is the right to be free from unwarranted publicity, from the wrongful publicizing of the private affairs and activities of an individual which are outside the realm of legitimate public concern. 9 Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies heavily, recognized a right to privacy in a context which included a claim to freedom of speech and of expression. Lagunzad involved a suit fortion picture producer as licensee and the widow and family of the late Moises Padilla as licensors. This agreement gave the licensee the right to produce a motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of the Nacionalista Party for the Municipality of Magallon, Negros Occidental during the November 1951 elections and for whose murder, Governor Rafael Lacson, a member of the Liberal Party then in power and his men were tried and convicted. 11 In the judgment of the lower court enforcing the licensing agreement against the licensee who had produced the motion picture and exhibited it but refused to pay the stipulated royalties, the Court, through Justice Melencio-Herrera, said:

Neither do we agree with petitioner's subon that the Licensing Agreement is null and void for lack of, or for having an illegal cause or consideration, while it is true that petitioner bad pled the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's life and in that of his mother and the member of his family. As held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St Rep 671), 'a privilege may be given the surviving relatives of a deperson to protect his memory, but the privilege wts for the benefit of the living, to protect their feelings and to preventa violation of their own rights in the character and memory of the deceased.' Petitioners averment that private respondent did not have any property right over the life of Moises Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to disseminate public information does not extend to a fictional or novelized representation of a person, no matter how public a he or she may be (Garner v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at bar, while it is true that petitioner exerted efforts to present a true-to-life Story Of Moises Padilla, petitioner admits that he included a little romance in the film because without it, it would be a drab story of torture and brutality. 12 In Lagunzad, the Court had need, as we have in the instant case, to deal with contraposed claims to freedom of speech and of expression and to privacy. Lagunzad the licensee in effect claimed, in the name of freedom of speech and expression, a right to produce a motion picture biography at least partly "fictionalized" of Moises Padilla without the consent of and without paying pre-agreed royalties to the widow and family of Padilla. In rejecting the licensee's claim, the Court said: Lastly, neither do we find merit in petitioners contention that the Licensing Agreement infringes on the constitutional right of freedom of speech and of the press, in that, as a citizen and as a newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla without prior restraint.The right freedom of expression, indeed, occupies a preferred position in the "hierarchy of civil liberties" (Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]). It is not, however, without limitations. As held in Gonzales v. Commission on Elections, 27 SCRA 835, 858 [1960]: xxx xxx xxx

The prevailing doctine is that the clear and present danger rule is such a limitation. Another criterion for permissible limitation on freedom of speech and the press, which includes such vehicles of the mass media as radio, television and the movies, is the "balancing of interest test" (Chief Justice Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle "requires a court to take conscious and detailed consideration of the interplay of interests observable in given situation or type of situation" (Separation Opinion of the late Chief Justice Castro in Gonzales v. Commission on Elections, supra, p. 899). In the case at bar, the interests observable are the right to privacy asserted by respondent and the right of freedom of expression invoked by petitioner. taking into account the interplay of those interests, we hold that under the particular

circumstances presented, and considering the obligations assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will have to be upheld particularly because the limits of freedom of expression are reached when expression touches upon matters of essentially private concern." 13 Whether the "balancing of interests test" or the clear and present danger test" be applied in respect of the instant Petitions, the Court believes that a different conclusion must here be reached: The production and filming by petitioners of the projected motion picture "The Four Day Revolution" does not, in the circumstances of this case, constitute an unlawful intrusion upon private respondent's "right of privacy." 1. It may be observed at the outset that what is involved in the instant case is a prior and direct restraint on the part of the respondent Judge upon the exercise of speech and of expression by petitioners. The respondent Judge has restrained petitioners from filming and producing the entire proposed motion picture. It is important to note that in Lagunzad, there was no prior restrain of any kind imposed upon the movie producer who in fact completed and exhibited the film biography of Moises Padilla. Because of the speech and of expression, a weighty presumption of invalidity vitiates. 14 The invalidity of a measure of prior restraint doesnot, of course, mean that no subsequent liability may lawfully be imposed upon a person claiming to exercise such constitutional freedoms. The respondent Judge should have stayed his hand, instead of issuing an ex-parte Temporary Restraining Order one day after filing of a complaint by the private respondent and issuing a Preliminary Injunction twenty (20) days later; for the projected motion picture was as yet uncompleted and hence not exhibited to any audience. Neither private respondent nor the respondent trial Judge knew what the completed film would precisely look like. There was, in other words, no "clear and present danger" of any violation of any right to privacy that private respondent could lawfully assert. 2. The subject matter of "The Four Day Revolution" relates to the non-bloody change of government that took place at Epifanio de los Santos Avenue in February 1986, and the trian of events which led up to that denouement. Clearly, such subject matter is one of public interest and concern. Indeed, it is, petitioners' argue, of international interest. The subject thus relates to a highly critical stage in the history of this countryand as such, must be regarded as having passed into the public domain and as an appropriate subject for speech and expression and coverage by any form of mass media. The subject mater, as set out in the synopsis provided by the petitioners and quoted above, does not relate to the individual life and certainly not to the private life of private respondent Ponce Enrile. Unlike in Lagunzad, which concerned the life story of Moises Padilla necessarily including at least his immediate family, what we have here is not a film biography, more or less fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution" is not principally about, nor is it focused upon, the man Juan Ponce Enrile' but it is compelled, if it is to be historical, to refer to the role played by Juan Ponce Enrile in the precipitating and the constituent events of the change of government in February 1986. 3. The extent of the instrusion upon the life of private respondent Juan Ponce Enrile that would be entailed by the production and exhibition of "The Four Day Revolution" would, therefore, be limited in character. The extent of that intrusion, as this Court understands the synopsis of the proposed film,

may be generally described as such intrusion as is reasonably necessary to keep that film a truthful historical account. Private respondent does not claim that petitioners threatened to depict in "The Four Day Revolution" any part of the private life of private respondent or that of any member of his family. 4. At all relevant times, during which the momentous events, clearly of public concern, that petitioners propose to film were taking place, private respondent was what Profs. Prosser and Keeton have referred to as a "public figure:" A public figure has been defined as a person who, by his accomplishments, fame, or mode of living, or by adopting a profession or calling which gives the public a legitimate interest in his doings, his affairs, and his character, has become a 'public personage.' He is, in other words, a celebrity. Obviously to be included in this category are those who have achieved some degree of reputation by appearing before the public, as in the case of an actor, a professional baseball player, a pugilist, or any other entertainment. The list is, however, broader than this. It includes public officers, famous inventors and explorers, war heroes and even ordinary soldiers, an infant prodigy, and no less a personage than the Grand Exalted Ruler of a lodge. It includes, in short, anyone who has arrived at a position where public attention is focused upon him as a person. Such public figures were held to have lost, to some extent at least, their tight to privacy. Three reasons were given, more or less indiscrimately, in the decisions" that they had sought publicity and consented to it, and so could not complaint when they received it; that their personalities and their affairs has already public, and could no longer be regarded as their own private business; and that the press had a privilege, under the Constitution, to inform the public about those who have become legitimate matters of public interest. On one or another of these grounds, and sometimes all, it was held that there was no liability when they were given additional publicity, as to matters legitimately within the scope of the public interest they had aroused. The privilege of giving publicity to news, and other matters of public interest, was held to arise out of the desire and the right of the public to know what is going on in the world, and the freedom of the press and other agencies of information to tell it. "News" includes all events and items of information which are out of the ordinary hum-drum routine, and which have 'that indefinable quality of information which arouses public attention.' To a very great extent the press, with its experience or instinct as to what its readers will want, has succeeded in making its own definination of news, as a glance at any morning newspaper will sufficiently indicate. It includes homicide and othe crimes, arrests and police raides, suicides, marriages and divorces, accidents, a death from the use of narcotics, a woman with a rare disease, the birth of a child to a twelve year old girl, the reappearance of one supposed to have been murdered years ago, and undoubtedly many other similar matters of genuine, if more or less deplorable, popular appeal. The privilege of enlightening the public was not, however, limited, to the dissemination of news in the scene of current events. It extended also to information or education, or even entertainment and amusement, by books, articles, pictures, films and broadcasts concerning interesting phases of human activity in general, as well as the reproduction of the public scene in newsreels and travelogues. In determining where to draw the line, the courts were invited to exercise a species of

censorship over what the public may be permitted to read; and they were understandably liberal in allowing the benefit of the doubt. 15 Private respondent is a "public figure" precisely because, inter alia, of his participation as a principal actor in the culminating events of the change of government in February 1986. Because his participation therein was major in character, a film reenactment of the peaceful revolution that fails to make reference to the role played by private respondent would be grossly unhistorical. The right of privacy of a "public figure" is necessarily narrower than that of an ordinary citizen. Private respondent has not retired into the seclusion of simple private citizenship. he continues to be a "public figure." After a successful political campaign during which his participation in the EDSA Revolution was directly or indirectly referred to in the press, radio and television, he sits in a very public place, the Senate of the Philippines. 5. The line of equilibrium in the specific context of the instant case between the constitutional freedom of speech and of expression and the right of privacy, may be marked out in terms of a requirement that the proposed motion picture must be fairly truthful and historical in its presentation of events. There must, in other words, be no knowing or reckless disregard of truth in depicting the participation of private respondent in the EDSA Revolution. 16 There must, further, be no presentation of the private life of the unwilling private respondent and certainly no revelation of intimate or embarrassing personal facts. 17 The proposed motion picture should not enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as "matters of essentially private concern." 18 To the extent that "The Four Day Revolution" limits itself in portraying the participation of private respondent in the EDSA Revolution to those events which are directly and reasonably related to the public facts of the EDSA Revolution, the intrusion into private respondent's privacy cannot be regarded as unreasonable and actionable. Such portrayal may be carried out even without a license from private respondent. II

component of the cause of action is understandable considering that court pleadings are public records; that private respondent's cause of action for invasion of privacy is separate and distinct from that of Honasan's although they arose from the same tortious act of petitioners' that the rule on permissive joinder of parties is not mandatory and that, the cited cases on "forum shopping" were not in point because the parties here and those in Civil Case No. 88-413 are not identical. For reasons that by now have become clear, it is not necessary for the Court to deal with the question of whether or not the lawyers of private respondent Ponce Enrile have engaged in "forum shopping." It is, however, important to dispose to the complaint filed by former Colonel Honasan who, having refused to subject himself to the legal processes of the Republic and having become once again in fugitive from justice, must be deemed to have forfeited any right the might have had to protect his privacy through court processes. WHEREFORE, a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order dated 16 March 1988 of respondent trial court granting a Writ of Preliminary Injunction is hereby SET ASIDE. The limited Temporary Restraining Order granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining unqualifiedly the implementation of respondent Judge's Order of 16 March 1988 and made PERMANENT, and b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April 1988 as separate Petitions for Certiorari with Prayer for Preliminary Injunction or Restraining Order, the Court, in the exercise of its plenary and supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary Restraining Order dated 25 March 1988 and any Preliminary Injunction that may have been issued by him. No pronouncement as to costs.

In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this Court that a Temporary Restraining Order dated 25 March 1988, was issued by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in Civil Case No. 88413, entitled "Gregorio B. Honasan vs. Ayer Productions Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP Motion for Pictures Production" enjoining him and his production company from further filimg any scene of the projected mini-series film. Petitioner alleged that Honasan's complaint was a "scissors and paste" pleading, cut out straight grom the complaint of private respondent Ponce Enrile in Civil Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation dated 4 April 1988, brought to the attention of the Court the same information given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B. Honasan was substantially identical to that filed by private respondent herein and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel for private respondent, with whom counsel for Gregorio Honasan are apparently associated, deliberately engaged in "forum shopping." Private respondent filed a Counter-Manifestation on 13 April 1988 stating that the "slight similarity" between private respondent's complaint and that on Honasan in the construction of their legal basis of the right to privacy as a

SO ORDERED. [G.R. No. 119673. July 26, 1996] IGLESIA NI CRISTO (INC.), petitioner, vs. THE HONORABLE COURT OF APPEALS, BOARD OF REVIEW FOR MOTION PICTURES AND TELEVISION and HONORABLE HENRIETTA S. MENDEZ, respondents. DECISION PUNO, J.: 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 Motion 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 petitioners 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 Motion 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 P.D. No. 1986 in relation to Article 201 of the Revised Penal Code. On January 4, 1993, the trial court held a hearing on petitioners 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 Boards Voting Slip for Television showing its September 9, 1992 action on petitioners 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 Boards Voting Slip for Television showing its September 11, 1992 subsequent action on petitioners 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 Boards Voting Slip for Television showing its October 9, 1992 action on petitioners 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 Boards Voting Slip for Television showing its October 20, 1992 action on petitioners 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 Boards Voting Slip for Television showing its November 20, 1992 action on petitioners Series No. 128 as follows:[6] REMARKS: The episode presented criticizes the religious beliefs of the Catholic and Protestants beliefs. We suggest a second review. (6) Exhibits E, E-1, petitioners block time contract with ABS-CBN Broadcasting Corporation dated September 1, 1992.[7] (7) Exhibit F, petitioners Airtime Contract with Island Broadcasting Corporation.[8] (8) Exhibit G, letter dated December 18, 1992 of former Executive Secretary Edelmiro A. Amante, Sr., addressed to Henrietta S. Mendez reversing the decision of the respondent Board which x-rated the showing of petitioners Series No. 129. The letter reads in part: 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 petitioners 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. xxx

(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 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 petitioners bond of 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: x x x WHEREFORE, judgment is hereby rendered ordering respondent Board of Review for Motion 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 petitioners Motion for Reconsideration. It ordered:[13] x x x WHEREFORE, the Motion for Reconsideration is granted. The second portion of the Courts 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 Appeals[15] 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: I WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT 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 petitioners 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 petitioners 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 P.D. No. 1986. Its Section 3 pertinently provides: Sec. 3 Powers and Functions. The BOARD shall have the following functions, powers and duties: 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 nontheatrical 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. xxx

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 x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x x. The law also directs the Board to apply contemporary Filipino cultural values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime. 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 petitioners 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 ones 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 Ones 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 full 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 his disbelief in acts of derision that wound the feelings of the faithful. The police power can be 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 petitioners 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 petitioners 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 Boards Voting Slip for Television) reveal that its reviewing members x-rated Series 115 for x x x criticizing different religions, based on their own interpretation of the Bible. They suggested that the program should only explain petitioners x x x 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 x x x. Exhibit C shows that Series No. 121 was x-rated x x x for reasons of the attacks, they do on, specifically, the Catholic religion. x x x (T)hey can not tell, dictate any other religion that they are right and the rest are wrong x x x. Exhibit D also shows that Series No. 128 was not favorably recommended because it x x x outrages Catholic and Protestants beliefs. On second review, it was xrated because of its unbalanced interpretations of some parts of the Bible.[18] In sum, the respondent Board x-rated petitioners TV program series Nos. 115, 119, 121 and 128 because of petitioners 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 xrated petitioners TV series for attacking other 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 petitioners 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,[20] viz.: 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 1986 will reveal that it is not among the grounds to justify an order prohibiting the broadcast of petitioners 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 xxx

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 x x x because Section 3 (c) of PD 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: x x x 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 INCs 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 be within the contemplation of the standards of censorship set by law. (Italics 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 x x x 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: x x x 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 1950s 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 Hands formulation that x x x 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 terribly. 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 x x x 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. Maryland[32] 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 possess 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 Clearing 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 PostmasterGeneral), 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 petitioners 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 petitioners TV Program Series Nos. 115, 119, and 121. No costs. SO ORDERED. [G.R. No. 123881. March 13, 1997] VIVA PRODUCTIONS, INC., petitioner, vs. COURT OF APPEALS AND HUBERT J.P. WEBB, respondents. DECISION MELO, J.: Assailed in the petition before us are the decision and resolution of respondent Court of Appeals sustaining both the order of the Regional Trial Court of the National Capital Judicial Region (Paraaque, Branch 274 hereinafter referred to as the Paraaque court) restraining "the exhibition of the movie 'The Jessica Alfaro Story' at its scheduled premiere showing at the New Frontier Theater on September 11, 1995 at 7:30 in the evening and at its regular public exhibition beginning September 13, 1995, as well as to cease and desist from promoting and marketing of the said movie" (Order; p. 96, Rollo); and the order of the Regional Trial Court also of the National Capital Judicial Region (Makati, Branch 58 hereinafter referred to as the Makati court) issuing a writ of preliminary injunction "enjoining petitioner from further proceeding, engaging, using or implementing the promotional, advertising and marketing programs for the movie entitled 'The Jessica Alfaro Story' and from showing or causing the same to be shown or exhibited in all theaters in the entire country UNTIL after the final termination and logical conclusion of the trial in the criminal action now pending before the Paraaque Regional Trial Court" (Order; p. 299, Rollo). Without filing any motion for reconsideration with the two regional trial courts, petitioner elevated the matter to respondent Court of Appeals via a petition for certiorari, with an urgent prayer for the issuance of a temporary restraining order and a writ of preliminary injunction, thereafter docketed and consolidated as C.A. G.R. No. SP-38407 and SP-38408. The factual antecedents were summarized by respondent court in this manner: Both petitions are inexorably linked to the Rape with Homicide case, in connection with what is now known as the "Vizconde Massacre". On June 19, 1995, after the dismissal of two (2) sets of suspects, another group of nine (9), private respondent Hubert J.P. Webb included were charged by the National Bureau of Investigation (NBI) with the crime of Rape With Homicide, on the strength of a sworn statement of Ma. Jessica M. Alfaro, which complaint was docketed as I.S. No. 95- 402 before the Department of Justice. It is of public knowledge, nay beyond cavil, that the personalities involved in this development of the Vizconde Massacre engendered a media frenzy. For at least two successive months, all sorts of news and information about the case, the suspects and witnesses occupied the front pages of newspapers. Focus of attention was Ma. Jessica M. Alfaro (Alfaro, for short), alluded to as the NBI star witness. Offered a movie contract by Viva Productions, Inc. for the filming of her life story, she inked with the latter the said movie contract

while the said case (I.S. 95-402) was under investigation by the Department of Justice. On August 10, 1995, after the conclusion of preliminary investigation before the Department of Justice, an Information for Rape With Homicide was filed against Hubert J.P. Webb and eight (8) others, docketed as Criminal Case No. 95-404 before the Regional Trial Court of Paraaque, Branch 274. On August 25, 1995, the private respondent sent separate letters to Viva Productions, Inc. and Alfaro, warning them that the projected showing of subject movie on the life story of Alfaro would violate the sub judice rule, and his (Hubert J.P. Webb's) constitutional rights as an accused in said criminal case. But such letters from private respondent notwithstanding, petitioner persisted in promoting, advertising and marketing "The Jessica Alfaro Story" in the print and broadcast media and, even on billboards. Premier showing of the movie in question was then scheduled for September 11, 1995, at the New Frontier Theater, with regular public exhibition thereof set for September 13, 1995, in some sixty (60) theaters. And so, on September 6, 1995, Hubert J.P. Webb, the herein private respondent, filed a Petition for Contempt in the same Criminal Case No. 95-404; complaining that the acts of petitioner and Alfaro concerning "The Jessica Alfaro Story" movie were contumacious, within the contemplation of Section 3, Rule 71 of the Revised Rules of Court. Following the full day of hearing on September 8, 1995, and viewing of the controversial movie itself, the respondent Regional Trial Court of Paraaque came out with its Cease and Desist Order aforequoted. On September 8, 1995, respondent Hubert J.P. Webb instituted a case for Injunction With Damages, docketed as Civil Case No. 951365 before the Regional Trial Court of Makati City, Branch 58, which court issued, ex parte, before the matter could be heard on notice, the Temporary Restraining Order under attack. (pp. 61-62, Rollo.) On December 13, 1995, respondent court dismissed the consolidated petitions. Following the denial of petitioner's motion for reconsideration, the instant petition was filed wherein the following issues are ventilated: I WHETHER OR NOT THE PARAAQUE COURT CAN TOTALLY DISREGARD AND INDISCRIMINATELY CURTAIL PETITIONER'S CONSTITUTIONAL RIGHT TO FREEDOM OF EXPRESSION AND OF THE PRESS WITHOUT THE PRESENCE OF A CLEAR AND PRESENT DANGER. II WHETHER OR NOT THE MAKATI COURT HAS JURISDICTION TO TAKE COGNIZANCE OF THE INJUNCTION CASE FILED BEFORE IT WHICH IS IDENTICAL TO THE CASE PENDING BEFORE THE PARAAQUE COURT WHICH HAS ALREADY ACQUIRED JURISDICTION OVER THE ACT COMPLAINED OF. III

WHETHER OR NOT PRIVATE RESPONDENT COMMITTED FORUM SHOPPING BY FILING TWO (2) CASES WITH EXACTLY THE SAME FACTUAL SET-UP, ISSUES INVOLVED AND RELIEFS SOUGHT BEFORE TWO (2) DIFFERENT COURTS OF COORDINATE JURISDICTION. (p. 20, Rollo.) We rule to grant the petition, reversing and setting aside the orders of respondent Court of Appeals, thus annulling and setting aside the orders of the Makati court and lifting the restraining order of the Paraaque court for forum shopping. The key issue to be resolved is whether or not respondent court ruled correctly in upholding the jurisdiction of the Makati court to take cognizance of the civil action for injunction filed before it despite the fact that the same relief, insofar as preventing petitioner from showing of the movie is concerned, had also been sought by the same private respondent before the Paraaque court in proceedings for contempt of court. Corollarily, it may be asked if private respondent and/or his counsel can be held guilty of forum shopping. Petitioner contends that the Makati court has no jurisdiction to take cognizance of the action for damages because the same had been impliedly instituted in the contempt proceedings before the Paraaque court, which after acquiring and exercising jurisdiction over the case, excludes all other courts of concurrent jurisdiction from taking cognizance of the same. Moreover, citing Circular No. 28-91, petitioner accuses private respondent of forum shopping. Private respondent, on the other hand, posits that the Makati court's jurisdiction cannot be validly and legally disputed for it is invested with authority, by express provision of law, to exercise jurisdiction in the action for damages, as may be determined by the allegations in the complaint. The temporary restraining order and writ of injunction issued by the Makati court are mere provisional remedies expressly sanctioned under Rule 58 of the Revised Rules of Court. He also maintains that there is no forum shopping because there is no identity of causes of action. Besides, the action for damages before the Makati court cannot be deemed instituted in the contempt proceedings before the Paraaque court because the rightful parties therein are only the court itself, as the offended party, and petitioner and witness Jessica Alfaro, as accused. We find the shrewd and astute maneuverings of private respondent ill- advised. It will not escape anybody's notice that the act of filing the supposed action for injunction with damages with the Makati court, albeit a separate and distinct action from the contempt proceedings then pending before the Paraaque court, is obviously and solely intended to obtain the preliminary relief of injunction so as to prevent petitioner from exhibiting the movie on its premiere showing on September 11, 1995 and on its regular showing beginning September 13, 1995. The alleged relief for damages becomes a mere subterfuge to camouflage private respondent's real intent and to feign the semblance of a separate and distinct action from the contempt proceedings already filed and on-going with the Paraaque court. Significantly, the primordial issue involved in the Makati court and the Paraaque court is one and the same whether or not the showing of the movie "The Jessica Alfaro Story" violates the sub-judice rule. Should the Paraaque court find so, it would

have no alternative but to enjoin petitioner from proceeding with the intended contumacious act lest it may be cited for contempt. In the case of the Makati court, if it finds such violation, it will have to enjoin petitioner from proceeding with the prejudicial act lest it may be held liable for damages. The query posed before respondent court, simply stated, is whether or not the Paraaque court and the Makati court, obviously having concurrent jurisdiction over the subject matter, can both take cognizance of the two actions and resolve the same identical issue on the alleged violation of the sub judice rule. Respondent court erred in ruling in the affirmative. This is the very evil sought to be avoided by this Court in issuing Circular No. 28-91 which pertinently reads: The attention of the Court has been called to the filing of multiple petitions and complaints involving the same issues in the Supreme Court, the Court of Appeals or different Divisions thereof, or any other tribunal or agency, with the result that said tribunals or agency have to resolve the same issues. (Emphasis supplied.) On February 8, 1994, this was magnified through Administrative Circular No. 04-94, effective on April 1, 1994, to include all courts and agencies other than the Supreme Court and the Court of Appeals, to prevent forum shopping or the multiple filing of such pleadings even at that level. Sanctions for violation thereof are expressly stated as follows: (2) Any violation of this Circular shall be a cause for the dismissal of the complaint, petition, application or other initiatory pleading, upon motion and after hearing. However, any clearly willful and deliberate forum shopping by any party and his counsel through the filing of multiple complaints or other initiatory pleadings to obtain favorable action shall be a ground for summary dismissal thereof and shall constitute direct contempt of court. Furthermore, the submission of a false certification or non-compliance with the undertaking therein, as provided in Paragraph 1 hereof, shall constitute indirect contempt of court, without prejudice to disciplinary proceedings against counsel and the filing of a criminal action against the guilty party. Private respondent's intention to engage in forum shopping becomes manifest with undoubted clarity upon the following considerations. Notably, if not only to ensure the issuance of an injunctive relief, the significance of the action for damages before the Makati court would be nil. What damages against private respondent would there be to speak about if the Paraaque court already enjoins the performance of the very same act complained of in the Makati court? Evidently, the action for damages is premature if not for the preliminary injunctive relief sought. Thus, we find grave abuse of discretion on the part of the Makati court, being a mere co-equal of the Paraaque court, in not giving due deference to the latter before which the issue of the alleged violation of the sub-judice rule had already been raised and submitted. In such instance, the Makati court, if it was wary of dismissing the action outrightly under Administrative Circular No. 04-94, should have, at least, ordered the consolidation of its case with that of the Paraaque court, which had first acquired jurisdiction over the related case in accordance with Rule 31 of the Revised Rules of Court (Superlines Trans. Co. vs. Victor, et al., 124 SCRA 939 [1983]; Vallacar Transit Inc. vs. Yap, 126 SCRA 500 [1983]), or it should have suspended the proceedings until the Paraaque court may have ruled on the issue (Salazar vs. CFI of Laguna, 64 Phil. 785 [1937]).

Ordinarily, where a litigant sues the same party against whom another action or actions for the alleged violation of the same right and the enforcement of the same relief or reliefs is or are still pending, any one action may be dismissed on the ground of litis pendentia and a final judgment in any one case would constitute res judicata on the other. In either instance, there is a clear and undeniable case of forum shopping, another ground for the summary dismissal of both actions, and at the same time an act of direct contempt of court, which includes a possible criminal prosecution and disciplinary action against the erring lawyer (Buan vs. Lopez, Jr., 145 SCRA 34 [1986]). In First Philippine International Bank vs. Court of Appeals (252 SCRA 259 [1996]), this Court, through the same herein Division, per Justice Panganiban, found therein petitioner bank guilty of forum shopping because . . . the objective or the relief being sought, though worded differently, is the same, namely, to enable the petitioner Bank to escape from the obligation to sell the property to respondent. In Danville Maritime vs. Commission on Audit, this Court ruled that the filing by any party of two apparently different actions, but with the same objective, constituted forum shopping: "In the attempt to make the two actions appear to be different, petitioner impleaded different respondents therein PNOC in the case before the lower court and the COA in the case before this Court and sought what seems to be different reliefs. Petitioner asks this Court to set aside the questioned letterdirective of the COA dated October 10, 1988 and to direct said body to approve the Memorandum of Agreement entered into by and between the PNOC and petitioner, while in the complaint before the lower court petitioner seeks to enjoin the PNOC from conducting a rebidding and from selling to other parties the vessel "T/T Andres Bonifacio," and for an extension of time for it to comply with the paragraph 1 of the memorandum of agreement and damages. One can see that although the relief prayed for in the two (2) actions are ostensibly different, the ultimate objective in both actions is the same, that is, the approval of the sale of vessel in favor of petitioner, and to overturn the letter directive of the COA of October 10, 1988 disapproving the sale." (p. 285) In Palm Avenue Realty Development Corporation vs. PCGG (153 SCRA 579 [1987]), we have these words from then Justice, now Chief Justice Narvasa: . . . the filing by the petitioners of the instant special civil action for certiorari and prohibition in this Court despite the pendency of their action in the Makati Regional Trial Court, is a species of forum shopping. Both actions unquestionably involve the same transactions, the same essential facts and circumstances. The petitioners' claim of absence of identity simply because the PCGG had not been impleaded in the RTC suit, and the suit did not involve certain acts which transpired after its commencement, is specious. In the RTC action, as in the action before this Court, the validity of the contract to purchase and sell of September 1, 1986, i.e., whether or not it had been efficaciously rescinded, and the propriety of implementing the same . . . were the basic issues. So, too, the relief was the same: the prevention of such implementation and/or the restoration of the status quo ante. When the acts sought to be restrained took place anyway despite the issuance by the Trial

Court of a temporary restraining order, the RTC suit did not become functus officio. It remained an effective vehicle for obtention of relief; and petitioners' remedy in the premises was plain and patent; the filing of an amended and supplemental pleading in the RTC suit, so as to include the PCGG as defendant and seek nullification of the acts sought to be enjoined but nonetheless done. The remedy was certainly not the institution of another action in another forum based on essentially the same facts. The adoption of this latter recourse renders the petitioner amenable to disciplinary action and both their actions, in this Court as well as in the Court a quo dismissible. (pp. 591-592) Thus, while we might admit that the causes of action before the Makati court and the Paraaque court are distinct, and that private respondent cannot seek civil indemnity in the contempt proceedings, the same being in the nature of criminal contempt, we nonetheless cannot ignore private respondent's intention of seeking exactly identical reliefs when it sought the preliminary relief of injunction in the Makati court. As earlier indicated, had private respondent been completely in good faith, there would have been no hindrance in filing the action for damages with the regional trial court of Paraaque and having it consolidated with the contempt proceedings before Branch 274, so that the same issue on the alleged violation of the sub judice rule will not have to be passed upon twice, and there would be no possibility of having two courts of concurrent jurisdiction making two conflicting resolutions. Yet from another angle, it may be said that when the Paraaque court acquired jurisdiction over the said issue, it excluded all other courts of concurrent jurisdiction from acquiring jurisdiction over the same. To hold otherwise would be to risk instances where courts of concurrent jurisdiction might have conflicting orders. This will create havoc and result in an extremely disordered administration of justice. Therefore, even on the assumption that the Makati court may acquire jurisdiction over the subject matter of the action for damages, without prejudice to the application of Administrative Circular No. 04-94, it cannot nonetheless acquire jurisdiction over the issue of whether or not petitioner has violated the sub judice rule. At best, the Makati court may hear the case only with respect to the alleged injury suffered by private respondent after the Paraaque court shall have ruled favorably on the said issue. In fine, applying the sanction against forum shopping under Administrative Circular No. 04-94, the action filed by private respondent with the Makati court, may be ordered summarily dismissed. Considering the nature and purpose of contempt proceedings before the Paraaque court and the public policy of protecting the integrity of the court, we reserve the imposition of a similar sanction to dismiss the same and leave that matter to the discretion of the presiding judge concerned, although it is worthy to stress that insofar as injunctive relief against the showing of the movie before the Paraaque court is concerned, we resolved to also dismiss the same by reason of forum shopping. The sanction of twin dismissal under Buan vs. Lopez is applicable. This, however, is without prejudice to the other aspects of the contempt proceedings which may still be pending before the Paraaque court. In view of the foregoing disposition, we find no further need to resolve the issue of whether or not there was valid and lawful denial by both lower courts of petitioner's right to free speech

and expression. Suffice it to mention, however, that the Court takes note of the rather unreasonable period that had elapsed from the time of the issuance of the restraining order by the Paraaque court up to the writing of this decision. The Court also notes that the order of the said court specifically failed to lay down any factual basis constituting a clear and present danger which will justify prior restraint of the constitutionally protected freedom of speech and expression save its plea for time to hear and resolve the issues raised in the petition for contempt. WHEREFORE, the assailed decision and order of respondent court are hereby SET ASIDE, and a new one entered declaring null and void all orders of Branch 58 of the Regional Trial Court of the National Capital Judicial Region stationed in Makati City in its Civil Case No. 95-1365 and forthwith dismissing said case, and declaring the order of the Regional Trial Court of the same National Capital Judicial Region stationed in Paraaque (Branch 274), functus officio insofar as it restrains the public showing of the movie "The Jessica Alfaro Story." Private respondent and his counsel are admonished to refrain from repeating a similar act of forum shopping, with the stern warning that any repetition of similar acts will be dealt with more severely. SO ORDERED. G.R. No. 155282 January 17, 2005

MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner, vs. ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents. DECISION SANDOVAL-GUTIERREZ, J.: For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Court, as amended, filed by petitioner Movie and Television Review and Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN) and former Senator Loren Legarda, respondents, assailing the (a) Decision dated November 18, 1997,1 and (b) Order dated August 26, 20022 of the Regional Trial Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052. The facts are undisputed. On October 15, 1991, at 10:45 in the evening, respondent ABSCBN aired "Prosti-tuition," an episode of the television (TV) program "The Inside Story" produced and hosted by respondent Legarda. It depicted female students moonlighting as prostitutes to enable them to pay for their tuition fees. In the course of the program, student prostitutes, pimps, customers, and some faculty members were interviewed. The Philippine Womens University (PWU) was named as the school of some of the students involved and the facade of PWU Building at Taft Avenue, Manila conspicuously served as the background of the episode. The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia P. de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association filed letter-complaints3 with petitioner MTRCB. Both

complainants alleged that the episode besmirched the name of the PWU and resulted in the harassment of some of its female students. Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB Investigating Committee, alleging among others, that respondents (1) did not submit "The Inside Story" to petitioner for its review and (2) exhibited the same without its permission, thus, violating Section 74 of Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III and Section 7,7 Chapter IV of the MTRCB Rules and Regulations.8 In their answer,9 respondents explained that the "The Inside Story" is a "public affairs program, news documentary and socio-political editorial," the airing of which is protected by the constitutional provision on freedom of expression and of the press. Accordingly, petitioner has no power, authority and jurisdiction to impose any form of prior restraint upon respondents. On February 5, 1993, after hearing and submission of the parties memoranda, the MTRCB Investigating Committee rendered a Decision, the decretal portion of which reads: "WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of this case for review and approval of the MTRCB. Heretofore, all subsequent programs of the The Inside Story and all other programs of the ABS-CBN Channel 2 of the same category shall be submitted to the Board of Review and Approval before showing; otherwise the Board will act accordingly."101awphi1.nt On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision dated March 12, 1993 affirming the above ruling of its Investigating Committee.11 Respondents filed a motion for reconsideration but was denied in a Resolution dated April 14, 1993.12 Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections 3,19 7,20 and 2821 (a) of the MTRCB Rules and Regulations;22 (2) (in the alternative) exclude the "The Inside Story" from the coverage of the above cited provisions; and (3) annul and set aside the MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993. Respondents averred that the above-cited provisions constitute "prior restraint" on respondents exercise of freedom of expression and of the press, and, therefore, unconstitutional. Furthermore, the above cited provisions do not apply to the "The Inside Story" because it falls under the category of "public affairs program, news documentary, or socio-political editorials" governed by standards similar to those governing newspapers. On November 18, 1997, the RTC rendered a Decision23 in favor of respondents, the dispositive portion of which reads: "WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered: 1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March 12, 1993;

2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program "The Inside Story" and other similar programs, they being public affairs programs which can be equated to newspapers; and 3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf. SO ORDERED." Petitioner filed a motion for reconsideration but was denied.24 Hence, this petition for review on certiorari. Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs, including "public affairs programs, news documentaries, or socio-political editorials," are subject to petitioners power of review under Section 3 (b) of P.D. No. 1986 and pursuant to this Courts ruling in Iglesia ni Cristo vs. Court of Appeals ;25 second, television programs are more accessible to the public than newspapers, thus, the liberal regulation of the latter cannot apply to the former; third, petitioners power to review television programs under Section 3(b) of P. D. No. 1986 does not amount to "prior restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents constitutional freedom of expression and of the press. Respondents take the opposite stance. The issue for our resolution is whether the MTRCB has the power or authority to review the "The Inside Story" prior to its exhibition or broadcast by television. The petition is impressed with merit. The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced as follows: "SEC. 3. Powers and Functions. The BOARD shall have the following functions, powers and duties: xxxxxx b) To screen, review and examine all motion pictures as herein defined, television programs, including publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity materials be for theatrical or nontheatrical 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.1a\^/phi1.net c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of the motion pictures, television programs and publicity materials subject of the preceding paragraph, which, in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime, such as but not limited to:

xxx d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television programs and publicity materials, to the end and that no such pictures, programs and materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television; x x x x x x." Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to review the television program "The Inside Story." The task is not Herculean because it merely resurrects this Court En Bancs ruling in Iglesia ni Cristo vs. Court of Appeals.26 There, the Iglesia ni Cristo sought exception from petitioners review power contending that the term "television programs" under Sec. 3 (b) does not include "religious programs" which are protected under Section 5, Article III of the Constitution.27 This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives petitioner "the power to screen, review and examine "all television programs," emphasizing the phrase "all television programs," thus: "The law gives the Board the power to screen, review and examine all television programs. By the clear terms of the law, the Board has the power to approve, delete x x x and/or prohibit the x x x exhibition and/or television broadcast of x x x television programs x x x. The law also directs the Board to apply contemporary Filipino cultural values as standard to determine those which are objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of a wrong or crime." Settled is the rule in statutory construction that where the law does not make any exception, courts may not except something therefrom, unless there is compelling reason apparent in the law to justify it.28 Ubi lex non distinguit nec distinguere debemos. Thus, when the law says "all television programs," the word "all" covers all television programs, whether religious, public affairs, news documentary, etc.29 The principle assumes that the legislative body made no qualification in the use of general word or expression.30 It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of the MTRCB over which it has power of review. Here, respondents sought exemption from the coverage of the term "television programs" on the ground that the "The Inside Story" is a "public affairs program, news documentary and socio-political editorial" protected under Section 4,31 Article III of the Constitution. Albeit, respondents basis is not freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression and of the press, the ruling in Iglesia ni Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo, this Court declared that freedom of religion has been accorded a preferred status by the framers of our fundamental laws, past and present, "designed to protect the broadest possible liberty of conscience, to allow each man to believe as

his conscience directs x x x." Yet despite the fact that freedom of religion has been accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristos religious program from petitioners review power. Respondents claim that the showing of "The Inside Story" is protected by the constitutional provision on freedom of speech and of the press. However, there has been no declaration at all by the framers of the Constitution that freedom of expression and of the press has a preferred status. If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom "The Inside Story" which, according to respondents, is protected by the constitutional provision on freedom of expression and of the press, a freedom bearing no preferred status. The only exceptions from the MTRCBs power of review are those expressly mentioned in Section 7 of P. D. No. 1986, such as (1) television programs imprinted or exhibited by the Philippine Government and/or its departments and agencies, and (2) newsreels. Thus: "SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or entity to exhibit or cause to be exhibited in any moviehouse, theatre, or public place or by television within the Philippines any motion picture, television program or publicity material, including trailers, and stills for lobby displays in connection with motion pictures, not duly authorized by the owner or his assignee and passed by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any theater or public place or by television a label or notice showing the same to have been officially passed by the BOARD when the same has not been previously authorized, except motion pictures, television programs or publicity material imprinted or exhibited by the Philippine Government and/or its departments and agencies, and newsreels." Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls under the category of newsreels. Their contention is unpersuasive. P. D. No. 1986 does not define "newsreels." Websters dictionary defines newsreels as short motion picture films portraying or dealing with current events.33 A glance at actual samples of newsreels shows that they are mostly reenactments of events that had already happened. Some concrete examples are those of Dziga Vertovs Russian Kino-Pravda newsreel series (Kino-Pravda means literally "film-truth," a term that was later translated literally into the French cinema verite) and Frank Capras Why We Fight series.34 Apparently, newsreels are straight presentation of events. They are depiction of "actualities." Correspondingly, the MTRCB Rules and Regulations35 implementing P. D. No. 1986 define newsreels as "straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows on a given issue are not considered newsreels."36 Clearly, the "The Inside Story" cannot be considered a newsreel. It is more of a public affairs program which is described as a variety of news treatment; a cross between pure television news and newsrelated commentaries, analysis and/or exchange of opinions.37

Certainly, such kind of program is within petitioners review power. It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review "The Inside Story." Clearly, we are not called upon to determine whether petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing that no law shall be passed abridging the freedom of speech, of oppression or the press. Petitioner did not disapprove or ban the showing of the program. Neither did it cancel respondents permit. Respondents were merely penalized for their failure to submit to petitioner "The Inside Story" for its review and approval. Therefore, we need not resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules and Regulations specified by respondents contravene the Constitution. Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is settled that no question involving the constitutionality or validity of a law or governmental act may be heard and decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: (1) that the question must be raised by the proper party; (2) that there must be an actual case or controversy; (3) that the question must be raised at the earliest possible opportunity; and, (4) that the decision on the constitutional or legal question must be necessary to the determination of the case itself.38 WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC Decision dated November 18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of petitioner MTRCB is AFFIRMED. Costs against respondents. SO ORDERED. Freedom from subsequent punishment 2. Content-based and Content-neutral punishment FRANCISCO CHAVEZ, Petitioner, - versus RAUL M. GONZALES, in his capacity as the Secretary of the Department of Justice; and NATIONAL TELECOMMUNICATIONS COMMISSION (NTC), Respondents. G.R. No. 168338 February 15, 2008 DECISION

be met with an examination so critical that only a danger that is clear and present would be allowed to curtail it. Indeed, we have not wavered in the duty to uphold this cherished freedom. We have struck down laws and issuances meant to curtail this right, as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it is clear that a governmental act is nothing more than a naked means to prevent the free exercise of speech, it must be nullified. B. The Facts 1. The case originates from events that occurred a year after the 2004 national and local elections. On June 5, 2005, Press Secretary Ignacio Bunye told reporters that the opposition was planning to destabilize the administration by releasing an audiotape of a mobile phone conversation allegedly between the President of the Philippines, Gloria Macapagal Arroyo, and a high-ranking official of the Commission on Elections (COMELEC). The conversation was audiotaped allegedly through wire-tapping.[5] Later, in a Malacaang press briefing, Secretary Bunye produced two versions of the tape, one supposedly the complete version, and the other, a spliced, doctored or altered version, which would suggest that the President had instructed the COMELEC official to manipulate the election results in the Presidents favor. [6] It seems that Secretary Bunye admitted that the voice was that of President Arroyo, but subsequently made a retraction. [7] 2. On June 7, 2005, former counsel of deposed President Joseph Estrada, Atty. Alan Paguia, subsequently released an alleged authentic tape recording of the wiretap. Included in the tapes were purported conversations of the President, the First Gentleman Jose Miguel Arroyo, COMELEC Commissioner Garcillano, and the late Senator Barbers.[8] 3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul Gonzales warned reporters that those who had copies of the compact disc (CD) and those broadcasting or publishing its contents could be held liable under the AntiWiretapping Act. These persons included Secretary Bunye and Atty. Paguia. He also stated that persons possessing or airing said tapes were committing a continuing offense, subject to arrest by anybody who had personal knowledge if the crime was committed or was being committed in their presence.[9] 4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered the National Bureau of Investigation (NBI) to go after media organizations found to have caused the spread, the playing and the printing of the contents of a tape of an alleged wiretapped conversation involving the President about fixing votes in the 2004 national elections. Gonzales said that he was going to start with Inq7.net, a joint venture between the Philippine Daily Inquirer and GMA7 television network, because by the very nature of the Internet medium, it was able to disseminate the contents of the tape more widely. He then expressed his intention of inviting the editors and managers of Inq7.net and GMA7 to a probe, and supposedly declared, I [have] asked the NBI to conduct a tactical interrogation of all concerned. [10] 5. On June 11, 2005, the NTC issued this press release: [11]

PUNO, C.J.: A. Precis In this jurisdiction, it is established that freedom of the press is crucial and so inextricably woven into the right to free speech and free expression, that any attempt to restrict it must

NTC GIVES FAIR WARNING TO RADIO AND TELEVISION OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND PERTINENT CIRCULARS ON PROGRAM STANDARDS xxx xxx xxx

Accordingly, NTC and KBP issued a Joint Press Statement which states, among others, that: [12] NTC respects and will not hinder freedom of the press and the right to information on matters of public concern. KBP & its members have always been committed to the exercise of press freedom with high sense of responsibility and discerning judgment of fairness and honesty. NTC did not issue any MC [Memorandum Circular] or Order constituting a restraint of press freedom or censorship. The NTC further denies and does not intend to limit or restrict the interview of members of the opposition or free expression of views. What is being asked by NTC is that the exercise of press freedom [be] done responsibly. KBP has program standards that KBP members will observe in the treatment of news and public affairs programs. These include verification of sources, non-airing of materials that would constitute inciting to sedition and/or rebellion. The KBP Codes also require that no false statement or willful misrepresentation is made in the treatment of news or commentaries. The supposed wiretapped tapes should be treated with sensitivity and handled responsibly giving due consideration to the process being undertaken to verify and validate the authenticity and actual content of the same.

