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Prior Restraints & Subsequent Punishment (a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or

(b) a malicious, scandalous and defamatory newspaper, magazine or other

Near v. Minnesota periodical, is guilty of a nuisance, and all persons guilty of such nuisance may be
1. A Minnesota statute declares that one who engages "in the business of regularly and
customarily producing, publishing," etc., "a malicious, scandalous and defamatory newspaper,
enjoined, as hereinafter provided.
magazine or other periodical," is guilty of a nuisance, and authorizes suits, in the name of the
State, in which such periodicals may be abated and their publishers enjoined from future Participation in such business shall constitute a commission of such nuisance and
violations. In such a suit, malice may be inferred from the fact of publication. The defendant is render the participant liable and subject to the proceedings, orders and judgments
permitted to prove, as a defense, that his publications were true and published "with good provided for in this Act. Ownership, in whole or in part, directly or indirectly, of any
motives and for justifiable ends." Disobedience of an injunction is punishable as a contempt. such periodical, or of any stock or interest in any corporation or organization which
Held unconstitutional, as applied to publications charging neglect of duty and corruption upon owns the same in whole or in part, or which publishes the same, shall constitute
the part of law-enforcing officers of the State. Pp. 704, 709, 712, 722.
2. Liberty of the press is within the liberty safeguarded by the due process clause of the such participation.
Fourteenth Amendment from invasion by state action. P. 707.
3. Liberty of the press is not an absolute right, and the State may punish its abuse. P. 708. In actions brought under (b) above, there shall be available the defense that the
4. In passing upon the constitutionality of the statute, the court has regard for substance, and truth was published with good motives and for justifiable ends and in such actions
not for form; the statute must be tested by its operation and effect. P. 708. [p698] the plaintiff shall not have the right to report (sic) to issues or editions of periodicals
5. Cutting through mere details of procedure, the operation and effect of the statute is that taking place more than three months before the commencement of the action.
public authorities may bring a publisher before a judge upon a charge of conducting a business
of publishing scandalous and defamatory matter -- in particular, that the matter consists of
charges against public officials of official dereliction -- and, unless the publisher is able and Section two provides that, whenever any such nuisance is committed or exists, the
disposed to satisfy the judge that the charges are true and are published with good motives and County Attorney of any county where any such periodical is published or circulated,
for justifiable ends, his newspaper or periodical is suppressed and further publication is made or, in case of his failure or refusal to proceed upon written request in good faith of a
punishable as a contempt. This is the essence of censorship. P. 713. reputable citizen, the Attorney General, or, upon like failure or refusal of the latter,
6. A statute authorizing such proceedings in restraint of publication is inconsistent with the any citizen of the county may maintain an action in the district court of the county in
conception of the liberty of the press as historically conceived and guaranteed. P. 713. the name of the State to enjoin [p703] perpetually the persons committing or
7. The chief purpose of the guaranty is to prevent previous restraints upon publication. The
maintaining any such nuisance from further committing or maintaining it. Upon such
libeler, however, remains criminally and civilly responsible for his libels. P. 713.
8. There are undoubtedly limitations upon the immunity from previous restraint of the press, but evidence as the court shall deem sufficient, a temporary injunction may be granted.
they are not applicable in this case. P. 715. The defendants have the right to plead by demurrer or answer, and the plaintiff may
9. The liberty of the press has been especially cherished in this country as respects publications demur or reply as in other cases.
censuring public officials and charging official misconduct. P. 716.