Taking into consideration the countrys unusual situation, and in order not to unnecessarily aggravate the same, the NTC warns all radio stations and television network owners/operators that the conditions of the authorization and permits issued to them by Government like the Provisional Authority and/or Certificate of Authority explicitly provides that said companies shall not use [their] stations for the broadcasting or telecasting of false information or willful misrepresentation. Relative thereto, it has come to the attention of the [NTC] that certain personalities are in possession of alleged taped conversations which they claim involve the President of the Philippines and a Commissioner of the COMELEC regarding supposed violation of election laws. These personalities have admitted that the taped conversations are products of illegal wiretapping operations. Considering that these taped conversations have not been duly authenticated nor could it be said at this time that the tapes contain an accurate or truthful representation of what was recorded therein, it is the position of the [NTC] that the continuous airing or broadcast of the said taped conversations by radio and television stations is a continuing violation of the Anti-Wiretapping Law and the conditions of the Provisional Authority and/or Certificate of Authority issued to these radio and television stations. It has been subsequently established that the said tapes are false and/or fraudulent after a prosecution or appropriate investigation, the concerned radio and television companies are hereby warned that their broadcast/airing of such false information and/or willful misrepresentation shall be just cause for the suspension, revocation and/or cancellation of the licenses or authorizations issued to the said companies. In addition to the above, the [NTC] reiterates the pertinent NTC circulars on program standards to be observed by radio and television stations. NTC Memorandum Circular 111-12-85 explicitly states, among others, that all radio broadcasting and television stations shall, during any broadcast or telecast, cut off from the air the speech, play, act or scene or other matters being broadcast or telecast the tendency thereof is to disseminate false information or such other willful misrepresentation, or to propose and/or incite treason, rebellion or sedition. The foregoing directive had been reiterated by NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited radio, broadcasting and television stations from using their stations to broadcast or telecast any speech, language or scene disseminating false information or willful misrepresentation, or inciting, encouraging or assisting in subversive or treasonable acts. The [NTC] will not hesitate, after observing the requirements of due process, to apply with full force the provisions of said Circulars and their accompanying sanctions on erring radio and television stations and their owners/operators. 6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the KBP that the press release did not violate the constitutional freedom of speech, of expression, and of the press, and the right to information.

C. The Petition Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against respondents Secretary Gonzales and the NTC, praying for the issuance of the writs of certiorari and prohibition, as extraordinary legal remedies, to annul void proceedings, and to prevent the unlawful, unconstitutional and oppressive exercise of authority by the respondents.[13] Alleging that the acts of respondents are violations of the freedom on expression and of the press, and the right of the people to information on matters of public concern,[14] petitioner specifically asked this Court: [F]or [the] nullification of acts, issuances, and orders of respondents committed or made since June 6, 2005 until the present that curtail the publics rights to freedom of expression and of the press, and to information on matters of public concern specifically in relation to information regarding the controversial taped conversion of President Arroyo and for prohibition of the further commission of such acts, and making of such issuances, and orders by respondents. [15] Respondents[16] denied that the acts transgress the Constitution, and questioned petitioners legal standing to file the petition. Among the arguments they raised as to the validity of the fair warning issued by respondent NTC, is that broadcast media enjoy lesser constitutional guarantees compared to print media, and the warning was issued pursuant to the NTCs mandate to regulate the telecommunications industry. [17] It was also stressed that most of the [television] and radio stations continue, even to this date, to air the tapes, but of late within the parameters agreed upon between the NTC and KBP. [18]

D. THE PROCEDURAL THRESHOLD: LEGAL STANDING To be sure, the circumstances of this case make the constitutional challenge peculiar. Petitioner, who is not a member of the broadcast media, prays that we strike down the acts and statements made by respondents as violations of the right to free speech, free expression and a free press. For another, the recipients of the press statements have not come forwardneither intervening nor joining petitioner in this action. Indeed, as a group, they issued a joint statement with respondent NTC that does not complain about restraints on freedom of the press. It would seem, then, that petitioner has not met the requisite legal standing, having failed to allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the Court so largely depends for illumination of difficult constitutional questions. [19] But as early as half a century ago, we have already held that where serious constitutional questions are involved, the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside if we must, technicalities of procedure. [20] Subsequently, this Court has repeatedly and consistently refused to wield procedural barriers as impediments to its addressing and resolving serious legal questions that greatly impact on public interest,[21] in keeping with the Court's duty under the 1987 Constitution to determine whether or not other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them. Thus, in line with the liberal policy of this Court on locus standi when a case involves an issue of overarching significance to our society,[22] we therefore brush aside technicalities of procedure and take cognizance of this petition,[23] seeing as it involves a challenge to the most exalted of all the civil rights, the freedom of expression. The petition raises other issues like the extent of the right to information of the public. It is fundamental, however, that we need not address all issues but only the most decisive one which in the case at bar is whether the acts of the respondents abridge freedom of speech and of the press. But aside from the primordial issue of determining whether free speech and freedom of the press have been infringed, the case at bar also gives this Court the opportunity: (1) to distill the essence of freedom of speech and of the press now beclouded by the vagaries of motherhood statements; (2) to clarify the types of speeches and their differing restraints allowed by law; (3) to discuss the core concepts of prior restraint, content-neutral and content-based regulations and their constitutional standard of review; (4) to examine the historical difference in the treatment of restraints between print and broadcast media and stress the standard of review governing both; and (5) to call attention to the ongoing blurring of the lines of distinction between print and broadcast media.

to assemble and petition the government for redress of grievances.[24] Freedom of expression has gained recognition as a fundamental principle of every democratic government, and given a preferred right that stands on a higher level than substantive economic freedom or other liberties. The cognate rights codified by Article III, Section 4 of the Constitution, copied almost verbatim from the First Amendment of the U.S. Bill of Rights,[25] were considered the necessary consequence of republican institutions and the complement of free speech. [26] This preferred status of free speech has also been codified at the international level, its recognition now enshrined in international law as a customary norm that binds all nations.[27] In the Philippines, the primacy and high esteem accorded freedom of expression is a fundamental postulate of our constitutional system. [28] This right was elevated to constitutional status in the 1935, the 1973 and the 1987 Constitutions, reflecting our own lesson of history, both political and legal, that freedom of speech is an indispensable condition for nearly every other form of freedom.[29] Moreover, our history shows that the struggle to protect the freedom of speech, expression and the press was, at bottom, the struggle for the indispensable preconditions for the exercise of other freedoms.[30] For it is only when the people have unbridled access to information and the press that they will be capable of rendering enlightened judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be free and ignorant. E.1. ABSTRACTION OF FREE SPEECH Surrounding the freedom of speech clause are various concepts that we have adopted as part and parcel of our own Bill of Rights provision on this basic freedom.[31] What is embraced under this provision was discussed exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which it was held: At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. [33] Gonzales further explained that the vital need of a constitutional democracy for freedom of expression is undeniable, whether as a means of assuring individual selffulfillment; of attaining the truth; of assuring participation by the people in social, including political, decision-making; and of maintaining the balance between stability and change.[34] As early as the 1920s, the trend as reflected in Philippine and American decisions was to recognize the broadest scope and assure the widest latitude for this constitutional guarantee. The trend represents a profound commitment to the principle that debate on public issue should be uninhibited, robust, and wideopen. [35] Freedom of speech and of the press means something more than the right to approve existing political beliefs or economic arrangements, to lend support to official measures, and to take refuge in the existing climate of opinion on any matter of public consequence.[36] When atrophied, the right becomes

E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH, OF EXPRESSION AND OF THE PRESS No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably

meaningless.[37] The right belongs as well -- if not more to those who question, who do not conform, who differ.[38] The ideas that may be expressed under this freedom are confined not only to those that are conventional or acceptable to the majority. To be truly meaningful, freedom of speech and of the press should allow and even encourage the articulation of the unorthodox view, though it be hostile to or derided by others; or though such view induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. [40] The scope of freedom of expression is so broad that it extends protection to nearly all forms of communication. It protects speech, print and assembly regarding secular as well as political causes, and is not confined to any particular field of human interest. The protection covers myriad matters of public interest or concern embracing all issues, about which information is needed or appropriate, so as to enable members of society to cope with the exigencies of their period. The constitutional protection assures the broadest possible exercise of free speech and free press for religious, political, economic, scientific, news, or informational ends, inasmuch as the Constitution's basic guarantee of freedom to advocate ideas is not confined to the expression of ideas that are conventional or shared by a majority. The constitutional protection is not limited to the exposition of ideas. The protection afforded free speech extends to speech or publications that are entertaining as well as instructive or informative. Specifically, in Eastern Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of media, whether print or broadcast, are entitled to the broad protection of the clause on freedom of speech and of expression. While all forms of communication are entitled to the broad protection of freedom of expression clause, the freedom of film, television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspapers and other print media, as will be subsequently discussed. E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH From the language of the specific constitutional provision, it would appear that the right to free speech and a free press is not susceptible of any limitation. But the realities of life in a complex society preclude a literal interpretation of the provision prohibiting the passage of a law that would abridge such freedom. For freedom of expression is not an absolute, [42] nor is it an unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. Thus, all speech are not treated the same. Some types of speech may be subjected to some regulation by the State under its pervasive police power, in order that it may not be injurious to the equal right of others or those of the community or society.[43] The difference in treatment is expected because the relevant interests of one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech. Distinctions have therefore been made in the treatment, analysis, and evaluation of the permissible scope of restrictions on various categories of speech. [44] We have ruled, for example, that in our jurisdiction slander or libel, lewd and

obscene speech, as well as fighting words are not entitled to constitutional protection and may be penalized.[45] Moreover, the techniques of reviewing alleged restrictions on speech (overbreadth, vagueness, and so on) have been applied differently to each category, either consciously or unconsciously. [46] A study of free speech jurisprudence whether here or abroadwill reveal that courts have developed different tests as to specific types or categories of speech in concrete situations; i.e., subversive speech; obscene speech; the speech of the broadcast media and of the traditional print media; libelous speech; speech affecting associational rights; speech before hostile audiences; symbolic speech; speech that affects the right to a fair trial; and speech associated with rights of assembly and petition. [47] Generally, restraints on freedom of speech and expression are evaluated by either or a combination of three tests, i.e., (a) the dangerous tendency doctrine which permits limitations on speech once a rational connection has been established between the speech restrained and the danger contemplated; [48] (b) the balancing of interests tests, used as a standard when courts need to balance conflicting social values and individual interests, and requires a conscious and detailed consideration of the interplay of interests observable in a given situation of type of situation; [49] and (c) the clear and present danger rule which rests on the premise that speech may be restrained because there is substantial danger that the speech will likely lead to an evil the government has a right to prevent. This rule requires that the evil consequences sought to be prevented must be substantive, extremely serious and the degree of imminence extremely high. [50] As articulated in our jurisprudence, we have applied either the dangerous tendency doctrine or clear and present danger test to resolve free speech challenges. More recently, we have concluded that we have generally adhered to the clear and present danger test. [51] E.3. IN FOCUS: FREEDOM OF THE PRESS Much has been written on the philosophical basis of press freedom as part of the larger right of free discussion and expression. Its practical importance, though, is more easily grasped. It is the chief source of information on current affairs. It is the most pervasive and perhaps most powerful vehicle of opinion on public questions. It is the instrument by which citizens keep their government informed of their needs, their aspirations and their grievances. It is the sharpest weapon in the fight to keep government responsible and efficient. Without a vigilant press, the mistakes of every administration would go uncorrected and its abuses unexposed. As Justice Malcolm wrote in United States v. Bustos:[52] The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and unjust accusation; the wound can be assuaged with the balm of clear conscience. Its contribution to the public weal makes freedom of the press deserving of extra protection. Indeed, the press benefits from certain ancillary rights. The productions of writers are classified as intellectual and proprietary. Persons who interfere or defeat the freedom to write for the press or to maintain a

periodical publication are liable for damages, be they private individuals or public officials. E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENTNEUTRAL AND CONTENT-BASED REGULATIONS Philippine jurisprudence, even as early as the period under the 1935 Constitution, has recognized four aspects of freedom of the press. These are (1) freedom from prior restraint; (2) freedom from punishment subsequent to publication; [53] (3) freedom of access to information; [54] and (4) freedom of circulation.[55] Considering that petitioner has argued that respondents press statement constitutes a form of impermissible prior restraint, a closer scrutiny of this principle is in order, as well as its sub-specie of content-based (as distinguished from content-neutral) regulations. At this point, it should be noted that respondents in this case deny that their acts constitute prior restraints. This presents a unique tinge to the present challenge, considering that the cases in our jurisdiction involving prior restrictions on speech never had any issue of whether the governmental act or issuance actually constituted prior restraint. Rather, the determinations were always about whether the restraint was justified by the Constitution. Be that as it may, the determination in every case of whether there is an impermissible restraint on the freedom of speech has always been based on the circumstances of each case, including the nature of the restraint. And in its application in our jurisdiction, the parameters of this principle have been etched on a case-to-case basis, always tested by scrutinizing the governmental issuance or act against the circumstances in which they operate, and then determining the appropriate test with which to evaluate. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination.[56] Freedom from prior restraint is largely freedom from government censorship of publications, whatever the form of censorship, and regardless of whether it is wielded by the executive, legislative or judicial branch of the government. Thus, it precludes governmental acts that required approval of a proposal to publish; licensing or permits as prerequisites to publication including the payment of license taxes for the privilege to publish; and even injunctions against publication. Even the closure of the business and printing offices of certain newspapers, resulting in the discontinuation of their printing and publication, are deemed as previous restraint or censorship. [57] Any law or official that requires some form of permission to be had before publication can be made, commits an infringement of the constitutional right, and remedy can be had at the courts. Given that deeply ensconced in our fundamental law is the hostility against all prior restraints on speech, and any act that restrains speech is presumed invalid,[58] and any act that restrains speech is hobbled by the presumption of invalidity and should be greeted with furrowed brows, [59] it is important to stress not all prior restraints on speech are invalid. Certain previous restraints may be permitted by the Constitution, but determined only upon a careful evaluation of the challenged act as against the appropriate test by which it should be measured against.

Hence, it is not enough to determine whether the challenged act constitutes some form of restraint on freedom of speech. A distinction has to be made whether the restraint is (1) a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards;[60] or (2) a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech. [61] The cast of the restriction determines the test by which the challenged act is assayed with. When the speech restraints take the form of a contentneutral regulation, only a substantial governmental interest is required for its validity.[62] Because regulations of this type are not designed to suppress any particular message, they are not subject to the strictest form of judicial scrutiny but an intermediate approachsomewhere between the mere rationality that is required of any other law and the compelling interest standard applied to content-based restrictions.[63] The test is called intermediate because the Court will not merely rubberstamp the validity of a law but also require that the restrictions be narrowly-tailored to promote an important or significant governmental interest that is unrelated to the suppression of expression. The intermediate approach has been formulated in this manner: A governmental regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incident restriction on alleged [freedom of speech & expression] is no greater than is essential to the furtherance of that interest. [64] On the other hand, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny in light of its inherent and invasive impact. Only when the challenged act has overcome the clear and present danger rule will it pass constitutional muster,[65] with the government having the burden of overcoming the presumed unconstitutionality. Unless the government can overthrow this presumption, the content-based restraint will be struck down.[66] With respect to content-based restrictions, the government must also show the type of harm the speech sought to be restrained would bring about especially the gravity and the imminence of the threatened harm otherwise the prior restraint will be invalid. Prior restraint on speech based on its content cannot be justified by hypothetical fears, but only by showing a substantive and imminent evil that has taken the life of a reality already on ground.[67] As formulated, the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.[68] The regulation which restricts the speech content must also serve an important or substantial government interest, which is unrelated to the suppression of free expression. [69] Also, the incidental restriction on speech must be no greater than what is essential to the furtherance of that interest. [70] A restriction that is so broad that it encompasses more than what is required to satisfy the governmental interest will be invalidated. [71] The regulation, therefore, must be

reasonable and narrowly drawn to fit the regulatory purpose, with the least restrictive means undertaken. [72] Thus, when the prior restraint partakes of a contentneutral regulation, it is subjected to an intermediate review. A content-based regulation,[73] however, bears a heavy presumption of invalidity and is measured against the clear and present danger rule. The latter will pass constitutional muster only if justified by a compelling reason, and the restrictions imposed are neither overbroad nor vague. [74] Applying the foregoing, it is clear that the challenged acts in the case at bar need to be subjected to the clear and present danger rule, as they are content-based restrictions. The acts of respondents focused solely on but one objecta specific content fixed as these were on the alleged taped conversations between the President and a COMELEC official. Undoubtedly these did not merely provide regulations as to the time, place or manner of the dissemination of speech or expression. E.5. Dichotomy of Free Press: Print v. Broadcast Media Finally, comes respondents argument that the challenged act is valid on the ground that broadcast media enjoys free speech rights that are lesser in scope to that of print media. We next explore and test the validity of this argument, insofar as it has been invoked to validate a content-based restriction on broadcast media. The regimes presently in place for each type of media differ from one other. Contrasted with the regime in respect of books, newspapers, magazines and traditional printed matter, broadcasting, film and video have been subjected to regulatory schemes. The dichotomy between print and broadcast media traces its origins in the United States. There, broadcast radio and television have been held to have limited First Amendment protection,[75] and U.S. Courts have excluded broadcast media from the application of the strict scrutiny standard that they would otherwise apply to content-based restrictions.[76] According to U.S. Courts, the three major reasons why broadcast media stands apart from print media are: (a) the scarcity of the frequencies by which the medium operates [i.e., airwaves are physically limited while print medium may be limitless]; [77] (b) its pervasiveness as a medium; and (c) its unique accessibility to children.[78] Because cases involving broadcast media need not follow precisely the same approach that [U.S. courts] have applied to other media, nor go so far as to demand that such regulations serve compelling government interests,[79] they are decided on whether the governmental restriction is narrowly tailored to further a substantial governmental interest,[80] or the intermediate test. As pointed out by respondents, Philippine jurisprudence has also echoed a differentiation in treatment between broadcast and print media. Nevertheless, a review of Philippine case law on broadcast media will show thatas we have deviated with the American conception of the Bill of Rights[81] we likewise did not adopt en masse the U.S. conception of free speech as it relates to broadcast media, particularly as to which test would govern content-based prior restraints. Our cases show two distinct features of this dichotomy. First, the difference in treatment, in the main, is in the regulatory

scheme applied to broadcast media that is not imposed on traditional print media, and narrowly confined to unprotected speech (e.g., obscenity, pornography, seditious and inciting speech), or is based on a compelling government interest that also has constitutional protection, such as national security or the electoral process. Second, regardless of the regulatory schemes that broadcast media is subjected to, the Court has consistently held that the clear and present danger test applies to content-based restrictions on media, without making a distinction as to traditional print or broadcast media. The distinction between broadcast and traditional print media was first enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,[82] wherein it was held that [a]ll forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule[83] Dans was a case filed to compel the reopening of a radio station which had been summarily closed on grounds of national security. Although the issue had become moot and academic because the owners were no longer interested to reopen, the Court still proceeded to do an analysis of the case and made formulations to serve as guidelines for all inferior courts and bodies exercising quasi-judicial functions. Particularly, the Court made a detailed exposition as to what needs be considered in cases involving broadcast media. Thus: [84] xxx xxx xxx

(3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule, that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression

clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos. Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance. (5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted.

(7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. [Citations omitted]

It is interesting to note that the Court in Dans adopted the arguments found in U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, pervasiveness and accessibility to children), but only after categorically declaring that the test for limitations on freedom of expression continues to be the clear and present danger rule, for all forms of media, whether print or broadcast. Indeed, a close reading of the abovequoted provisions would show that the differentiation that the Court in Dans referred to was narrowly restricted to what is otherwise deemed as unprotected speech (e.g., obscenity, national security, seditious and inciting speech), or to validate a licensing or regulatory scheme necessary to allocate the limited broadcast frequencies, which is absent in print media. Thus, when this Court declared in Dans that the freedom given to broadcast media was somewhat lesser in scope than the freedom accorded to newspaper and print media, it was not as to what test should be applied, but the context by which requirements of licensing, allocation of airwaves, and application of norms to unprotected speech. [85] In the same year that the Dans case was decided, it was reiterated in Gonzales v. Katigbak,[86] that the test to determine free expression challenges was the clear and present danger, again without distinguishing the media.[87] Katigbak, strictly speaking, does not treat of broadcast media but motion pictures. Although the issue involved obscenity standards as applied to movies,[88] the Court concluded its decision with the following obiter dictum that a less liberal approach would be used to resolve obscenity issues in television as opposed to motion pictures: All that remains to be said is that the ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the consensus of this Court that where television is concerned, a less liberal approach calls for observance. This is so because unlike motion pictures where the patrons have to pay their way, television reaches every home where there is a set. Children then will likely be among the avid viewers of the programs therein shown..It cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring for the welfare of the young. More recently, in resolving a case involving the conduct of exit polls and dissemination of the results by a broadcast company, we reiterated that the clear and present danger rule is the test we unquestionably adhere to issues that involve freedoms of speech and of the press.[89] This is not to suggest, however, that the clear and present danger rule has been applied to all cases that involve the broadcast media. The rule applies to all media, including broadcast, but only when the challenged act is a content-based regulation that infringes on free speech, expression and the press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast media, the Court refused to apply the clear and present danger rule to a COMELEC regulation of time and manner of advertising of political advertisements because the challenged restriction was content-neutral.[91] And in a case involving due process and equal protection issues, the Court in Telecommunications and Broadcast Attorneys of the Philippines v. COMELEC[92] treated a restriction imposed on a broadcast

media as a reasonable condition for the grant of the medias franchise, without going into which test would apply. That broadcast media is subject to a regulatory regime absent in print media is observed also in other jurisdictions, where the statutory regimes in place over broadcast media include elements of licensing, regulation by administrative bodies, and censorship. As explained by a British author:

The reasons behind treating broadcast and films differently from the print media differ in a number of respects, but have a common historical basis. The stricter system of controls seems to have been adopted in answer to the view that owing to their particular impact on audiences, films, videos and broadcasting require a system of prior restraints, whereas it is now accepted that books and other printed media do not. These media are viewed as beneficial to the public in a number of respects, but are also seen as possible sources of harm.[93]

Parenthetically, these justifications are now the subject of debate. Historically, the scarcity of frequencies was thought to provide a rationale. However, cable and satellite television have enormously increased the number of actual and potential channels. Digital technology will further increase the number of channels available. But still, the argument persists that broadcasting is the most influential means of communication, since it comes into the home, and so much time is spent watching television. Since it has a unique impact on people and affects children in a way that the print media normally does not, that regulation is said to be necessary in order to preserve pluralism. It has been argued further that a significant main threat to free expressionin terms of diversitycomes not from government, but from private corporate bodies. These developments show a need for a reexamination of the traditional notions of the scope and extent of broadcast media regulation. [94] The emergence of digital technology -- which has led to the convergence of broadcasting, telecommunications and the computer industry -- has likewise led to the question of whether the regulatory model for broadcasting will continue to be appropriate in the converged environment.[95] Internet, for example, remains largely unregulated, yet the Internet and the broadcast media share similarities, [96] and the rationales used to support broadcast regulation apply equally to the Internet.[97] Thus, it has been argued that courts, legislative bodies and the government agencies regulating media must agree to regulate both, regulate neither or develop a new regulatory framework and rationale to justify the differential treatment. [98] F. The Case At Bar Having settled the applicable standard to content-based restrictions on broadcast media, let us go to its application to the case at bar. To recapitulate, a governmental action that restricts freedom of speech or of the press based on content is given the strictest scrutiny, with the government having the burden of overcoming the presumed unconstitutionality by the clear and present danger rule. This rule applies equally to all kinds of media, including broadcast media. This outlines the procedural map to follow in cases like the one at bar as it spells out the following: (a) the test; (b) the

presumption; (c) the burden of proof; (d) the party to discharge the burden; and (e) the quantum of evidence necessary. On the basis of the records of the case at bar, respondents who have the burden to show that these acts do not abridge freedom of speech and of the press failed to hurdle the clear and present danger test. It appears that the great evil which government wants to prevent is the airing of a tape recording in alleged violation of the anti-wiretapping law. The records of the case at bar, however, are confused and confusing, and respondents evidence falls short of satisfying the clear and present danger test. Firstly, the various statements of the Press Secretary obfuscate the identity of the voices in the tape recording. Secondly, the integrity of the taped conversation is also suspect. The Press Secretary showed to the public two versions, one supposed to be a complete version and the other, an altered version. Thirdly, the evidence of the respondents on the whos and the hows of the wiretapping act is ambivalent, especially considering the tapes different versions. The identity of the wire-tappers, the manner of its commission and other related and relevant proofs are some of the invisibles of this case. Fourthly, given all these unsettled facets of the tape, it is even arguable whether its airing would violate the anti-wiretapping law. We rule that not every violation of a law will justify straitjacketing the exercise of freedom of speech and of the press. Our laws are of different kinds and doubtless, some of them provide norms of conduct which even if violated have only an adverse effect on a persons private comfort but does not endanger national security. There are laws of great significance but their violation, by itself and without more, cannot support suppression of free speech and free press. In fine, violation of law is just a factor, a vital one to be sure, which should be weighed in adjudging whether to restrain freedom of speech and of the press. The totality of the injurious effects of the violation to private and public interest must be calibrated in light of the preferred status accorded by the Constitution and by related international covenants protecting freedom of speech and of the press. In calling for a careful and calibrated measurement of the circumference of all these factors to determine compliance with the clear and present danger test, the Court should not be misinterpreted as devaluing violations of law. By all means, violations of law should be vigorously prosecuted by the State for they breed their own evil consequence. But to repeat, the need to prevent their violation cannot per se trump the exercise of free speech and free press, a preferred right whose breach can lead to greater evils. For this failure of the respondents alone to offer proof to satisfy the clear and present danger test, the Court has no option but to uphold the exercise of free speech and free press. There is no showing that the feared violation of the anti-wiretapping law clearly endangers the national security of the State. This is not all the faultline in the stance of the respondents. We slide to the issue of whether the mere press statements of the Secretary of Justice and of the NTC in question constitute a form of content-based prior restraint that has transgressed the Constitution. In resolving this issue, we hold that it is not decisive that the press statements made by respondents were not reduced in or followed up with formal orders or circulars. It is sufficient that the press statements were made by respondents while in the exercise of their official functions. Undoubtedly, respondent Gonzales made his statements as Secretary of Justice, while the NTC issued its statement as the regulatory body of media. Any act done, such as a speech uttered, for and on behalf of the government

in an official capacity is covered by the rule on prior restraint. The concept of an act does not limit itself to acts already converted to a formal order or official circular. Otherwise, the non formalization of an act into an official order or circular will result in the easy circumvention of the prohibition on prior restraint. The press statements at bar are acts that should be struck down as they constitute impermissible forms of prior restraints on the right to free speech and press. There is enough evidence of chilling effect of the complained acts on record. The warnings given to media came from no less the NTC, a regulatory agency that can cancel the Certificate of Authority of the radio and broadcast media. They also came from the Secretary of Justice, the alter ego of the Executive, who wields the awesome power to prosecute those perceived to be violating the laws of the land. After the warnings, the KBP inexplicably joined the NTC in issuing an ambivalent Joint Press Statement. After the warnings, petitioner Chavez was left alone to fight this battle for freedom of speech and of the press. This silence on the sidelines on the part of some media practitioners is too deafening to be the subject of misinterpretation. The constitutional imperative for us to strike down unconstitutional acts should always be exercised with care and in light of the distinct facts of each case. For there are no hard and fast rules when it comes to slippery constitutional questions, and the limits and construct of relative freedoms are never set in stone. Issues revolving on their construct must be decided on a case to case basis, always based on the peculiar shapes and shadows of each case. But in cases where the challenged acts are patent invasions of a constitutionally protected right, we should be swift in striking them down as nullities per se. A blow too soon struck for freedom is preferred than a blow too late. In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and prohibition are hereby issued, nullifying the official statements made by respondents on June 8, and 11, 2005 warning the media on airing the alleged wiretapped conversation between the President and other personalities, for constituting unconstitutional prior restraint on the exercise of freedom of speech and of the press SO ORDERED.

Whenever the force of government or any of its political subdivisions bears upon to close down a private broadcasting station, the issue of free speech infringement cannot be minimized, no matter the legal justifications offered for the closure. In many respects, the present petitions offer a textbook example of how the constitutional guarantee of freedom of speech, expression and of the press may be unlawfully compromised. Tragically, the lower courts involved in this case failed to recognize or assert the fundamental dimensions, and it is our duty to reverse, and to affirm the Constitution and the most sacred rights it guarantees. Before us are two petitions for review involving the same parties, the cases having been consolidated by virtue of the Resolution of this Court dated 16 June 2008.[1] Both petitions emanated from a petition for mandamus[2] filed with the Regional Trial Court (RTC) of Cauayan City docketed as Special Civil Action No. Br. 20-171, the petition having been dismissed in a Decision dated 14 September 2004 by the Cauayan City RTC, Branch 20.[3] Consequently, petitioners filed with the Court of Appeals a petition for certiorari under Rule 65 and an appeal to the RTC decision. The appellate court ruled against petitioners in both instances. The petition in G.R. No. 170270 assails the 27 October 2005 decision of the Court of Appeals in CA-G.R. SP No. 87815,[4] while the petition in G.R. 179411 assails the 30 May 2007 decision of the Court of Appeals in C.A.-G.R. SP No. 88283.[5] I. Bombo Radyo Philippines (Bombo Radyo) operates several radio stations under the AM and FM band throughout the Philippines. These stations are operated by corporations organized and incorporated by Bombo Radyo, particularly petitioners Newsounds Broadcasting Network, Inc. (Newsounds) and Consolidated Broadcasting System, Inc. (CBS). Among the stations run by Newsounds is Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station operating out of Cauayan City, Isabela. CBS, in turn, runs Star FM DWIT Cauayan (Star FM), also operating out of Cauayan City, airing on the FM band. The service areas of DZNC and Star FM extend from the province of Isabela to throughout Region II and the Cordillera region.[6] In 1996, Newsounds commenced relocation of its broadcasting stations, management office and transmitters on property located in Minante 2, Cauayan City, Isabela. The property is owned by CBS Development Corporation (CDC), an affiliate corporation under the Bombo Radyo network which holds title over the properties used by Bombo Radyo stations throughout the country.[7] On 28 June 1996, CDC was issued by the then municipal government of Cauayan a building permit authorizing the construction of a commercial establishment on the property.[8] On 5 July 1996, the Housing and Land Use Regulatory Board (HLURB) issued a Zoning Decision certifying the property as commercial.[9] That same day, the Office of the Municipal Planning and Development Coordinator (OMPDC) of Cauayan affirmed that the commercial structure to be constructed by CDC conformed to local zoning regulations, noting as well that the location is classified as a Commercial area.[10] Similar certifications would be issued by OMPDC from 1997 to 2001.[11] A building was consequently erected on the property, and therefrom, DZNC and Star FM operated as radio stations.

NEWSOUNDS BROADCASTING 170270 & NETWORK INC. and CONSOLIDATED 179411 BROADCASTING SYSTEM, INC., Petitioners, - versus HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA FERNANDEZ-GARCIA and THE CITY OF CAUAYAN, Respondents. Promulgated:

G.R. Nos.

April 2, 2009 DECISION TINGA, J.:

Both stations successfully secured all necessary operating documents, including mayors permits from 1997 to 2001.[12] During that period, CDC paid real property taxes on the property based on the classification of the land as commercial. [13] All that changed beginning in 2002. On 15 January of that year, petitioners applied for the renewal of the mayors permit. The following day, the City Assessors Office in Cauayan City noted on CDCs Declaration of Real Property filed for 2002 confirmed that based on the existing file, CDCs property was classified as commercial.[14] On 28 January, representatives of petitioners formally requested then City Zoning AdministratorDesignate Bagnos Maximo (Maximo) to issue a zoning clearance for the property.[15] Maximo, however, required petitioners to submit either an approved land conversion papers from the Department of Agrarian Reform (DAR) showing that the property was converted from prime agricultural land to commercial land, or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the re-classification of the property from agricultural to commercial land.[16] Petitioners had never been required to submit such papers before, and from 1996 to 2001, the OMPDC had consistently certified that the property had been classified as commercial. Due to this refusal by Maximo to issue the zoning clearance, petitioners were unable to secure a mayors permit. Petitioners filed a petition for mandamus[17] with the Regional Trial Court (RTC) of Cauayan City to compel the issuance of the 2002 mayors permit. The case was raffled to Branch 19 of the Cauayan City RTC. When the RTC of Cauayan denied petitioners accompanying application for injunctive relief, they filed a special civil action for certiorari with the Court of Appeals,[18] but this would be dismissed by the appellate court due to the availability of other speedy remedies with the trial court. In February of 2003, the RTC dismissed the mandamus action for being moot and academic.[19] In the meantime, petitioners sought to obtain from the DAR Region II Office a formal recognition of the conversion of the CDC property from agricultural to commercial. The matter was docketed as Adm. Case No. A-0200A-07B-002. Then DAR Region II Director Abrino L. Aydinan (Director Aydinan) granted the application and issued an Order that stated that there remains no doubt on the part of this Office of the nonagricultural classification of subject land before the effectivity of Republic Act No. 6657 otherwise known as the Comprehensive Agrarian Reform Law of 1988.[20] Consequently, the DAR Region II Office ordered the formal exclusion of the property from the Comprehensive Agrarian Reform Program, and the waiver of any requirement for formal clearance of the conversion of the subject land from agricultural to non-agricultural use.[21] On 16 January 2003, petitioners filed their applications for renewal of mayors permit for the year 2003, attaching therein the DAR Order. Their application was approved. However, on 4 March 2003, respondent Felicisimo Meer, Acting City Administrator of Cauayan City, wrote to petitioners claiming that the DAR Order was spurious or void, as the Regional Center for Land Use Policy Planning and Implementation (RCLUPPI) supposedly reported that it did not have any record of the DAR Order. A series of correspondences followed wherein petitioners defended the authenticity of the DAR Order and the commercial character of the property, while respondent Meer demanded independent proof showing the

authenticity of the Aydinan Order. It does not appear though that any action was taken against petitioners by respondents in 2003, and petitioners that year paid realty taxes on the property based on the classification that said property is commercial.[22] The controversy continued into 2004. In January of that year, petitioners filed their respective applications for their 2004 mayors permit, again with the DAR Order attached to the same. A zonal clearance was issued in favor of petitioners. Yet in a letter dated 13 January 2004, respondent Meer claimed that no record existed of DAR Adm. Case No. A-0200A-07B-002 with the Office of the Regional Director of the DAR or with the RCLUPPI.[23] As a result, petitioners were informed that there was no basis for the issuance in their favor of the requisite zoning clearance needed for the issuance of the mayors permit.[24] Another series of correspondences ensued between Meer and the station manager of DZNC, Charmy Sabigan (Sabigan). Sabigan reiterated the authenticity of the DAR Order and the commercial character of the property, while Meer twice extended the period for application of the mayors permit, while reminding them of the need to submit the certifications from the DAR or the Sangguniang Panlalawigan that the property had been duly converted for commercial use. The deadline for application for the mayors permit lapsed on 15 February 2004, despite petitioners plea for another extension. On 17 February 2004, respondents Meer and Racma Fernandez-Garcia, City Legal Officer of Cauayan City, arrived at the property and closed the radio stations. Petitioners proceeded to file a petition with the Commission on Elections (COMELEC) seeking enforcement of the Omnibus Election Code, which prohibited the closure of radio stations during the then-pendency of the election period. On 23 March 2004, the COMELEC issued an order directing the parties to maintain the status prevailing before 17 February 2004, thus allowing the operation of the radio stations, and petitioners proceeded to operate the stations the following day. Within hours, respondent Mayor Ceasar Dy issued a Closure Order dated 24 March 2004, stating therein that since petitioners did not have the requisite permits before 17 February 2004, the status quo meant that the stations were not in fact allowed to operate. [25] Through the intervention of the COMELEC, petitioners were able to resume operation of the stations on 30 March 2004. On 9 May 2004, or two days before the general elections of that year, the COMELEC denied the petition filed by petitioners and set aside the status quo order.[26] However, this Resolution was reconsidered just 9 days later, or on 16 May 2004, and the COMELEC directed the maintenance of the status quo until 9 June 2004, the date of the end of the election period. Petitioners were thus able to continue operations until 10 June 2004, the day when respondents yet again closed the radio stations. This closure proved to be more permanent. By this time, the instant legal battle over the sought-after mayors permits had already been well under way. On 15 April 2004, petitioners filed a petition for mandamus, docketed as SCA No. 20-171, with the RTC of Cauayan City, Branch 20. The petition was accompanied by an application for the issuance of temporary restraining order and writ of preliminary prohibitory injunction, both provisional reliefs being denied by the RTC through an Order dated 20 April 2004. Respondents duly filed an Answer with Counterclaims on 3 May 2004. Due to the

aforementioned closure of the radio stations on 10 June 2004, petitioners filed with the RTC a Motion for the Issuance of a Writ of Preliminary Mandatory Injunction dated 15 June 2004, praying that said writ be issued to allow petitioners to resume operations of the radio stations. No hearing would be conducted on the motion, nor would it be formally ruled on by the RTC. On 14 September 2004, the RTC rendered a Decision denying the petition for mandamus.[27] The RTC upheld all the arguments of the respondents, including their right to deny the sought after mayors permit unless they were duly satisfied that the subject property has been classified as commercial in nature. The Decision made no reference to the application for a writ of preliminary mandatory injunction. Petitioners filed a motion for reconsideration,[28] citing the trial courts failure to hear and act on the motion for preliminary mandatory injunction as a violation of the right to due process, and disputing the RTCs conclusions with respect to their right to secure the mayors permit. This motion was denied in an Order dated 1 December 2004. Petitioners initiated two separate actions with the Court of Appeals following the rulings of the RTC. On 13 December 2004, they filed a Petition for Certiorari under Rule 65, docketed as CA G.R. No. 87815, raffled to the Fourteenth Division.[29] This petition imputed grave abuse of discretion on the part of the RTC for denying their application for preliminary mandatory injunction. On the same day, petitioners also filed a Notice of Appeal with the RTC, this time in connection with the denial of their petition for mandamus. This appeal was docketed as CA G.R. SP No. 88283 and raffled to the Eleventh Division. Petitioners lost both of their cases with the Court of Appeals. On 27 October 2005, the Court of Appeals in CA G.R. No. 87815 dismissed the Petition for Certiorari, ruling that the RTC did not commit any grave abuse of discretion in impliedly denying the application for preliminary mandatory injunction. On 30 May 2007, the Court of Appeals in CA-G.R. SP No. 88283 denied the appeal by certiorari, affirming the right of the respondents to deny petitioners their mayors permits. On both occasions, petitioners filed with this Court respective petitions for review under Rule 45 the instant petitions, now docketed as G.R. Nos. 170270 and 179411. On 23 January 2006, the Court in G.R. No. 170270 issued a writ of preliminary injunction, enjoining respondents from implementing the closure order dated March 24, 2005, or otherwise interfering with the operations of Bombo Radyo DZNC Cauayan (NBN) and STAR FM DWIT Cauayan (CBS) in Cauayan City until final orders from this Court.[30] On 21 January 2008, the Court resolved to consolidate G.R. No. 170270 with G.R. No. 179411, which had been initially dismissed outright but was reinstated on even date.[31]

communication of views or subsequent liability whether in libel suits, prosecution for sedition, or action for damages, or contempt proceedings unless there be a clear and present danger of substantive evil that Congress has a right to prevent. [33] Petitioners have taken great pains to depict their struggle as a textbook case of denial of the right to free speech and of the press. In their tale, there is undeniable political color. They admit that in 2001, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy political dynasty.[34] Respondent Ceasar Dy is the brother of Faustino Dy, Jr., governor of Isabela from 2001 until he was defeated in his re-election bid in 2004 by Grace Padaca, a former assistant station manager at petitioners own DZNC Bombo Radyo.[35] A rival AM radio station in Cauayan City, DWDY, is owned and operated by the Dy family.[36] Petitioners likewise direct our attention to a 20 February 2004 article printed in the Philippine Daily Inquirer where Dy is quoted as intending to file disenfranchisement proceedings against DZNC-AM.[37] The partisan component of this dispute will no doubt sway many observers towards one opinion or the other, but not us. The comfort offered by the constitutional shelter of free expression is neutral as to personality, affinity, ideology and popularity. The judges tasked to enforce constitutional order are expected to rule accordingly from the comfort of that neutral shelter. Still, it cannot be denied that our Constitution has a systemic bias towards free speech. The absolutist tenor of Section 4, Article III testifies to that fact. The individual discomforts to particular people or enterprises engendered by the exercise of the right, for which at times remedies may be due, do not diminish the indispensable nature of free expression to the democratic way of life.