10. Public officers find their remedies for false accusations in actions for redress and punishment The action, by section three, is to be " governed by the practice and procedure
under the libel laws, and not in proceedings to restrain the publication of newspapers and applicable to civil actions for injunctions," and, after trial, the court may enter
periodicals. P. 718.
judgment permanently enjoining the defendants found guilty of violating the Act
11. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does
not make any the less necessary the immunity from previous restraint in dealing with official from continuing the violation, and, "in and by such judgment, such nuisance may be
misconduct. P. 720. wholly abated." The court is empowered, as in other cases of contempt, to punish
12. Characterizing the publication of charges of official misconduct as a "business," and the disobedience to a temporary or permanent injunction by fine of not more than
business as a nuisance, does not avoid the constitutional guaranty; nor does it matter that the $1,000 or by imprisonment in the county jail for not more than twelve months.
periodical is largely or chiefly devoted to such charges. P. 720.
13. The guaranty against previous restraint extends to publications charging official derelictions Under this statute, clause (b), the County Attorney of Hennepin County brought this
that amount to crimes. P. 720.
14. Permitting the publisher to show in defense that the matter published is true and is
action to enjoin the publication of what was described as a " malicious, scandalous
published with good motives and for justifiable ends does not justify the statute. P. 721. and defamatory newspaper, magazine and periodical" known as " The Saturday
15. Nor can it be sustained as a measure for preserving the public peace and preventing Press," published by the defendants in the city of Minneapolis. The complaint alleged
assaults and crime. Pp. 721, 722. that the defendants, on September 24, 1927, and on eight subsequent dates in
[p699] October and November, 1927, published and circulated editions of that periodical
APPEAL from a decree which sustained an injunction abating the publication of a periodical as which were "largely devoted to malicious, scandalous and defamatory articles"
malicious, scandalous and defamatory, and restraining future publication. The suit was based on concerning Charles G. Davis, Frank W. Brunskill, the Minneapolis Tribune, the
a Minnesota statute. See also s.c., 174 Minn. 457, 219 N.W. 770. [p701]
TOP Minneapolis Journal, Melvin C. Passolt, George E. Leach, the Jewish Race, the
Opinion members of the Grand Jury of Hennepin County impaneled in November, 1927, and
then holding office, and other persons, as more fully appeared in exhibits annexed to
HUGHES, C.J., Opinion of the Court the complaint, consisting of copies of the articles described and constituting 327
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. pages of the record. While the complaint did not so allege, it [p704] appears from
Chapter 285 of the Session Laws of Minnesota for the year 1925 [n1] provides for the briefs of both parties that Charles G. Davis was a special law enforcement officer
the abatement, as a public nuisance, of a "malicious, scandalous and defamatory employed by a civic organization, that George E. Leach was Mayor of Minneapolis,
newspaper, [p702] magazine or other periodical." Section one of the Act is as that Frank W. Brunskill was its Chief of Police, and that Floyd B. Olson (the relator in
follows: this action) was County Attorney.
Section 1. Any person who, as an individual, or as a member or employee of a firm,
or association or organization, or as an officer, director, member or employee of a Without attempting to summarize the contents of the voluminous exhibits attached
corporation, shall be engaged in the business of regularly or customarily producing, to the complaint, we deem it sufficient to say that the articles charged in substance
publishing or circulating, having in possession, selling or giving away that a Jewish gangster was in control of gambling, bootlegging and racketeering in
Minneapolis, and that law enforcing officers and agencies were not energetically and that "the said publication" "under said name of The Saturday Press, or any other
performing their duties. Most of the charges were directed against the Chief of name, constitutes a public nuisance under the laws of the State." Judgment was
Police; he was charged with gross neglect of duty, illicit relations with gangsters, and thereupon entered adjudging that "the newspaper, magazine and periodical known
with participation in graft. The County Attorney was charged with knowing the as The Saturday Press," as a public nuisance, "be and is hereby abated." The
existing conditions and with failure to take adequate measures to remedy them. The Judgment perpetually enjoined the defendants
Mayor was accused of inefficiency and dereliction. One member of the grand jury
was stated to be in sympathy with the gangsters. A special grand jury and a special from producing, editing, publishing, circulating, having in their possession, selling or
prosecutor were demanded to deal with the situation in general, and, in particular, giving away any publication whatsoever which is a malicious, scandalous or
to investigate an attempt to assassinate one Guilford, one of the original defamatory newspaper, as defined by law,
defendants, who, it appears from the articles, was shot by gangsters after the first
issue of the periodical had been published. There is no question but that the articles and also "from further conducting said nuisance under the name and title of said
made serious accusations against the public officers named and others in The Saturday Press or any other name or title."
connection with the prevalence of crimes and the failure to expose and punish them.