The following undisputed facts bring the issue of free expression to fore. Petitioners are authorized by law to operate radio stations in Cauayan City, and had been doing so for some years undisturbed by local authorities. Beginning in 2002, respondents in their official capacities have taken actions, whatever may be the motive, that have impeded the ability of petitioners to freely broadcast, if not broadcast at all. These actions have ranged from withholding permits to operate to the physical closure of those stations under color of legal authority. While once petitioners were able to broadcast freely, the weight of government has since bore down upon them to silence their voices on the airwaves. An elementary school child with a basic understanding of civics lessons will recognize that free speech animates these cases. Without taking into account any extenuating circumstances that may favor the respondents, we can identify the bare acts of closing the radio stations or preventing their operations as an act of prior restraint against speech, expression or of the press. Prior restraint refers to official governmental restrictions on the press or other forms of expression in advance of actual publication or dissemination. [38] While any system of prior restraint comes to court bearing a heavy burden against its constitutionality,[39] not all prior restraints on speech are invalid.[40]

Certiorari lies in both instances. II. The fundamental constitutional principle that informs our analysis of both petitions is the freedom of speech, of expression or the press.[32] Free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship and punishment. There is to be no previous restraint on the

Nonetheless, there are added legal complexities to these cases which may not be necessarily accessible to the layperson. The actions taken by respondents are colored with legal authority, under the powers of local governments vested in the Local Government Code (LGC), or more generally, the police powers of the State. We do not doubt that Local Government Units (LGU) are capacitated to enact ordinances requiring the obtention of licenses or permits by businesses, a term defined elsewhere in the LGC as trade or commercial activity regularly engaged in as a means of livelihood or with a view to profit. And there is the fact that the mode of expression restrained in these cases broadcast is not one which petitioners are physically able to accomplish without interacting with the regulatory arm of the government. Expression in media such as print or the Internet is not burdened by such requirements as congressional franchises or administrative licenses which bear upon broadcast media. Broadcast is hampered by its utilization of the finite resources of the electromagnetic spectrum, which long ago necessitated government intervention and administration to allow for the orderly allocation of bandwidth, with broadcasters agreeing in turn to be subjected to regulation. There is no issue herein that calls into question the authority under law of petitioners to engage in broadcasting activity, yet these circumstances are well worth pointing out if only to provide the correct perspective that broadcast media enjoys a somewhat lesser degree of constitutional protection than print media or the Internet. It emerges then that there exists tension between petitioners right to free expression, and respondents authority by law to regulate local enterprises. What are the rules of adjudication that govern the judicial resolution of this controversy? B. That the acts imputed against respondents constitute a prior restraint on the freedom of expression of respondents who happen to be members of the press is clear enough. There is a long-standing tradition of special judicial solicitude for free speech, meaning that governmental action directed at expression must satisfy a greater burden of justification than governmental action directed at most other forms of behavior. [41] We had said in SWS v. COMELEC: Because of the preferred status of the constitutional rights of speech, expression, and the press, such a measure is vitiated by a weighty presumption of invalidity. Indeed, any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. . . . The Government 'thus carries a heavy burden of showing justification for the enforcement of such restraint. There is thus a reversal of the normal presumption of validity that inheres in every legislation.[42] At the same time, jurisprudence distinguishes between a content-neutral regulation, i.e., merely concerned with the incidents of the speech, or one that merely controls the time, place or manner, and under well defined standards; and a content-based restraint or censorship, i.e., the restriction is based on the subject matter of the utterance or speech.[43] Content-based laws are generally treated as more suspect than content-neutral laws because of judicial concern with discrimination in the regulation of expression.[44] Contentneutral regulations of speech or of conduct that may amount to speech, are subject to lesser but still heightened scrutiny.[45]

Ostensibly, the act of an LGU requiring a business of proof that the property from which it operates has been zoned for commercial use can be argued, when applied to a radio station, as content-neutral since such a regulation would presumably apply to any other radio station or business enterprise within the LGU. However, the circumstances of this case dictate that we view the action of the respondents as a content-based restraint. In their petition for mandamus filed with the RTC, petitioners make the following relevant allegations: 6.1. With specific reference to DZNC, Newsounds, to this date, is engaged in discussing public issues that include, among others, the conduct of public officials that are detrimental to the constituents of Isabela, including Cauayan City. In view of its wide coverage, DZNC has been a primary medium for the exercise of the people of Isabela of their constitutional right to free speech. Corollarily, DZNC has always been at the forefront of the struggle to maintain and uphold freedom of the press, and the peoples corollary right to freedom of speech, expression and petition the government for redress of grievances. 6.2. Newsounds only rival AM station in Cauayan and the rest of Isabela, DWDY, is owned and operated by the family of respondent Dy.[46] xxxx 35. Respondents closure of petitioners radio stations is clearly tainted with ill motives. 35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored respondent Dy and other members of the Dy political dynasty. It is just too coincidental that it was only after the 2001 elections (i.e., 2002) that the Mayors Office started questioning petitioners applications for renewal of their mayors permits. 35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004, respondent Dy was quoted as saying that he will disenfranchise the radio station. Such statement manifests and confirms that respondents denial of petitioners renewal applications on the ground that the Property is commercial is merely a pretext and that their real agenda is to remove petitioners from Cauayan City and suppress the latters voice. This is a blatant violation of the petitioners constitutional right to press freedom. A copy of the newspaper article is attached hereto as Annex JJ. 35.3. The timing of respondents closure of petitioners radio stations is also very telling. The closure comes at a most critical time when the people are set to exercise their right of suffrage. Such timing emphasizes the ill motives of respondents.[47]

In their Answer with Comment[48] to the petition for mandamus, respondents admitted that petitioners had made such exposes during the 2001 elections, though they denied the nature and truthfulness of such reports.[49] They conceded that the Philippine Daily Inquirer story reported that Dy said he planned to file disenfranchisement proceedings against

[DZNC]-AM.[50] While respondents assert that there are other AM radio stations in Isabela, they do not specifically refute that station DWDY was owned by the Dy family, or that DZNC and DWDY are the two only stations that operate out of Cauayan. [51] Prior to 2002, petitioners had not been frustrated in securing the various local government requirements for the operation of their stations. It was only in the beginning of 2002, after the election of respondent Ceasar Dy as mayor of Cauayan, that the local government started to impose these new requirements substantiating the conversion of CDCs property for commercial use. Petitioners admit that during the 2001 elections, Bombo Radyo was aggressive in exposing the widespread election irregularities in Isabela that appear to have favored Respondent Dy and other members of the Dy political dynasty.[52] Respondents efforts to close petitioners radio station clearly intensified immediately before the May 2004 elections, where a former employee of DZNC Bombo Radyo, Grace Padaca, was mounting a credible and ultimately successful challenge against the incumbent Isabela governor, who happened to be the brother of respondent Dy. It also bears notice that the requirements required of petitioners by the Cauayan City government are frankly beyond the pale and not conventionally adopted by local governments throughout the Philippines. All those circumstances lead us to believe that the steps employed by respondents to ultimately shut down petitioners radio station were ultimately content-based. The United States Supreme Court generally treats restriction of the expression of a particular point of view as the paradigm violation of the First Amendment.[53] The facts confronting us now could have easily been drawn up by a constitutional law professor eager to provide a plain example on how free speech may be violated. The Court is of the position that the actions of the respondents warrant heightened or strict scrutiny from the Court, the test which we have deemed appropriate in assessing content-based restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the political process, of laws dealing with the regulation of speech, gender, or race as well as other fundamental rights as expansion from its earlier applications to equal protection.[54] The immediate implication of the application of the strict scrutiny test is that the burden falls upon respondents as agents of government to prove that their actions do not infringe upon petitioners constitutional rights. As content regulation cannot be done in the absence of any compelling reason,[55] the burden lies with the government to establish such compelling reason to infringe the right to free expression. III. We first turn to whether the implicit denial of the application for preliminary mandatory injunction by the RTC was in fact attended with grave abuse of discretion. This is the main issue raised in G.R. No. 170270. To recall, the RTC on 20 April 2004 issued an order denying the prayer for the issuance of a writ of preliminary injunction, claiming that [t]here is insufficiency of allegation [t]here is no certainty that after the election period, the respondents will interfere with the operation of the radio stations x x x which are now operating by virtue of the order of the COMELEC.[56] Petitioners filed a motion for reconsideration, which the RTC denied on 13 May 2004. The

refusal of the RTC to grant provisional relief gave way to the closure of petitioners radio stations on 10 June 2004, leading for them to file a motion for the issuance of a writ of preliminary mandatory injunction on 25 June 2004. This motion had not yet been acted upon when on 14 September 2004, the RTC promulgated its decision denying the petition for mandamus. Among the arguments raised by petitioners in their motion for reconsideration before the RTC was against the implied denial of their motion for the issuance of a writ of preliminary mandatory injunction, claiming in particular that such implicit denial violated petitioners right to due process of law since no hearing was conducted thereupon. However, when the RTC denied the motion for reconsideration in its 1 December 2004 Order, it noted that its implied denial of the motion for a writ of preliminary mandatory injunction was not a ground for reconsideration of its decision. Petitioners maintain that the RTC acted with grave abuse of discretion when it impliedly denied their motion for the issuance of a writ of preliminary mandatory injunction without any hearing. The Court of Appeals pointed out that under Section 5 of Rule 58 of the 1997 Rules of Civil Procedure, it is the granting of a writ of preliminary injunction that mandatorily requires a hearing. The interpretation of the appellate court is supported by the language of the rule itself: SEC. 5. Preliminary injunction not granted without notice; exception. No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided. x x x

Section 5 of Rule 58 prescribes a mandatory hearing and prior notice to the party or person sought to be enjoined if preliminary injunction should be granted. It imposes no similar requirement if such provisional relief were to be denied. We in fact agree with the Court of Appeals that if on the face of the pleadings, the applicant for preliminary injunction is not entitled thereto, courts may outrightly deny the motion without conducting a hearing for the purpose.[57] The Court is disinclined to impose a mandatory hearing requirement on applications for injunction even if on its face, injunctive relief is palpably without merit or impossible to grant. Otherwise, our trial courts will be forced to hear out the sort of litigation-happy attention-deprived miscreants who abuse the judicial processes by filing complaints against real or imaginary persons based on trivial or inexistent slights. We do not wish though to dwell on this point, as there is an even more fundamental point to consider. Even as we decline to agree to a general that the denial of an application for injunction requires a prior hearing, we believe in this case that petitioners deserved not only a hearing on their motion, but the very writ itself. As earlier stated, the burden of presuming valid the actions of respondents sought, fraught as they were with alleged violations on petitioners constitutional right to

expression, fell on respondents themselves. This was true from the very moment the petition for mandamus was filed. It was evident from the petition that the threat against petitioners was not wildly imagined, or speculative in any way. Attached to the petition itself was the Closure Order dated 13 February 2004 issued by respondents against petitioners.[58] There was no better evidence to substantiate the claim that petitioners faced the live threat of their closure. Moreover, respondents in their Answer admitted to issuing the Closure Order.[59] At the moment the petition was filed, there was no basis for the RTC to assume that there was no actual threat hovering over petitioners for the closure of their radio stations. The trial court should have been cognizant of the constitutional implications of the case, and appreciated that the burden now fell on respondents to defend the constitutionality of their actions. From that mindset, the trial court could not have properly denied provisional relief without any hearing since absent any extenuating defense offered by the respondents, their actions remained presumptively invalid. Our conclusions hold true not only with respect to the implied denial of the motion for preliminary injunction, but also with the initial denial without hearing on 20 April 2004 of the prayer for a writ of preliminary injunction and temporary restraining order. Admittedly, such initial denial is not the object of these petitions, yet we can observe that such action of the RTC was attended with grave abuse of discretion, the trial court betraying ignorance of the constitutional implications of the petition. With respect to the subsequent implied denial of the writ of preliminary mandatory injunction, the grave abuse of discretion on the part of the trial court is even more glaring. At that point, petitioners radio stations were not merely under threat of closure, they were already actually closed. Petitioners constitutional rights were not merely under threat of infringement, they were already definitely infringed. The application of the strict scrutiny analysis to petitioners claims for provisional relief warrants the inevitable conclusion that the trial court cannot deny provisional relief to the party alleging a prima facie case alleging government infringement on the right to free expression without hearing from the infringer the cause why its actions should be sustained provisionally. Such acts of infringement are presumptively unconstitutional, thus the trial court cannot deny provisional relief outright since to do so would lead to the sustention of a presumptively unconstitutional act. It would be necessary for the infringer to appear in court and somehow rebut against the presumption of unconstitutionality for the trial court to deny the injunctive relief sought for in cases where there is a prima facie case establishing the infringement of the right to free expression. Those above-stated guidelines, which pertain most particularly to the ex parte denial of provisional relief in free expression cases, stand independently of the established requisites for a party to be entitled to such provisional reliefs. With respect to writs of preliminary injunction, the requisite grounds are spelled out in Section 3 of Rule 58 of the Rules of Court. It may be pointed out that the application for preliminary mandatory injunction after petitioners radio stations had been closed was mooted by the RTC decision denying the petition for mandamus. Ideally, the RTC should have acted on the motion asking for the issuance of the writ before rendering its decision. Given the circumstances, petitioners were entitled to

immediate relief after they filed their motion on 25 June 2004, some two and a half months before the RTC decision was promulgated on 14 September 2004. It is not immediately clear why the motion, which had been set for hearing on 2 July 2004, had not been heard by the RTC, so we have no basis for imputing bad faith on the part of the trial court in purposely delaying the hearing to render it moot with the forthcoming rendition of the decision. Nonetheless, given the gravity of the constitutional question involved, and the fact that the radio stations had already been actually closed, a prudent judge would have strived to hear the motion and act on it accordingly independent of the ultimate decision. Since the prayer for the issuance of a writ of mandatory injunction in this case was impliedly denied through the decision denying the main action, we have no choice but to presume that the prayer for injunction was denied on the same bases as the denial of the petition for mandamus itself. The time has come for us to review such denial, the main issue raised in G.R. No. 179411. IV. The perspective from which the parties present the matter for resolution in G.R. No. 179411 is whether the property of CDC had been duly converted or classified for commercial use, with petitioners arguing that it was while respondents claiming that the property remains agricultural in character. This perspective, to our mind, is highly myopic and implicitly assumes that the requirements imposed on petitioners by the Cauayan City government are in fact legitimate. The LGC authorizes local legislative bodies to enact ordinances authorizing the issuance of permits or licenses upon such conditions and for such purposes intended to promote the general welfare of the inhabitants of the LGU.[60] A municipal or city mayor is likewise authorized under the LGC to issue licenses and permits and suspend or revoke the same for any violation of the conditions upon which said licenses or permits had been issued, pursuant to law or ordinance.[61] Generally, LGUs have exercised its authority to require permits or licenses from business enterprises operating within its territorial jurisdiction. A municipal license is essentially a governmental restriction upon private rights and is valid only if based upon an exercise by the municipality of its police or taxing powers. [62] The LGC subjects the power of sanggunians to enact ordinances requiring licenses or permits within the parameters of Book II of the Code, concerning Local Taxation and Fiscal Matters. It also necessarily follows that the exercise of this power should also be consistent with the Constitution as well as the other laws of the land. Nothing in national law exempts media entities that also operate as businesses such as newspapers and broadcast stations such as petitioners from being required to obtain permits or licenses from local governments in the same manner as other businesses are expected to do so. While this may lead to some concern that requiring media entities to secure licenses or permits from local government units infringes on the constitutional right to a free press, we see no concern so long as such requirement has been duly ordained through local legislation and content-neutral in character, i.e., applicable to all other similarly situated businesses.

Indeed, there are safeguards within the LGC against the arbitrary or unwarranted exercise of the authority to issue licenses and permits. As earlier noted, the power of sanggunians to enact ordinances authorizing the issuance of permits or licenses is subject to the provisions of Book Two of the LGC. The power of the mayor to issue license and permits and suspend or revoke the same must be exercised pursuant to law or ordinance.[63] In the case of Cauayan City, the authority to require a mayors permit was enacted through Ordinance No. 92-004, enacted in 1993 when Cauayan was still a municipality. We quote therefrom: Sec. 3A.01. Imposition of Fee. There shall be imposed and collected an annual fee at the rates provided hereunder for the issuance of Mayors Permit to every person that shall conduct business, trade or activity within the Municipality of Cauayan. The permit fee is payable for every separate or distinct establishment or place where the business trade or activity is conducted. One line of business or activity does not become exempt by being conducted with some other business or activity for which the permit fee has been paid. x x x x Sec. 3A.03. Application for Mayors Permit False Statements. A written application for a permit to operate a business shall be filed with the Office of the Mayor in three copies. The application form shall set forth the name and address of the applicant, the description or style of business, the place where the business shall be conducted and such other pertinent information or data as may be required. Upon submission of the application, it shall be the duty of the proper authorities to verify if the other Municipal requirements regarding the operation of the business or activity are complied with. The permit to operate shall be issued only upon such compliance and after the payment of the corresponding taxes and fees as required by this revenue code and other municipal tax ordinances. Any false statement deliberately made by the applicant shall constitute sufficient ground for denying or revoking the permit issued by the Mayor, and the applicant or licensee may further be prosecuted in accordance with the penalties provided in this article. A Mayors Permit shall be refused to any person: (1) Whose business establishment or undertaking does not conform with zoning regulations and safety, health and other requirements of the Municipality; (2) that has an unsettled tax obligations, debt or other liability to the Municipal Government; and (3) that is disqualified under any provision of law or ordinance to establish, or operate the business for which a permit is being applied.[64] Petitioners do not challenge the validity of Ordinance No. 92-004. On its face, it operates as a content-neutral regulation that does not impose any special impediment to the exercise of the constitutional right to free expression. Still, it can be seen how under the veil of Ordinance No. 92-004 or any other similarly oriented ordinance, a local government unit such as Cauayan City may attempt to infringe on such constitutional rights.

A local government can quite easily cite any of its regulatory ordinances to impose retaliatory measures against persons who run afoul it, such as a business owned by an opponent of the government, or a crusading newspaper or radio station. While the ill-motives of a local government do not exempt the injured regulatory subject from complying with the municipal laws, such laws themselves do not insulate those ill-motives if they are attended with infringements of constitutional rights, such as due process, equal protection and the right to free expression. Our system of laws especially frown upon violations of the guarantee to free speech, expression and a free press, vital as these are to our democratic regime. Nothing in Ordinance No. 92-004 requires, as respondents did, that an applicant for a mayors permit submit either an approved land conversion papers from the DAR showing that its property was converted from prime agricultural land to commercial land, or an approved resolution from the Sangguniang Bayan or Sangguniang Panglungsod authorizing the re-classification of the property from agricultural to commercial land.[65] The aforecited provision which details the procedure for applying for a mayors permit does not require any accompanying documents to the application, much less those sought from petitioners by respondents. Moreover, Ordinance No. 92-004 does not impose on the applicant any burden to establish that the property from where the business was to operate had been duly classified as commercial in nature. According to respondents, it was only in 2002 that the more diligent Respondent Bagnos Maximo discovered the mistake committed by his predecessor in the issuance of the Petitioners Zoning Certifications from 1996 to 2001.[66] Assuming that were true, it would perhaps have given cause for the local government in requiring the business so affected to submit additional requirements not required of other applicants related to the classification of its property. Still, there are multitude of circumstances that belie the claim that the previous certifications issued by the OMPDC as to the commercial character of CDCs property was incorrect. On 5 July 1996, the HLURB issued a Zoning Decision that classified the property as Commercial.[67] The HLURB is vested with authority to review, evaluate and approve or disapprovethe zoning component of subdivisions, condominiums or estate development projects including industrial estates, of both the public and private sectors.[68] In exercising such power, the HLURB is required to use Development Plans and Zoning Ordinances of local governments herein.[69] There is no reason to doubt that when the HLURB acknowledged in 1996 that the property in question was commercial, it had consulted the development plans and zoning ordinances of Cauayan. Assuming that respondents are correct that the property was belatedly revealed as non-commercial, it could only mean that even the HLURB, and not just the local government of Cauayan erred when in 1996 it classified the property as commercial. Or, that between 1996 to 2002, the property somehow was reclassified from commercial to agricultural. There is neither evidence nor suggestion from respondents that the latter circumstance obtained. Petitioners are also armed with six certifications issued by the OMPDC for the consecutive years 1996 to 2001, all of which

certify that the property is classified as commercial areain conformity with the Land Use Plan of this municipality and does not in any way violate the existing Zoning Ordinance of Cauayan, Isabela.[70] In addition, from 1997 to 2004, petitioners paid real property taxes on the property based on the classification of the property as commercial, without any objections raised by respondents.[71] These facts again tend to confirm that contrary to respondents assertions, the property has long been classified as commercial. Petitioners persuasively argue that this consistent recognition by the local government of Cauayan of the commercial character of the property constitutes estoppel against respondents from denying that fact before the courts. The lower courts had ruled that the government of Cauayan City is not bound by estoppel, but petitioners point out our holding in Republic v. Sandiganbayan[72] where it was clarified that this concept is understood to refer to acts and mistakes of its officials especially those which are irregular.[73] Indeed, despite the general rule that the State cannot be put in estoppel by the mistake or errors of its officials or agents, we have also recognized, thus: Estoppels against the public are little favored. They should not be invoked except in a rare and unusual circumstances, and may not be invoked where they would operate to defeat the effective operation of a policy adopted to protect the public. They must be applied with circumspection and should be applied only in those special cases where the interests of justice clearly require it. Nevertheless, the government must not be allowed to deal dishonorably or capriciously with its citizens, and must not play an ignoble part or do a shabby thing; and subject to limitations . . ., the doctrine of equitable estoppel may be invoked against public authorities as well as against private individuals.[74] Thus, when there is no convincing evidence to prove irregularity or negligence on the part of the government official whose acts are being disowned other than the bare assertion on the part of the State, we have declined to apply State immunity from estoppel.[75] Herein, there is absolutely no evidence other than the bare assertions of the respondents that the Cauayan City government had previously erred when it certified that the property had been zoned for commercial use. One would assume that if respondents were correct, they would have adduced the factual or legal basis for their contention, such as the local governments land use plan or zoning ordinance that would indicate that the property was not commercial. Respondents did not do so, and the absence of any evidence other than bare assertions that the 1996 to 2001 certifications were incorrect lead to the ineluctable conclusion that respondents are estopped from asserting that the previous recognition of the property as commercial was wrong. The RTC nonetheless asserted that the previous certifications, issued by Deputy Zoning Administrator Romeo N. Perez (Perez), were incorrect as he had no authority to make the conversion or reclassification of the land from agricultural to commercial.[76] Yet contrary to the premise of the RTC, the certifications issued by Perez did no such thing. Nowhere in the certifications did it state that Perez was exercising the power to reclassify the land from agricultural to commercial. What Perez attested to in those documents was that the property is classified as Commercial area, in conformity with the Land Use Plan of this municipality and does not in any way violate the existing Zoning Ordinance of Cauayan, Isabela. What these certifications confirm is that according to the Land Use

Plan and existing zoning ordinances of Cauayan, the property in question is commercial. Compounding its error, the RTC also stated that following Section 65[77] of Rep. Act No. 6657, or the Comprehensive Agrarian Reform Law, only the DAR, upon proper application can authorize the reclassification or conversion of the use of the land from agricultural to residential, commercial or industrial. The citation is misleading. Section 4 of the same law provides for the scope of the agrarian reform program under the CARL as covering all public and private agricultural lands, as provided in Proclamation No. 131 and Executive Order No. 229, including other lands of the public domain suitable for agriculture.[78] Section 3(c) defines agricultural lands as land devoted to agricultural activity as defined in this Act and not classified as mineral, forest, residential, commercial or industrial land.[79] Obviously, if the property had already been classified as commercial land at the time of the enactment of the CARL, it does not fall within the class of agricultural lands which may be subject of conversion under Section 65 of that law. Section 65, as relied upon by the trial court, would have been of relevance only if it had been demonstrated by respondents that the property was still classified as agricultural when the CARL was enacted. It is worth emphasizing that because the acts complained of the respondents led to the closure of petitioners radio stations, at the height of election season no less, respondents actions warrant strict scrutiny from the courts, and there can be no presumption that their acts are constitutional or valid. In discharging the burden of establishing the validity of their actions, it is expected that respondents, as a condition sine qua non, present the legal basis for their claim that the property was not zoned commercially the proclaimed reason for the closure of the radio stations. The lower courts should have known better than to have swallowed respondents unsubstantiated assertion hook, line and sinker. We can also point out that aside from the evidence we have cited, petitioners contention that the property had been duly classified for commercial use finds corroboration from the Order dated 14 March 2002 issued by DAR Region II Director Aydinan in Adm. Case No. A-0200A-07B-002. The Order stated, viz: Official records examined by this Office indicate continued use of subject land for purposes other than agricultural since 1986. Back when Cauayan was still a municipality, the Office of the Planning and Development Coordinator documented subject land under a commercial classification. The Zoning Administrator deputized by the Housing and Land Use Regulatory Board certified in 1998 that subject lands attribution to the Commercial Zone is in conformity with the Land Use Plan of this municipality and does not in any way violate any existing Zoning Ordinance of Cauayan, Isabela adding the stipulation that a 15 meter setback from the centerline of the National Road has to be observed. If the area in which subject land is found was already classified non-agricultural even before urban growth saw Cauayan became a city in 2001, assuming its reversion to the agricultural zone now taxes logic. In any case, such a dubious assumption can find no support in any current land use plan for Cauayan approved by the National Economic Development Authority.[80]

Petitioners citation of this Order has been viciously attacked by respondents, with approval from the lower courts. Yet their challenges are quite off-base, and ultimately irrelevant. The Order has been characterized by respondents as a forgery, based on a certification issued by the Head of the RCLUPPI Secretariat that his office has no official record nor case docketed of the petition filed by CBS Development Corporation, represented by Charmy Sabigan and the order issued bearing Docket No. ADM. Case No. A-02200A-07B-002 of the subject case, did not emanate from RCLUPPI which has its own docketing system to applications for conversion/exemption under DOJ Opinion No. 44, Series of 1990.[81] Respondents thus hint at a scenario where petitioners scrambled to create the Order out of nowhere in order to comply with the soughtafter requirements. However, an examination of the Order reveals an explanation that attests to the veracity of the Order without denigrating from the truthfulness of the RCLUPPI certification. The Order notes that the petition had been filed by CDC with the DAR Region II to, in effect, officially remove from the agrarian reform sub-zone, in particular, and the broad agricultural, in general, Petitioners land holding embraced by Transfer Certificate of Title No. T-254786 which is located in [B]arangay Minante II of Cauayan City x x x.[82] It goes on to state: Herein petition can go through the normal procedure and, after the submission of certain documentary supports that have to be gathered yet from various agencies, should be granted as a matter of course. However, a new dimension has been introduced when the unformalized conversion of the use of subject land from an agricultural to a non-agricultural mode has provided an excuse to some official quarters to disallow existing commercial operation, nay, the broadcast activities of Petitioner and, thus, perhaps threaten an essential freedom in our democratic setting, the liberty of mass media organizations to dispense legitimate information to the public unhampered by any extraneous obstacles. Hence, overarching public interest has made an official declaration of subject landholdings removal from the agricultural zone most urgent and, thus immediate action on the case imperative. To the extent that legitimate social interest are unnecessarily prejudiced otherwise, procedural rules laid down by Government must yield to the living reason and to common sense in the concrete world as long as the underlying principles of effective social-justice administration and good governance are not unduly sacrificed. Thus, it is incumbent upon the Department of Agrarian Reform, or DAR for brevity, to take into account in decision-making with respect to the case at hand more basic principles in order to uphold the cause of conscientious and timely public service. Needless to say, this Office, given the latitude of discretion inherent to it, can simultaneously address the Petition and the procedural concerns collateral to it when subordinate offices tend to treat such concerns as factors complicating the essential question or questions and view the Petition as one that it is not amenable to ready problem-solving and immediate decision-making. To forestall a cycle of helpless inaction or indecisive actions on the part of the subordinate offices as customarily happens in cases of this nature, this Office shall proceed to treat the petition at hand as a matter of original jurisdiction in line with its order of Assumption of Direct

Jurisdiction of 03 December 2001, a prior action taken, in general, by this Office over cases of Land-Tenure Improvement, Failure, Problematic Coverage, Land-Owners and Special Concerns, Other Potential Flash Points of Agrarian Conflict, and Long-Standing Problems Calling for Discretionary Decision Making.[83]

In so many words, DAR Region II Director Aydinan manifested that he was assuming direct jurisdiction over the petition, to the exclusion of subordinate offices such as that which issued the certification at the behest of the respondents, the RCLUPPI of the DAR Region II Office. Thus, the RCLUPPI could have validly attested that the subject case did not emanate from the RCLUPPI which has its own docketing system to applications for conversion/exemption under DOJ Opinion No. 44, Series of 1990. One could quibble over whether Director Aydinan had authority to assume direct jurisdiction over CDCs petition to the exclusion of the RCLUPPI, but it would not detract from the apparent fact that the Director of the DAR Region II Office did issue the challenged Order. Assuming that the Order was issued without or in excess of jurisdiction, it does not mean that the Order was forged or spurious, it would mean that the Order is void. How necessary is it for us to delve into the validity or efficacy of the Aydinan Order? Certainly, any conclusions we draw from the said Order are ultimately irrelevant to the resolution of these petitions. The evidence is compelling enough that the property had already been duly classified for commercial use long before the Aydinan Order was issued. Respondents, who had the burden of proving that they were warranted in ordering the closure of the radio stations, failed to present any evidence to dispute the long-standing commercial character of the property. The inevitable conclusion is that respondents very well knew that the property, was commercial in character, yet still proceeded without valid reason and on false pretenses, to refuse to issue the mayors permit and subsequently close the radio stations. There is circumstantial evidence that these actions were animated by naked political motive, by plain dislike by the Cauayan City powers-that-be of the content of the broadcast emanating in particular from DZNC, which had ties to political opponents of the respondents. Respondents were further estopped from disclaiming the previous consistent recognition by the Cauayan City government that the property was commercially zoned unless they had evidence, which they had none, that the local officials who issued such certifications acted irregularly in doing so. It is thus evident that respondents had no valid cause at all to even require petitioners to secure approved land conversion papers from the DAR showing that the property was converted from prime agricultural land to commercial land. That requirement, assuming that it can be demanded by a local government in the context of approving mayors permits, should only obtain upon clear proof that the property from where the business would operate was classified as agricultural under the LGUs land use plan or zoning ordinances and other relevant laws. No evidence to that effect was presented by the respondents either to the petitioners, or to the courts. V. Having established that respondents had violated petitioners legal and constitutional rights, let us now turn to the appropriate reliefs that should be granted.

At the time petitioners filed their special civil action for mandamus on 15 April 2004, their radio stations remained in operation despite an earlier attempt by respondents to close the same, by virtue of an order rendered by the COMELEC. The mandamus action sought to compel respondents to immediately issue petitioners zoning clearances and mayors permit for 2004. During the pendency of the action for mandamus, respondents finally succeeded in closing the radio stations, and it was possible at that stage for petitioners to have likewise sought the writs of prohibition and/or certiorari. Petitioners instead opted to seek for a writ or preliminary mandatory injunction from the trial court, a viable recourse albeit one that remains ancillary to the main action for mandamus. We had previously acknowledged that petitioners are entitled to a writ of preliminary mandatory injunction that would have prevented the closure of the radio stations. In addition, we hold that the writ of mandamus lies. Mandamus lies as the proper relief whenever a public officer unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law.[84] For the year 2004, petitioners had duly complied with the requirements for the issuance of the same mayors permit they had obtained without issue in years prior. There was no basis for respondents to have withheld the zoning clearances, and consequently the mayors permit, thereby depriving petitioners of the right to broadcast as certified by the Constitution and their particular legislative franchise. We turn to the issue of damages. Petitioners had sought to recover from respondents P8 Million in temperate damages, P1 Million in exemplary damages, and P1 Million in attorneys fees. Given respondents clear violation of petitioners constitutional guarantee of free expression, the right to damages from respondents is squarely assured by Article 32 (2) of the Civil Code, which provides: Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages: x x x x (2) Freedom of speech;

that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty.[87] The existence of pecuniary injury at bar cannot be denied. Petitioners had no way of knowing it when they filed their petition, but the actions of respondents led to the closure of their radio stations from June 2004 until this Court issued a writ of preliminary injunction in January 2006.[88] The lost potential income during that one and a half year of closure can only be presumed as substantial enough. Still, despite that fact, possibly unanticipated when the original amount for claimed temperate damages was calculated, petitioners have maintained before this Court the same amount, P8 Million, for temperate damages. We deem the amount of P4 Million reasonable under the circumstances.[89] Exemplary damages can be awarded herein, since temperate damages are available. Public officers who violate the Constitution they are sworn to uphold embody a poison of wickedness that may not run through the body politic.[90] Respondents, by purposely denying the commercial character of the property in order to deny petitioners the exercise of their constitutional rights and their business, manifested bad faith in a wanton, fraudulent, oppressive and malevolent manner.[91] The amount of exemplary damages need not be proved where it is shown that plaintiff is entitled to temperate damages,[92] and the sought for amount of P1 Million is more than appropriate. We likewise deem the amount of P500 Thousand in attorneys fees as suitable under the circumstances. WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and the Regional Trial Court of Cauayan City, Branch 24, are hereby REVERSED and SET ASIDE. The instant petition for mandamus is hereby GRANTED and respondents are directed to immediately issue petitioners zoning clearances and mayors permits for 2004 to petitioners Respondents Caesar G. Dy, Felicisimo G. Meer, Bagnos Maximo, and Racma Fernandez-Garcia are hereby ORDERED to pay petitioners JOINTLY AND SEVERALLY the following amounts in damages: (1) FOUR MILLION PESOS (P4,000,000.00) as TEMPERATE DAMAGES[93]; (2) ONE MILLION PESOS (P1,000,000.00) as EXEMPLARY DAMAGES; (3) FIVE HUNDRED THOUSAND PESOS (P 500,000.00) as ATTORNEYS FEES. Costs against respondents.

We noted in Lim v. Ponce de Leon that [p]ublic officials in the past have abused their powers on the pretext of justifiable motives or good faith in the performance of their duties [and] the object of [Article 32 of the Civil Code] is to put an end to official abuse by plea of the good faith.[85] The application of Article 32 not only serves as a measure of pecuniary recovery to mitigate the injury to constitutional rights, it likewise serves notice to public officers and employees that any violation on their part of any persons guarantees under the Bill of Rights will meet with final reckoning. The present prayer for temperate damages is premised on the existence of pecuniary injury to petitioner due to the actions of respondents, the amount of which nevertheless being difficult to prove.[86] Temperate damages avail when the court finds

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 petitioners 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: I 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 petitioners 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. Petitioners 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 MTRCBs 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 MTRCBs 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 MTRCBs 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 petitioners 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 MTRCBs 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 MTRCBs assailed action. Petitioners 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 petitioners assertion that the aforequoted IRR provision on preventive suspension is applicable only to motion pictures and publicity materials. The scope of the MTRCBs 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 petitioners 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. Petitioners 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 MTRCBs 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 petitioners 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 petitioners 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 petitioners 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 namecalling 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 ones 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-ofinterest 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 petitioners 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 judges 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 petitioners 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 adults 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 petitioners utterances obscene and not entitled to protection under the umbrella of freedom of speech. Even if we concede that petitioners 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 FCCs content-based regulatory action under scrutiny. The Court in Chavez41 elucidated on the distinction between regulation or restriction of protected speech that is contentbased 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 petitioners 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, petitioners 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 Petitioners 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 casesAyer 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 "balancingof-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 individuals 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 legislationthe 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 courts 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 governments interest to protect and promote the interests and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on petitioners 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 childrens 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

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 [FFCs] 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, petitioners offensive and indecent language can be subjected to prior restraint.

Petitioners 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 States mandate to protect and care for them, as parens patriae,61 constitute a substantial and compelling government interest in regulating petitioners 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 Cohens written message, ["Fuck the Draft"], might have been incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs 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 governments interest in the "well-being of its youth" and in supporting "parents claim to authority in their own

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 petitioners 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 others 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 restraintdenial 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 petitioners 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 petitioners 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 petitioners 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 petitioners 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, petitioners 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 petitioners 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, petitioners 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. Petitioners 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 decrees 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 MTRCBs 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. Petitioners 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. 0104 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. 3. Test of valid government interference a. b. c. Clear and present danger rule Dangerous tendency rule Balancing of interest December 22, 1923

G.R. No. L-21049

THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee, vs. ISAAC PEREZ, defendant-appellant. Mario Guaria for appellant. Attorney-General Villa Real for appellee.

MALCOLM, J.: Isaac Perez, the municipal secretary of Pilar, Sorsogon, and Fortunato Lodovice, a citizen of that municipality, happening to meet on the morning of April 1, 1992, in the presidencia of Pilar, they became engaged in a discussion regarding the administration of Governor-General Wood, which resulted in Perez shouting a number of times: "The Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a bad thing for the Filipinos, for he has killed our independence." Charged in the Court of First Instance of Sorsogon with a violation of article 256 of the Penal Code having to do with contempt of ministers of the Crown or other persons in authority, and convicted thereof, Perez has appealed the case to this court. The question presented for decision is, What crime, if any, did the accused commit? A logical point of departure is the information presented in this case. It reads in translation as follows: That on or about April 1, 1922, in the municipality of Pilar, Province of Sorsogon, Philippine Islands, the said accused, Isaac Perez, while holding a discussion with several persons on political matters, did criminally, unlawfully and wilfully and with knowledge that Honorable Leonard Wood was the GovernorGeneral of the Philippine Islands and in the discharge of his functions as such authority, insult by word, without his presence, said Governor-General, uttering in a loud voice and in the presence of many persons, and in a public place, the following phrases: "Asin an manga filipinos na caparejo co, maninigong gumamit nin sundang asin haleon an payo ni Wood huli can saiyang recomendacion sa pag raot con Filipinas," which in English, is as follows: "And the Filipinos, like myself, must use bolos for cutting off Wood's head for having recommended a bad thing for the Philippines. Contrary to article 256 of the Penal Code. At the trial of the case, two witnesses were called on behalf of the prosecution and three witnesses on behalf of the defense. According to the first witness for the Government, Juan Lumbao, the municipal president of Pilar, what Perez said on the occasion in question was this: "The Filipinos, like myself, should get a bolo and cut off the head of Governor-General Wood, because he has recommended a bad administration in these Islands and has not made a good recommendation; on the contrary, he has assassinated the independence of the Philippines and for this reason, we have not obtained independence and the head of that Governor-General must be cut off." Higinio J. Angustia, justice of the peace of Pilar, in a written statement, and Gregorio Cresencio, another witness for the prosecution, corroborated the testimony of the first witness. Cresencio understood that Perez invited the Filipinos including himself to get their bolos and cut off the head of Governor-General Wood and throw it into the sea.

The witnesses for the defense did not deny that an altercation took place on the morning of April 1, 1922, in which the accused participated. But they endeavored to explain that the discussion was between Perez and one Severo Madrid, the latter maintaining that the fault was due to the Nacionalista Party, while Perez argued that the Governor-General was to blame. The accused testified that the discussion was held in a peaceful manner, and that what he wished to say was that the Governor-General should be removed and substituted by another. On the witness stand, he stated that his words were the following: "We are but blaming the Nacionalista Party which is in power but do not take into account that above the representatives there is Governor-General Wood who controls everything, and I told him that the day on which the Democrats may kill that Governor-General, then we, the Filipinos will install the government we like whether you Democratas want to pay or not to pay taxes." The trial judge found as a fact, and we think with abundant reason, that it had been proved beyond a reasonable doubt that the accused made use of the language stated in the beginning of this decision and set out in the information. The question of fact thus settled, the question of law recurs as to the crime of which the accused should be convicted. It should be recalled that the fiscal named, in the information, article 256 of the Penal Code as having been infringed and the trial judge so found in his decision. The first error assigned by counsel for the appellant is addressed to this conclusion of the lower court and is to the effect that article 256 of the Penal Code is no longer in force. In the case of United States vs. Helbig ([1920], R. G. No. 14705 1), the accused was charged with having uttered the following language: "To hell with the President of the United States and his proclamation!" Mr. Helbig was prosecuted under article 256, and though the case was eventually sent back to the court of origin for a new trial, the appellate court by majority vote held as a question of law that article 256 is still in force. In the case of People vs. Perfecto ([1922], 43 Phil., 887), the accused was charged with having published an article reflecting on the Philippine Senate and its members in violation of article 256 of the Penal Code. In this court, Mr. Perfecto was acquitted by unanimous vote, with three members of the court holding that article 256 was abrogated completely by the change from Spanish to American sovereignty over the Philippines, and with six members holding that the Libel Law had the effect of repealing so much of article 256 as relates to written defamation, abuse, or insult, and that under the information and the facts, the defendant was neither guilty of a violation of article 256 of the Penal Code nor of the libel Law. In the course of the main opinion in the Perfecto case, is found this significant sentence: "Act No. 292 of the Philippine Commission, the Treason and Sedition Law, may also have affected article 256, but as to this point, it is not necessary to make a pronouncement." It may therefore be taken as settled doctrine, to which those of us who retain a contrary opinion must bow with as good grace as we can muster, that until otherwise decided by higher authority, so much of article 256 of the Penal Code as does not relate to ministers of the Crown or to writings coming under the Libel Law, exist and must be enforced. To which proposition, can properly be appended a corollary, namely: Seditious words, speeches, or libels, constitute a violation of

Act No. 292, the Treason and Sedition Law, and to this extent, both the Penal Code and the Libel Law are modified. Accepting the above statements relative to the continuance and status of article 256 of the Penal Code, it is our opinion that the law infringed in this instance is not this article but rather a portion of the Treason and Sedition Law. In other words, as will later appear, we think that the words of the accused did not so much tend to defame, abuse, or insult, a person in authority, as they did to raise a disturbance in the community. In criminal law, there are a variety of offenses which are not directed primarily against individuals, but rather against the existence of the State, the authority of the Government, or the general public peace. The offenses created and defined in Act No. 292 are distinctly of this character. Among them is sedition, which is the raising of commotions or disturbances in the State. It is a revolt against legitimate authority. Though the ultimate object of sedition is a violation of the public peace or at least such a course of measures as evidently engenders it, yet it does not aim at direct and open violence against the laws, or the subversion of the Constitution. (2 Bouvier's Law Dictionary, 974; U.S. vs. Abad [1902], 1 Phil., 437; People vs. Cabrera [1922], 43 Phil., 64.) It is of course fundamentally true that the provisions of Act No. 292 must not be interpreted so as to abridge the freedom of speech and the right of the people peaceably to assemble and petition the Government for redress of grievances. Criticism is permitted to penetrate even to the foundations of Government. Criticism, no matter how severe, on the Executive, the Legislature, and the Judiciary, is within the range of liberty of speech, unless the intention and effect be seditious. But when the intention and effect of the act is seditious, the constitutional guaranties of freedom of speech and press and of assembly and petition must yield to punitive measures designed to maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and the existence of the State. (III Wharton's Criminal Law, pp. 2127 et seq.; U.S. vs. Apurado [1907], 7 Phil., 422; People vs. Perfecto, supra.) Here, the person maligned by the accused is the Chief Executive of the Philippine Islands. His official position, like the Presidency of the United States and other high offices, under a democratic form of government, instead, of affording immunity from promiscuous comment, seems rather to invite abusive attacks. But in this instance, the attack on the GovernorGeneral passes the furthest bounds of free speech was intended. There is a seditious tendency in the words used, which could easily produce disaffection among the people and a state of feeling incompatible with a disposition to remain loyal to the Government and obedient to the laws. The Governor-General is an executive official appointed by the President of the United States by and with the advice and consent of the Senate of the United States, and holds in his office at the pleasure of the President. The Organic Act vests supreme executive power in the Governor-General to be exercised in accordance with law. The Governor-General is the representative of executive civil authority in the Philippines and of the sovereign power. A seditious attack on the Governor-General is an attack on the rights of the Filipino people and on American sovereignty. (Concepcion vs. Paredes [1921], 42 Phil., 599; U.S. vs. Dorr [1903], 2 Phil., 332.)

Section 8 of Act No. 292 of the Philippine Commission, as amended by Act No. 1692, appears to have been placed on the statute books exactly to meet such a situation. This section reads as follows: Every person who shall utter seditious words or speeches, or who shall write, publish or circulate scurrilous libels against the Government of the United States or against the Government of the Philippine Islands, or who shall print, write, publish utter or make any statement, or speech, or do any act which tends to disturb or obstruct any lawful officer in executing his office or in performing his duty, or which tends to instigate others to cabal or meet together for unlawful purposes, or which suggests or incites rebellious conspiracies or which tends to stir up the people against the lawful authorities, or which tends to disturb the peace of the community or the safety or order of the Government, or who shall knowingly conceal such evil practices from the constituted authorities, shall be punished by a fine not exceeding two thousand dollars United States currency or by imprisonment not exceeding two years, or both, in the discretion of the court. In the words of the law, Perez has uttered seditious words. He has made a statement and done an act which tended to instigate others to cabal or meet together for unlawful purposes. He has made a statement and done an act which suggested and incited rebellious conspiracies. He has made a statement and done an act which tended to stir up the people against the lawful authorities. He has made a statement and done an act which tended to disturb the peace of the community and the safety or order of the Government. All of these various tendencies can be ascribed to the action of Perez and may be characterized as penalized by section 8 of Act No. 292 as amended. A judgment and sentence convicting the accused of a violation of section 8 of Act No. 292 as amended, is, in effect, responsive to, and based upon, the offense with which the defendant is charged. The designation of the crime by the fiscal is not conclusive. The crime of which the defendant stands charged is that described by the facts stated in the information. In accordance with our settled rule, an accused may be found guilty and convicted of a graver offense than that designated in the information, if such graver offense is included or described in the body of the information, and is afterwards justified by the proof presented during the trial. (Guevarra's Code of Criminal Procedure, p. 9; De Joya's Code of Criminal Procedure, p. 9.) The penalty meted out by the trial court falls within the limits provided by the Treason and Sedition Law, and will, we think, sufficiently punish the accused. That we have given more attention to this case than it deserves, may be possible. Our course is justified when it is recalled that only last year, Mr. Chief Justice Taft of the United States Supreme Court, in speaking of an outrageous libel on the Governor of the Porto Rico, observed: "A reading of the two articles removes the slightest doubt that they go far beyond the "exuberant expressions of meridional speech," to use the expression of this court in a similar case in Gandia vs. Pettingill (222 U.S. , 452, 456). Indeed they are so excessive and outrageous in their character that they suggest the query whether their superlative vilification has not overleapt itself and become unconsciously humorous." (Balzac vs. Porto Rico [1922], 258 U.S., 298.) While our own sense of humor is not entirely blunted, we nevertheless entertain the conviction that

the courts should be the first to stamp out the embers of insurrection. The fugitive flame of disloyalty, lighted by an irresponsible individual, must be dealt with firmly before it endangers the general public peace. The result is to agree with the trial Judge in his findings of fact, and on these facts to convict the accused of a violation of section 8 of Act No. 292 as amended. With the modification thus indicated, judgment is affirmed, it being understood that, in accordance with the sentence of the lower court, the defendant and appellant shall suffer 2 months and 1 day's imprisonment and pay the costs. So ordered. G.R. No. L-8974 October 18, 1957

APOLONIO CABANSAG, plaintiff, vs. GEMINIANA MARIA FERNANDEZ, ET AL., defendants. APOLONIO CABANSAG, ROBERTO V. MERRERA and RUFINO V. MERRERA, respondents-appellants. Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General Jose G. Bautista and Solicitor Troadio T. Quiazon, Jr., appellee. Merrera and Merrera for appellants. BAUTISTA ANGELO, J.: This is a contempt proceeding which arose in Civil Case No. 9564 of the Court of First Instance of Pangasinan wherein Apolonio Cabansag and his lawyers Roberto V. Merrera were found guilty and sentenced the first to pay a fine of P20 and the last two P50 each with the warning that a repetition of the of offense will next time be heavily dealt with. Apolonio Cabansag filed on January 13, 1947 in the Court of First Instance of Pangasinan a complaint seeking the ejectment of Geminiana Fernandez, et al. from a parcel of land. Defendants filed their answer on January 31, 1947 and a motion to dismiss on February 2, 1947 and a motion of plaintiff's counsel, set the case for hearing on July 30, 1947. The meeting was postponed to August 8, 1947. On that day only one witness testified and the case was postponed to August 25, 1947. Thereafter, three incidents developed, namely: one regarding a claim for damages which was answered by defendants, another concerning the issuance of a writ of preliminary injunction which was set for on March 23, 1948, and the third relative to an alleged contempt for violation of an agreement of the parties approved by the court. Pleadings were filed by the parties on these incidents and the court set the case for hearing on October 27, 1948. Hearing was postponed to December 10, 1948. On this date, only part of the evidence was received and the next hearing was scheduled for January 24,1949 when again only a part of the evidence was received and the case was continued to October 4, 1949. On October 4, 1949, the court, presided over by Judge Villamor upon petition of both parties, ordered the stenographers who took down the notes during the previous hearings to transcribe them within 15 days upon payment of their fees, and the hearing was postponed until the transcript of said notes had been submitted. Notwithstanding the failure of the stenographers to transcribe their notes, the hearing was set for March 17, 1950. Two more postponements followed for March 23, 1950 and March 27, 1950. On August 9, 1950, August 23, 1950, September 26, 1950 and November 29, 1950, hearings

were had but the case was only partly tried to be postponed again to January 30, 1951 and February 19, 1951. Partial hearings were held on February 20, 1951, March 12, 1951 and June 6,1951. These hearings were followed by three more postponements and on August 15, 1951, the case was partially heard. After this partial hearing, the trial was continued on March 6, 1952 only to be postponed to May 27, 1952. No hearing took place on said date and the case was set for continuation on December 9, 1952 when the court, Judge Pasicolan presiding, issued an order suggesting to the parties to arrange with the stenographers who took down the notes to transcribe their respective notes and that the case would be set for hearing after the submission of the transcript. From December 9, 1952 to August 12, 1954, no further step was taken either by the court or any of the contending parties in the case. . On December 30, 1953, President Magsaysay assumed office, he issued Executive Order No. I creating the Presidential Complaints and Action Commission (PCAC), which was later superseded by Executive Order 19 promulgated on March 17, 1954. And on August 12, 1954 Apolonio Cabansag, apparently irked and disappointed by the delay in the disposition of his case, wrote the PCAC, a letter copy which he furnished the Secretary of Justice and the Executive Judge of the Court of First Instance of Pangasinan, which reads: We, poor people of the Philippines are very grateful for the creation of your Office. Unlike in the old days, poor people are not heard, but now the PCAC is the sword of Damocles ready to smite bureaucratic aristocracy. Poor people can now rely on PCAC to help them. Undaunted, the undersigned begs to request the help of the PCAC in the interest of public service, as President Magsaysay has in mind to create the said PACC, to have his old case stated above be terminated once and for all. The undersigned has long since been deprived of his land thru the careful maneuvers of a tactical lawyer. The said case which had long been pending could not be decided due to the fact that the transcript of the records has not, as yet, been transcribed by the stenographers who took the stenographic notes. The new Judges could not proceed to hear the case before the transcription of the said notes. The stenographers who took the notes are now assigned in another courts. It seems that the undersigned will be deprived indefinitely of his right of possession over the land he owns. He has no other recourse than to ask the help of the ever willing PCAC to help him solve his predicament at an early date. Now then, Mr. Chief, the undersigned relies on you to do your utmost best to bring justice to its final destination. My confidence reposes in you. Thanks. Most confidently yours,

(Sgd.) APOLONIO CABANSAG Plaintiff Upon the receipt of the letter, the Secretary of Justice indorsed it to the Clerk of Court of First Instance of Pangasinan instructing him to require the stenographers concerned to transcribe their notes in Civil Case No. 9564. The clerk of court, upon receipt of this instruction on August 27, 1954, referred the matter to Judge Jesus P. Morfe before whom the case was then informing him that the two stenographers concerned, Miss

Iluminada Abello and Juan Gaspar, have already been assigned elsewhere. On the same date, Judge Morfe wrote the Secretary of Justice informing him that under provisions of Act No. 2383 and Section 12 of Rule 41 of the Rules of Court, said stenographers are not obliged to transcribe their notes except in cases of appeal and that since the parties are not poor litigants, they are not entitled to transcription free of charge, aside from the fact that said stenographers were no longer under his jurisdiction. Meanwhile, on September 1, 1954, Atty. Manuel Fernandez, counsel for defendants, filed a motion before Judge Morfe praying that Apolonio Cabansag be declared in contempt of court for an alleged scurrilous remark he made in his letter to the PCAC to the effect that he, Cabansag, has long been deprived of his land "thru the careful maneuvers of a tactical lawyer", to which counsel for Cabansag replied with a countercharge praying that Atty. Fernandez be in turn declared in contempt because of certain contemptuous remarks made by him in his pleading. Acting on these charges and countercharges, on September 14, 1954, Judge Morfe dismissed both charges but ordered Cabansag to show cause in writing within 10 days why he should not be held liable for contempt for sending the above letter to the PCAC which tended to degrade the court in the eyes of the President and the people. Cabansag filed his answer stating that he did not have the idea to besmirch the dignity or belittle the respect due the court nor was he actuated with malice when he addressed the letter to the PCAC; that there is no single contemptuous word in said letter nor was it intended to give the Chief Executive a wrong impression or opinion of the court; and that if there was any inefficiency in the disposal of his case, the same was committed by the judges who previously intervened in the case. In connection with this answer, the lawyers of Cabansag, Roberto V. Merrera and Rufino V. Merrera' also submitted a written manifestation stating that the sending of the letter to their client to the PCAC was through their knowledge and consent because they believed that there was nothing wrong in doing so. And it appearing that said attorneys had a hand in the writing and remittance of the letter to the PCAC, Judge Morfe on, on September 29, 1954, issued another order requiring also said attorneys to show cause why they should not likewise be held for contempt for having committed acts which tend to impede, obstruct or degrade the administration of justice. Anent the charge for contempt preferred by Judge Morfe against Apolonio Cabansag, several incidents took place touching on the right of the Special Counsel of the Department of Justice to appear as counsel for Cabansag, which were however settled when the court allowed said Special Counsel to appear as amicus curiae in his official capacity. In addition to this Special Counsel, other members of the local bar were likewise allowed to appear for respondents in view of the importance of the issues involved. After due hearing, where the counsel of respondents were allowed to argue and submit memoranda, the decision finding respondents guilty of contempt and sentencing them to pay a fine as stated in the early part of this decision. Respondents in due time appealed to this Court. The issues involved in this appeal appear well stated in the decision of the trial Court. They are: (a) Did the writing in the letter in question to the PCAC tend directly or indirectly to put the lower court into disrepute or belittle, degrade or embarrass

it in its administration of justice?; and (b) Did writing of said letter tend to draw the intervention of the PCAC in the instant case which will have the effect of undermining the court's judicial independence? We agree that the trial court that courts have the power to preserve their integrity and maintain their dignity without which their administration of justice is bound to falter or fail (Villavicencio vs. Lukban, 39 Phil., 778; Borromeo vs. Mariano, 41 Phil., 322). This is the preservative power to punish for contempt (Rule 64, Rules of Court; Villavicencio vs. Lukban, supra). This power is inherent in all courts and essential to their right of self-preservation (Slade Perkins vs. Director of Prisons, 58 Phil., 271). In order that it may conduct its business unhampered by publications which tends to impair the impartiality of its decisions or otherwise obstruct the administration of justice, the court will not hesitate to exercise it regardless of who is affected. For, "as important as is the maintenance of unmuzzled press and the free exercise of the rights of the citizen is the maintenance of the independence of the judiciary" (In re Lozano and Quevedo, 54 Phil., 801).The reason for this is that respect of the courts guarantees the stability of their institution. Without such said institution would be resting on a very shaky foundation (Salcedo vs. Hernandez, 61 Phil., 724). The question that now arises is: Has the lower court legitimately and justifiably exercised this power in the instant case? The lower court tells us that it has because in its opinion the act of respondents to put it belittle or degrade or embarrass it in its administration of justice, and so it punished them for contempt to protect its judicial independence. But appellants believe otherwise, for they contend that in sending the letter in question to the PCAC, they did nothing but to exercise their right to petition the government for redress of their grievance as guaranteed by our constitution (section 1, paragraph 8, Article III). The very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect affairs and to petition for a redress of grievances." The First Amendments of the Federal expressly guarantees that right against abridgement by Congress. But mention does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions,- principles which the Fourteenth Amendment embodies in the general terms of its due process clause. (Emerson and Haber, Political and Civil Rights in the United States, p. 419.). We are therefore confronted with a clash of two fundamental rights which lie at the bottom of our democratic institutions-the independence of the judiciary the right to petition the government for redress of grievance. How to balance and reconcile the exercise of these rights is the problem posed in the case before us. . . . A free press is not to be judiciary, nor an independent judiciary to a free press. Neither has primacy over the other; both are indispensable to a free society. The freedom of the press in itself presupposes an independent judiciary through which that freedom may, if necessary, be vindicated. And one of the potent means of assuring judges

their independence is a free press. (Justice Frankfurter, concurring in Pennekamp vs. Florida, 328 U.S. 354-356) Two theoretical formulas had been devised in the determination of conflicting rights of similar import in an attempt to draw the proper constitutional boundary between freedom of expression and independence of the judiciary. These are the "clear and present danger" rule and the "dangerous tendency" rule. The first as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be "extremely serious and the degree of imminence extremely high" before the utterance can be punished. The danger to be guarded against is the "substantive evil" sought to be prevented. And this evil is primarily the "disorderly and unfair administration of justice." This test establishes a definite rule in constitutional law. It provides the criterion as to what words maybe published. Under this rule, the advocacy of ideas cannot constitutionally be abridged unless there is a clear and present danger that such advocacy will harm the administration of justice. This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in 1919, and ever since it has afforded a practical guidance in a great variety of cases in which the scope of the constitutional protection of freedom of expression was put in issue.1 In one of said cases, the United States Supreme Court has made the significant suggestion that this rule "is an appropriate guide in determining the constitutionality of restriction upon expression where the substantial evil sought to be prevented by the restriction is destruction of life or property or invasion of the right of privacy" Thornhill vs. Alabama, 310 U.S. 88). Thus, speaking of the extent and scope of the application of this rule, the Supreme Court of the United States said "Clear and present danger of substantive evils as a result of indiscriminate publications regarding judicial proceedings justifies an impairment of the constitutional right of freedom of speech and press only if the evils are extremely serious and the degree of imminence extremely high. . . . A public utterance or publication is not to be denied the constitutional protection of freedom of speech and press merely because it concerns a judicial proceeding still pending in the courts, upon the theory that in such a case it must necessarily tend to obstruct the orderly and fair administration of justice. The possibility of engendering disrespect for the judiciary as a result of the published criticism of a judge is not such a substantive evil as will justify impairment of the constitutional right of freedom of speech and press." (Bridges vs. California, 314 U.S. 252, syllabi) No less important is the ruling on the power of the court to punish for contempt in relation to the freedom of speech and press. We quote; "Freedom of speech and press should not be impaired through the exercise of the punish for contempt of court unless there is no doubt that the utterances in question are a serious and imminent threat to the administration of justice. A judge may hold in contempt one who ventures to publish anything that tends to make him unpopular or to belittle him. . . . The vehemence of the language used in newspaper publications concerning a judge's decision is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent not merely a likely, threat to the administration of justice. (Craig vs. Harney, 331 U. S. 367, syllabi)

And in weighing the danger of possible interference with the courts by newspaper criticism against the right of free speech to determine whether such criticism may constitutionally be punished as contempt, it was ruled that "freedom of public comment should in borderline instances weigh heavily against a possible tendency to influence pending cases." (Pennekamp vs. Florida, 328 U. S. 331). The question in every case, according to Justice Holmes, is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent. It is a question of proximity and degree (Schenck vs. U. S., supra). The "dangerous tendency" rule, on the other hand, has been adopted in cases where extreme difficulty is confronted determining where the freedom of expression ends and the right of courts to protect their independence begins. There must be a remedy to borderline cases and the basic principle of this rule lies in that the freedom of speech and of the press, as well as the right to petition for redress of grievance, while guaranteed by the constitution, are not absolute. They are subject to restrictions and limitations, one of them being the protection of the courts against contempt (Gilbert vs. Minnesota, 254 U. S. 325.) This rule may be epitomized as follows: If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil the utterance be to bring about the substantive evil which the legislative body seeks to prevent. (Gitlow vs. New York, 268 U.S. 652.). It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language, and prevents the punishment of those who abuse this freedom. . . . Reasonably limited, it was said by story in the passage cited this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the Republic. xxx xxx xxx

And, for yet more imperative reasons, a state may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional state. . . . xxx xxx xxx

. . . And the immediate danger is none the less real and substantial because the effect of a given utterance cannot be accurately foreseen. The state cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark, may kindle a fire that, smoldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that

the state is acting arbitrarily or unreasonably when, in the exercise of its judgment as to the measures necessary to protect the public peace and safety it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be required to defer the adoption of measures for its own peace and safety until the revolutionary utterances lead to actual disturbances of the public peace or imminent and immediate danger of its own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency. In People vs. Lloyd, supra, p. 35 (136 N. E. 505), it was aptly said: Manifestly, the legislature has authority to forbid the advocacy of a doctrine until there is a present and imminent danger of the success of the plan advocated. If the state were compelled to wait until the apprehended danger became certain, than its right to protect itself would come into being simultaneously with the overthrow of the government, when there would be neither prosecuting officers nor courts for the enforcement of the law." Gitlow va. New York, supra.) The question then to be determined is: Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above? Even if we make a careful analysis of the letter sent by appellant Cabansag to the PCAC which has given rise to the present contempt proceedings, we would at once see that it was far from his mind to put the court in ridicule and much less to belittle or degrade it in the eyes of those to whom the letter was addressed for, undoubtedly, he was compelled to act the way he did simply because he saw no other way of obtaining the early termination of his case. This is clearly inferable from its context wherein, in respectful and courteous language, Cabansag gave vent to his feeling when he said that he "has long since been deprived of his land thru the careful maneuvers of a tactical lawyer"; that the case which had long been pending could not be decided due to the fact that the transcript of the records has not as yet, been transcribed by the stenographer who took the stenographic notes", and that the new Judges could not proceed to hear the case before the transcription of the said notes." Analyzing said utterances, one would see that if they ever criticize, "the criticism refers, not to the court, but to opposing counsel whose tactical maneuvers" has allegedly caused the undue delay of the case. The grievance or complaint, if any, is addressed to the stenographers for their apparent indifference in transcribing their notes. The only disturbing effect of the letter which perhaps has been the motivating factor of the lodging of the contempt charge by the trial judge is the fact that the letter was sent to the Office of the President asking for help because of the precarious predicament of Cabansag. While the course of action he had taken may not be a wise one for it would have been proper had he addressed his letter to the Secretary of Justice or to the Supreme Court, such act alone would not be contemptuous. To be so the danger must cause a serious imminent threat to the administration of justice. Nor can we infer that such act has "a dangerous tendency" to belittle the court or undermine the administration of justice for the writer merely exercised his constitutional right to petition the government for redress of a legitimate grievance. The fact is that even the trial court itself has at the beginning entertained such impression when it found that the criticism

was directed not against the court but against the counsel of the opposite party, and that only on second thought did it change its mind when it developed that the act of Cabansag was prompted by the advice of his lawyers. Nor can it be contended that the latter is groundless or one motivated by malice. The circumstances borne by the record which preceded the sending of that letter show that there was an apparent cause for grievance. Thus, the record shows that on January 13, 1947, or more than 8 years ago, appellant Cabansag filed with the lower court a complaint against Geminiana Fernandez, et al. seeking to eject them from a portion of land covered by a torrens title. On October 4, 1949, or two years thereafter, the court, Judge Villamor presiding, issued an order requiring the stenographers who took down the notes to transcribe them within 15 days upon payment of their corresponding fees. On December 9, 1952, or almost 3 years thereafter, the court, Judge Pasicolan presiding, issued a similar order requiring the stenographers to transcribe their notes and decreeing that the case be set for hearing after said notes had been transcribed. No further step was taken from his last date either by the by the court or by the opposing parties. Meanwhile, the stenographers were given assignment elsewhere, and when this matter brought to the attention of the court by its own clerk of court, said court in an indorsement sent to the Secretary of Justice expressed its inability to take action in view of the fact that the stenographers were no longer under its jurisdiction. And in said indorsement nothing was said about its readiness to continue the trial even in the absence of the transcript of the notes. Under such a state of affairs, appellant Cabansag cannot certainly be blamed for entertaining the belief that the only way by which he could obtain redress of his grievance is to address his letter to the PCAC which after all is the office created by the late President to receive and hear all complaints against officials and employees of the government to facilitate which the assistance and cooperation of all the executive departments were enjoined (Executive Order No. 1, as amended by Executive Order No. 19). And one of the departments that come under the control of the President is the Department of Justice which under the law has administrative supervision over courts of first instance.(Section 83, Revised Administrative Code) The PCAC is part of the Office of the President. It can, therefore, be said that the letter of Cabansag though sent to the PCAC is intended for the Department of Justice where it properly belongs. Consequently, the sending of that letter may be considered as one sent to the Department of Justice and as such cannot constitute undue publication that would place him beyond the mantle of protection of our constitution. . . . under the presidential type of government which we adopted and considering the departmental organization established and continued in force by paragraph, section 12, Article VII, of our Constitution, all executive and administrative organizations are adjuncts of the Executive Department, the heads of the executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or the law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief

Executive. (Villena vs. The Secretary of the Interior, 67 Phil., 451, 463.) We would only add one word in connection with the participation in the incident of Cabansag's co-appellants, Attys. Roberto V. Merrera and Rufino V. Merrera. While the conduct of Cabansag may be justified considering that, being a layman, he is unaware of the technical rules of law and procedure which may place him under the protective mantle of our constitution, such does not obtain with regard to his co-appellants. Being learned in the law and officers of the court, they should have acted with more care and circumspection in advising their client to avoid undue embarrassment to the court or unnecessary interference with the normal course of its proceedings. Their duty as lawyers is always to observe utmost respect to the court and defend it against unjust criticism and clamor. Had they observed a more judicious behavior, they would have avoided the unpleasant incident that had arisen. However, the record is bereft of any proof showing improper motive on their part, much less bad faith in their actuation. But they should be warned, as we now do, that a commission of a similar misstep in the future would render them amenable to a more severe disciplinary action. Wherefore, the decision appealed from is reversed, without pronouncement as to costs. G.R. No. L-27833 April 18, 1969

The task is not easy, but it is unavoidable. That is of the very essence of judicial duty. To paraphrase a landmark opinion, 1 when we act in these matters we do so not on the assumption that to us is granted the requisite knowledge to set matters right, but by virtue of the responsibility we cannot escape under the Constitution, one that history authenticates, to pass upon every assertion of an alleged infringement of liberty, when our competence is appropriately invoked. This then is the crucial question: Is there an infringement of liberty? Petitioners so alleged in his action, which they entitled Declaratory Relief with Preliminary Injunction, filed on July 22, 1967, a proceeding that should have been started in the of Court of First Instance but treated by this Court as one of prohibition in view of the seriousness and the urgency of the constitutional issue raised. Petitioners challenged the validity of two new sections now included in the Revised Election Code, under Republic Act No. 4880, which was approved and took effect on June 17, 1967, prohibiting the too early nomination of candidates 2 and limiting the period of election campaign or partisan political activity. 3 The terms "candidate" and "election campaign" or "partisan political activity" are likewise defined. The former according to Act No. 4880 "refers to any person aspiring for or seeking an elective public office regarded of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate." "Election campaign" or "partisan political activity" refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office." Then the acts were specified. There is a proviso that simple expression of opinion and thoughts concerning the election shall not be considered as part of an election campaign. There is the further proviso that nothing stated in the Act "shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports." 4 Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent councilor in the 4th District of Manila and the Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected on November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered voter in the City of Manila and a political leader of his co-petitioner. It is their claim that "the enforcement of said Republic Act No. 4880 in question [would] prejudice [their] basic rights..., such as their freedom of speech, their freedom of assembly and their right to form associations or societies for purpose not contrary to law, guaranteed under the Philippine Constitution," and that therefore said act is unconstitutional. After invoking anew the fundamental rights to free speech, free press, freedom of association and freedom of assembly with a citation of two American Supreme Court decisions, 5 they asserted that "there is nothing in the spirit or intention of the law that would legally justify its passage and [enforcement] whether for reasons of public policy, public order or morality, and that therefore the enactment of Republic Act [No.] 4880 under, the guise of regulation is but a clear and simple abridgment of the constitutional rights of freedom of speech, freedom of assembly and the right to form associations and societies for purposes not contrary to law, ..." There was the further allegation that the nomination of a candidate and the fixing of period of election campaign are matters of political expediency and convenience which only political parties can

IN THE MATTER OF PETITION FOR DECLARATORY RELIEF RE CONSTITUTIONALITY OF REPUBLIC ACT 4880. ARSENIO GONZALES and FELICISIMO R. CABIGAO, petitioners, vs. COMMISSION ON ELECTIONS, respondent. F. R. Cabigao in his own behalf as petitioner. B. F. Advincula for petitioner Arsenio Gonzales. Ramon Barrios for respondent Commission on Elections. Sen. Lorenzo Taada as amicus curiae. FERNANDO, J.: A statute designed to maintain the purity and integrity of the electoral process by Congress calling a halt to the undesirable practice of prolonged political campaign bringing in their wake serious evils not the least of which is the ever increasing cost of seeking public office, is challenged on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom of assembly and freedom of association are invoked to nullify the act. Thus the question confronting this Court is one of transcendental significance. It is faced with the reconciliation of two values esteemed highly and cherished dearly in a constitutional democracy. One is the freedom of belief and of expression availed of by an individual whether by himself alone or in association with others of similar persuasion, a goal that occupies a place and to none in the legal hierarchy. The other is the safeguarding of the equally vital right of suffrage by a prohibition of the early nomination of candidates and the limitation of the period of election campaign or partisan political activity, with the hope that the time-consuming efforts, entailing huge expenditures of funds and involving the risk of bitter rivalries that may end in violence, to paraphrase the explanatory note of the challenged legislation, could be devoted to more fruitful endeavors.

regulate or curtail by and among themselves through selfrestraint or mutual understanding or agreement and that the regulation and limitation of these political matters invoking the police power, in the absence of clear and present danger to the state, would render the constitutional rights of petitioners meaningless and without effect. To the plea of petitioners that after hearing, Republic Act No. 4880 be declared unconstitutional, null and void, respondent Commission on Elections, in its answer filed on August 1, 1967, after denying the allegations as to the validity of the act "for being mere conclusions of law, erroneous at that," and setting forth special affirmative defenses, procedural and substantive character, would have this Court dismiss the petition. Thereafter the case was set for hearing on August 3, 1967. On the same date a resolution was passed by us to the following effect: "At the hearing of case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty. F. Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios appeared for the respondent and they were given a period of four days from today within which to submit, simultaneously,, their respective memorandum in lieu of oral argument." On August 9, 1967, another resolution, self-explanatory in character, came from this Court. Thus: "In ease G.R. No. L27833 (Arsenio Gonzales, et al. vs. Commission on Elections), the Court, with eight (8) Justice present, having deliberated on the issue of the constitutionality of Republic Act No. 4880; and a divergence of views having developed among the Justices as to the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised Election Code: considering the Constitutional provision that "no treaty or law may be declared unconstitutional without the concurrence of two-thirds of all the members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved] to defer final voting on the issue until after the return of the Justices now on official leave." The case was then reset for oral argument. At such hearing, one of the co-petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting as counsel, assailed the validity of the challenged legislation relying primarily on American Supreme Court opinion that warn against curtailment in whatever guise or form of the cherished freedoms of expression, of assemble and of association, all embraced in the First Amendment of the United States Constitution. Respondent Commission on Elections was duly represented by Atty. Ramon Barrios. Senator Lorenzo M. Taada was asked to appear as amicus curiae. That he did, arguing most impressively with a persuasive exposition of the existence of undeniable conditions that imperatively called for regulation of the electoral process and with full recognition that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of speech and press, of assembly and of association. He did justify its enactment however under the clear and present danger doctrine, there being the substantive evil of elections, whether for national or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship and undue concentration in politics with the loss not only of efficiency in government but of lives as well. The matter was then discussed in conference, but no final action was taken. The divergence of views with reference to the paragraphs above mentioned having continued, on Oct.

10, 1968, this Court, by resolution, invited certain entities to submit memoranda as amici curiae on the question of the validity of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were included, among them. They did file their respective memoranda with this Court and aided it in the consideration of the constitutional issues involved. 1. In the course of the deliberations, a serious procedural objection was raised by five members of the Court. 6 It is their view that respondent Commission on Elections not being sought to be restrained from performing any specific act, this suit cannot be characterized as other than a mere request for an advisory opinion. Such a view, from the remedial law standpoint, has much to recommend it. Nonetheless, a majority would affirm, the original stand that under the circumstances it could still rightfully be treated as a petition for prohibition. The language of Justice Laurel fits the case "All await the decision of this Court on the constitutional question. Considering, therefore, the importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons of public policy demand that [its] constitutionality ... be now resolved." 7 It may likewise be added that the exceptional character of the situation that confronts us, the paramount public interest, and the undeniable necessity for a ruling, the national elections being, barely six months away, reinforce our stand. It would appear undeniable, therefore, that before us is an appropriate invocation of our jurisdiction to prevent the enforcement of an alleged unconstitutional statute. We are left with no choice then; we must act on the matter. There is another procedural obstacle raised by respondent to be hurdled. It is not insuperable. It is true that ordinarily, a party who impugns the validity of a statute or ordinance must have a substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement. 8 Respondent cannot see such interest as being possessed by petitioners. It may indicate the clarity of vision being dimmed, considering that one of the petitioners was a candidate for an elective position. Even if such were the case, however, the objection is not necessarily fatal. In this jurisdiction, the rule has been sufficiently relaxed to allow a taxpayer to bring an action to restrain the expenditure of public funds through the enforcement of an invalid or unconstitutional legislative measure. 9 2. In the answer of the respondent as well as its memorandum, stress was laid on Republic Act No. 4880 as an exercise of the police power of the state, designed to insure a free, orderly and honest election by regulating "conduct which Congress has determined harmful if unstrained and carried for a long period before elections it necessarily entails huge expenditures of funds on the part of the candidates, precipitates violence and even deaths, results in the corruption of the electorate, and inflicts direful consequences upon public interest as the vital affairs of the country are sacrificed to purely partisan pursuits." Evidently for respondent that would suffice to meet the constitutional questions raised as to the alleged infringement of free speech, free press, freedom of assembly and 'freedom' of association. Would it were as simple as that? An eloquent excerpt from a leading American decision 10 admonishes though against such a cavalier approach. "The

case confronts us again with the duty our system places on this Court to say where the individual's, freedom ends the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual. presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice..." Even a leading American State court decision on a regulatory measure dealing with elections, cited in the answer of respondent, militates against a stand minimizing the importance and significance of the alleged violation of individual rights: "As so construed by us, it has not been made to appear that section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face violative of any provision of either the state or Federal Constitution on the subject of free speech or liberty of the press, nor that its operation is in any wise subversive of any one's constitutional liberty." 11 Another leading State decision is much more emphatic: "Broad as the power of the legislature is with respect to regulation of elections, that power is not wholly without limitation. Under the guise of regulating elections, the legislature may not deprive a citizen of the right of trial by jury. A person charged with its violation may not be compelled to give evidence against himself. If it destroys the right of free speech, it is to that extent void." 12 The question then of the alleged violation of Constitutional rights must be squarely met.lawphi1.nt 3. Now as to the merits. A brief resume of the basic rights on which petitioners premise their stand that the act is unconstitutional may prove illuminating. The primacy, the high estate accorded freedom of expression is of course a fundamental postulate of our constitutional system. No law shall be passed abridging the freedom of speech or of the press .... 13 What does it embrace? At the very least, free speech and free press may be identified with the liberty to discuss publicly and truthfully any matter of public interest without censorship or punishment. 14 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 15 prosecution for sedition, 16 or action for damages, 17 or contempt proceedings 18 unless there be a clear and present danger of substantive evil that Congress has a right to prevent. The vital need in a constitutional democracy for freedom of expression is undeniable whether as a means of assuring individual self-fulfillment, of attaining the truth, of assuring participation by the people in social including political decisionmaking, and of maintaining the balance between stability and change. 19 The trend as reflected in Philippine and American decisions is to recognize the broadcast scope and assure the widest latitude to this constitutional guaranty. It represents a profound commitment to the principle that debate of public issue should be uninhibited, robust, and wide-open. 20 It is not going too far, according to another American decision, to view the function of free speech as inviting dispute. "It may indeed 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." 21 Freedom of speech and of the press thus means something more than the right to approve existing political beliefs or economic arrangements, to lend

support to official measures, to take refuge in the existing climate of opinion on any matter of public consequence. So atrophied, the right becomes meaningless. The right belongs as well, if not more, for those who question, who do not conform, who differ. To paraphrase Justice Holmes, it is freedom for the thought that we hate, no less than for the thought that agrees with us. 22 So with Emerson one may conclude that "the 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." 23 From the language of the specified constitutional provision, it would appear that the right is not susceptible of any limitation. No law may be passed abridging the freedom of speech and of the press. The realities of life in a complex society preclude however a literal interpretation. Freedom of expression is not an absolute. It would be too much to insist that at all times and under all circumstances it should remain unfettered and unrestrained. There are other societal values that press for recognition. How is it to be limited then? This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply an acceptable criterion for permissible restriction. Thus: "These are the 'clear and present danger' rule and the 'dangerous tendency' rule. The first, as interpreted in a number of cases, means that the evil consequence of the comment or utterance must be extremely serious and the degree of imminence extremely high' before the utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be prevented." It has the advantage of establishing according to the above decision "a definite rule in constitutional law. It provides the criterion as to what words may be public established." The Cabansag case likewise referred to the other test, the "dangerous tendency" rule and explained it thus: "If the words uttered create a dangerous tendency which the state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language used be reasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable effect of the utterance be to bring about the substantive evil which the legislative body seeks to prevent. We posed the issue thus: "Has the letter of Cabansag created a sufficient danger to a fair administration of justice? Did its remittance to the PCAC create a danger sufficiently imminent to come under the two rules mentioned above?" The choice of this Court was manifest and indisputable. It adopted the clear and present danger test. As a matter of fact, in an

earlier decision, Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear and present danger doctrine. Why repression is permissible only when the danger of substantive evil is present is explained by Justice Branders thus: ... the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence." 26 For him the apprehended evil must be "relatively serious." For "[prohibition] of free speech and assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively trivial harm to society." Justice Black would go further. He would require that the substantive evil be "extremely serious." 27 Only thus may there be a realization of the ideal envisioned by Cardozo: "There shall be no compromise of the freedom to think one's thoughts and speak them, except at those extreme borders where thought merges into action." 28 It received its original formulation from Holmes. Thus: "The question in every case is whether the words used in such circumstances and of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree." 29 This test then as a limitation on freedom of expression is justified by the danger or evil a substantive character that the state has a right to prevent. Unlike the dangerous tendency doctrine, the danger must not only be clear but also present. The term clear seems to point to a causal connection with the danger of the substantially evil arising from the utterance questioned. Present refers to the time element. It used to be identified with imminent and immediate danger. The danger must not only be probable but very likely inevitable. 4. How about freedom of assembly? The Bill of Rights as thus noted prohibits abridgment by law of freedom of speech or of the press. It likewise extends the same protection to the right of the people peaceably to assemble. As was pointed out by Justice Malcolm in the case of United States v. Bustos, 30 this right is a necessary consequence of our republican institution and complements the right of free speech. Assembly means a right on the part of citizens to meet peaceably for consultation in respect to public affairs. From the same Bustos opinion: "Public policy, the welfare of society and orderly administration of government have demanded protection for public opinion." To paraphrase the opinion of Justice Rutledge speaking for the majority in Thomas v. Collins,31 it was not by accident or coincidence that the rights to freedom of speech and of the press were coupled in a single guaranty 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. They are cognate rights and the assurance afforded by the clause of this section of the Bill of Rights wherein they are contained, applies to all. As emphatically put in the leading case of United States v. Cruikshank, 32 "the very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for redress of grievances." As in the case of freedom of expression, this right is not to be limited, much less denied, except on a showing of a clear and present danger of a substantive evil that Congress has a right to prevent. 5. Our Constitution likewise recognizes the freedom to form association for purposes not contrary to law. 33 With or

without a constitutional provision of this character, it may be assumed that the freedom to organize or to be a member of any group or society exists. With this explicit provision, whatever doubts there may be on the matter are dispelled. Unlike the cases of other guarantee which are mostly American in origin, this particular freedom has an indigenous cast. It can trace its origin to the Malolos Constitution. In the United States, in the absence of an explicit provision of such character, it is the view of Justice Douglas that it is primarily the first amendment of her Constitution, which safeguards freedom of speech and of the press, of assembly and of petition "that provides [associations] with the protection they need if they are to remain viable and continue to contribute to our Free Society." 34 He adopted the view of De Tocqueville on the importance and the significance of the freedom to associate. Thus: "The most natural privilege of man, next to the right of acting for himself, is that of combining his exertions with those of his fellow creatures and of acting in common with them. The right of association therefore appears to me almost inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundation of society." 35 There can be no dispute as to the soundness of the above observation of De Tocqueville. Since man lives in social it would be a barren existence if he could not freely associate with others of kindred persuasion or of congenial frame of mind. As a matter of fact, the more common form of associations may be likely to be fraternal, cultural, social or religious. Thereby, for almost everybody, save for those exceptional few who glory in aloofness and isolation life is enriched and becomes more meaningful. In a sense, however, the stress on this freedom of association should be on its political significance. If such a right were non-existent then the likelihood of a one-party government is more than a possibility. Authoritarianism may become unavoidable. Political opposition will simply cease to exist; minority groups may be outlawed, constitutional democracy as intended by the Constitution may well become a thing of the past. Political parties which, as is originally the case, assume the role alternately of being in the majority or in the minority as the will of the electorate dictates, will lose their constitutional protection. It is undeniable therefore, that the utmost scope should be afforded this freedom of association. It is indispensable not only for its enhancing the respect that should be accorded a human personality but equally so for its assurance that the wishes of any group to oppose whatever for the moment is the party in power and with the help of the electorate to set up its own program of government would not be nullified or frustrated. To quote from Douglas anew: "Justice Frankfurter thought that political and academic affiliations have a preferred position under the due process version of the First Amendment. But the associational rights protected by the First Amendment are in my view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion. In my view, government can neither legislate with respect to nor probe the intimacies of political, spiritual, or intellectual relationships in the myriad of lawful societies and groups, whether popular or unpopular, that exist in this country." 36

Nonetheless, the Constitution limits this particular freedom in the sense that there could be an abridgment of the right to form associations or societies when their purposes are "contrary to law". How should the limitation "for purposes not contrary to law" be interpreted? It is submitted that it is another way of expressing the clear and present danger rule for unless an association or society could be shown to create an imminent danger to public safety, there is no justification for abridging the right to form association societies.37 As was so aptly stated: "There is no other course consistent with the Free Society envisioned by the First Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces, and the people he associates with are no concern to government until and unless he moves into action. That article of faith marks indeed the main difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right." 38 With the above principles in mind, we now consider the validity of the prohibition in Republic Act No. 4880 of the too early nomination of candidates and the limitation found therein on the period of election campaign or partisan political activity alleged by petitioners to offend against the rights of free speech, free press, freedom of assembly and freedom of association. In effect what are asked to do is to declare the act void on its face evidence having been introduced as to its actual operation. There is respectable authority for the court having the power to so act. Such fundamental liberties are accorded so high a place in our constitutional scheme that any alleged infringement manifest in the wording of statute cannot be allowed to pass unnoticed. 39 In considering whether it is violative of any of the above rights, we cannot ignore of course the legislative declaration that its enactment was in response to a serious substantive evil affecting the electoral process, not merely in danger of happening, but actually in existence, and likely to continue unless curbed or remedied. To assert otherwise would be to close one's eyes to the realities of the situation. Nor can we ignore the express legislative purpose apparent in the proviso "that simple expressions of opinion and thoughts concerning the election shall not be considered as part of an election campaign," and in the other proviso "that nothing herein stated shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports." Such limitations qualify the entire provision restricting the period of an election campaign or partisan political activity. The prohibition of too early nomination of candidates presents a question that is not too formidable in character. According to the act: "It shall be unlawful for any political party political committee, or political group to nominate candidates for any elective public officio voted for at large earlier than one hundred and fifty days immediately preceding an election, and for any other elective public, office earlier than ninety days immediately preceding an election." 40 The right of association is affected. Political parties have less freedom as to the time during which they may nominate candidates; the curtailment is not such, however, as to render meaningless such a basic right. Their scope of legitimate activities, save this one, is not unduly narrowed. Neither is there infringement of their freedom to assemble. They can do so, but not for such a purpose. We sustain in validity. We do so unanimously.