The defendant Near appealed from this judgment to the Supreme Court of the State,
At the beginning of the action, on November 22, 1927, and upon the verified again asserting his right under the Federal Constitution, and the judgment was
complaint, an order was made directing the defendants to show cause why a affirmed upon the authority of the former decision. 179 Minn. 40, 228 N.W. 326. With
temporary injunction should not issue and meanwhile forbidding the defendants to respect to the contention that the judgment went too far, and prevented the
publish, circulate or have in their possession any editions of the periodical from defendants from publishing any kind of a newspaper, the court observed that the
September [p705] 24, 1927, to November 19, 1927, inclusive, and from publishing, assignments of error did not go to the form of the judgment, and that the lower
circulating, or having in their possession, "any future editions of said The Saturday court had not been asked to modify it. The court added that it saw no reason
Press" and
for defendants to construe the judgment as restraining them from operating a
any publication, known by any other name whatsoever containing malicious, newspaper in harmony with the public welfare, to which all must yield,
scandalous and defamatory matter of the kind alleged in plaintiff's complaint herein
or otherwise. that the allegations of the complaint had been [p707] found to be true, and, though
this was an equitable action, defendants had not indicated a desire "to conduct their
The defendants demurred to the complaint upon the ground that it did not state business in the usual and legitimate manner."
facts sufficient to constitute a cause of action, and on this demurrer challenged the
constitutionality of the statute. The District Court overruled the demurrer and From the judgment as thus affirmed, the defendant Near appeals to this Court.
certified the question of constitutionality to the Supreme Court of the State. The
Supreme Court sustained the statute (174 Minn. 457, 219 N.W. 770), and it is This statute, for the suppression as a public nuisance of a newspaper or periodical, is
conceded by the appellee that the Act was thus held to be valid over the objection unusual, if not unique, and raises questions of grave importance transcending the
that it violated not only the state constitution, but also the Fourteenth Amendment local interests involved in the particular action. It is no longer open to doubt that the
of the Constitution of the United States. liberty of the press, and of speech, is within the liberty safeguarded by the due
process clause of the Fourteenth Amendment from invasion by state action. It was
Thereupon, the defendant Near, the present appellant, answered the complaint. He found impossible to conclude that this essential personal liberty of the citizen was
averred that he was the sole owner and proprietor of the publication in question. He left unprotected by the general guaranty of fundamental rights of person and
admitted the publication of the articles in the issues described in the complaint, but property. Gitlow v. New York, 268 U.S. 652, 666; Whitney v. California, 274 U.S. 357,
denied that they were malicious, scandalous or defamatory as alleged. He expressly 362, 373; Fiske v. Kansas, 274 U.S. 380, 382; Stromberg v. California, ante, p. 359. In
invoked the protection of the due process clause of the Fourteenth Amendment. The maintaining this guaranty, the authority of the State to enact laws to promote the
case then came on for trial. The plaintiff offered in evidence the verified complaint, health, safety, morals and general welfare of its people is necessarily admitted. The
together with the issues of the publication in question, which were attached to the limits of this sovereign power must always be determined with appropriate regard to
complaint as exhibits. The defendant objected to the introduction of the evidence, the particular subject of its exercise. Thus, while recognizing the broad discretion of
invoking the constitutional provisions to which his answer referred. The objection the legislature in fixing rates to be charged by those undertaking a public service,
was overruled, no further evidence was presented, and the plaintiff rested. The this Court has decided that the owner cannot constitutionally be deprived of his right
defendant then rested without offering evidence. The plaintiff moved that the court to a fair return, because that is deemed to be of the essence of ownership. Railroad
direct the issue of a permanent injunction, and this was done. [p706] Commission Cases, 116 U.S. 307, 331; Northern Pacific Ry. Co. v. North Dakota, 236
U.S. 585, 596. So, while liberty of contract is not an absolute right, and the wide field
The District Court made findings of fact which followed the allegations of the of activity in the making of contracts is subject to legislative supervision (Frisbie v.