The limitation on the period of "election campaign" or "partisan political activity" calls for a more intensive scrutiny. According to Republic Act No. 4880: "It is unlawful for any person whether or not a voter or candidate, or for any group or association of persons whether or not a political party or political committee, to engage in an election campaign or partisan political activity except during the period of one hundred twenty days immediately preceding an election involving a public office voted for at large and ninety days immediately preceding an election for any other elective public office. The term 'candidate' refers to any person aspiring for or seeking an elective public office, regardless of whether or not said person has already filed his certificate of candidacy or has been nominated by any political party as its candidate. The term 'election campaign' or 'partisan political activity' refers to acts designed to have a candidate elected or not or promote the candidacy of a person or persons to a public office ..." If that is all there is to that provision, it suffers from the fatal constitutional infirmity of vagueness and may be stricken down. What other conclusion can there be extending as it does to so wide and all-encompassing a front that what is valid, being a legitimate exercise of press freedom as well as freedom of assembly, becomes prohibited? That cannot be done; such an undesirable eventuality, this Court cannot allow to pass. It is a well-settled principle that stricter standard of permissible statutory vagueness may be applied to a statute having inhibiting effect on speech; a man may the less be required to act at his peril here, because the free dissemination of ideas may be the loser.41 Where the statutory provision then operates to inhibit the exercise of individual freedom affirmatively protected by the Constitution, the imputation of vagueness sufficient to invalidate the statute is inescapable. 42 The language of Justice Douglas, both appropriate and vigorous, comes to mind: "Words which are vague and fluid ... may be as much of a trap for the innocent as the ancient laws of Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." 44 7. The constitutional objections are thus formidable. It cannot be denied that the limitations thus imposed on the constitutional rights of free speech and press, of assembly, and of association cut deeply, into their substance. This on the one hand. On the other, it cannot be denied either that evils substantial in character taint the purity of the electoral process. There can be under the circumstances then no outright condemnation of the statute. It could not be said to be unwarranted, much less arbitrary. There is need for refraining from the outright assumption that the constitutional infirmity is apparent from a mere reading thereof. For under circumstances that manifest abuses of the gravest character, remedies much more drastic than what ordinarily would suffice would indeed be called for. The justification alleged by the proponents of the measures weighs heavily with the members of the Court, though in varying degrees, in the appraisal of the aforesaid restrictions to which such precious freedoms are subjected. They are not unaware of the clear and present danger that calls for measures that may

bear heavily on the exercise of the cherished rights of expression, of assembly, and of association. This is not to say, that once such a situation is found to exist there is no limit to the allowable limitations on such constitutional rights. The clear and present danger doctrine rightly viewed requires that not only should there be an occasion for the imposition of such restrictions but also that they be limited in scope. There are still constitutional questions of a serious character then to be faced. The practices which the act identifies with "election campaign" or "partisan political activity" must be such that they are free from the taint of being violative of free speech, free press, freedom of assembly, and freedom of association. What removes the sting from constitutional objection of vagueness is the enumeration of the acts deemed included in the terms "election campaign" or "partisan political activity."

collision with the preferred right of freedom of expression. From the outset, such provisions did occasion divergence of views among the members of the Court. Originally only a minority was for their being adjudged as invalid. It is not so. any more. 50 This is merely to emphasize that the scope of the curtailment to which freedom of expression may be subjected is not foreclosed by the recognition of the existence of a clear and present danger of a substantive evil, the debasement of the electoral process. The majority of the Court is thus of the belief that the solicitation or undertaking of any campaign or propaganda whether directly or indirectly, by an individual, 51 the making of speeches, announcements or commentaries or holding interview for or against the election for any party or candidate for public office, 52 or the publication or distribution of campaign literature or materials, 53 suffer from the corrosion of invalidity. It lacks however one more affirmative vote to call for a declaration of unconstitutionality. This is not to deny that Congress was indeed called upon to seek remedial measures for the far-from-satisfactory condition arising from the too-early nomination of candidates and the necessarily prolonged, political campaigns. The direful consequences and the harmful effects on the public interest with the vital affairs of the country sacrificed many a time to purely partisan pursuits were known to all. Moreover, it is no exaggeration to state that violence and even death did frequently occur because of the heat engendered by such political activities. Then, too, the opportunity for dishonesty and corruption, with the right to suffrage being bartered, was further magnified. Under the police power then, with its concern for the general welfare and with the commendable aim of safeguarding the right of suffrage, the legislative body must have felt impelled to impose the foregoing restrictions. It is understandable for Congress to believe that without the limitations thus set forth in the challenged legislation, the laudable purpose of Republic Act No. 4880 would be frustrated and nullified. Whatever persuasive force such approach may command failed to elicit the assent of a majority of the Court. This is not to say that the conclusion reached by the minority that the above poisons of the statute now assailed has passed the constitutional test is devoid of merit. It only indicates that for the majority, the prohibition of any speeches, announcements or commentaries, or the holding of interviews for or against the election of any party or candidate for public office and the prohibition of the publication or distribution of campaign literature or materials, against the solicitation of votes whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or against any candidate or party is repugnant to a constitutional command. To that extent, the challenged statute prohibits what under the Constitution cannot by any law be abridged. More specifically, in terms of the permissible scope of legislation that otherwise could be justified under the clear and present danger doctrine, it is the consideration opinion of the majority, though lacking the necessary vote for an adjudication of invalidity, that the challenged statute could have been more narrowly drawn and the practices prohibited more precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear and present danger doctrine.

They are: "(a) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a party or candidate; (b) holding political conventions, 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 or party;(c) making speeches, announcements or commentaries or holding interviews for or against the election or any party or candidate for public office; (d) publishing or distributing campaign literature or materials; (e) directly or indirectly soliciting votes and/or undertaking any campaign or propaganda for or against any party; (f) giving, soliciting, or receiving contributions for election campaign purposes, either directly or indirectly." 45 As thus limited the objection that may be raised as to vagueness has been minimized, if not totally set at rest. 46 8. This Court, with the aforementioned five Justices unable to agree, is of the view that no unconstitutional infringement exists insofar as the formation of organization, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party is restricted 47 and that the prohibition against giving, soliciting, or receiving contribution for election purposes, either directly or indirectly, is equally free from constitutional infirmity. 48 The restriction on freedom of assembly as confined to holding political conventions, caucuses, conferences, meetings, rallies, parades or other similar assemblies for the purpose of soliciting votes or undertaking any campaign or propaganda or both for or against a candidate or party, 49 leaving untouched all other legitimate exercise of such poses a more difficult question. Nevertheless, after a thorough consideration, and with the same Justices entertaining the opposite conviction, we reject the contention that it should be annulled. Candor compels the admission that the writer of this opinion suffers from the gravest doubts. For him, such statutory prescription could very well be within the outermost limits of validity, beyond which lies the abyss of unconstitutionality. The other acts, likewise deemed included in "election campaign" or "partisan political activity" tax to the utmost the judicial predisposition to view with sympathy legislative efforts to regulate election practices deemed inimical, because of their

In a 1968 opinion, the American Supreme Court made clear that the absence of such reasonable and definite standards in a legislation of its character is fatal. 54 Where, as in the case of the above paragraphs, the majority of the Court could discern "an over breadth that makes possible oppressive or capricious application" 55 of the statutory provisions, the line dividing the valid from the constitutionally infirm has been crossed. Such provisions offend the constitutional principle that "a governmental purpose constitutionally subject to control or prevent activities state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. 56 It is undeniable, therefore, that even though the governmental purposes be legitimate and substantial, they cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. 57 For precision of regulation is the touchstone in an area so closely related to our most precious freedoms. 58 Under the circumstances then, a majority of the Court feels compelled to view the statutory provisions in question as unconstitutional on their face inasmuch as they appear to range too widely and indiscriminately across the fundamental liberties associated with freedom of the mind. 59 Such a conclusion does not find favor with the other members of the Court. For this minority group, no judgment of nullity insofar as the challenged sections are concerned is called for. It cannot accept the conclusion that the limitations thus imposed on freedom of expression vitiated by their latitudinarian scope, for Congress was not at all insensible to the problem that an all-encompassing coverage of the practices sought to be restrained would seriously pose. Such an approach finds support in the exposition made by the author of the measure, Senator Lorenzo M. Taada, appearing before us as amicus curiae. He did clearly explain that such provisions were deemed by the legislative body to be part and parcel of the necessary and appropriate response not merely to a clear and present danger but to the actual existence of a grave and substantive evil of excessive partisanship, dishonesty and corruption as well as violence that of late has invariably marred election campaigns and partisan political activities in this country. He did invite our attention likewise to the well-settled doctrine that in the choice of remedies for an admitted malady requiring governmental action, on the legislature primarily rests the responsibility. Nor should the cure prescribed by it, unless clearly repugnant to fundamental rights, be ignored or disregarded. More than that, he would stress the two provisos already mentioned, precisely placed in the state as a manifestation of the undeniable legislative determination not to transgress the preferred freedom of speech, of press, of assembly and of association. It is thus provided: "That simple expressions or opinion and thoughts concerning the election shall not be considered as part of an election campaign [and that nothing in the Act] shall be understood to prevent any person from expressing his views on current political problems or issues, or from mentioning the names of the candidates for public office whom he supports. 60 If properly implemented then, as it ought to, the barrier to free, expression becomes minimal and far from unwarranted. For the minority of the Court, all of the above arguments possess sufficient persuasive force to blunt whatever cutting

edge may be ascribed to the fears entertained that Congress failed to abide by what the Constitution commands as far as freedom of the mind and of association are concerned. It is its opinion that it would be premature to say the least, for a judgment of nullity of any provision found in Republic Act No. 4880. The need for adjudication arises only if in the implementation of the Act, there is in fact an unconstitutional application of its provisions. Nor are we called upon, under this approach, to anticipate each and every problem that may arise. It is time enough to consider it when there is in fact an actual, concrete case that requires an exercise of judicial power. 9. To recapitulate, we give due recognition to the legislative concern to cleanse, and, if possible, render spotless, the electoral process. There is full acceptance by the Court of the power of Congress, under narrowly drawn legislation to impose the necessary restrictions to what otherwise would be liberties traditionally accorded the widest scope and the utmost deference, freedom of speech and of the press, of assembly, and of association. We cannot, however, be recreant to the trust reposed on us; we are called upon to safeguard individual rights. In the language of Justice Laurel: "This Court is perhaps the last bulwark of constitutional government. It shall not obstruct the popular will as manifested through proper organs... But, in the same way that it cannot renounce the life breathed into it by the Constitution, so may it not forego its obligation, in proper cases, to apply the necessary,..." 61 We recognize the wide discretion accorded Congress to protect vital interests. Considering the responsibility incumbent on the judiciary, it is not always possible, even with the utmost sympathy shown for the legislative choice of means to cure an admitted evil, that the legislative judgment arrived at, with its possible curtailment of the preferred freedoms, be accepted uncritically. There may be times, and this is one of them, with the majority, with all due reject to a coordinate branch, unable to extend their approval to the aforesaid specific provisions of one of the sections of the challenged statute. The necessary two-third vote, however, not being obtained, there is no occasion for the power to annul statutes to come into play. Such being the case, it is the judgment of this Court that Republic Act No. 4880 cannot be declared unconstitutional. WHEREFORE, the petition is dismissed and the writ of prayed for denied. Without costs. G.R. No. L-59329 July 19, 1985

EASTERN BROADCASTING CORPORATION (DYRE) petitioner, vs. THE HON. JOSE P. DANS, JR., MINISTER OF TRANSPORTATION & COMMUNICATIONS, THE HON. CEFERINO S. CARREON, COMMISSIONER, NATIONAL TELECOM., COMMISSION, ET AL., respondents. RESOLUTION

GUTIERREZ, JR., J.:

This petition was filed to compel the respondents to allow the reopening of Radio Station DYRE which had been summarily closed on grounds of national security. The petitioner contended that it was denied due process when it was closed on the mere allegation that the radio station was used to incite people to sedition. it alleged that no hearing was held and not a bit of proof was submitted to establish a factual basis for the closure. The petitioner was not informed beforehand why administrative action which closed the radio station was taken against it. No action was taken by the respondents to entertain a motion seeking the reconsideration of the closure action. The petitioner also raised the issue of freedom of speech. It appears from the records that the respondents' general charge of "inciting people to commit acts of sedition" arose from the petitioner's shift towards what it stated was the coverage of public events and the airing of programs geared towards public affairs. On March 25, 1985, before the Court could promulgate a decision squarely passing upon all the issues raised, the petitioner through its president, Mr. Rene G. Espina suddenly filed a motion to withdraw or dismiss the petition. The petitioner alleged: 1. Petitioner Eastern Broadcasting Corporation has already sold its radio broadcasting station in favor of Manuel B. Pastrana as well as its rights and interest in the radio station DYRE in Cebu including its right to operate and its equipment; 2. Respondent National Telecommunications Commission has expressed its willingness to grant to the said new owner Manuel B. Pastrana the requisite license and franchise to operate the said radio station and to approve the sale of the radio transmitter of said station DYRE; 3. In view of the foregoing, petitioner has no longer any interest in said case, and the new owner, Manuel B. Pastrana is likewise not interested in pursuing the case any further. The case, therefore, has become moot and academic. However, for the guidance of inferior courts and administrative tribunals exercising quasi-judicial functions, the Court issues the following guidelines: (1) The cardinal primary requirements in administrative proceedings laid down by this Court in Ang Tibay v. Court of Industrial Relations (69 Phil. 635) should be followed before a broadcast station may be closed or its operations curtailed. 1 (2) It is necessary to reiterate that while there is no controlling and precise definition of due process, it furnishes an unavoidable standard to which government action must conform in order that any deprivation of life, liberty, or property, in each appropriate case, may be valid (ErmitaMalate Hotel and Motel Operators Association v. City Mayor, 20 SCRA 849). (3) All forms of media, whether print or broadcast, are entitled to the broad protection of the freedom of speech and expression clause. The test for limitations on freedom of expression continues to be the clear and present danger rule that words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the lawmaker has a right to prevent, In his Constitution of the Philippines (2nd Edition,

pp. 569-570) Chief Justice Enrique M. Fernando cites at least nine of our decisions which apply the test (Primicias v. Fugoso [80 Phil. 71], American Bible Society v. City of Manila [101 Phil. 386], Cabansag v. Fernandez [102 Phil. 152], Vera v. Arca [28 SCRA 351], Navarro v. Villegas [31 SCRA 931], Imbong v. Ferrer [35 SCRA 28], Badoy v. Commission on Elections [35 SCRA 285], People v. Ferrer [48 SCRA 382], and the Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc. [51 SCRA 189]. More recently, the clear and present danger test was applied in J.B.L. Reyes in behalf of the Anti-Bases Coalition v. Bagatsing [125 SCRA 553]. (4) The clear and present danger test, however, does not lend itself to a simplistic and all embracing interpretation applicable to all utterances in all forums. Broadcasting has to be licensed. Airwave frequencies have to be allocated among qualified users. A broadcast corporation cannot simply appropriate a certain frequency without regard for government regulation or for the rights of others. All forms of communication are entitled to the broad protection of the freedom of expression clause. Necessarily, however, the freedom of television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print media.

The American Court in Federal Communications Commission v. Pacifica Foundation (438 U.S. 726), confronted with a patently offensive and indecent regular radio program, explained why radio broadcasting, more than other forms of communications, receives the most limited protection from the free expression clause. First, broadcast media have established a uniquely pervasive presence in the lives of all citizens, Material presented over the airwaves confronts the citizen, not only in public, but in the privacy of his home. Second, broadcasting is uniquely accessible to children. Bookstores and motion picture theaters may be prohibited from making certain material available to children, but the same selectivity cannot be done in radio or television, where the listener or viewer is constantly tuning in and out. Similar considerations apply in the area of national security. The broadcast media have also established a uniquely pervasive presence in the lives of all Filipinos, Newspapers and current books are found only in metropolitan areas and in the poblaciones of municipalities accessible to fast and regular transportation. Even here, there are low income masses who find the cost of books, newspapers, and magazines beyond their humble means. Basic needs like food and shelter perforce enjoy high priorities. On the other hand, the transistor radio is found everywhere. The television set is also becoming universal. Their message may be simultaneously received by a national or regional audience of listeners including the indifferent or unwilling who happen to be within reach of a blaring radio or television set. The materials broadcast over the airwaves reach every person of every age, persons of varying susceptibilities to persuasion, persons of different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive speech would be difficult to monitor or predict. The impact of the vibrant speech is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity to cogitate analyze, and reject the utterance.

(5) The clear and present danger test, therefore, must take the particular circumstances of broadcast media into account. The supervision of radio stations-whether by government or through self-regulation by the industry itself calls for thoughtful, intelligent and sophisticated handling. The government has a right to be protected against broadcasts which incite the listeners to violently overthrow it. Radio and television may not be used to organize a rebellion or to signal the start of widespread uprising. At the same time, the people have a right to be informed. Radio and television would have little reason for existence if broadcasts are limited to bland, obsequious, or pleasantly entertaining utterances. Since they are the most convenient and popular means of disseminating varying views on public issues, they also deserve special protection. (6) The freedom to comment on public affairs is essential to the vitality of a representative democracy. In the 1918 case of United States v. Bustos (37 Phil. 731) this Court was already stressing that. The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. (7) Broadcast stations deserve the special protection given to all forms of media by the due process and freedom of expression clauses of the Constitution. WHEREFORE, the case having become moot and academic, the petitioner's motion to withdraw or dismiss the petition is hereby GRANTED. SO ORDERED. 4. Unprotected speech [G.R. No. 113216. September 5, 1997]

This principle is explained in this Decision resolving a petition for review on certiorari of the Decision[1] of the Court of Appeals,[2] promulgated on September 14, 1993 in CA-G.R. SP No. 30832 which in effect affirmed an order of the Regional Trial Court of Quezon City denying the prosecutions withdrawal of a criminal information against petitioner. The Antecedent Facts From the pleadings submitted in this case, the undisputed facts are as follows: Sometime in April 1992, a complaint for libel was filed by Dr. Juan F. Torres, Jr. against Dr. Rhodora M. Ledesma, petitioner herein, before the Quezon City Prosecutors Office, docketed as I.S. No. 92-5433A. Petitioner filed her counter-affidavit to the complaint. Finding sufficient legal and factual basis, the Quezon City Prosecutors Office filed on July 6, 1992 an Information for libel against petitioner with the Regional Trial Court of Quezon City, Branch 104.[3] The Information filed by Assistant City Prosecutor Augustine A. Vestil reads: [4] That on or about the 27th day of June 1991, in Quezon City, Metro Manila, Philippines, the said accused, acting with malice, did, then and there, wilfully, unlawfully and feloniously send a letter addressed to Dr. Esperanza I. Cabral, Director of Philippine Heart Center, East Avenue, this city, and furnished the same to other officers of the said hospital, said letter containing slanderous and defamatory remarks against DR. JUAN F. TORRES, JR., which states in part, to wit: 27June 1991 Dr. Esperanza I. Cabral Director Subject: Return of all professional fees due Dr. Rhodora M. Ledesma, Nuclear Medicine Specialist/Consultant, Philippine Heart Center, from January 31, 1989 to January 31, 1991. Respondents: Medicine Section Dr. Juan F. Torres, Jr., Chief, Nuclear

Dr. Orestes P. Monzon, RHODORA M. LEDESMA, petitioner, vs. COURT OF APPEALS and HON. MAXIMIANO C. ASUNCION, in his capacity as Presiding Judge of RTC, Quezon City, respondents. DECISION PANGANIBAN, J.: When confronted with a motion to withdraw an information on the ground of lack of probable cause based on a resolution of the secretary of justice, the bounden duty of the trial court is to make an independent assessment of the merits of such motion. Having acquired jurisdiction over the case, the trial court is not bound by such resolution but is required to evaluate it before proceeding further with the trial. While the secretarys ruling is persuasive, it is not binding on courts. A trial court, however, commits reversible error or even grave abuse of discretion if it refuses/neglects to evaluate such recommendation and simply insists on proceeding with the trial on the mere pretext of having already acquired jurisdiction over the criminal action. Staff Consultant Dear Dr. Cabral, This is to demand the return of all professional fees due me as a consultant in Nuclear Medicine, this Center, since January 31, 1989 until my resignation effective January 31, 1991, amounting to at least P100,000.00 for the year 1990 alone. Records in the Nuclear Medicine Section will show that from January 1989 to January 1991, a total of 2,308 patients were seen. Of these, I had officially supervised, processed, and interpreted approximately a total of 1,551 cases as against approximately 684 and 73 cases done by Dr. Monzon and Dr. Torres respectively. Until my resignation I had received a monthly share of professional fees averaging P1,116.90/month supposedly representing 20% of the total monthly professional fees. The

rest were divided equally between Dr. Monzon and Dr. Torres. There was never any agreement between us three consultants that this should be the arrangement and I am certain that this was not with your approval. The burden of unfairness would have been lesser if there was an equal distribution of labor and the schedule of duties were strictly followed. As it was, the schedule of duties submitted monthly to the office of the Asst. Director for Medical Services was simply a dummy to comply with administrative requirements rather than a guideline for strict compliance. Both consultants have complete daily time records even if they did not come regularly. Dr. Torres came for an hour every week, Dr. Monzon came sporadically during the week while I was left with everything from training the residents and supervising the Techs to processing and interpreting the results on a regular basis. I had a part time appointment just like Dr. Monzon and Dr. Torres. In the interest of fairness and to set a precedent for the protection of future PHC Nuclear Medicine Alumni I am calling your attention to the unfair and inhuman conditions I went through as a Consultant in that Section. I trust that your sense of professionalism will put a stop to this corruption. I suggest that a committee be formed to make an audit of the distribution of professional fees in this Section. At this point, let me stress that since professional fees vary according to the type of procedure done and since there was no equity of labor between us I am not settling for an equal percentage share. I demand that I be indemnified of all professional fees due me on a case to case basis. Let me make clear my intention of pursuing this matter legally should there be no favorable action in my behalf. Let me state at this point6 that the actions of Dr. Torres and Dr. Monzon are both unprofessional and unbecoming and are clearly violating the code of ethics of the medical profession and the Philippine Civil Service Rules and Regulations related to graft and corruption. Thank you. and other words of similar import, when in truth and in fact, as the accused very well knew, the same are entirely false and untrue but were publicly made for no other purpose than to expose said DR. JUAN F. TORRES, JR. to public ridicule, thereby casting dishonor, discredit and contempt upon the person of the said offended party, to his damage and prejudice. A petition for review of the resolution of Assistant City Prosecutor Vestil was filed by petitioner before the Department of Justice pursuant to P.D. No. 77 as amended by P.D. No. 911. The Department of Justice gave due course to the petition and directed the Quezon City prosecutor to move for deferment of further proceedings and to elevate the entire records of the case.[5] Accordingly, a Motion to Defer Arraignment dated September 7, 1992 was filed by Prosecutor Tirso M. Gavero before the court a quo.[6] On September 9, 1992, the trial court granted the motion and deferred petitioners arraignment until the final termination of the petition for review.[7] Without the consent or approval of the trial prosecutor, private complainant, through counsel, filed a Motion to Lift the Order dated September 9, 1992 and to Set the Case for Arraignment/Trial.[8]

On January 8, 1993, the trial court issued an Order setting aside its earlier Order of September 9, 1992 and scheduling petitioners arraignment on January 18, 1993 at two oclock in the afternoon.[9] In a resolution dated January 27, 1993, then Justice Secretary Franklin M. Drilon reversed the Quezon City investigating prosecutor. Pertinent portions of Drilons ruling read:[10] From the circumstances obtaining, the subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from complainants. Since complainants and respondent are government employees, and the subject letter is a complaint to higher authorities of the PHCA on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that A communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged... although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority who is the Director of PHCA. The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. Moreover, it is unbelievable that it took complainants one year to realize that the questioned letter subjected them to public and malicious imputation of a vice or omission. It is beyond the ordinary course of human conduct for complainants to start feeling the effects of the alleged libelous letter - that of experiencing sleepless nights, wounded feelings, serious anxiety, moral shock and besmirched reputation - one year after they read the communication in question. The claim that the case of Crespo vs. Mogul, 151 SCRA 462 is applicable to the instant case is unfounded. In the first place, the instant cases are not being reinvestigated. It is the resolutions of the investigating prosecutor that are under review. Further, the record shows that the court has issued an order suspending the proceedings pending the resolutions of the petitions for review by this Office. In the issuance of its order, the court recognizes that the Secretary of Justice has the power and authority to review the resolutions of prosecutors who are under his control and supervision. In view of the foregoing, the appealed resolutions are hereby reversed. You are directed to withdraw the Informations which you filed in Court. Inform this Office of the action taken within ten (10) days from receipt hereof.

In obedience to the above directive, Quezon City Trial Prosecutor Tirso M. Gavero filed a Motion to Withdraw Information dated February 17,1993,[11] attaching thereto the resolution of Secretary Drilon. The trial judge denied this motion in his Order dated February 22, 1993, as follows:[12] The motion of the trial prosecutor to withdraw the information in the above-entitled case is denied. Instead, the trial prosecutor of this court is hereby directed to prosecute the case following the guidelines and doctrine laid down by the Supreme Court in the case of Crespo vs. Mogul, 151 SCRA 462. Petitioners motion for reconsideration[13] was denied by the trial judge in the Order dated March 5, 1993, as follows:[14] Finding no cogent reason to justify the reconsideration of the ruling of this Court dated February 22, 1993, the Motion for Reconsideration dated March 1, 1993 filed by the accused through counsel is hereby denied. Aggrieved, petitioner filed a petition for certiorari and prohibition with the Supreme Court. In a Resolution dated March 31, 1993, this Court referred the case to the Court of Appeals for proper determination and disposition pursuant to Section 9, paragraph 1 of B.P. 129.[15] Respondent Court dismissed the petition for lack of merit, holding that it had no jurisdiction to overturn the doctrine laid down in Crespo vs. Mogul -- once a complaint or information has been filed in court, any disposition of the case, i.e., dismissal, conviction or acquittal of the accused, rests on the sound discretion of the trial court.[16] Hence, this recourse to this Court. The Issues For unexplained reasons, petitioner failed to make an assignment of errors against the appellate court. Her counsel merely repeated the alleged errors of the trial court: [17] I. The Orders, dated February 22, 1993 and March 5, 1993, of respondent Judge Asuncion relied solely on the Crespo vs. Mogul (151 SCRA 462) decision. It is respectfully submitted that said case is not applicable because: 1. It infringes on the constitutional separation of powers between the executive and judicial branches of the government; 2. It constitutes or it may lead to misuse or misapplication of judicial power as defined in the Constitution; 3. It goes against the constitutional proscription that rules of procedure should not diminish substantive rights; 4. It goes against the principle of non-delegation of powers; 5. rules; It sets aside or disregards substantive and procedural

8. It deprives the secretary of justice or the president of the power to control or review the acts of a subordinate official; 9. It will lead to, encourage, abet or promote abuse or even corruption among the ranks of investigating fiscals; 10. It does not subserve the purposes of a preliminary investigation because (10.a) It subjects a person to the burdens of an unnecessary trial, specially in cases where the investigating fiscal recommends no bail for the accused; (10.b) It subjects the government, both the executive and the judiciary, to unnecessary time and expenses attendant to an unnecessary trial; (10.c) dockets; and 11. It contributes to the clogging of judicial

It has no statutory or procedural basis or precedent.

II. On the assumption that Crespo vs. Mogul is applicable, it is submitted that 1. Respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he denied the Motion to Withdraw Information since he had already deferred to, if not recognized, the authority of the Secretary of Justice; and 2. The facts in Crespo vs. Mogul are different from the instant case. Hence, respondent Judge Asuncion committed grave abuse of discretion, amounting to lack of jurisdiction, when he relied solely on said case in denying the Motion to Withdraw Information. In sum, the main issue in this petition is: Did Respondent Court commit any reversible error in affirming the trial courts denial of the prosecutions Motion to Withdraw Information? The Courts Ruling The petition is impressed with merit. We answer the above question in the affirmative. Preliminary Matter Before discussing the substance of this case, the Court will preliminarily address a procedural matter. Prior to the effectivity of the 1997 Rules of Civil Procedure on July 1, 1997, Section 2 of Rule 45, which governed appeals from the Court of Appeals to the Supreme Court, provided: SEC. 2. Contents of petition.The petition shall contain a concise statement of x x x the assignment of errors made in the court below x x x. A petition for review on certiorari under Rule 45 requires a concise statement of the errors committed by the Court of Appeals, not of the trial court. For failure to follow this Rule, the petition could have been dismissed by this Court motu proprio, considering that under Section 4 of the same Rule, review is not a matter of right but of sound discretion.

6. It deprives a person of his constitutional right to procedural due process; 7. Its application may constitute or lead to denial of equal protection of laws;

We take this occasion to stress the need for precision and clarity in the assignment of errors. Review under this rule is unlike an appeal in a criminal case where the death penalty, reclusin perpetua or life imprisonment is imposed and where the whole case is opened for review. Under Rule 45, only the issues raised therein by the petitioner will be passed upon by the Court, such that an erroneous specification of the issues may cause the dismissal of the petition. We stressed this in Circular No. 2-90, entitled Guidelines to be Observed in Appeals to the Court of Appeals and to the Supreme Court, as follows: 4. Erroneous Appeals. x x x x

issuance of a warrant of arrest from a preliminary investigation proper which ascertains whether the offender should be held for trial or released. xxx The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper--whether xxx there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether xxx he should be subjected to the expense, rigors and embarrassment of trial--is the function of the prosecutor. We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecutors job. The second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged with the judge. Sound policy supports this distinction. Otherwise, judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. The Separate Opinion of Mr. Chief Justice Andres R. Narvasa in Roberts, Jr. vs. Court of Appeals stressed that the determination of the existence of probable cause properly pertains to the public prosecutor in the established scheme of things, and that the proceedings therein are essentially preliminary, prefatory and cannot lead to a final, definite and authoritative judgment of the guilt or innocence of the persons charged with a felony or a crime.[21] In Crespo vs. Mogul,[22] the Court emphasized the cardinal principle that the public prosecutor controls and directs the prosecution of criminal offenses thus: It is a cardinal principle that all criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not follow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. It cannot be controlled by the complainant. Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. In the same case, the Court added that where there is a clash of views between a judge who did not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor should normally prevail:[23] x x x x The Courts cannot interfere with the fiscals discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he

e) Duty of counsel.It is therefore incumbent upon every attorney who would seek review of a judgment or order promulgated against his client to make sure of the nature of the errors he proposes to assign, whether these be of fact or of law; then upon such basis to ascertain carefully which Court has appellate jurisdiction; and finally, to follow scrupulously the requisites for appeal prescribed by law, ever aware that any error or imprecision in compliance may well be fatal to his clients cause. FOR STRICT COMPLIANCE. Be that as it may, the Court noting the importance of the substantial matters raised decided to overlook petitioners lapse and granted due course to the petition per Resolution dated July 15, 1996, with a warning that henceforth petitions which fail to specify an assignment of errors of the proper lower court may be denied due course motu proprio by this Court. Determination of Probable Cause Is an Executive Function The determination of probable cause during a preliminary investigation is judicially recognized as an executive function and is made by the prosecutor. The primary objective of a preliminary investigation is to free a respondent from the inconvenience, expense, ignominy and stress of defending himself/herself in the course of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a more or less summary proceeding by a competent officer designated by law for that purpose. Secondarily, such summary proceeding also protects the state from the burden of unnecessary expense and effort in prosecuting alleged offenses and in holding trials arising from false, frivolous or groundless charges.[18] Such investigation is not a part of the trial. A full and exhaustive presentation of the parties evidence is not required, but only such as may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty thereof.[19] By reason of the abbreviated nature of preliminary investigations, a dismissal of the charges as a result thereof is not equivalent to a judicial pronouncement of acquittal. Hence, no double jeopardy attaches. In declaring this function to be lodged in the prosecutor, the Court distinguished the determination of probable cause for the issuance of a warrant of arrest or a search warrant from a preliminary investigation proper in this wise:[20] xxx Judges and prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the

finds that the evidence relied upon by him is insufficient for conviction. Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscals discretion and control of criminal prosecutions. Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. The fiscal may re-investigate a case and subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the fiscals should normally prevail. x x x x. Appeal as an Exercise of the Justice Secretarys Power of Control Over Prosecutors Decisions or resolutions of prosecutors are subject to appeal to the secretary of justice who, under the Revised Administrative Code, exercises the power of direct control and supervision over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. Section 39, Chapter 8, Book IV in relation to Section 5, 8, and 9, Chapter 2, Title III of the Code gives the secretary of justice supervision and control over the Office of the Chief Prosecutor and the Provincial and City Prosecution Offices. The scope of his power of supervision and control is delineated in Section 38, paragraph 1, Chapter 7, Book IV of the Code: (1) Supervision and Control. Supervision and control shall include authority to act directly whenever a specific function is entrusted by law or regulation to a subordinate; direct the performance of duty; restrain the commission of acts; review, approve, reverse or modify acts and decisions of subordinate officials or units; xxxx. Supplementing the aforequoted provisions are Section 3 of R.A. 3783 and Section 37 of Act 4007, which read: Section 3. x x x x The Chief State Prosecutor, the Assistant Chief State Prosecutors, the Senior State Prosecutors, and the State Prosecutors shall x x x perform such other duties as may be assigned to them by the Secretary of Justice in the interest of public service. xxx xxx xxx

perform their duties. If the latter fail or neglect to fulfill them, the former may take such action or step as prescribed by law to make them perform such duties. Control, on the other hand, means the power of an officer to alter or modify or nullify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for that of the latter. Review as an act of supervision and control by the justice secretary over the fiscals and prosecutors finds basis in the doctrine of exhaustion of administrative remedies which holds that mistakes, abuses or negligence committed in the initial steps of an administrative activity or by an administrative agency should be corrected by higher administrative authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted may judicial recourse be allowed. Appeal to the Secretary of Justice Is Not Foreclosed by the Ruling in Crespo In Marcelo vs. Court of Appeals,[25] the Court clarified that Crespo[26] did not foreclose the power or authority of the secretary of justice to review resolutions of his subordinates in criminal cases. The Court recognized in Crespo that the action of the investigating fiscal or prosecutor in the preliminary investigation is subject to the approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be appealed to the secretary of justice. The justice secretarys power of review may still be availed of despite the filing of an information in court. In his discretion, the secretary may affirm, modify or reverse resolutions of his subordinates pursuant to Republic Act No. 5180, as amended, [27] specifically in Section 1 (d): (d) x x x Provided, finally, That where the resolution of the Provincial or City Fiscal or the Chief State Prosecutor is, upon review, reversed by the Secretary of Justice, the latter may, where he finds that no prima facie case exists, authorize and direct the investigating fiscal concerned or any other fiscal or state prosecutor to cause or move for the dismissal of the case, or, where he finds a prima facie case, to cause the filing of an information in court against the respondent, based on the same sworn statements or evidence submitted without the necessity of conducting another preliminary investigation. Pursuant thereto, the Department of Justice promulgated Circular No. 7 dated January 25, 1990 governing appeals in preliminary investigation. Appeals under Section 2 are limited to resolutions dismissing a criminal complaint. However, Section 4 provides an exception: appeals from resolutions finding probable cause upon a showing of manifest error or grave abuse of discretion are allowed, provided the accused has not been arraigned. In the present case, petitioners appeal to the secretary of justice was given due course on August 26, 1992 pursuant to this Circular. On June 30, 1993, Circular No. 7 was superseded by Department Order No. 223; however, the scope of appealable cases remained unchanged: SECTION 1. What May Be Appealed. -- Only resolutions of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of an appeal to the Secretary of Justice except as otherwise provided in Section 4 hereof.

Section 37. The provisions of the existing law to the contrary notwithstanding, whenever a specific power, authority, duty, function, or activity is entrusted to a chief of bureau, office, division or service, the same shall be understood as also conferred upon the proper Department Head who shall have authority to act directly in pursuance thereof, or to review, modify, or revoke any decision or action of said chief of bureau, office, division or service. Supervision and control of a department head over his subordinates have been defined in administrative law as follows:[24] In administrative law supervision means overseeing or the power or authority of an officer to see that subordinate officers

Appeals from the resolutions of provincial/city prosecutors where the penalty prescribed for the offense charged does not exceed prisin correccional, regardless of the imposable fine, shall be made to the Regional State Prosecutors who shall resolve the appeals with finality, pursuant to Department Order No. 318 dated August 28, 1991 as amended by D.O. No. 34 dated February 4, 1992, D.O. No. 223 dated August 11, 1992 and D.O. No. 45 dated February 2, 1993. Such appeals shall also be governed by these rules. SEC. 4. Non-Appealable Cases; Exceptions.--No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant (is) arraigned during the pendency of the appeal, x x x appeal shall be dismissed motu proprio by the Secretary of Justice. An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Apart from the foregoing statutory and administrative issuances, the power of review of the secretary of justice is recognized also by Section 4 of Rule 112 of the Rules of Court: SEC. 4. Duty of investigating fiscal.--x x x x xxx xxx xxx

government.[28] Under this definition, a court is without power to directly decide matters over which full discretionary authority has been delegated to the legislative or executive branch of the government. It is not empowered to substitute its judgment for that of Congress or of the President. It may, however, look into the question of whether such exercise has been made in grave abuse of discretion. Judicial review of the acts of other departments is not an assertion of superiority over them or a derogation of their functions. In the words of Justice Laurel in Angara vs. Electoral Commission:[29] x x x [W]hen the judiciary mediates to allocate constitutional boundaries, it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument sources and guarantees to them. This is in truth all that is involved in what is termed judicial supremacy which properly is the power of the judicial review under the Constitution. x x x. It is not the purpose of this Court to decrease or limit the discretion of the secretary of justice to review the decisions of the government prosecutors under him. In Crespo, the secretary was merely advised to restrict such review to exceptionally meritorious cases. Rule 112, Section 4 of the Rules of Court, which recognizes such power, does not, however, allow the trial court to automatically dismiss the case or grant the withdrawal of the information upon the resolution of the secretary of justice. This is precisely the import of Crespo, Marcelo, Martinez vs. Court of Appeals[30] and the recent case of Roberts, Jr. vs. Court of Appeals, which all required the trial court to make its own evaluation of the merits of the case, because granting the motion to dismiss or to withdraw the information is equivalent to effecting a disposition of the case itself. The Marcelo and Martinez Cases Are Consistent In Marcelo vs. Court of Appeals,[31] this Court ruled that, although it is more prudent to wait for a final resolution of a motion for review or reinvestigation from the secretary of justice before acting on a motion to dismiss or a motion to withdraw an information, a trial court nonetheless should make its own study and evaluation of said motion and not rely merely on the awaited action of the secretary. The trial court has the option to grant or deny the motion to dismiss the case filed by the fiscal, whether before or after the arraignment of the accused, and whether after a reinvestigation or upon instructions of the secretary who reviewed the records of the investigation; provided that such grant or denial is made from its own assessment and evaluation of the merits of the motion. In Martinez vs. Court of Appeals,[32] this Court overruled the grant of the motion to dismiss filed by the prosecuting fiscal upon the recommendation of the secretary of justice because such grant was based upon considerations other than the judges own assessment of the matter. Relying solely on the conclusion of the prosecution to the effect that there was no sufficient evidence against the accused to sustain the allegation in the information, the trial judge did not perform his function of making an independent evaluation or assessment of the merits of the case.

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint or information. This appeal rests upon the sound discretion of the secretary of justice arising from his power of supervision and control over the prosecuting arm of the government, not on a substantial right on the part of the accused as claimed by petitioner. Appeal Did Not Divest the Trial Court of Jurisdiction Where the secretary of justice exercises his power of review only after an information has been filed, trial courts should defer or suspend arraignment and further proceedings until the appeal is resolved. Such deferment or suspension, however, does not signify that the trial court is ipso facto bound by the resolution of the secretary of justice. Jurisdiction, once acquired by the trial court, is not lost despite a resolution by the secretary of justice to withdraw the information or to dismiss the case. Judicial Review of the Resolution of the Secretary of Justice Judicial power is defined under the 1987 Constitution as the duty of courts to settle actual controversies involving rights which are legally demandable and enforceable. Such power includes the determination of whether there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the

Despite the pronouncement in Marcelo that a final resolution of the appeal to the Department of Justice is necessary, both decisions followed the rule in Crespo vs. Mogul: Once a complaint or information is filed in court, any disposition of the case such as its dismissal or its continuation rests on the sound discretion of the court. Trial judges are thus required to make their own assessment of whether the secretary of justice committed grave abuse of discretion in granting or denying the appeal, separately and independently of the prosecutions or the secretarys evaluation that such evidence is insufficient or that no probable cause to hold the accused for trial exists. They should embody such assessment in their written order disposing of the motion.

and even the private complainants opposition to said motion. The records below have been reproduced and submitted to this Court for its appreciation. Thus, a remand to the trial court serves no purpose and will only clog the dockets. We thus proceed to examine the substance of the resolution of the secretary of justice. The secretary reversed the finding of probable cause on the grounds that (1) the subject letter was privileged in nature and (2) the complaint was merely a countercharge. In every case for libel, the following requisites must concur: (a) it must be defamatory; it must be malicious; it must be given publicity; and the victim must be identifiable.

The above-mentioned cases depict two extreme cases in complying with this rule. In Marcelo, the dismissal of the criminal action upon the favorable recommendation of the Review Committee, Office of the City Prosecutor, was precipitate in view of the pendency of private complainants appeal to the secretary of justice. In effect, the secretarys opinion was totally disregarded by the trial court. In contrast, in Martinez the dismissal of the criminal action was an erroneous exercise of judicial discretion as the trial court relied hook, line and sinker on the resolution of the secretary, without making its own independent determination of the merits of the said resolution. No Grave Abuse of Discretion in theResolution of the Secretary of Justice In the light of recent holdings in Marcelo and Martinez; and considering that the issue of the correctness of the justice secretarys resolution has been amply threshed out in petitioners letter, the information, the resolution of the secretary of justice, the motion to dismiss, and even the exhaustive discussion in the motion for reconsideration all of which were submitted to the court -- the trial judge committed grave abuse of discretion when it denied the motion to withdraw the information, based solely on his bare and ambiguous reliance on Crespo. The trial courts order is inconsistent with our repetitive calls for an independent and competent assessment of the issue(s) presented in the motion to dismiss. The trial judge was tasked to evaluate the secretarys recommendation finding the absence of probable cause to hold petitioner criminally liable for libel. He failed to do so. He merely ruled to proceed with the trial without stating his reasons for disregarding the secretarys recommendation. Had he complied with his judicial obligation, he would have discovered that there was, in fact, sufficient ground to grant the motion to withdraw the information. The documents before the trial court judge clearly showed that there was no probable cause to warrant a criminal prosecution for libel. Under the established scheme of things in criminal prosecutions, this Court would normally remand the case to the trial judge for his or her independent assessment of the motion to withdraw the information. However, in order not to delay the disposition of this case and to afford the parties complete relief, we have decided to make directly the independent assessment the trial court should have done. The petitioner has attached as annexes to the present petition for review the information, which contains a complete and faithful reproduction of the subject letter, the resolution of the secretary of justice, the prosecutions motion for reconsideration of the trial courts Order of February 22, 1993,

(b) (c) (d)

At the preliminary investigation stage, these requisites must show prima facie a well-founded belief that a crime has been committed and that the accused probably committed it. A cursory reading of the information immediately demonstrates a failure on the part of the complainant to establish the foregoing elements of libel. Every defamatory imputation, even if true, is presumed malicious, if no good intention or justifiable motive for making it is shown. There is malice when the author of the imputation is prompted by personal ill will or spite and speaks not in response to duty but merely to injure the reputation of the person who claims to have been defamed. [33] In this case however, petitioners letter was written to seek redress of proper grievance against the inaccurate distribution and payment of professional fees and against unfair treatment in the Nuclear Medicine Department of the Philippine Heart Center. It is a qualified privileged communication under Article 354(1) of the Revised Penal Code which provides: ART. 354. Requirement of publicity. -- Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and xxx xxx xxx

The rule on privileged communication is that a communication made in good faith on any subject matter in which the communicator has an interest, or concerning which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contains incriminatory matter which, without the privilege, would be libelous and actionable. Petitioners letter was a private communication made in the performance of a moral duty on her part. Her intention was not to inflict an unjustifiable harm on the private complainant, but to present her grievance to her superior. The privileged nature of her letter overcomes the presumption of malice. There is no malice when justifiable motive exists; and in the absence of malice, there is no libel. We note that the information itself failed to allege the existence of malice.

Thus, we agree with the ruling of the secretary of justice:[34] x x x (T)he subject letter was written to bring to the attention of the Director of the Philippine Heart Center for Asia and other responsible authorities the unjust and unfair treatment that Dr. Ledesma was getting from government employees, and the subject letter is a complaint x x x on a subject matter in which respondent has an interest and in reference to which she has a duty to question the same is definitely privileged (US vs. Bustos, 37 Phil. 131). Moreover, in Ang vs. Castro, 136 SCRA 455, the Supreme Court, citing Santiago vs. Calvo, 48 Phil. 922, ruled that a communication made in good faith upon any subject matter in which the party making the communication has an interest or concerning which he has a duty is privileged although it contains incriminatory or derogatory matter which, without the privilege, would be libelous and actionable. The follow-up letter sent by respondent to the director of the PHCA, is a direct evidence of respondents righteous disposition of following the rule of law and is a clear indication that her purpose was to seek relief from the proper higher authority xxx. The same interpretation should be accorded the civil and administrative complaints which respondent filed against complainants. They are mere manifestations of her earnest desire to pursue proper relief for the alleged injustice she got from complainants. If she was motivated by malice and ill-will in sending the subject communication to the Director of the PHCA, she would not have sent the second letter and filed the administrative and civil cases against complainants. In Alonzo, the settled rule is that, when a public officer, in the discharge of his or her official duties, sends a communication to another officer or to a body of officers, who have a duty to perform with respect to the subject matter of the communication, such communication does not amount to publication within the meaning of the law on defamation.[35] Publication in libel means making the defamatory matter, after it has been written, known to someone other than the person to whom it has been written.[36] The reason for such rule is that a communication of the defamatory matter to the person defamed cannot injure his reputation though it may wound his self-esteem. A mans reputation is not the good opinion he has of himself, but the estimation in which others hold him.[37] In this case, petitioner submitted the letter to the director of said hospital; she did not disseminate the letter and its contents to third persons. Hence, there was no publicity and the matter is clearly covered by paragraph 1 of Article 354 of the Penal Code. Further, we note that the information against petitioner was filed only on July 27, 1992 or one year after June 27, 1991, the date the letter was sent. It is obviously nothing more than a countercharge to give Complainant Torres a leverage against petitioners administrative action against him. Ineluctably, Judge Asuncions denial of the motion to withdraw the information and the reconsideration thereof was not only precipitate but manifestly erroneous. This is further compounded by the fact that he did not explain his grounds for his denial inasmuch as he did not make an independent assessment of the motion or the arguments in the resolution of the secretary of justice. All in all, such rash action did not do justice to the sound ruling in Crespo vs. Mogul upon which, ironically, he supposedly rested his action, or to the directive in

Marcelo and Martinez where this Court required trial courts to make an independent assessment of the merits of the motion. WHEREFORE, the assailed Decision is hereby REVERSED and SET ASIDE. The Motion to Withdraw the Information dated February 17, 1993 filed before the trial court is GRANTED. No costs. SO ORDERED. [G.R. No. 139987. March 31, 2005] SALVADOR D. FLOR, petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent. DECISION CHICO-NAZARIO, J.: Before Us is a petition for review on certiorari seeking to reverse the Decision of the Court of Appeals in CA-G.R. CR Nos. 11577 and 33204[1] which affirmed the joint decision of the Regional Trial Court (RTC), Branch 33 of Pili, Camarines Sur, in Criminal Case No. P-1855 convicting the petitioner and Nick Ramos[2] for libel and Civil Case No. P-1672 awarding damages in favor of the private complainant, former Governor of Camarines Sur and Minister of the Presidential Commission on Government Reorganization Luis R. Villafuerte. The facts are not disputed. An information for libel was filed before the RTC, Branch 20, Naga City, against the petitioner and Ramos who were then the managing editor and correspondent, respectively, of the Bicol Forum, a local weekly newspaper circulated in the Bicol Region. The information reads as follows: That on or about the 18th day up to the 24th day of August, 1986, in the Bicol Region comprised by the Provinces of Albay, Catanduanes, Sorsogon, Masbate, Camarines Sur, and Camarines Norte, and the Cities of Iriga and Naga, Philippines, and within the jurisdiction of this Honorable Court under R.A. No. 4363, and B.P. Blg. 129, the above-named accused who are the news correspondent and the managing editor, respectively, of the local weekly newspaper Bicol Forum, did then and there willfully, unlawfully and feloniously, without justifiable motive and with malicious intent of impeaching, discrediting and destroying the honor, integrity, good name and reputation of the complainant as Minister of the Presidential Commission on Government Reorganization and concurrently Governor of the Province of Camarines Sur, and to expose him to public hatred, ridicule and contempt, write, edit, publish and circulate an issue of the local weekly newspaper BICOL FORUM throughout the Bicol Region, with banner headline and front page news item read by the public throughout the Bicol Region, pertinent portions of which are quoted verbatim as follows: VILLAFUERTES DENIAL CONVINCES NO ONE NAGA CITY-Gov. Luis Villafuertes denial that he did not spend government money for his trips to Japan and Israel two weeks ago has failed to convince people in Camarines Sur, reliable sources said. What the people know, the sources said, is that the two trips of the governor who is also the minister of the Government Reorganization Commission was purely junket.

This was confirmed when capitol sources disclosed that about P700,000.00 collected by way of cash advances by ranking provincial officials were allegedly used for the two trips. The cash advances, the sources said, were made at the instance of Villafuerte. It was learned that the amount was withdrawn without resolution approving its release. Villarfuerte however said that he spent his own money for the two trips. The governor was accompanied abroad by political supporters mostly municipal mayors in Camarines Sur, the report said. This was contested by several individuals who told Bicol Forum that the members of Villafuertes entourage did not have official functions in the province. Villafuerte and his companions reportedly attended the 1986 baseball games in Japan. When in truth and in fact said allegations are false and utterly untrue as the complainant has not done such acts, thus embarrassing, discrediting and ridiculing him before his friends, followers and other people.[3] The information was later amended to include Jose Burgos, Jr., who was at that time the publisher-editor of the Bicol Forum.[4] The trial court, however, never acquired jurisdiction over his person as he did not surrender nor was he ever arrested by the authorities. It appears from the records that prior to the filing of the criminal complaint, the private complainant had already instituted a separate civil action for damages arising out of the questioned news article before the RTC, Branch 23, Naga City. Due to this, the criminal suit for libel was ordered consolidated with the civil case pursuant to Article 360 of the Revised Penal Code, as amended.[5] Subsequently, the consolidated actions were transferred to RTC, Branch 33, Pili, Camarines Sur, in accordance with Republic Act No. 4363 which outlines the venue of libel cases in the event that the offended party is a public official such as in this case.[6] Thereafter, a joint trial of the cases ensued with accused Burgos, Jr., being declared as in default in the civil case due to his failure to attend its pre-trial conference. Upon being arraigned, the petitioner and Ramos both pleaded not guilty.[7] During the trial, the private complainant himself took the witness stand to refute the statements contained in the subject news article. According to him, there were previous news reports and broadcasts regarding the cash advances allegedly made by some provincial government officials of Camarines Sur and that it was also reported that he made a trip to Japan which was branded as a mere junket.[8] The private complainant, however, explained that after he clarified over the radio that he never went to Japan, the issue was never discussed again until the matter was included in the questioned news item.[9] As for the cash advances, the private complainant stated that the Provincial Auditor and the Budget Officer had already made a statement to the effect that he had no pending cash advances.[10] Further, the private complainant clarified that he made his trip to Israel in his

capacity as a cabinet member of former President Corazon C. Aquino and that he spent his own money for the said official trip thereby debunking Bicol Forums report that his travel to Israel was purely a junket.[11] The private complainant also complained that no one from the Bicol Forum made any attempt to get his side of the story nor was he aware of any effort exerted by the representatives of said publication to confirm the veracity of the contents of the subject news article from any source at the provincial capitol.[12] Finally, the private complainant took exception to the banner headline which states Villafuertes Denial Convinces No One. According to him, the Bicol Forum seemed to be making a mockery of his previous explanations regarding the cash advances and his trips abroad and such a sweeping statement subjected him to public ridicule and humiliation.[13] On the other hand, Ramos testified that he wrote the questioned news item on the basis of a note given to him by a source whom he refused to identify.[14] Said source was allegedly connected with the Provincial Treasurers Office.[15] The note reads: Media consultants of Villafuerte specially DWLV announcers had been announcing the travels of Villafuerte to Israel and Japan without spending a single centavo. This is unbelievable as lately the Gov. said he [spent] his own money for the trips. No one will believe this. The governor and party went to Israel and Japan as there were some P700,000.00 cash advances collected in form of advances by top provincial officials for the trips. No [doubt] Villafuerte had a hand on this because he is the governor approving cash advances. Among them were Panes and Maceda. There were no resolution, please publish this that people concern will react and they be forced to account for the money. Authenticated papers will follow. Bulls eye ito. capr[16] Ramos likewise alleged that prior to writing the subject news article, he went to his source to ask some clarificatory questions and was told that he would be given authenticated records of the cash advances. Later, he was given a copy of the Schedule of Cash Advances of Disbursing Officers and Other Officers (as of June 30 1987).[17] Among the provincial government officials listed therein were the private respondent who had a 1986 balance of P25,000.00 incurred for cultural activities; Atty. Jose Maceda who also had a 1986 balance of P130,084.00 for sports development, Operation Smile, NAMCYA Festival, and prisoners subsistence; and Eulogio Panes, Jr., who had beside his name a 1986 balance of P250,000 for the purpose of sports development. Ramos also claimed that when he went to the Provincial Treasurers Office to conduct his investigation, he was shown some vouchers and was told that many of the members of the baseball delegation to Japan were not elected provincial officials and, in fact, some mayors and private individuals were sent as part of the Philippine group. [18] During his turn at the witness stand, the petitioner admitted that the headline was written by him in his capacity as the managing editor[19] in accordance with the policy of their paper to print as headlines matters dealing with public concerns and public officials.[20] According to him, the banner headline and the sub-headline truthfully reflect the substance of the story prepared by Ramos.[21]

After the trial, the court a quo rendered a joint decision the dispositive portion of which reads: IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, judgment is hereby rendered: In Criminal Case No. P-1855 Finding the accused Nick Ramos and Salvador D. Flor guilty beyond reasonable doubt of the crime of Libel defined and punished under Article 353 in connection with Article 355 of the Revised Penal Code and they are each sentenced to pay a fine of Two Thousand Pesos (P2,000.00) with subsidiary imprisonment in case of insolvency; and to pay the costs of suit. In Civil Case No. P-1672 Ordering the defendants Nick Ramos, Salvador D. Flor and Jose Burgos, Jr. to pay jointly and severally to the plaintiff the following: 1. The amount of Three Hundred Thousand Pesos (P300,000.00) as moral damages; 2. The amount of Five Thousand Pesos (P5,000.00) as exemplary damages; 3. The amount of Five Thousand Pesos (P5,000.00) as attorneys fees; and to pay the costs of suit.[22] Unsatisfied with the findings of the trial court, the petitioner and Ramos filed an appeal with the Court of Appeals which affirmed the judgment of the trial court through its decision dated 10 December 1996.[23] They thereafter filed a motion for reconsideration[24] which was denied for lack of merit by the appellate court in its resolution of 19 August 1999.[25] In upholding the conclusion reached by the trial court, the Court of Appeals ratiocinated, thus: The informant of Nick Ramos made a sweeping conclusion that it was Gov. Villafuerte who made the trips abroad using government money as there were cash advances of P700,000.00 made by top provincial officials, without first having verified the truth about the matters contained in his report. The imputation became malicious when they are based on mere conjectures. The alleged libelous article must be construed as a whole. The effect of the news item upon the minds of the readers must be considered in the prosecution of libel cases. The words used in the news report tends to impute a criminal act on the governor which may cause the readers to hold him up to public ridicule and induce them to believe that the governor was indeed guilty. The accused editor admitted that he did not make any personal investigation as to the truth of the statements made in the report. When such communication was sent for publication, the so-called privilege was destroyed when malice in fact was present.[26] In fine, the sole issue brought for the consideration of this Court is whether the questioned news item is libelous. We reverse. Libel is defined as a public and malicious imputation of a crime, or of a vice or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to cause

the dishonor, discredit, or contempt of a natural person or juridical person, or to blacken the memory of one who is dead.[27] Any of these imputations is defamatory and under the general rule stated in Article 354 of the Revised Penal Code, every defamatory imputation is presumed to be malicious.[28] The presumption of malice, however, does not exist in the following instances: 1. A private communication made by any person to another in the performance of any legal, moral, or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative, or other official proceedings which are not of confidential nature, or of any statement, report, or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.[29] The law recognizes two kinds of privileged matters. First are those which are classified as absolutely privileged which enjoy immunity from libel suits regardless of the existence of malice in fact. Included herein are statements made in official proceedings of the legislature by the members thereof.[30] Likewise, statements made in the course of judicial proceedings are absolutely privileged but only if pertinent or relevant to the case involved.[31] The other kind of privileged matters are the qualifiedly or conditionally privileged communications which, unlike the first classification, may be susceptible to a finding of libel provided the prosecution establishes the presence of malice in fact. The exceptions provided for in Article 354 of the Revised Penal Code fall into this category. In the case, however, of Borjal v. Court of Appeals,[32] this Court recognized that the enumeration stated in Article 354 of the Revised Penal Code is not exclusive but is rendered more expansive by the constitutional guarantee of freedom of the press, thus: . . . To be sure, the enumeration under Art. 354 is not an exclusive list of qualifiedly privileged communications since fair commentaries on matters of public interest are likewise privileged. The rule on privileged communications had its genesis not in the nations penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech and of the press. As early as 1918, in United States v. Caete [38 Phil. 253], this Court ruled that publications which are privileged for reasons of public policy are protected by the constitutional guaranty of freedom of speech. This constitutional right cannot be abolished by the mere failure of the legislature to give it express recognition in the statute punishing libels.[33] Clearly, when confronted with libel cases involving publications which deal with public officials and the discharge of their official functions, this Court is not confined within the wordings of the libel statute; rather, the case should likewise be examined under the constitutional precept of freedom of the press. As enunciated in the seminal case of United States v. Bustos[34] The interest of society and the maintenance of good government demand a full discussion of public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case of free speech. The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer under a hostile and an unjust accusation; the wound

can be assuaged with the balm of a clear conscience. A public officer must not be too thin-skinned with reference to comment upon his official acts. Only thus can the intelligence and dignity of the individual be exalted. Of course, criticism does not authorize defamation. Nevertheless, as the individual is less than the State, so must expected criticism be born for the common good. Rising superior to any official, or set of officials, to the Chief Executive, to the Legislature, to the Judiciary to any or all the agencies of Government public opinion should be the constant source of liberty and democracy.[35] Of course, this does not mean that a public official is barred from recovering damages in cases involving defamations. His entitlement, however, is limited to instances when the defamatory statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of whether it was false or not.[36] This is the test laid down in the leading case of New York Times Co. v. Sullivan.[37] In the case at bar, the Office of the Solicitor General (OSG) argues that the purported libelous news item was designed to malign the integrity and reputation of the [private complainant] for it ascribed to the latter corruption and dishonesty in government service.[38] Moreover, the OSG maintains that the questioned news article does not enjoy the mantle of protection afforded a privileged matter as the petitioner and Ramos published the news item based on mere speculation and conjecture.[39] Their decision to publish the unverified information furnished them by the unnamed source, who was never presented before the trial court, and their failure to verify the truth of statements which appeared under the banner headline of the 18-24 August 1986 issue of the Bicol Forum indicates that the news item was published intemperately and maliciously.[40] The OSG is therefore of the opinion that the subject news item satisfied the test pronounced in the New York Times case. We do not agree. As the US Supreme Court itself declared, reckless disregard cannot be fully encompassed in one infallible definition. Inevitably its outer limits will be marked out through case-bycase adjudication.[41] The case of Garrison v. State of Louisiana[42] stressed that only those false statements made with the high degree of awareness of their probable falsity demanded by New York Times may be the subject of either civil or criminal sanctions[43] and concluded by restating the reckless disregard standard in the following manner: . . . The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.[44] Subsequently, in St. Amant v. Thompson[45] it was stated that . . . These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. [46] Applied to the case at bar, we hold that the prosecution failed to meet the criterion of reckless disregard. As the records reveal, the issue of cash advances against the coffers of the

provincial government of Camarines Sur was a major political topic in said locality at that time. Even the private respondent himself admitted during his direct testimony that he went on radio in order to address the matter. It was clearly a legitimate topic to be discussed not only by the members of the media but by the public as what was involved was the dispensation of taxpayers money. Further, it bears emphasis that in this case, the petitioner and Ramos had in their possession information relating to the cash advances and the private respondents travels abroad. The information was provided by one who worked in the provincial treasurers office and had access to the pertinent financial records of the provincial government. Their informant was familiar with the procedure with regard to the approval of cash advances. The inference they drew from the note given by their source that the private respondent prodded some of the provincial government officials to take out cash advances may have been false but the same does not warrant a conviction for libel nor support a claim for damages. As discussed by Newell Slight unintentional errors, however, will be excused. If a writer in the course of temperate and legitimate criticism falls into error as to some detail, or draws an incorrect inference from the facts before him, and thus goes beyond the limits of strict truth, such inaccuracies will not cause judgment to go against him, if the jury are satisfied, after reading the whole publication, that it was written honestly, fairly and with regard to what truth and justice require. It is not to be expected that a public journalist will always be infallible.[47] During the hearing of these cases, the private complainant also refuted the material points contained in the subject news article in an effort to prove the falsity of the allegations contained therein. This Court finds such effort inadequate to adjudge the petitioner guilty of the crime of libel or to entitle the private respondent to damages. Under the New York Times test, false statements alone are not actionable; maliciousness may be shown only through knowledge of falsity or reckless disregard of truth or falsity.[48] Further, both the prosecution and the OSG make capital of Ramos and the petitioners failure to confirm the information supplied by the unidentified source which ultimately became the basis for the news article under consideration in an obvious attempt to establish the element of reckless disregard for truth. The prosecution also painstakingly tried to establish malice in fact on the part of the petitioner by harping on the fact that neither he nor Ramos took the time to give the private respondent the chance to air his side before putting the alleged libelous news story to print. The contention fails to persuade. While substantiation of the facts supplied is an important reporting standard, still, a reporter may rely on information given by a lone source although it reflects only one side of the story provided the reporter does not entertain a high degree of awareness of [its] probable falsity.[49] The prosecution, in this case, utterly failed to prove that the petitioner and Ramos entertained such awareness. We also hold that the petitioners and Ramoss failure to present their informant before the court as well as other evidence that would prove Ramos claim that he had conducted an investigation to verify the information passed on

to him should not be taken against them. On this point, we turn to our pronouncement in the case of Rodolfo R. Vasquez v. Court of Appeals, et al.,[50] to wit: A rule placing on the accused the burden of showing the truth of allegations of official misconduct and/or good motives and justifiable ends for making such allegations would not only be contrary to Art. 361 of the Revised Penal Code. It would, above all, infringe on the constitutionally guaranteed freedom of expression. Such a rule would deter citizens from performing their duties as members of a self-governing community. Without free speech and assembly, discussions of our most abiding concerns as a nation would be stifled. As Justice Brandeis has said, public discussion is a political duty and the greatest menace to freedom is an inert people.[51] Indeed, the difficulty of producing evidence, both documentary and testimonial, on behalf of the petitioner was readily apparent when, during his cross-examination, Ramos testified that he was not allowed by the custodians of the material provincial financial records to photocopy the latter particularly because said documents dealt with the matter of cash advances.[52] Further, as their informant was employed in the provincial treasurers office, it is understandable why he opted not to expose himself and openly charge his superior, the private complainant herein, lest he incur the latters wrath. Finally, the private respondent claims that the banner headline ridiculed him before the public does not merit consideration as the rule in this jurisdiction is that [t]he headline of a newspaper story or publication claimed to be libelous must be read and construed in connection with the language that follows.[53] A perusal of the entire news story accompanying the headline in this case readily establishes the fact that the questioned article dealt with refutations by the private respondents critics of his explanation over the radio with regard to the issues mentioned therein. The wording of the headline may have contained an exaggeration but the same nevertheless represents a fair index of the contents of the news story accompanying it.[54] WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals of 10 December 1996 which affirmed the Joint Decision dated 18 March 1991 of the Regional Trial Court, Branch 33, Pili, Camarines Sur, and its Resolution of 19 August 1999 denying reconsideration are REVERSED and SET ASIDE. No costs. SO ORDERED. G.R. No. L-20569 THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiffappellee, vs. J. J. KOTTINGER, defendant-appellant. Fisher, Dewitt, Perkins and Brady for appellant. Attorney-General Villa-Real for appellee. Malcolm, J.: The question to be here decided is whether or not pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are absence or indecent. Surprising as it may seem, the

question is one of first impression not alone in the Philippine Islands, but in the United States, Great Britain, and elsewhere. This will explain why a case which otherwise would be heard and voted in Division has been submitted to the court in banc for decision. On November 24, 1922, detective Juan Tolentino raided the premises known as Camera Supply Co. at 110 Escolta, Manila. He found and confiscated the post-cards which subsequently were used as evidence against J. J. Kottinger, the manager of the company. Out of these facts arose the criminal prosecution of J. J. Kottinger in the Court of First Instance of Manila. The information filed in court charged him with having kept for sale in the store of the Camera Supply Co., obscene and indecedent pictures, in violation of section 12 of Act No. 277. To this information, the defendant interposed a demurrer based upon the ground that the facts alleged therein did not constitute an offense and were not contrary to law; but trial court overruled the demurrer and the defendant duly excepted thereto. Following the presentation of evidence by the Government and the defense, judgment was rendered finding the defendant guilty of the offense charged and sentencing him to pay a fine of P50 with subsidiary imprisonment in case of insolvency, and the costs. The five errors assigned by defendant-appellant in this court divide themselves into two general issues. The first point sustained by counsel for the appellant is in nature a technical objection, growing out of the defendant's demurrer. The second point, in reality the decesive issue, is as suggested in the beginning of the decision. We will take upon the assignments of errors as thus classified in order. Act No. 277 is the Philippine Libel Law. But included therein is a section, No. 12, making obscene or indecent publications misdemeanors. Said section 12 which, it is contended by the Government, has here been violated, and which, appellant argues, does not apply to the information and the facts, reads as follow: Any person who writes, composes, stereotypes, prints, publishes, sells, or keeps for sale, distributes, or exhibits any obscene or indecent writing, paper, book, or other matter, or who designs, copies, draws, engraves, paints, or otherwise prepares any obscene picture or print, or who moulds, cuts, casts, or otherwise makes any obscene or indecent figure, or who writes, composes, or prints any notice or advertisement of any such writing, paper, book, print, or figure shall be guilty of a misdemeanor and punished by a fine of not exceeding one thousand dollars or by imprisonment not exceeding one year, or both gUE6bavoj. Counsel has gone to the trouble to make a careful analysis of section 12 of the Libel Law which is intended to bear out his thesis, first, that section 12 does not prohibit the taking, selling, and publishing of alleged obscene and indecent pictures and prints, and second, that the information in this case charges no offense prohibited by section 12. Recall, however, that the law provides punishment, among other things, for any person who keeps for sale or exhibits any absence or indecent writing, paper, book, or other matter, and that the information charges the defendant, among other things, with having wilfully and feloniously kept for sale, distribution, or exhibition, obscene and indecent pictures b7zP.

The phrase in the law "or other matter", was apparently added as a sort of "catch-all." While limited to that which is of the same kind as its antecedent, it is intended to cover kindred subjects. The rule of ejusdem generis invoked by counsel is by no means a rule of universal application and should be made to carry out, not to defeat, the legislative intent. Even if the phrase "or other matter" be cobstrued to mean "or other matter of like kind," pictures and postcards are not so far unrelated to writings, papers, and books, as not to be covered by the general words (Commonwealth vs. Dejardin [1878], 126 Mass., 46; 30 Am. Rep., 652; Brown vs. Corbin [1889], 40 Minn., 508). The line of argumentation is more refined that practical. Once conceded that section 12 of Act No. 277 does not cover the present case, there yet remain for application article 571, No. 2, of the penal code, and section 730 of the Revised Ordinances of the City of Manila. The section of the Revised Ordinances cited is most specific when it provides in part that no person shall "exhibit, circulate, distribute, sell, offer or expose for sale, or give or deliver to another, or cause the same to be done, any lewd, indecent, or absence book, picture, pamphlet, card, print, paper, writing, mould, cast, figure, or any other thing." While admittedly the information is lacking in precision and while the content of section 12 of the Libel Law is not as inclusive as it might be, we yet conclude that the information is not fatally defective, and that said section 12 covers the alleged facts. We come now to decide the main issue. We repeat that our own researches have confirmed the statement of counsel that no one parrallel case be found. We must perforce reason from the general to the specific and from universal principle to actual fact. The pictures which it is argued offend against the law on account of being obscene and indecent, disclose six different postures of non-Christian inhabitants of the Philippines. Exhibit A carries the legend "Philippines, Bontoc Woman." Exhibit A-1 is a picture of five young boys and carries the legend "Greetings from the Philippines." Exhibit A-2 has the legend "Ifugao Belle, Philippines. Greetings from the Philippines." Exhibit A-3 has the legend "Igorot Girl, Rice Field Costume." Exhibit A-4 has the legend "Kalinga Girls, Philippines. Exhibit A5 has the legend "Moros Philippines." The prosecution produced no evidence proving the postcards obscene and indecent because it thought the post-cards themselves the best evidence of that fact. The fiscal admitted in open court "that those pictures represented the natives (non-Christians) in their native dress." The defendant, on the other hand, attempted to show that the pictures as true to life. Dr. H. Otley Beyer, Professor in the University of the Philippines, corroborated by other witnesses, testified from his studies in various parts of the Islands, such as the Mountain Province, Abra, Palawan, and Mindanao and Sulu, that none of the pictures represented poses which he had not observed on various occasions, and that the costumes worn by the people in the pictures are the true costumes regularly worn by them. Are such pictures obscene or indecent? The word "obscene" ands the term "obscenity" may be defined as meaning something offensive to chastify, decency, or delicacy. "Indeceny" is an act against behavior and a just delicacy. The test ordinarily followed by the courts in

determining whether a particular publication or other thing is obscene within the meaning of the statutes, is whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall. Another test of obscenity is that which shocks the ordinary and common sense of men as an indecency, (29 Cyc., 1315; 8 R. C. L., 312.) The Philippine statute does not attempt to define obscene or indecent pictures, writings, papers, or books. But the words "obscene or indecent" are themselves descriptive. They are words in common used and every person of average intelligence understand their meaning. Indeed, beyond the evidence furnished by the pictures themselves, there is but little scope for proof bearing on the issue of obscenity or indecency. Whether a picture is obscene or indecent must depend upon the circumstances of the case. (People vs. Muller [1884], 96 N. Y., 408; 48 Am. Rep., 635.) Considerable light can be thrown on the subject by turning to the Federal Laws prohibiting the use of the mails for obscene matter and prohibiting the importation into the Philippine Islands of articles, etc., of obscene or indecent character. (U. S. Rev. Stat., art. 3893; 36 stat. at L., 135; 7 Fed. Stat. Ann., 1194, sec. 3[b].) "Obscene," as used in the Federal Statutes making it a criminal offense to place in the mails any obscene, lewd, or lascivious publication, according to the united States Supreme Court and lesser Federal courts, signifies that form of immorality which has relation to sexual impurity, and has the same meaning as is given at common law in prosecutions for obscene libel. (Swearingen vs. U. S. [1896], 161 U. S., 446; U. S. vs. Males [1892], 51 Fed., 41; 6 Words and Phrases, 4888, 4889.) The case of United States vs. Harmon ([189], 45 Fed., 414), grew out of an indictment for despositing an obscene publication in a United States post-office in violator of the Postal Law. Judge Philips said: The statute does not undertake to define the meaning of the terms "obscene," etc., further than may be implied by the succeeding phrase, "or other publication of an indecent character." On the well-organized canon of construction these words are presumed to have been employed by the law-maker in their ordinary acceptation and use. As they cannot be said to have acquired any technical significance as applied to some particular matter, calling, or profession, but are terms of popular use, the court might perhaps with propriety leave their import to the presumed intelligence of the jury. A standard dictionary says that "obscene" mean "offensive to chastity and decency; expressing or presenting to the mind or view something which delicacy, purity, and decency forbid to be exposed." This mere dictionary definition may be extended or amplified by the courts in actual practice, preserving, however, its essential though, and having always due regard to the popular and proper sense in which the legislature employed the term. Chief Justice Cockburn, in Rex vs. Hicklin (L. R. 3 Q. B., 360), said: "The test of obscenity is this: Where the tendency of the matter charged as obscene is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall;" and where "it who suggest to the minds of the young of either sex, or even to persons of more advanced years, thoughts of the most impure and libidinous character."

So, also, it has been held that a book is obscene which is offensive to decency or chastity, which is immodest, which is indelicate, impure, causing lewd thoughts of an immoral tendency." U. S. vs. Bennet, 16 Blatchf., 338. Judge Thayer, in U. S. vs. Clarke, 38 Fed. Rep., 732, observed: "The word "obscene" ordinarily means something which is offensive to chastity; something that is foul or filthy, and for that reason is offensive to pure-minded persons. That is the meaning of the word in the concrete; but when used, as in the statute, to describe the character of a book, pamphlet, or paper, it means containing immodest and indecent matter, the reading whereof would have a tendency to deprave and corrupt the minds of those into whose hands the publication might fall whose minds are open to such immoral influences." Laws of this character are made for society in the aggregate, and not in particular. So, while there may be individuals and societies of men and women of peculiar motions are idiosyncrasies, whose moral sense would neither be depraved nor offended by the publication now under consideration, yet the exceptional sensibility, or want of sensibility, of such cannot be allowed as a standard by which its obscenity or indecency is to be tested. Rather is the test, what is the judgment of the aggregate sense of the community reached by it? What is its probable, reasonable effect on the sense of decency, purity, and chastity of society, extending to the family, made up of men and women, young boys and girls, the family, which is the common nursery of mankind, the foundation rock upon which the state reposes? . . . To the pure all things are pure, is too poetical for the actualities of practical life. There is in the popular conception and heart such a thing as modesty. It was born in the Garden of Eden. After Adam and Eve ate of the fruit of the tree of knowledge they passed from the condition of perfectibility which some people nowadays aspire to, and, their eyes being opened, they discerned that there was both good and evil; "and they knew that they were naked; and they sewed fig leaves together, and made themselves aprons." From that day to this civilized man has carried with him the sense of shame, the feeling that there were some things on which the eye the mind should not look; and where men and women become so depraved by the use, or so insensate from perverted education, that they will not evil their eyes, nor hold their tongues, the government should perform the office for them in protection of the social compact and the body politic. As above intimated, the Federal statue prohibits the importation or shipment into the Philippine Islands of the following: "Articles, books, pamphlets, printed matter, manuscripts, typewritten matter, paintings, illustrations, figures or objects of obscene or indecent character or subversive of public order." There are, however, in the record, copies of reputable magazines which circulate freely thruout the United States and other countries, and which are admitted into Philippines without question, containing illustrations identical in nature to those forming the basis of the prosecution at bar. Publications of the Philippine Government have also been offered in evidence such as Barton's "Ifugao Law," the "Philippine Journal of Science" for October, 1906, and the Reports of the Philippine Commission for 1903, 1912, and 1913, in which are found illustrations either exactly the same or nearly akin to those which are now impugned. It appears therefore that a national standard has been set up by the Congress of the United States. Tested by that standard,

it would be extremely doubtful if the pictures here challenged would be held obscene or indecent by any state of Federal court. It would be particularly unwise to sanction a different type of censorship in the Philippines that in the United States, or for that matter in the rest of the world. The pictures in question merely depict persons as they actually live, without attempted presentation of persons in unusual postures or dress. The aggregate judgment of the Philippine community, the moral sense of all the people in the Philippines, would not be shocked by photographs of this type. We are convicted that the post-card pictures in this case cannot be characterized as offensive to chastity, or foul, or filthy. We readily understand the laudable motives which moved the Government to initiate this prosecution. We fully appreciate the sentiments of colleagues who take a different view of the case. We would be the last to offend the sensibilities of the Filipino people and the sanction anything which would hold them up to ridicule in the eyes of mankind. But we emphasize that we are not deciding a question in political theory or in social ethics. We are dealing with a legal question predicated on a legal fact, and on this question and fact, we reach the conclusion that there has not been proved a violation of section 12 of the Libel Law. When other cases predicated on other states of facts are brought to our attention, we will decide them as they arise. We seem to recall the statement of counsel that the proprietor of the photographic concern whom he represents would on his own initiative place suitable and explicit inscriptions on the pictures so that no one may be misled as to them. Indeed, he might even go further and out of consideration for the natural sensibilities of his customers, withdraw from sale certain pictures which can be pointed out to him. We hold that pictures portraying the inhabitants of the country in native dress and as they appear and can be seen in the regions in which they live, are not obscene or indecent within the meaning of the Libel Law. Disagreeing therefore with the appellant on his technical argument but agreeing with him on his main contention, it becomes our duty to order the dismissal of the information. Judgment is reversed, the information is dismissed, and the defendant-appellant is acquitted with all costs de oficio. So ordered. MILLER v. CALIFORNIA, 413 U.S. 15 (1973) 413 U.S. 15 MILLER v. CALIFORNIA APPEAL FROM THE APPELLATE DEPARTMENT, SUPERIOR COURT OF CALIFORNIA, COUNTY OF ORANGE No. 70-73. Argued January 18-19, 1972 Reargued November 7, 1972 Decided June 21, 1973 Appellant was convicted of mailing unsolicited sexually explicit material in violation of a California statute that approximately incorporated the obscenity test formulated in Memoirs v. Massachusetts, 383 U.S. 413, 418 (plurality opinion). The trial court instructed the jury to evaluate the materials by the contemporary community standards of California. Appellant's conviction was affirmed on appeal. In lieu of the obscenity criteria enunciated by the Memoirs plurality, it is held:

1. Obscene material is not protected by the First Amendment. Roth v. United States, 354 U.S. 476 , reaffirmed. A work may be subject to state regulation where that work, taken as a whole, appeals to the prurient interest in sex; portrays, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and, taken as a whole, does not have serious literary, artistic, political, or scientific value. Pp. 23-24. 2. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Roth, supra, at 489, (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. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary. Pp. 24-25. 3. The test of "utterly without redeeming social value" articulated in Memoirs, supra, is rejected as a constitutional standard. Pp. 24-25. 4. The jury may measure the essentially factual issues of prurient appeal and patent offensiveness by the standard that prevails in the forum community, and need not employ a "national standard." Pp. 30-34. Vacated and remanded. [413 U.S. 15, 16] BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 37. BRENNAN, J., filed a dissenting opinion, in which STEWART and MARSHALL, JJ., joined, post, p. 47. Burton Marks reargued the cause and filed a brief for appellant. Michael R. Capizzi reargued the cause for appellee. With him on the brief was Cecil Hicks. * [ Footnote * ] Samuel Rosenwein, A. L. Wirin, Fred Okrand, Laurence R. Sperber, Melvin L. Wulf, and Joel M. Gora filed a brief for the American Civil Liberties Union of Southern California et al. as amici curiae urging reversal. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. This is one of a group of "obscenity-pornography" cases being reviewed by the Court in a re-examination of standards enunciated in earlier cases involving what Mr. Justice Harlan called "the intractable obscenity problem." Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704 (1968) (concurring and dissenting). Appellant conducted a mass mailing campaign to advertise the sale of illustrated books, euphemistically called "adult" material. After a jury trial, he was convicted of violating California Penal Code 311.2 (a), a misdemeanor, by knowingly distributing obscene matter, 1 [413 U.S. 15, 17] and the Appellate Department, Superior Court of California, County of Orange, summarily affirmed the judgment without opinion. Appellant's conviction was specifically [413 U.S. 15, 18] based on his conduct in causing five unsolicited advertising brochures to be sent through the mail in an envelope addressed to a restaurant in Newport Beach, California. The envelope was opened by the manager of the restaurant and his mother. They had not requested the brochures; they complained to the police.