complaint and found in general terms that the editions in question were "chiefly United States, 157 U.S. 161, 165), this Court has held that the power of the State
devoted to malicious, scandalous and defamatory articles" concerning the stops short of interference with what are deemed [p708] to be certain indispensable
individuals named. The court further found that the defendants, through these requirements of the liberty assured, notably with respect to the fixing of prices and
publications, wages. Tyson Bros. v. Banton, 273 U.S. 418; Ribnik v. McBride, 277 U.S. 350; Adkins
v. Children's Hospital, 261 U.S. 525, 560, 561. Liberty of speech, and of the press, is
did engage in the business of regularly and customarily producing, publishing and also not an absolute right, and the State may punish its abuse. Whitney v. California,
circulating a malicious, scandalous and defamatory newspaper, supra; Stromberg v. California, supra. Liberty, in each of its phases, has its history
and connotation, and, in the present instance, the inquiry is as to the historic
conception of the liberty of the press and whether the statute under review violates
the essential attributes of that liberty. Second. The statute is directed not simply at the circulation of scandalous and
defamatory statements with regard to private citizens, but at the continued
The appellee insists that the questions of the application of the statute to appellant's publication by newspapers and periodicals of charges against public officers of
periodical, and of the construction of the judgment of the trial court, are not corruption, malfeasance in office, or serious neglect of duty. Such charges, by their
presented for review; that appellant's sole attack was upon the constitutionality of very nature, create a public scandal. They are scandalous and defamatory within the
the statute, however it might be applied. The appellee contends that no question meaning of the statute, which has its normal operation in relation to publications
either of motive in the publication, or whether the decree goes beyond the direction dealing prominently and chiefly with the alleged derelictions of public officers. [n3]
of the statute, is before us. The appellant replies that, in his view, the plain terms of [p711]
the statute were not departed from in this case, and that, even if they were, the
statute is nevertheless unconstitutional under any reasonable construction of its Third. The object of the statute is not punishment, in the ordinary sense, but
terms. The appellant states that he has not argued that the temporary and suppression of the offending newspaper or periodical. The reason for the enactment,
permanent injunctions were broader than were warranted by the statute; he insists as the state court has said, is that prosecutions to enforce penal statutes for libel do
that what was done was properly done if the statute is valid, and that the action not result in "efficient repression or suppression of the evils of scandal." Describing
taken under the statute is a fair indication of its scope. the business of publication as a public nuisance does not obscure the substance of
the proceeding which the statute authorizes. It is the continued publication of
With respect to these contentions, it is enough to say that, in passing upon scandalous and defamatory matter that constitutes the business and the declared
constitutional questions, the court has regard to substance, and not to mere matters nuisance. In the case of public officers, it is the reiteration of charges of official
of form, and that, in accordance with familiar principles, the statute must be tested misconduct, and the fact that the newspaper or periodical is principally devoted to
by its operation and effect. Henderson v. Mayor, 92 U.S. 259, 268; Bailey v. that purpose, that exposes it to suppression. In the present instance, the proof was
Alabama, 219 [p709] U.S. 219, 244; United States v. Reynolds, 235 U.S. 133, 148, that nine editions of the newspaper or periodical in question were published on
149; St. Louis Southwestern R. Co. v. Arkansas, 235 U.S. 350, 362; Mountain Timber successive dates, and that they were chiefly devoted to charges against public
Co. v. Washington, 243 U.S. 219, 237. That operation and effect we think is clearly officers and in relation to the prevalence and protection of crime. In such a case,
shown by the record in this case. We are not concerned with mere errors of the trial these officers are not left to their ordinary remedy in a suit for libel, or the
court, if there be such, in going beyond the direction of the statute as construed by authorities to a prosecution for criminal libel. Under this statute, a publisher of a