The brochures advertise four books entitled "Intercourse," "Man-Woman," "Sex Orgies Illustrated," and "An Illustrated History of Pornography," and a film entitled "Marital Intercourse." While the brochures contain some descriptive printed material, primarily they consist of pictures and drawings very explicitly depicting men and women in groups of two or more engaging in a variety of sexual activities, with genitals often prominently displayed. I This case involves the application of a State's criminal obscenity statute to a situation in which sexually explicit materials have been thrust by aggressive sales action upon unwilling recipients who had in no way indicated any desire to receive such materials. This Court has recognized that the States have a legitimate interest in prohibiting dissemination or exhibition of obscene material 2 [413 U.S. 15, 19] when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles. Stanley v. Georgia, 394 U.S. 557, 567 (1969); Ginsberg v. New York, 390 U.S. 629, 637 -643 (1968); Interstate Circuit, Inc. v. Dallas, supra, at 690; Redrup v. New York, 386 U.S. 767, 769 (1967); Jacobellis v. Ohio, 378 U.S. 184, 195 (1964). See Rabe v. Washington, 405 U.S. 313, 317 (1972) (BURGER, C. J., concurring); United States v. Reidel, 402 U.S. 351, 360 -362 (1971) (opinion of MARSHALL, J.); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952); Breard v. Alexandria, 341 U.S. 622, 644 -645 (1951); Kovacs v. Cooper, 336 U.S. 77, 88 -89 (1949); Prince v. Massachusetts, 321 U.S. 158, 169 -170 (1944). Cf. Butler v. Michigan, 352 U.S. 380, 382 -383 (1957); Public Utilities Comm'n v. Pollak, 343 U.S. 451, 464 -465 (1952). It is in this context that we are called [413 U.S. 15, 20] on to define the standards which must be used to identify obscene material that a State may regulate without infringing on the First Amendment as applicable to the States through the Fourteenth Amendment. The dissent of MR. JUSTICE BRENNAN review the background of the obscenity problem, but since the Court now undertakes to formulate standards more concrete than those in the past, it is useful for us to focus on two of the landmark cases in the somewhat tortured history of the Court's obscenity decisions. In Roth v. United States, 354 U.S. 476 (1957), the Court sustained a conviction under a federal statute punishing the mailing of "obscene, lewd, lascivious or filthy . . ." materials. The key to that holding was the Court's rejection of the claim that obscene materials were protected by the First Amendment. Five Justices joined in the opinion stating: "All ideas having even the slightest redeeming social importance - unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion - have the full protection of the [First Amendment] guaranties, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. . . . This is the same judgment expressed by this Court in Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -572: "`. . . There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene . . . . It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social [413 U.S. 15, 21] value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the social interest in order and morality. . . .' [Emphasis by Court in Roth opinion.] "We hold that obscenity is not within the area of constitutionally protected speech or press." 354 U.S., at 484 -485 (footnotes omitted). Nine years later, in Memoirs v. Massachusetts, 383 U.S. 413 (1966), the Court veered sharply away from the Roth concept and, with only three Justices in the plurality opinion, articulated a new test of obscenity. The plurality held that under the Roth definition. "as elaborated in subsequent cases, three elements must coalesce: it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value." Id., at 418. The sharpness of the break with Roth, represented by the third element of the Memoirs test and emphasized by MR. JUSTICE WHITE'S dissent, id., at 460-462, was further underscored when the Memoirs plurality went on to state: "The Supreme Judicial Court erred in holding that a book need not be `unqualifiedly worthless before it can be deemed obscene.' A book cannot be proscribed unless it is found to be utterly without redeeming social value." Id., at 419 (emphasis in original). While Roth presumed "obscenity" to be "utterly without redeeming social importance," Memoirs required [413 U.S. 15, 22] that to prove obscenity it must be affirmatively established that the material is "utterly without redeeming social value." Thus, even as they repeated the words of Roth, the Memoirs plurality produced a drastically altered test that called on the prosecution to prove a negative, i. e., that the material was "utterly without redeeming social value" - a burden virtually impossible to discharge under our criminal standards of proof. Such considerations caused Mr. Justice Harlan to wonder if the "utterly without redeeming social value" test had any meaning at all. See Memoirs v. Massachusetts, id., at 459 (Harlan, J., dissenting). See also id., at 461 (WHITE, J., dissenting); United States v. Groner, 479 F.2d 577, 579-581 (CA5 1973). Apart from the initial formulation in the Roth case, no majority of the Court has at any given time been able to agree on a standard to determine what constitutes obscene, pornographic material subject to regulation under the States' police power. See, e. g., Redrup v. New York, 386 U.S., at 770 -771. We have seen "a variety of views among the members of the Court unmatched in any other course of constitutional adjudication." Interstate Circuit, Inc. v. Dallas, 390 U.S., at 704 -705 (Harlan, J., concurring and dissenting) (footnote omitted). 3 This is not remarkable, for in the area [413 U.S. 15, 23] of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression. This is an area in which there are few eternal verities. The case we now review was tried on the theory that the California Penal Code 311 approximately incorporates the three-stage Memoirs test, supra. But now the Memoirs test has been abandoned as unworkable by its author, 4 and no Member of the Court today supports the Memoirs formulation. II This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment. Kois v. Wisconsin, 408 U.S. 229 (1972); United States v. Reidel, 402 U.S., at 354 ; Roth v. United States, supra, at 485. 5 "The First

and Fourteenth Amendments have never been treated as absolutes [footnote omitted]." Breard v. Alexandria, 341 U.S., at 642 , and cases cited. See Times Film Corp. v. Chicago, 365 U.S. 43, 47 -50 (1961); Joseph Burstyn, Inc. v. Wilson, 343 U.S., at 502 . We acknowledge, however, the inherent dangers of undertaking to regulate any form of expression. State statutes designed to regulate obscene materials must be [413 U.S. 15, 24] carefully limited. See Interstate Circuit, Inc. v. Dallas, supra, at 682-685. As a result, we now confine the permissible scope of such regulation to works which depict or describe sexual conduct. That conduct must be specifically defined by the applicable state law, as written or authoritatively construed. 6 A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (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. We do not adopt as a constitutional standard the "utterly without redeeming social value" test of Memoirs v. Massachusetts, [413 U.S. 15, 25] 383 U.S., at 419 ; that concept has never commanded the adherence of more than three Justices at one time. 7 See supra, at 21. If a state law that regulates obscene material is thus limited, as written or construed, the First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary. See Kois v. Wisconsin, supra, at 232; Memoirs v. Massachusetts, supra, at 459-460 (Harlan, J., dissenting); Jacobellis v. Ohio, 378 U.S., at 204 (Harlan, J., dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 284 -285 (1964); Roth v. United States, supra, at 497498 (Harlan, J., concurring and dissenting). We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. Sex and nudity may not be exploited without limit by films or pictures exhibited or sold in places of public accommodation any more than live sex and nudity can [413 U.S. 15, 26] be exhibited or sold without limit in such public places. 8 At a minimum, prurient, patently offensive depiction or description of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. See Kois v. Wisconsin, supra, at 230-232; Roth v. United States, supra, at 487; Thornhill v. Alabama, 310 U.S. 88, 101 -102 (1940). For example, medical books for the education of

physicians and related personnel necessarily use graphic illustrations and descriptions of human anatomy. In resolving the inevitably sensitive questions of fact and law, we must continue to rely on the jury system, accompanied by the safeguards that judges, rules of evidence, presumption of innocence, and other protective features provide, as we do with rape, murder, and a host of other offenses against society and its individual members. 9 MR. JUSTICE BRENNAN, author of the opinions of the Court, or the plurality opinions, in Roth v. United States, supra; Jacobellis v. Ohio, supra; Ginzburg v. United [413 U.S. 15, 27] States, 383 U.S. 463 (1966), Mishkin v. New York, 383 U.S. 502 (1966); and Memoirs v. Massachusetts, supra, has abandoned his former position and now maintains that no formulation of this Court, the Congress, or the States can adequately distinguish obscene material unprotected by the First Amendment from protected expression, Paris Adult Theatre I v. Slaton, post, p. 73 (BRENNAN, J., dissenting). Paradoxically, MR. JUSTICE BRENNAN indicates that suppression of unprotected obscene material is permissible to avoid exposure to unconsenting adults, as in this case, and to juveniles, although he gives no indication of how the division between protected and nonprotected materials may be drawn with greater precision for these purposes than for regulation of commercial exposure to consenting adults only. Nor does he indicate where in the Constitution he finds the authority to distinguish between a willing "adult" one month past the state law age of majority and a willing "juvenile" one month younger. Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct specifically defined by the regulating state law, as written or construed. We are satisfied that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution. See Roth v. United States, supra, at 491-492. Cf. Ginsberg v. New York, 390 U.S., at 643 . 10 If [413 U.S. 15, 28] the inability to define regulated materials with ultimate, god-like precision altogether removes the power of the States or the Congress to regulate, then "hard core" pornography may be exposed without limit to the juvenile, the passerby, and the consenting adult alike, as, indeed, MR. JUSTICE DOUGLAS contends. As to MR. JUSTICE DOUGLAS' position, see United States v. Thirty-seven Photographs, 402 U.S. 363, 379 -380 (1971) (Black, J., joined by DOUGLAS, J., dissenting); Ginzburg v. United States, supra, at 476, 491-492 (Black, J., and DOUGLAS, J., dissenting); Jacobellis v. Ohio, supra, at 196 (Black, J., joined by DOUGLAS, J., concurring); Roth, supra, at 508-514 (DOUGLAS, J., dissenting). In this belief, however, MR. JUSTICE DOUGLAS now stands alone. MR. JUSTICE BRENNAN also emphasizes "institutional stress" in justification of his change of view. Noting that "[t]he number of obscenity cases on our docket gives ample testimony to the burden that has been placed upon this Court," he quite rightly remarks that the examination of contested materials "is hardly a source of edification to the members of this Court." Paris Adult [413 U.S. 15, 29] Theatre I v. Slaton, post, at 92, 93. He also notes, and we agree, that "uncertainty of the standards creates a continuing source of tension between state and federal courts . . . ." "The problem is . . . that one cannot say with certainty that material is obscene until at least five members of this Court, applying inevitably obscure standards, have pronounced it so." Id., at 93, 92.

It is certainly true that the absence, since Roth, of a single majority view of this Court as to proper standards for testing obscenity has placed a strain on both state and federal courts. But today, for the first time since Roth was decided in 1957, a majority of this Court has agreed on concrete guidelines to isolate "hard core" pornography from expression protected by the First Amendment. Now we may abandon the casual practice of Redrup v. New York, 386 U.S. 767 (1967), and attempt to provide positive guidance to federal and state courts alike. This may not be an easy road, free from difficulty. But no amount of "fatigue" should lead us to adopt a convenient "institutional" rationale - an absolutist, "anything goes" view of the First Amendment - because it will lighten our burdens. 11 "Such an abnegation of judicial supervision in this field would be inconsistent with our duty to uphold the constitutional guarantees." Jacobellis v. Ohio, supra, at 187-188 (opinion of BRENNAN, J.). Nor should we remedy "tension between state and federal courts" by arbitrarily depriving the States of a power reserved to them under the Constitution, a power which they have enjoyed and exercised continuously from before the adoption of the First Amendment to this day. See Roth v. United States, supra, at 482-485. "Our duty admits of no `substitute for facing up [413 U.S. 15, 30] to the tough individual problems of constitutional judgment involved in every obscenity case.' [Roth v. United States, supra, at 498]; see Manual Enterprises, Inc. v. Day, 370 U.S. 478, 488 (opinion of Harlan, J.) [footnote omitted]." Jacobellis v. Ohio, supra, at 188 (opinion of BRENNAN, J.). III Under a National Constitution, fundamental First Amendment limitations on the powers of the States do not vary from community to community, but this does not mean that there are, or should or can be, fixed, uniform national standards of precisely what appeals to the "prurient interest" or is "patently offensive." These are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists. When triers of fact are asked to decide whether "the average person, applying contemporary community standards" would consider certain materials "prurient," it would be unrealistic to require that the answer be based on some abstract formulation. The adversary system, with lay jurors as the usual ultimate factfinders in criminal prosecutions, has historically permitted triers of fact to draw on the standards of their community, guided always by limiting instructions on the law. To require a State to structure obscenity proceedings around evidence of a national "community standard" would be an exercise in futility. As noted before, this case was tried on the theory that the California obscenity statute sought to incorporate the tripartite test of Memoirs. This, a "national" standard of First Amendment protection enumerated by a plurality of this Court, was correctly regarded at the time of trial as limiting state prosecution under the controlling case [413 U.S. 15, 31] law. The jury, however, was explicitly instructed that, in determining whether the "dominant theme of the material as a whole . . . appeals to the prurient interest" and in determining whether the material "goes substantially beyond customary limits of candor and affronts contemporary community standards of decency," it was to apply "contemporary community standards of the State of California."

During the trial, both the prosecution and the defense assumed that the relevant "community standards" in making the factual determination of obscenity were those of the State of California, not some hypothetical standard of the entire United States of America. Defense counsel at trial never objected to the testimony of the State's expert on community standards 12 or to the instructions of the trial judge on "statewide" standards. On appeal to the Appellate Department, Superior Court of California, County of Orange, appellant for the first time contended that application of state, rather than national, standards violated the First and Fourteenth Amendments. We conclude that neither the State's alleged failure to offer evidence of "national standards," nor the trial court's charge that the jury consider state community standards, were constitutional errors. Nothing in the First Amendment requires that a jury must consider hypothetical and unascertainable "national standards" when attempting to determine whether certain materials are obscene as a matter [413 U.S. 15, 32] of fact. Mr. Chief Justice Warren pointedly commented in his dissent in Jacobellis v. Ohio, supra, at 200: "It is my belief that when the Court said in Roth that obscenity is to be defined by reference to `community standards,' it meant community standards - not a national standard, as is sometimes argued. I believe that there is no provable `national standard' . . . . At all events, this Court has not been able to enunciate one, and it would be unreasonable to expect local courts to divine one." It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City. 13 [413 U.S. 15, 33] See Hoyt v. Minnesota, 399 U.S. 524 -525 (1970) (BLACKMUN, J., dissenting); Walker v. Ohio, 398 U.S. 434 (1970) (BURGER, C. J., dissenting); id., at 434-435 (Harlan, J., dissenting); Cain v. Kentucky, 397 U.S. 319 (1970) (BURGER, C. J., dissenting); id., at 319-320 (Harlan, J., dissenting); United States v. Groner, 479 F.2d, at 581-583; O'Meara & Shaffer, Obscenity in The Supreme Court: A Note on Jacobellis v. Ohio, 40 Notre Dame Law. 1, 6-7 (1964). See also Memoirs v. Massachusetts, 383 U.S., at 458 (Harlan, J., dissenting); Jacobellis v. Ohio, supra, at 203-204 (Harlan, J., dissenting); Roth v. United States, supra, at 505-506 (Harlan, J., concurring and dissenting). People in different States vary in their tastes and attitudes, and this diversity is not to be strangled by the absolutism of imposed uniformity. As the Court made clear in Mishkin v. New York, 383 U.S., at 508 -509, the primary concern with requiring a jury to apply the standard of "the average person, applying contemporary community standards" is to be certain that, so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person - or indeed a totally insensitive one. See Roth v. United States, supra, at 489. Cf. the now discredited test in Regina v. Hicklin, 1868. L. R. 3 Q. B. 360. We hold that the requirement that the jury evaluate the materials with reference to "contemporary [413 U.S. 15, 34] standards of the State of California" serves this protective purpose and is constitutionally adequate. 14 IV The dissenting Justices sound the alarm of repression. But, in our view, to equate the free and robust exchange of ideas and political debate with commercial exploitation of obscene material demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a "misuse of the great guarantees of free speech

and free press . . . ." Breard v. Alexandria, 341 U.S., at 645 . The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of [413 U.S. 15, 35] political and social changes desired by the people," Roth v. United States, supra, at 484 (emphasis added). See Kois v. Wisconsin, 408 U.S., at 230 -232; Thornhill v. Alabama, 310 U.S., at 101 -102. But the public portrayal of hard-core sexual conduct for its own sake, and for the ensuing commercial gain, is a different matter. 15 There is no evidence, empirical or historical, that the stern 19th century American censorship of public distribution and display of material relating to sex, see Roth v. United States, supra, at 482-485, in any way limited or affected expression of serious literary, artistic, political, or scientific ideas. On the contrary, it is beyond any question that the era following Thomas Jefferson to Theodore Roosevelt was an "extraordinarily vigorous period," not just in economics and politics, but in belles lettres and in "the outlying fields of social and political philosophies." 16 We do not see the harsh hand [413 U.S. 15, 36] of censorship of ideas - good or bad, sound or unsound - and "repression" of political liberty lurking in every state regulation of commercial exploitation of human interest in sex. MR. JUSTICE BRENNAN finds "it is hard to see how stateordered regimentation of our minds can ever be forestalled." Paris Adult Theatre I v. Slaton, post, at 110 (BRENNAN, J., dissenting). These doleful anticipations assume that courts cannot distinguish commerce in ideas, protected by the First Amendment, from commercial exploitation of obscene material. Moreover, state regulation of hard-core pornography so as to make it unavailable to nonadults, a regulation which MR. JUSTICE BRENNAN finds constitutionally permissible, has all the elements of "censorship" for adults; indeed even more rigid enforcement techniques may be called for with such dichotomy of regulation. See Interstate Circuit, Inc. v. Dallas, 390 U.S., at 690 . 17 One can concede that the "sexual revolution" of recent years may have had useful byproducts in striking layers of prudery from a subject long irrationally kept from needed ventilation. But it does not follow that no regulation of patently offensive "hard core" materials is needed or permissible; civilized people do not allow unregulated access to heroin because it is a derivative of medicinal morphine. In sum, we (a) reaffirm the Roth holding that obscene material is not protected by the First Amendment; (b) hold that such material can be regulated by the States, subject to the specific safeguards enunciated [413 U.S. 15, 37] above, without a showing that the material is "utterly without redeeming social value"; and (c) hold that obscenity is to be determined by applying "contemporary community standards," see Kois v. Wisconsin, supra, at 230, and Roth v. United States, supra, at 489, not "national standards." The judgment of the Appellate Department of the Superior Court, Orange County, California, is vacated and the case remanded to that court for further proceedings not inconsistent with the First Amendment standards established by this opinion. See United States v. 12 200-ft. Reels of Film, post, at 130 n. 7. Vacated and remanded. G.R. No. 159751 December 6, 2006

GAUDENCIO E. FERNANDO and RUDY ESTORNINOS, petitioners, vs. COURT OF APPEALS, respondent.

intercourse[,] lewd photographs of nude men and women in explicating (sic) positions which acts serve no other purpose but to satisfy the market for lust or pornography to public view. Contrary to law.4

DECISION

When arraigned, petitioners and Tingchuy pleaded not guilty to the offense charged. Thereafter, trial ensued. The prosecution offered the confiscated materials in evidence and presented the following witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando Buenaventura and Barangay Chairperson Socorro Lipana, who were all present during the raid. After the prosecution presented its evidence, the counsel for the accused moved for leave of court to file a demurrer to evidence, which the court granted. On October 5, 2000, the RTC however denied the demurrer to evidence and scheduled the reception of evidence for the accused. A motion for reconsideration was likewise denied. Thereafter, the accused waived their right to present evidence and instead submitted the case for decision.5 The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but convicted herein petitioners as follows: WHEREFORE, premises considered, the Court finds accused GAUDENCIO FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable doubt of the crime charged and are hereby sentenced to suffer the indeterminate penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6) YEARS of prision correccional as maximum, to pay fine of P6,000.00 each and to pay the cost. For failure of the prosecution to prove the guilt of accused WARREN TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the crime charged. The VHS tapes and the nine (9) magazines utilized as evidence in this case are hereby confiscated in favor of the government. SO ORDERED.6

QUISUMBING, J.: This petition for review on certiorari assails the Decision1 dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582. The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for violation of Article 2012 of the Revised Penal Code, as amended by Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment of four (4) years and one (1) day to six (6) years of prision correccional, and to pay the fine of P6,000 and cost of suit. The facts as culled from the records are as follows. Acting on reports of sale and distribution of pornographic materials, officers of the Philippine National Police Criminal Investigation and Detection Group in the National Capital Region (PNP-CIDG NCR) conducted police surveillance on the store bearing the name of Gaudencio E. Fernando Music Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for violation of Article 201 of the Revised Penal Code against petitioner Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd., corner Zigay Street, Quiapo, Manila, and the seizure of the following items: a. Copies of New Rave Magazines with nude obscene pictures; b. Copies of IOU Penthouse Magazine with nude obscene pictures; c. Copies of Hustler International Magazine with nude obscene pictures; and d. Copies of VHS tapes containing pornographic shows.3 On the same day, police officers of the PNP-CIDG NCR served the warrant on Rudy Estorninos, who, according to the prosecution, introduced himself as the store attendant of Music Fair. The police searched the premises and confiscated twentyfive (25) VHS tapes and ten (10) different magazines, which they deemed pornographic. On September 13, 1999, petitioners with Warren Tingchuy, were charged in an Information which reads as follows: That on or about May 5, 1999, in the City of Manila, Philippines, the said accused, did then and there willfully, unlawfully, feloniously, publicly and jointly exhibit indecent or immoral acts, scenes or shows at Music Fair, located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd films depicting men and women having sexual

Petitioners appealed to the Court of Appeals. But the appellate courtlatter affirmed in toto the decision of the trial court, as follows, WHEREFORE, finding no reversible error on the part of the trial court, the decision appealed from is AFFIRMED IN TOTO. Costs against accused-appellants. SO ORDERED.7 Hence the instant petition assigning the following errors: I. Respondent court erred in convicting petitioner Fernando even if he was not present at the time of the raid II. Respondent erred in convicting petitioner Estorninos who was not doing anything illegal at the time of the raid.8 Simply, the issue in this case is whether the appellate court erred in affirming the petitioners conviction. Petitioners contend that the prosecution failed to prove that at the time of the search, they were selling pornographic

materials. Fernando contends that since he was not charged as the owner of an establishment selling obscene materials, the prosecution must prove that he was present during the raid and that he was selling the said materials. Moreover, he contends that the appellate courts reason for convicting him, on a presumption of continuing ownership shown by an expired mayors permit, has no sufficient basis since the prosecution failed to prove his ownership of the establishment. Estorninos, on the other hand, insists that he was not an attendant in Music Fair, nor did he introduce himself so.9 The Solicitor General counters that owners of establishments selling obscene publications are expressly held liable under Article 201, and petitioner Fernandos ownership was sufficiently proven. As the owner, according to the Solicitor General, Fernando was naturally a seller of the prohibited materials and liable under the Information. The Solicitor General also maintains that Estorninos was identified by Barangay Chairperson Socorro Lipana as the store attendant, thus he was likewise liable.10 At the outset, we note that the trial court gave petitionersthem the opportunity to adduce present their evidence to disprove refute the prosecutions evidence.11 . Instead, they waived their right to present evidence and opted to submitted the case for decision.a1 12 The trial court therefore resolved the case on the basis of prosecutions evidence against the petitioners. As obscenity is an unprotected speech which the State has the right to regulate, the State in pursuing its mandate to protect, as parens patriae, the public from obscene, immoral and indecent materials must justify the regulation or limitation. One such regulation is Article 201 of the Revised Penal Code. To be held liable, the prosecution must prove that (a) the materials, publication, picture or literature are obscene; and (b) the offender sold, exhibited, published or gave away such materials.13 Necessarily, that the confiscated materials are obscene must be proved. Almost a century has passed since the Court first attempted to define obscenity in People v. Kottinger.14 There the Court defined obscenity as something which is offensive to chastity, decency or delicacy. The test to determine the existence of obscenity is, whether the tendency of the matter charged as obscene, is to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication or other article charged as being obscene may fall.15 Another test according to Kottinger is "that which shocks the ordinary and common sense of men as an indecency."16 But, Kottinger hastened to say that whether a picture is obscene or indecent must depend upon the circumstances of the case, and that ultimately, the question is to be decided by the judgment of the aggregate sense of the community reached by it.17 Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et al.,19 involving a prosecution under Article 201 of the Revised Penal Code, laid the tests which did little to clearly draw the fine lines of obscenity. In People v. Go Pin, the Court said: If such pictures, sculptures and paintings are shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed. However, the pictures here in question were used not exactly for arts sake but rather for commercial

purposes. In other words, the supposed artistic qualities of said pictures were being commercialized so that the cause of art was of secondary or minor importance. Gain and profit would appear to have been the main, if not the exclusive consideration in their exhibition; and it would not be surprising if the persons who went to see those pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and for love [of] excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of these pictures.20 People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go Pin but with its own test of "redeeming feature." The Court therein said that: [A]n actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on the youth of the land.21 Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22 involving motion pictures, still applied the "contemporary community standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and Padan y Alova in that the Court measures obscenity in terms of the "dominant theme" of the material taken as a "whole" rather than in isolated passages. Later, in Pita v. Court of Appeals, concerning alleged pornographic publications, the Court recognized that Kottinger failed to afford a conclusive definition of obscenity, and that both Go Pin and Padan y Alova raised more questions than answers such as, whether the absence or presence of artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve their artistic tastes, determine what art is; or that if they find inspiration in the exhibitions, whether such exhibitions cease to be obscene.23 Go Pin and Padan y Alova gave too much latitude for judicial arbitrament, which has permitted ad lib of ideas and "two-cents worths" among judges as to what is obscene or what is art.24 The Court in Pita also emphasized the difficulty of the question and pointed out how hazy jurisprudence is on obscenity and how jurisprudence actually failed to settle questions on the matter. Significantly, the dynamism of human civilization does not help at all. It is evident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance of civilization.25 It seems futile at this point to formulate a perfect definition of obscenity that shall apply in all cases.

There is no perfect definition of "obscenity" but the latest word is that of Miller v. California which established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c)

whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.26 But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled discretion in determining what is "patently offensive."27 No one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive "hard core" sexual conduct.28 Examples included (a) patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (b) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.29 What remains clear is that obscenity is an issue proper for judicial determination and should be treated on a case to case basis and on the judges sound discretion. In this case, the trial court found the confiscated materials obscene and the Court of Appeals affirmed such findings. The trial court in ruling that the confiscated materials are obscene, reasoned as follows: Are the magazines and VHS tapes confiscated by the raiding team obscene or offensive to morals? . . . Pictures of men and women in the nude doing the sexual act appearing in the nine (9) confiscated magazines namely Dalaga, Penthouse, Swank, Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to morals and are made and shown not for the sake of art but rather for commercial purposes, that is gain and profit as the exclusive consideration in their exhibition. The pictures in the magazine exhibited indecent and immoral scenes and actsThe exhibition of the sexual act in their magazines is but a clear and unmitigated obscenity, indecency and an offense to public morals, inspiringlust and lewdness, exerting a corrupting influence especially on the youth. (Citations omitted) The VHS tapes also [exhibit] nude men and women doing the sexual intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog as the actress shows the naked body of the actress. The tape exhibited indecent and immoral scenes and acts. Her dancing movements excited the sexual instinct of her male audience. The motive may be innocent, but the performance was revolting and shocking to good minds... In one (1) case the Supreme Court ruled: Since the persons who went to see those pictures and paid entrance fees were usually not artists or persons interested in art to satisfy and inspire their artistic tastes but persons who are desirous of satisfying their morbid curiosity, taste and lust and for [love] of excitement, including the youth who because of their immaturity are not in a position to resist and shield themselves from the ill and perverting effects of the pictures, the display of such pictures for commercial purposes is a violation of Art. 201. If those pictures were shown in art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested in art, there would be no offense committed (People vs. Go Pin, 97 Phil 418). [B]ut this is not so in this case.30 Findings of fact of the Court of Appeals affirming that of the trial court are accorded great respect, even by this Court, unless such findings are patently unsupported by the evidence on record or the judgment itself is based on misapprehension of facts.31 In this case, petitioners neither presented contrary

evidence nor questioned the trial courts findings. There is also no showing that the trial court, in finding the materials obscene, was arbitrary. Did petitioners participate in the distribution and exhibition of obscene materials? We emphasize that mere possession of obscene materials, without intention to sell, exhibit, or give them away, is not punishable under Article 201, considering the purpose of the law is to prohibit the dissemination of obscene materials to the public. The offense in any of the forms under Article 201 is committed only when there is publicity.32 The law does not require that a person be caught in the act of selling, giving away or exhibiting obscene materials to be liable, for as long as the said materials are offered for sale, displayed or exhibited to the public. In the present case, we find that petitioners are engaged in selling and exhibiting obscene materials. Notably, the subject premises of the search warrant was the Gaudencio E. Fernando Music Fair, named after petitioner Fernando.33 The mayors permit was under his name. Even his bail bond shows that Hhe lives in the same place.34 Moreover, the mayors permit dated August 8, 1996, shows that he is the owner/operator of the store.35 While the mayors permit had already expired, it does not negate the fact that Fernando owned and operated the establishment. It would be absurd to make his failure to renew his business permit and illegal operation a shield from prosecution of an unlawful act. Furthermore, when he preferred not to present contrary evidence, the things which he possessed were presumptively his.36 Petitioner Estorninos is likewise liable as the store attendant actively engaged in selling and exhibiting the obscene materials. Prosecution witness Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the search, identified him as the store attendant upon whom the search warrant was served.37 Tababan had no motive for testifying falsely against Estorninos and we uphold the presumption of regularity in the performance of his duties. Lastly, this Court accords great respect to and treats with finality the findings of the trial court on the matter of credibility of witnesses, absent any palpable error or arbitrariness in their findings.38 In our view, no reversible error was committed by the appellate court as well as the trial court in finding the herein petitioners guilty as charged. WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated September 2, 2003, of the Court of Appeals affirming the Decision of the Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582 are hereby AFFIRMED. SO ORDERED. 5. Assembly and petition BATAS PAMBANSA BLG. 880 AN ACT ENSURING THE FREE EXERCISE BY THE PEOPLE OF THEIR RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT FOR OTHER PURPOSES

Section 1. Title - This Act shall be known as "The Public Assembly Act of 1985." Section 2. Declaration of policy - The constitutional right of the people peaceably to assemble and petition the government for redress of grievances is essential and vital to the strength and stability of the State. To this end, the State shall ensure the free exercise of such right without prejudice to the rights of others to life, liberty and equal protection of the law. Section 3. Definition of terms - For purposes of this Act:

or streets to be used for the intended activity; and the probable number of persons participating, the transport and the public address systems to be used. (b) The application shall incorporate the duty and responsibility of applicant under Section 8 hereof. (c) The application shall be filed with the office of the mayor of the city or municipality in whose jurisdiction the intended activity is to be held, at least five (5) working days before the scheduled public assembly. (d) Upon receipt of the application, which must be duly acknowledged in writing, the office of the city or municipal mayor shall cause the same to immediately be posted at a conspicuous place in the city or municipal building. Section 6. Action to be taken on the application -

(a) "Public assembly" means any rally, demonstration, march, parade, procession or any other form of mass or concerted action held in a public place for the purpose of presenting a lawful cause; or expressing an opinion to the general public on any particular issue; or protesting or influencing any state of affairs whether political, economic or social; or petitioning the government for redress of grievances. The processions, rallies, parades, demonstrations, public meetings and assemblages for religious purposes shall be governed by local ordinances: Provided, however, That the declaration of policy as provided in Section 2 of this Act shall be faithfully observed. The definition herein contained shall not include picketing and other concerted action in strike areas by workers and employees resulting from a labor dispute as defined by the Labor Code, its implementing rules and regulations, and by the Batas Pambansa Bilang 227. (b) "Public place" shall include any highway, boulevard, avenue, road, street, bridge or other thoroughfare, park, plaza, square, and/or any open space of public ownership where the people are allowed access. (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities shall observe during a public assembly or in the dispersal of the same. (d) "Modification of permit" shall include the change of the place and time of the public assembly, rerouting of the parade or street march, the volume of loud-speakers or sound system and similar changes. Section 4. Permit when required and when not required - A written permit shall be required for any person or persons to organize and hold a public assembly in a public place. However, no permit shall be required if the public assembly shall be done or made in a freedom park duly established by law or ordinance or in private property, in which case only the consent of the owner or the one entitled to its legal possession is required, or in the campus of a government-owned and operated educational institution which shall be subject to the rules and regulations of said educational institution. Political meetings or rallies held during any election campaign period as provided for by law are not covered by this Act. Section 5. Application requirements - All applications for a permit shall comply with the following guidelines: (a) The applications shall be in writing and shall include the names of the leaders or organizers; the purpose of such public assembly; the date, time and duration thereof, and place

(a) It shall be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless there is clear and convincing evidence that the public assembly will create a clear and present danger to public order, public safety, public convenience, public morals or public health. (b) The mayor or any official acting in his behalf shall act on the application within two (2) working days from the date the application was filed, failing which, the permit shall be deemed granted. Should for any reason the mayor or any official acting in his behalf refuse to accept the application for a permit, said application shall be posted by the applicant on the premises of the office of the mayor and shall be deemed to have been filed. (c) If the mayor is of the view that there is imminent and grave danger of a substantive evil warranting the denial or modification of the permit, he shall immediately inform the applicant who must be heard on the matter. (d) The action on the permit shall be in writing and served on the application within twenty-four hours. (e) If the mayor or any official acting in his behalf denies the application or modifies the terms thereof in his permit, the applicant may contest the decision in an appropriate court of law. (f) In case suit is brought before the Metropolitan Trial Court, the Municipal Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the Intermediate Appellate Court, its decisions may be appealed to the appropriate court within forty-eight (48) hours after receipt of the same. No appeal bond and record on appeal shall be required. A decision granting such permit or modifying it in terms satisfactory to the applicant shall, be immediately executory. (g) All cases filed in court under this Section shall be decided within twenty-four (24) hours from date of filing. Cases filed hereunder shall be immediately endorsed to the executive judge for disposition or, in his absence, to the next in rank. (h) In all cases, any decision may be appealed to the Supreme Court. (i) Telegraphic appeals to be followed by formal appeals are hereby allowed.

Section 7. Use of public thoroughfare - Should the proposed public assembly involve the use, for an appreciable length of time, of any public highway, boulevard, avenue, road or street, the mayor or any official acting in his behalf may, to prevent grave public inconvenience, designate the route thereof which is convenient to the participants or reroute the vehicular traffic to another direction so that there will be no serious or undue interference with the free flow of commerce and trade. Section 8. Responsibility of applicant - It shall be the duty and responsibility of the leaders and organizers of a public assembly to take all reasonable measures and steps to the end that the intended public assembly shall be conducted peacefully in accordance with the terms of the permit. These shall include but not be limited to the following: (a) To inform the participants of their responsibility under the permit; (b) To police the ranks of the demonstrators in order to prevent non-demonstrators from disrupting the lawful activities of the public assembly; (c) To confer with local government officials concerned and law enforcers to the end that the public assembly may be held peacefully; (d) To see to it that the public assembly undertaken shall not go beyond the time stated in the permit; and (e) To take positive steps that demonstrators do not molest any person or do any act unduly interfering with the rights of other persons not participating in the public assembly. Section 9. Non-interference by law enforcement authorities - Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meter away from the area of activity ready to maintain peace and order at all times. Section 10. Police assistance when requested - It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial. Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public

assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Section 11. Dispersal of public assembly with permit - No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbances prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended: (e) Isolated acts or incidents of disorder or branch of the peace during the public assembly shall not constitute a group for dispersal. Section 12. Dispersal of public assembly without permit When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Section 13. Prohibited acts - The following shall constitute violations of this Act: (a) The holding of any public assembly as defined in this Act by any leader or organizer without having first secured that written permit where a permit is required from the office concerned, or the use of such permit for such purposes in any place other than those set out in said permit: Provided, however, That no person can be punished or held criminally liable for participating in or attending an otherwise peaceful assembly; (b) Arbitrary and unjustified denial or modification of a permit in violation of the provisions of this Act by the mayor or any other official acting in his behalf. (c) The unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor or any official acting in his behalf; (d) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;

(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (f) Acts in violation of Section 10 hereof;

Section 18. approval.

Effectivity - This Act shall take effect upon its

Approved, October 22, 1985. G.R. No. L-65366 (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; November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner, vs. RAMON BAGATSING, as Mayor of the City of Manila, respondent. Lorenzo M. Taada Jose W. Diokno and Haydee B. Yorac for petitioner. The Solicitor General for respondent.

3 the malicious burning of any object in the streets or thoroughfares; 4. the carrying of firearms by members of the law enforcement unit;

FERNANDO, C.J.:+.wph!1 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Section 14. Penalties - Any person found guilty and convicted of any of the prohibited acts defined in the immediately preceding Section shall be punished as follows: (a) violation of subparagraph (a) shall be punished by imprisonment of one month and one day to six months; (b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph (g) shall be punished by imprisonment of six months and one day to six years; (c) violation of item 1, subparagraph (g) shall be punished by imprisonment of six months and one day to six years without prejudice to prosecution under Presidential Decree No. 1866; (d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be punished by imprisonment of one day to thirty days. Section 15. Freedom parks - Every city and municipality in the country shall within six months after the effectivity of this Act establish or designate at least one suitable "freedom park" or mall in their respective jurisdictions which, as far as practicable, shall be centrally located within the poblacion where demonstrations and meetings may be held at any time without the need of any prior permit. In the cities and municipalities of Metropolitan Manila, the respective mayors shall establish the freedom parks within the period of six months from the effectivity of this Act. Section 16. Constitutionality - Should any provision of this Act be declared invalid or unconstitutional, the validity or constitutionality of the other provisions shall not be affected thereby. Section 17. Repealing clause - All laws, decrees, letters of instructions, resolutions, orders, ordinances or parts thereof which are inconsistent with the provisions of this Act are hereby repealed, amended, or modified accordingly. This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon, starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there, and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4 The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20, 1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area where the safety

of the participants themselves and the general public may be ensured." 8 The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended opinion." 9 Hence this detailed exposition of the Court's stand on the matter. 1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for damages, 14 or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other legitimate public interest. 21 2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes of communication that the guaranty of free speech was given a

generous scope. But utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion. For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts of vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a mockery of the high estate occupied by intellectual liberty in our scheme of values. 3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed march and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two blockaway at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire, 312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection." 31 5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So, too, if the march would end at another park. As previously mentioned though, there would be a short program upon reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the generally accepted

principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and peaceable assembly. Even if shown then to be applicable, that question the confronts this Court. 6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly, composed primarily of those in attendance at the International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words: "The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public peace and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given all the relevant circumstances, still the assumption especially so where the assembly is scheduled for a specific public place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case, however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force, that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend protection to the participants of such peaceable assembly. Also from him came the commendable admission that there were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression. 8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too strongly stressed that on the judiciary, even more so than on the other departments rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights. No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of

Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983. 9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly demands nothing less. 10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is quite reassuring such that both on the part of the national government and the citizens, reason and moderation have prevailed. That is as it should be. WHEREFORE, the mandatory injunction prayed for is granted. No costs. G.R. No. 126183 March 25, 1999

LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ, ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACIO, and EMERITA PIZARRO, petitioners, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents. G.R. No. 129221 March 25, 1999

ROLANDO ALURA,CLARA ALVAREZ, POFIRIO AUSTRIA, VICENTE CARRANZA, ELMER DALIDA, ROSALINDA DALIDA, NELSON DUL-DULAO, LEA POCONG, ENRICO RAYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO ABAD, MARIA ACEJO, ELVIRA ALANO, SUSANA BANUA, CAROLINA BULACLAC, DANILO CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILIA CASTILLO, ANACLETA CORRALES, GLORIA CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO, MATILDE DINGLE, ROSARIO DULDULAO, CONRADA ENDRINA, LUZVIMINDA ESPINO, VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA GARCENILA, CORAZON GONZALES, VIOLETA GUANIZO,

SURENA GUNDRAN, HILARIA HALAGO, NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESTTA LAURENTE, CARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA MAGSULIT, AMELITA MANGAHAS, GUIA MORRIS, HIPOLITA NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM, MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICERIA PANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR, CATHERINE SAN AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS, BENJAMIN VALBUENA, DONATO VALDEMORO, ROSEMARIE VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHINE PARMISANO, FELIPE ALACAR, JOSE FETAL ALVERO, JR., MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LORA CLEMENCIA, petitioners, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF EDUCATION CULTURE AND SPORTS, respondents. BELLOSILLO, J.: These consolidated petitions 1 are among several petitions filed with this Court arising from the much-publicized public school teachers' mass actions of September/October 1990. Petitioners are public school teachers from various schools in Metro Manila who were simultaneously charged, preventively suspended, and eventually dismissed in October 1990 by then Secretary Isidro D. Cario of the Department of Education, Culture and Sports (DECS), in decisions issued by him which uniformly read This is a mutu-propio administrative complaint separately filed by the Secretary of Education, Culture and Sports against the following public school teachers . . . . based on the report submitted by their respective school principals wherein it was alleged that the above-named teachers participated in the mass action/illegal strike in Sept. 19-21, 1990 and subsequently defied the return-to-work order dated September 17, 1990 issued by this Office, which acts constitute grave misconduct, gross neglect of duty, gross violation of Civil Service Law, Rules and Regulations and reasonable office regulations, refusal to perform official duty, gross insubordination conduct prejudicial to the best interest of the service and absence without official leave (AWOL), in violation of Presidential Decree 807, otherwise known as the Civil Service Decree of the Philippines. Required to explain within a period of not less than 72 hours but not more than 5 days from receipt of the complaint, respondents failed to submit the required answer within the given time up to the present, and despite the denial of their request for extension of 30 days within which to submit their answers dated September 25, 1990 filed by their counsel, Atty. Gregorio Fabros, in a letter of this Office to him dated Septmber 28, 1990, respondents failed to submit the same, which failure, is considered a waiver on their part of their right to answer the charges and to controvert the same. Wherefore, after a careful evaluation of the records, this Office finds the respondents guilty as charged.

In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on Guidelines in the Application of Penalty in Administrative Cases, the herein respondents are dismissed from Office effective immediately. The decisions dismissing petitioners were immediately implemented. Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service Commission (CSC). In 1993 the CSC found petitioners guilty of "conduct prejudicial to the best interest of the service" for having participated in the mass actions and imposed upon them the reduced penalty of six (6) months' suspension. However, in view of the length of time that petitioners had been out of the service by reason of the immediate implementation of the dismissal orders of Secretary Cario, the CSC likewise ordered petitioners' automatic reinstatement in the service without back wages. Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this Court, docketed as G.R. Nos. 111998, 2 114435-5506, 3 and 116312-19, 4 which were all referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1-95 5 and there re-docketed as CAG.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively. On 29 November 1995 the Special Third Division of the Court of Appeals 6 rendered a joint decision in CA-G.R. SP Nos. 3761920 dismissing the petitions for lack of merit. 7 The appellate court ruled that the questioned resolutions of the Civil Service Commission finding petitioners guilty of conduct prejudicial to the best interest of the service were based on reasonable and justifiable grounds; that petitioners' perceived grievances were no excuse for them not to conduct classes and defy the returnto-work order issued by their superiors; that the immediate execution of the dismissal orders of Secretary Cario was sanctioned by Sec. 47, par. (2), of the Administrative Code of 1987 (E.O. No. 292) as well as Sec. 37, par. (b), Art. IX of PD No. 807, 8 and Sec. 32, Rule XIV of the Omnibus Rules Implementing Book V of E. O. No. 292. Their motion for reconsideration having been denied on 15 May 1997, 9 petitioners then appealed by certiorari to this Court on 26 June 1997, docketed as G.R. No. 129221. Meanwhile, on 24 April 1998 the Tenth Division of the Court of Appeals 10 rendered a joint decision in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the petitions for lack of merit. 11 The appellate court rejected petitioners' contention that they should not have been penalized for participating in the September/October 1990 mass actions because they were merely exercising their constitutional right to free assembly. In so ruling the Court of Appeals cited Manila Public School Teachers Association v. Laguio, Jr. 12 wherein this Court ruled that the public school teachers' mass actions of September/October 1990 were "to all intents and purposes a strike . . . constitut[ing] a concealed and unauthorized stoppage of, or absence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons." Petitioners' contention.that secretary Cario's decision to dismiss them was not supported by evidence was likewise rejected in view of petitioners' admissions and/or failure to refute the factual finding that petitioners actually joined the mass actions based on the report of absences submitted by their respective school principals. Their motion for reconsideration having been denied in the resolution of 20 August 1996, 13 petitioners then filed a petition for review on

certiorari with this Court on 1 October 1996, docketed as G.R. No. 126183. By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos. 126183 and 129221 involving as they did common questions of fact and law. Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding them guilty of conduct prejudicial to the best interest of the service when their only "offense" was to exercise their constitutional right to peaceably assemble and petition the government for redress of their grievances. Moreover petitioners insist that the mass actions of September/October 1990 were not "strikes" as there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in the alternative, award of back wages for the period of three (3) years when they were not allowed to work while awaiting resolution of their appeals by the MSPB and CSC, deducting the period of six (6) months' suspension eventually meted them. The petitions must be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. It is a very desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases where the facts are substantially the same. 14 Stare decisis et non quieta movere. Stand by the decisions and disturb not what is settled. 15 As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Association v. Laguio Jr., 16 and Alliance of Concerned Teachers v. Hon. Isidro Cario 17 that the mass actions of September/October 1990 staged by Metro Manila public school teachers "amounted to a strike in every sense of the term, constituting as they did, a concerted and unauthorized stoppage of or absence from work which it was said teachers' sworn duty to perform, carried out for essentially economic reasons to protest and pressure the Government to correct what, among other grievances, the strikers perceived to be the unjust or prejudicial implementation of the salary standardization law insofar as they were concerned, the non-payment or delay in payment of various fringe benefits and allowances to which they were entitled, and the imposition of additional teaching loads and longer teaching hours." In Rolando Gan v. Civil Service Commission, 18 we denied the claim that the teachers were thereby denied their rights to peaceably assemble and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any other liberty, must be exercised within reasonable limits so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mass actions did not exercise their constitutional rights within reasonable limits. On the contrary, they committed acts prejudicial to the best interest of the service by staging the mass protests on regular school days, abandoning their classes and refusing to go back even after they had been ordered to do so. Had the teachers availed of their free time recess, after classes, weekends or holidays to dramatize their grievances and to dialogue with the proper authorities within the bounds of law, no one not the DECS, the CSC or even the Supreme Court could have held them liable for their participation in the mass actions. 19 With respect to our ruling in PBM Employees Organization v. Philippine Blooming Mills Co., Inc., 20 invoked by petitioners,

we have likewise already ruled in the Rolando Gan case 21 that the PBM ruling that the rights of free expression and assembly could not be lightly disregarded as they occupy a preferred position in the hierarchy of civil liberties was not applicable to defend the validity of the 1990 mass actions because what were pitted therein against the rights of free expression and of assembly were inferior property rights while the higher consideration involved in the case of the striking teachers was the education of the youth which must, at the very least, be equated with the freedom of assembly and to petition the government for redress of grievances. 22 We affirmed the foregoing rulings in Bagana v. Court of Appeals 23 by denying a similar petition filed by another group of teachers who participated in the 1990 mass actions but who claimed to have been merely exercising their constitutional right to free assembly. We held in Bagana that the Court of Appeals committed no reversible error in affirming the CSC resolutions finding the teachers guilty of conduct prejudicial to the best interest of the service and imposing penalties of six (6) months' suspension without pay. In Bangalisan v. Court of Appeals 24 we added that the persistent refusal of the striking teachers to call the mass actions by the conventional term "strike" did not erase the true nature of the mass actions as unauthorized stoppages of work the purpose of which was to obtain a favorable response to the teachers' economic grievances. We again stressed that the teachers were penalized not because they exercised their right to peaceably assemble but because of the manner by which such right was exercised, i.e., going on unauthorized and unilateral absences thus disrupting classes in various schools in Metro Manila which produced adverse effects upon the students for whose education the teachers were responsible. But herein petitioners contend that classes were not actually disrupted because substitute teachers were immediately appointed by Secretary Cario. Besides being a purely factual assertion which this Court cannot take cognizance of in a petition for review, the fact that the prompt remedial action taken by Secretary Cario might have partially deflected the adverse effects of the mass protests did not erase the administrative liability of petitioners for the intended consequences thereof which were the very reason why such prompt remedial action became necessary. Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC resolutions finding petitioners guilty of conduct prejudicial to the best interest of the service. As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be awarded back wages for the period when they were not allowed to work by reason of the supposed unjustified immediate implementation of the dismissal orders of Secretary Cario while awaiting resolution of their appeals by the MSPB and CSC. The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders of Secretary Cario were commuted by the CSC to six (6) months' suspension is already settled. In Bangalisan v. Court of Appeals 25 we resolved the issue in the negative on the ground that the teachers were neither exonerated nor unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases. Like herein petitioners, those in Bangalisan were also teachers who participated in the 1990 mass actions for which they were dismissed by Secretary Cario but ordered

merely suspended for six (6) months by the Civil Service Commission. On a plea that the immediate implementation of the dismissal orders of Secretary Cario was unjustified, thus warranting an award of back wages the Court said As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Section 47, paragraph (2), of Executive Order No. 292, thus: "The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office is appealable to the Commission, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned. And since it was already the final dismissal orders of Secretary Cario which were being carried out, immediate implementation even pending appeal was clearly sanctioned by the aforequoted provision of the Administrative Code of 1987. 26 Hence, being legal, the immediate execution of the dismissal orders could not be considered unjustified. The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v. City of Baguio 27 and Bautista v. Peralta 28 being cases which involved the unjustified immediate execution of the dismissal orders of the then Civil Service Commissioner pending appeal to the Civil Service Board of Appeals are therefore not applicable to justify petitioners' prayer. Neither could petitioners be considered to have been exonerated from the charges levelled against them by Secretary Cario from the mere fact that they were found guilty only of conduct prejudicial to the best interest of the service by the CSC. It must be remembered that Secretary Cario charged petitioners with grave misconduct, gross neglect of duty, gross violation of civil service law, rules and regulations, etc., for having participated in the 1990 illegal mass actions. On appeal the CSC while affirming the factual finding that petitioners indeed participated in the mass the factual finding that petitioners indeed participated in the mass actions found them liable only for conduct prejudicial to the best interest of the service. Clearly the CSC decision did not proceed from a finding that petitioners did not commit the acts complained of. Having been found to have actually participated in the illegal mass actions although found answerable for a lesser offense, petitioners could not be considered as fully innocent of the charges against them. 29 Being found liable for a lesser offense is not equivalent to exoneration. 30 Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have actually participated in the 1990 mass actions but granted the claim of one Rodolfo Mariano who was absent only because he attended the wake and interment of his grandmother. In Jacinto v. Court of Appeals 31 we again denied the claim for back wages of teachers found to have given cause for their suspension i.e., their unjustified abandonment of classes to the prejudice of their students but granted the claim of Merlinda Jacinto who was absent because of illness. Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus having given cause

for their supension, their prayer for backwages must be denied conformably with settled rulings of this Court. WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29 November 1995 and 24 April 1996 are AFFIRMED. No costs. SO ORDERED. G.R. No. L-65695 December 19, 1983

HECTOR S. RUIZ, as coordinator of the Olongapo Citizen's Alliance for National Reconciliation, petitioner, vs. RICHARD GORDON, as City Mayor of Olongapo City, respondent. Teddy C. Macapagal and Engelberto de Castro for petitioners. Ma. Ellen M. Aguilar for respondent.

FERNANDO, CJ.: The constitutional rights to free speech and free assembly are invoked in this mandamus proceeding filed on November 25, 1983 against respondent Richard Gordon , Mayor of Olongapo City. It was alleged: "On 21 November 1983, petitioner personally delivered to the respondent a letter application dated 19 November 1983, the full text of which read as follows: ' November 19, 1983, The Honorable City Mayor, Olongapo City. Sir.: In behalf of the Olongapo Citizen's Alliance for national Reconciliation , Justice for Aquino Justice for All (JAJA), Concern (sic) Citizen for Justice and Peace (CCJP), Damdamin Bayan na Nagkakaisa (DAMBANA), United Nationalist Democratic Organization (UNIDO), we are respectfully requesting for a permit to hold a prayer-rally at the Rizal Triangle, Olongapo City on December 4,1983 from 1:00 P.M. until it will be finished in the early evening. It is likewise requested the above named organizations to be allowed to hold a parade/march from Gordon Avenue to the Rizal Triangle starting at 1:00 P.M. Your preferential attention on this request will be highly appreciated. [It was signed by petitioner Hector S. Ruiz, Coordinator of Olongapo Citizen's Alliance for National Reconciliation.]" 1 Reference was then made to the minute resolution of this Court in Jose B.L. Reyes v. Bagatsing. 2 The prayer was for "the immediate issuance of the writ of mandamus, without prejudice to an extended decision; or that a writ of preliminary mandatory injunction be issued immediately so as not to render moot and academic the purpose for which the permit was applied for on 4 December 1983 from 1:00 to 6:00 (early evening) o'clock in the afternoon." 3 At the next session day, on November 29, 1983, the Court issued the following resolution: "The Court , after considering the pleadings filed and deliberating on the issues raised in the petition for mandamus with prayer for a writ of preliminary mandatory injunction filed on November 25,1983, Resolved to require the respondents to file an ANSWER, not a motion to dismiss, within two(2) days from notice." 4 On the very afternoon of the same day, there was this manifestation from respondent Mayor: "1. On November 22, 1983, the petitioner, allegedly the coordinator of the, Olongapo

Citizen's Alliance for National Reconciliation, had their request for a prayer rally and parade/march received in the Office of the Mayor. 2. That even before the request, the respondent had repeatedly announced in his regular program on Sunday over the radio (DWGO) and at the Monday morning flag ceremony before hundreds of government employees that he would grant the request of any group that would like to exercise their freedom of speech and assembly. 3. That respondent when interviewed on the matter by the Editor-in Chief of the 'Guardian', a newspaper of general circulation in Olongapo and Zambales, mentioned the fact that he had granted the permit of the petitioner, which interview appeared in the November 22-28, 1983 issue of the said newspaper. A copy of the newspaper is hereto attached and made an integral part hereof as Annex 'A'. 4. On November 23, 1983, the City Mayor approved the request of the petitioner to hold a prayer rally and a parade/march on December 4, 1983. A copy of the permit is hereto attached and made an integral part hereof as Annex 'B'. 5 " The prayer was for the dismissal of the petition. The permit reads as follows: "23 November 1983, Dr. Hector S. Ruiz, Coordinator, Olongapo Citizen's Alliance for National Reconciliation, Olongapo City. Dear Dr. Ruiz: Your request for a PERMIT to hold a prayer rally at the Rizal Triangle, Olongapo City and a parade/march from Gordon Avenue at 1:00 p.m. of 4 December 1983 as stated in your letter dated 19 November 1983 received in this office on 22 November is hereby GRANTED provided that: 1. The parade/march and rally will be peaceful and orderly; 2. Your organization will be responsible for any loss or damage to government property and for the cleanliness of the Rizal Triangle; 3. The parade/march shall proceed from the corner of Gordon Ave., and Magsaysay Drive, to Rizal Ave., thence to the Rizal Triangle. Please coordinate with the Integrated National Police for appropriate traffic assistance. Very truly yours, (Sgd.) Richard J. Gordon, City Mayor." 6 At its next session then of November 27, the Court, in the light of the above manifestation, resolved to grant such plea for dismissal. From petitioner came, on December 1, 1983, a motion dated November 29 to withdraw petition. As therein stated: "Petitioner, by counsel, respectfully moves to withdraw the above-entitled petition on the ground that the permit being sought in the prayer-rally to be held on 4 December 1983 from 1:00 to 6:00 PM has been granted by the respondent." 7 Then the next day, December 2, 1983, the answer of respondent came reiterating what was set forth in his manifestation. The reason for the delay of such pleading, the due date the service had been served on petitioner being December 1, 1983, was obviously the distance between Manila and Olongapo City. It was not served until November 30. At any rate, no prejudice was caused either party as in the meanwhile, the Court had acted on the very day the manifestation was submitted. That was on December 1, 1983. There is relevance to a recital of such facts. It appears that the guidelines set forth in the extended opinion in the aforesaid J.B.L. Reyes decision as to the role of the judiciary in petitions for permits to hold peaceable assembles may have to be supplemented. This is how the J.B.L. Reyes opinion reads on this point: "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 transmmitted 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 felicitously termed by Justice Holmes 'as the sovereign prerogative of judgment.' Nonetheless, the presumption must be to incline the weight of the scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it was made clear in the original resolution of October 25, 1983. " 8 As shown both in the manifestation and the answer, this action for mandamus could have been obviated if only petitioner took the trouble of verifying on November 23 whether or not a permit had been issued. A party desirous of exercising the right to peaceable assembly should be the one most interested in ascertaining the action taken on a request for a permit. Necessarily, after a reasonable time or, if the day and time was designated for the decision on the request, such party or his representative should be at the office of the public official concerned. If he fails to do so, a copy of the decision reached, whether adverse or favorable, should be sent to the address of petitioner. In that way, there need not be waste of time and effort not only of the litigants but likewise of a court from which redress is sought in case of a denial or modification of a request for a permit. Lately, several petitions of this character have been filed with this court. It could be due to the lack of knowledge of the guidelines set forth in the extended opinion. Steps have been taken to send the Regional Trial judges copies thereof. In the future, therefore, without precluding the filing of petitions directly with this Court, the interest of justice and of public convenience would be better served if litigation starts on the trial court level. While, therefore, this petition should be dismissed, the Court deems it best to set forth the above to specify in more detail, the steps necessary for the judicial protection of constitutional rights with the least delay and inconvenience to the parties and with the greater assurance that the factual background on which is dependent the determination of whether or not the clear and present danger standard has been satisfied. Lastly, a certiorari petition to this Court is likewise available to the losing party. WHEREFORE, as prayed for, this case is dismissed. 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.

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 cosponsored 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 multisectoral rally which KMU also co-sponsored was scheduled to proceed along Espaa 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.

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 (NAFLUKMU), 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 Malacaang to

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 Malacaang dated September 21, 2005, shown in Annex "A" to the Petition in G.R. No. 169848, thus: Malacaang 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 antigovernment 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 lawabiding 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 Presidents 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 contentneutral, 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 assemblys 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 rallys 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 Osmea v. Comelec.7 4. Adiong v. Comelec8 held that B.P. No. 880 is a contentneutral 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 nations 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 peoples 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 ones 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 (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. B.P. No. 880 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 Osmea 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 petitioners 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. Websters 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 Osmea. 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. 880s 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 laws system of regulation of the peoples exercise of their right to peacefully assemble and petition, the Court is constrained to rule that after thirty (30) days from the finality of this Decision, no prior permit may be required for the exercise of such right in any public park or plaza of a city or municipality until that city or municipality shall have complied with Section 15 of the law. For without such alternative forum, to deny the permit would in effect be to deny the right. Advance notices should, however, be given to the authorities to ensure proper coordination and orderly proceedings.

The Court now comes to the matter of the CPR. As stated earlier, the Solicitor General has conceded that the use of the term should now be discontinued, since it does not mean anything other than the maximum tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor General, thus: 14. The truth of the matter is the policy of "calibrated preemptive response" is in consonance with the legal definition of "maximum tolerance" under Section 3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the military, police and other peacekeeping authorities shall observe during a public assembly or in the dispersal of the same." Unfortunately, however, the phrase "maximum tolerance" has acquired a different meaning over the years. Many have taken it to mean inaction on the part of law enforcers even in the face of mayhem and serious threats to public order. More so, other felt that they need not bother secure a permit when holding rallies thinking this would be "tolerated." Clearly, the popular connotation of "maximum tolerance" has departed from its real essence under B.P. Blg. 880. 15. It should be emphasized that the policy of maximum tolerance is provided under the same law which requires all pubic assemblies to have a permit, which allows the dispersal of rallies without a permit, and which recognizes certain instances when water cannons may be used. This could only mean that "maximum tolerance" is not in conflict with a "no permit, no rally policy" or with the dispersal and use of water cannons under certain circumstances for indeed, the maximum amount of tolerance required is dependent on how peaceful or unruly a mass action is. Our law enforcers should calibrate their response based on the circumstances on the ground with the view to preempting the outbreak of violence. 16. Thus, when I stated that calibrated preemptive response is being enforced in lieu of maximum tolerance I clearly was not referring to its legal definition but to the distorted and much abused definition that it has now acquired. I only wanted to disabuse the minds of the public from the notion that law enforcers would shirk their responsibility of keeping the peace even when confronted with dangerously threatening behavior. I wanted to send a message that we would no longer be lax in enforcing the law but would henceforth follow it to the letter. Thus I said, "we have instructed the PNP as well as the local government units to strictly enforce a no permit, no rally policy . . . arrest all persons violating the laws of the land . . . unlawful mass actions will be dispersed." None of these is at loggerheads with the letter and spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even claim that I ordered my co-respondents to violate any law.25 At any rate, the Court rules that in view of the maximum tolerance mandated by B.P. No. 880, CPR serves no valid purpose if it means the same thing as maximum tolerance and is illegal if it means something else. Accordingly, what is to be followed is and should be that mandated by the law itself, namely, maximum tolerance, which specifically means the following: Sec. 3. Definition of terms. For purposes of this Act: xxx (c) "Maximum tolerance" means the highest degree of restraint that the military, police and other peace keeping authorities

shall observe during a public assembly or in the dispersal of the same. xxx Sec. 9. Non-interference by law enforcement authorities. Law enforcement agencies shall not interfere with the holding of a public assembly. However, to adequately ensure public safety, a law enforcement contingent under the command of a responsible police officer may be detailed and stationed in a place at least one hundred (100) meters away from the area of activity ready to maintain peace and order at all times. Sec. 10. Police assistance when requested. It shall be imperative for law enforcement agencies, when their assistance is requested by the leaders or organizers, to perform their duties always mindful that their responsibility to provide proper protection to those exercising their right peaceably to assemble and the freedom of expression is primordial.1avvphil.net Towards this end, law enforcement agencies shall observe the following guidelines: (a) Members of the law enforcement contingent who deal with the demonstrators shall be in complete uniform with their nameplates and units to which they belong displayed prominently on the front and dorsal parts of their uniform and must observe the policy of "maximum tolerance" as herein defined; (b) The members of the law enforcement contingent shall not carry any kind of firearms but may be equipped with baton or riot sticks, shields, crash helmets with visor, gas masks, boots or ankle high shoes with shin guards; (c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device shall not be used unless the public assembly is attended by actual violence or serious threats of violence, or deliberate destruction of property. Sec. 11. Dispersal of public assembly with permit. No public assembly with a permit shall be dispersed. However, when an assembly becomes violent, the police may disperse such public assembly as follows: (a) At the first sign of impending violence, the ranking officer of the law enforcement contingent shall call the attention of the leaders of the public assembly and ask the latter to prevent any possible disturbance; (b) If actual violence starts to a point where rocks or other harmful objects from the participants are thrown at the police or at the non-participants, or at any property causing damage to such property, the ranking officer of the law enforcement contingent shall audibly warn the participants that if the disturbance persists, the public assembly will be dispersed; (c) If the violence or disturbance prevailing as stated in the preceding subparagraph should not stop or abate, the ranking officer of the law enforcement contingent shall audibly issue a warning to the participants of the public assembly, and after allowing a reasonable period of time to lapse, shall immediately order it to forthwith disperse; (d) No arrest of any leader, organizer or participant shall also be made during the public assembly unless he violates during the assembly a law, statute, ordinance or any provision of this

Act. Such arrest shall be governed by Article 125 of the Revised Penal Code, as amended; (d) Isolated acts or incidents of disorder or breach of the peace during the public assembly shall not constitute a ground for dispersal. xxx Sec. 12. Dispersal of public assembly without permit. When the public assembly is held without a permit where a permit is required, the said public assembly may be peacefully dispersed. Sec. 13. Prohibited acts. The following shall constitute violations of the Act: (e) Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly; (f) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly; (g) Acts described hereunder if committed within one hundred (100) meters from the area of activity of the public assembly or on the occasion thereof: xxx 4. the carrying of firearms by members of the law enforcement unit; 5. the interfering with or intentionally disturbing the holding of a public assembly by the use of a motor vehicle, its horns and loud sound systems. Furthermore, there is need to address the situation adverted to by petitioners where mayors do not act on applications for a permit and when the police demand a permit and the rallyists could not produce one, the rally is immediately dispersed. In such a situation, as a necessary consequence and part of maximum tolerance, rallyists who can show the police an application duly filed on a given date can, after two days from said date, rally in accordance with their application without the need to show a permit, the grant of the permit being then presumed under the law, and it will be the burden of the authorities to show that there has been a denial of the application, in which case the rally may be peacefully dispersed following the procedure of maximum tolerance prescribed by the law. In sum, this Court reiterates its basic policy of upholding the fundamental rights of our people, especially freedom of expression and freedom of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban has repeatedly vowed to uphold the liberty of our people and to nurture their prosperity. He said that "in cases involving liberty, the scales of justice should weigh heavily against the government and in favor of the poor, the oppressed, the marginalized, the dispossessed and the weak. Indeed, laws and actions that restrict fundamental rights come to the courts with a heavy presumption against their validity. These laws and actions are subjected to heightened scrutiny."26 For this reason, the so-called calibrated preemptive response policy has no place in our legal firmament and must be struck

down as a darkness that shrouds freedom. It merely confuses our people and is used by some police agents to justify abuses. On the other hand, B.P. No. 880 cannot be condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it merely regulates the use of public places as to the time, place and manner of assemblies. Far from being insidious, "maximum tolerance" is for the benefit of rallyists, not the government. The delegation to the mayors of the power to issue rally "permits" is valid because it is subject to the constitutionally-sound "clear and present danger" standard. In this Decision, the Court goes even one step further in safeguarding liberty by giving local governments a deadline of 30 days within which to designate specific freedom parks as provided under B.P. No. 880. If, after that period, no such parks are so identified in accordance with Section 15 of the law, all public parks and plazas of the municipality or city concerned shall in effect be deemed freedom parks; no prior permit of whatever kind shall be required to hold an assembly therein. The only requirement will be written notices to the police and the mayors 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. L-62270 May 21, 1984

the Gregorio Araneta University Foundation, respondents. Honesto N. Salcedo for petitioners. The Solicitor General and Leonardo G. Padilla & Pablita G. Ammay for respondents.

FERNANDO, CJ.: The failure to accord respect to the constitutional rights of freedom of peaceable assembly and free speech is the grievance alleged by petitioners, students of the Gregorio Araneta University Foundation, in this certiorari, prohibition and mandamus proceeding. The principal respondents are Anastacio D. Ramento, Director of the National Capital Region of the Ministry of Education, Culture and Sports and the Gregorio Araneta University Foundation. 1 The nullification of the decision of respondent Ramento affirming the action taken by respondent Gregorio Araneta University Foundation finding petitioners guilty of illegal assembly and suspending them is sought in this petition. The facts are not open to dispute. Petitioners were officers of the Supreme Student Council of respondent University. They sought and were granted by tile school authorities a permit to hold a meeting from 8:00 A.M. to 12:00 P.M, on August 27, 1982. Pursuant to such permit, along with other students, they held a general assembly at the Veterinary Medicine and Animal Science basketball court (VMAS), the place indicated in such permit, not in the basketball court as therein stated but at the second floor lobby. At such gathering they manifested in vehement and vigorous language their opposition to the proposed merger of the Institute of Animal Science with the Institute of Agriculture. At 10:30 A.M., the same day, they marched toward the Life Science Building and continued their rally. It was outside the area covered by their permit. They continued their demonstration, giving utterance to language severely critical of the University authorities and using megaphones in the process. There was, as a result, disturbance of the classes being held. Also, the non-academic employees, within hearing distance, stopped their work because of the noise created. They were asked to explain on the same day why they should not be held liable for holding an illegal assembly. Then on September 9, 1982, they were formed through a memorandum that they were under preventive suspension for their failure to explain the holding of an illegal assembly in front of the Life Science Building. The validity thereof was challenged by petitioners both before the Court of First Instance of Rizal in a petition for mandamus with damages against private respondents 2 and before the Ministry of Education, Culture, and Sports. On October 20, 1982, respondent Ramento, as Director of the National Capital Region, found petitioners guilty of the charge of having violated par. 146(c) of the Manual for Private Schools more specifically their holding of an illegal assembly which was characterized by the violation of the permit granted resulting in the disturbance of classes and oral defamation. The penalty was suspension for one academic year. Hence this petition. On November 16, 1982, this Court issued the following resolution: "Acting on the urgent ex-parte motion for the immediate issuance of a temporary mandatory order filed by counsel for petitioners, dated November 12, 1982, the Court Resolved to ISSUE A TEMPORARY RESTRAINING ORDER

CRISPIN MALABANAN, EVELIO JALOS, BEN LUTHER LUCAS, SOTERO LEONERO, and JUNE LEE, petitioners, vs. THE HONORABLE ANASTACIO D. RAMENTO, in his capacity as the Director of the National Capital Region of the Ministry of Education, Culture and Sports, THE GREGORIO ARANETA UNIVERSITY FOUNDATION; CESAR MIJARES, in his capacity as the President of the Gregorio Araneta University Foundation, GONZALO DEL ROSARIO, in his capacity as the Director for Academic Affairs of the Gregorio Araneta University Foundation; TOMAS B. MESINA, in his capacity as the Dean of Student Affairs of the Gregorio Araneta University Foundation; ATTY. LEONARDO PADILLA, in his capacity as Chief Legal Counsel & Security Supervisor of the Gregorio Araneta University Foundation; ATTY. FABLITA AMMAY, ROSENDO GALVANTE and EUGENIA TAYAO, in their capacities as members of the Ad Hoc Committee of

enjoining all respondents or any person or persons acting in their place or stead from enforcing the order of the Ministry of' Education and Culture dated October 20, 1982 finding the petitioners guilty of the charges against them and suspending them for one (1) academic year with a stern warning that a commission of the same or another offense will be dealt with utmost severity, effective as of this date and continuing until otherwise ordered by this Court, thus allowing them to enroll, if so minded. 3 Both public and private respondents submitted their comments. Private respondents prayed for the dismissal of the petition "for lack of factual and legal basis and likewise [prayed] for the lifting of the temporary restraining order dated November 16, 1982." 4 Public respondent Ramento, on the other hand, through the Office of the Solicitor General, prayed for the dismissal of the petition based on the following conclusion: "Consequently, it is respectfully submitted that respondent Director of the MECS did not commit any error, much less abused his discretion, when he affirmed the decision of respondent University finding petitioners guilty of violations of the provisions of the Manual of Regulations for Private Schools and the Revised Student's Code of Discipline .and ordering their suspension for one (1) academic school year. However, since said suspension has not been enforced except only briefly, thereby enabling petitioners Leonero, Jr., Lucas and Malabanan to finish their courses, and allowing petitioners Lee and Jalos to continue their schooling, if they so desire, this proceeding is now moot and academic. 5 With the submission of such comments considered as the answers of public and private respondents, the case was ready for decision. This petition may be considered moot and academic if viewed solely from the fact that by virtue of the temporary restraining order issued by this Court petitioners were allowed to enroll in the ensuing semester, with three of them doing so and with the other two equally entitled to do so. Moreover, there is the added circumstance of more than a year having passed since October 20, 1982 when respondent Ramento issued the challenged decision suspending them for one year. Nonetheless, with its validity having been put in issue, for being violative of the constitutional rights of freedom of peaceable assembly and free speech, there is need to pass squarely on the question raised. This Court accordingly rules that respect for the constitutional rights of peaceable assembly and free speech calls for the setting aside of the decision of respondent Ramento, the penalty imposed being unduly severe. It is true that petitioners held the rally at a place other than that specified in the permit and continued it longer than the time allowed. Undeniably too, they did disturb the classes and caused the work of the nonacademic personnel to be left undone. Such undesirable consequence could have been avoided by their holding the assembly in the basketball court as indicated in the permit. Nonetheless, suspending them for one year is out of proportion to their misdeed. The petition must be granted and the decision of respondent Ramento nullified, a much lesser penalty being appropriate. 1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation of the right to freedom of peaceable assembly carries with it the implication that the right to free speech has likewise been disregarded. Both are embraced in the concept of freedom of expression which is

Identified with the liberty to discuss publicly and truthfully, any matter of public interest without censorship or punishment and which "is not to be limited, much less denied, except on a showing ... of a clear and present danger of a substantive evil that the state has a right to prevent." 7 2. In the above case, a permit was sought to hold a peaceful march and rally from the Luneta public park to the gates of the united States Embassy, hardly two blocks away, where in an open space of public property, a short program would be held. Necessarily then, the question of the use of a public park and of the streets leading to the United States Embassy was before this Court. We held that streets and parks have immemorially been held in trust for the use of the public and have been used for purposes of assembly to communicate thoughts between citizens and to discuss public issues. 8 3. The situation here is different. The assembly was to be held not in a public place but in private premises, property of respondent University. There is in the Reyes opinion as part of the summary this relevant excerpt: "The applicants for a permit to hold an assembly should inform the licensing authority of the date, the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the one entitled to its legal possession is required." 9 Petitioners did seek such consent. It was granted. According to the petition: "On August 27, 1982, by virtue of a permit granted to them by the school administration, the Supreme Student Council where your petitioners are among the officers, held a General Assembly at the VMAS basketball court of the respondent university." 10 There was an express admission in the Comment of private respondent University as to a permit having been granted for petitioners to hold a student assembly. 11 The specific question to be resolved then is whether on the facts as disclosed resulting in the disciplinary action and the penalty imposed, there was an infringement of the right to peaceable assembly and its cognate right of free speech. 4. Petitioners invoke their rights to peaceable assembly and free speech. They are entitled to do so. They enjoy like the rest of the citizens the freedom to express their views and communicate their thoughts to those disposed to listen in gatherings such as was held in this case. They do not, to borrow from the opinion of Justice Fortas in Tinker v. Des Moines Community School District, 12 "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." 13 While, therefore, the authority of educational institutions over the conduct of students must be recognized, it cannot go so far as to be violative of constitutional safeguards. On a more specific level there is persuasive force to this formulation in the Fortas opinion: "The principal use to which the schools are dedicated is to accommodate students during prescribed hours for the purpose of certain types of activities. Among those activities is personal intercommunication among the students. This is not only an inevitable part of the process of attending school; it is also an important part of the educational process. A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without 'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others. ... But conduct by the student, in class or out of it, which for any reason whether it stems from time, place, or type of

behavior materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." 14 5. As tested by such a standard, what is the verdict on the complaint of petitioners that there was a disregard of their constitutional rights to peaceable assembly and free speech. It must be in their favor, but subject to qualification in view of their continuing their demonstration in a place other than that specified in the permit for a longer period and their making use of megaphones therein, resulting in the disruption of classes and the stoppage of work by the non-academic personnel in the vicinity of such assembly. 6. Objection is made by private respondents to the tenor of the speeches by the student leaders. That there would be a vigorous presentation of views opposed to the proposed merger of the Institute of Animal Science with the Institute of Agriculture was to be expected. There was no concealment of the fact that they were against such a move as it confronted them with a serious problem (iisang malaking suliranin.") 15 They believed that such a merger would result in the increase in tuition fees, an additional headache for their parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the course of such demonstration, with an enthusiastic audience goading them on, utterances, extremely critical, at times even vitriolic, were let loose, that is quite understandable. Student leaders are hardly the timid, diffident types. They are likely to be assertive and dogmatic. They would be ineffective if during a rally they speak in the guarded and judicious language of the academe. At any rate, even a sympathetic audience is not disposed to accord full credence to their fiery exhortations. They take into account the excitement of the occasion, the propensity of speakers to exaggerate, the exuberance of youth, They may give the speakers the benefit of their applause, but with the activity taking place in the school premises and during the daytime, no clear and present danger of public disorder is discernible. This is without prejudice to the taking of disciplinary action for conduct, which, to borrow from Tinker, "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." 7. Nor is this a novel approach to the issue raised by petitioners that they were denied the right to peaceable assembly. In a 1907 decision, United States v. Apurado, 17 the facts disclosed that shortly before the municipal council of San Carlos, Occidental Negros, started its session, some five hundred residents of the municipality assembled near the municipal building, and, upon the opening of the session, a substantial number of such persons barged into the council chamber, demanding that the municipal treasurer, the municipal secretary, and the chief of police be dismissed, submitting at the same time the proposed substitutes. The municipal council gave its conformity. Such individuals were wholly unarmed except that a few carried canes; the crowd was fairly orderly and well-behaved except in so far as their pressing into the council chamber during a session of that body could be called disorder and misbehavior. It turned out that the movement had its origin in religious differences. The defendant Filomeno Apurado and many other participants were indicted and convicted of sedition in that they allegedly prevented the municipal government from freely exercising its duties. On appeal, the Supreme Court reversed. Justice Carson, who penned the opinion, correctly pointed out that "if the prosecution be permitted to seize upon every instance of such disorderly conduct by individual members of a crowd as an

excuse to characterize the assembly as a seditious and tumultuous rising against the authorities, then the right to assemble and to petition for redress of grievances would become a delusion and a snare and the attempt to exercise it on the most righteous occasion and in the most peaceable manner would expose all those who took part therein to the severest form of punishment, if the purposes which they sought to attain did not happen to be pleasing to the prosecuting authorities." 18 The principle to be followed is enunciated thus: "If instances of disorderly conduct occur on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost discretion must be exercised in drawing the line between disorderly and seditious conduct and between an essentially peaceable assembly and a tumultuous uprising." 19 A careful reading of this decision is in order before private respondents attach, as they did in their comments, a subversive character to the rally held by the students under the leadership of petitioners. 8. It does not follow, however, that petitioners can be totally absolved for the events that transpired. Admittedly, there was a violation of the terms of the permit. The rally was held at a place other than that specified, in the second floor lobby, rather than the basketball court, of the VMAS building of the University. Moreover, it was continued longer than the period allowed. According to the decision of respondent Ramento, the "concerted activity [referring to such assembly] went on until 5:30 p. m. 20 Private respondents could thus, take disciplinary action. On those facts, however, an admonition, even a censure-certainly not a suspension-could be the appropriate penalty. Private respondents could and did take umbrage at the fact that in view of such infraction considering the places where and the time when the demonstration took place-there was a disruption of the classes and stoppage of work of the non-academic personnel. They would not be unjustified then if they did take a much more serious view of the matter. Even then a one-year period of suspension is much too severe. While the discretion of both respondent University and respondent Ramento is recognized, the rule of reason, the dictate of fairness calls for a much lesser penalty. If the concept of proportionality between the offense connoted and the sanction imposed is not followed, an element of arbitrariness intrudes. That would give rise to a due process question. To avoid this constitutional objection, it is the holding of this Court that a one-week suspension would be punishment enough. 9. One last matter. The objection was raised that petitioners failed to exhaust administrative remedies. That is true, but hardly decisive. Here, a purely legal question is presented. Such being the case, especially so where a decision on a question of law is imperatively called for, and time being of the essence, this Court has invariably viewed the issue as ripe for adjudication. What cannot be too sufficiently stressed is that the constitutional rights to peaceable assembly and free speech are invoked by petitioners. Moreover, there was, and very likely there will continue to be in the future, militancy and assertiveness of students on issues that they consider of great importance, whether concerning their welfare or the general public. That they have a right to do as citizens entitled to all the protection in the Bill of Rights. 10. It would be most appropriate then, as was done in the case of Reyes v. Bagatsing, 21 for this Court to lay down the principles for the guidance of school authorities and students alike. The rights to peaceable assembly and free speech are guaranteed students of educational institutions. Necessarily,

their exercise to discuss matters affecting their welfare or involving public interest is not to be subjected to previous restraint or subsequent punishment unless there be a showing of a clear and present danger to a substantive evil that the state, has a right to present. As a corollary, the utmost leeway and scope is accorded the content of the placards displayed or utterances made. The peaceable character of an assembly could be lost, however, by an advocacy of disorder under the name of dissent, whatever grievances that may be aired being susceptible to correction through the ways of the law. If the assembly is to be held in school premises, permit must be sought from its school authorities, who are devoid of the power to deny such request arbitrarily or unreasonably. In granting such permit, there may be conditions as to the time and place of the assembly to avoid disruption of classes or stoppage of work of the non-academic personnel. Even if, however, there be violations of its terms, the penalty incurred should not be disproportionate to the offense. WHEREFORE, the petition is granted. The decision dated October 20, 1982 of respondent Ramento imposing a one-year suspension is nullified and set aside. The temporary restraining order issued by this Court in the resolution of November 18, 1982 is made permanent. As of that date, petitioners had been suspended for more than a week. In that sense, the one-week penalty had been served. No costs.