the Supreme Court of the State. It is thus important to note precisely the purpose newspaper or periodical, undertaking to conduct a campaign to expose and to
and effect of the statute as the state court has construed it. censure official derelictions, and devoting his publication principally to that purpose,
must face not simply the possibility of a verdict against him in a suit or prosecution
First. The statute is not aimed at the redress of individual or private wrongs. for libel, but a determination that his newspaper or periodical is a public nuisance to
Remedies for libel remain available and unaffected. The statute, said the state court, be abated, and that this abatement and suppression will follow unless he is prepared
"is not directed at threatened libel, but at an existing business which, generally with legal evidence to prove the truth of the charges and also to satisfy the court
speaking, involves more than libel." It is aimed at the distribution of scandalous that, in [p712] addition to being true, the matter was published with good motives
matter as "detrimental to public morals and to the general welfare," tending "to and for justifiable ends.
disturb the peace of the community" and "to provoke assaults and the commission
of crime." In order to obtain an injunction to suppress the future publication of the This suppression is accomplished by enjoining publication, and that restraint is the
newspaper or periodical, it is not necessary to prove the falsity of the charges that object and effect of the statute.
have been made in the publication condemned. In the present action, there was no
allegation that the matter published was not true. It is alleged, and the statute Fourth. The statute not only operates to suppress the offending newspaper or
requires the allegation, that the publication was "malicious." But, as in prosecutions periodical, but to put the publisher under an effective censorship. When a
for libel, there is no requirement of proof by the State of malice in fact, as newspaper or periodical is found to be "malicious, scandalous, and defamatory," and
distinguished from malice inferred from the mere publication of the defamatory is suppressed as such, resumption of publication is punishable as a contempt of
matter. [n2] The judgment in this case proceeded upon the mere proof of court by fine or imprisonment. Thus, where a newspaper or periodical has been
publication. The statute permits the defense not of the truth alone, but only that the suppressed because of the circulation of charges against public officers of official
truth was published with good motives and [p710] for justifiable ends. It is apparent misconduct, it would seem to be clear that the renewal of the publication of such
that, under the statute, the publication is to be regarded as defamatory if it injures charges would constitute a contempt, and that the judgment would lay a permanent
reputation, and that it is scandalous if it circulates charges of reprehensible conduct, restraint upon the publisher, to escape which he must satisfy the court as to the
whether criminal or otherwise, and the publication is thus deemed to invite public character of a new publication. Whether he would be permitted again to publish
reprobation and to constitute a public scandal. The court sharply defined the matter deemed to be derogatory to the same or other public officers would depend
purpose of the statute, bringing out the precise point, in these words: upon the court's ruling. In the present instance, the judgment restrained the
defendants from
There is no constitutional right to publish a fact merely because it is true. It is a
matter of common knowledge that prosecutions under the criminal libel statutes do publishing, circulating, having in their possession, selling or giving away any
not result in efficient repression or suppression of the evils of scandal. Men who are publication whatsoever which is a malicious, scandalous or defamatory newspaper,
the victims of such assaults seldom resort to the courts. This is especially true if as defined by law.
their sins are exposed and the only question relates to whether it was done with
good motives and for justifiable ends. This law is not for the protection of the person The law gives no definition except that covered by the words "scandalous and
attacked, nor to punish the wrongdoer. It is for the protection of the pubic welfare. defamatory," and publications charging official misconduct are of that class. While
the court, answering the objection that the judgment was too broad, saw no reason
for construing it as restraining the defendants "from operating a newspaper in The criticism upon Blackstone's statement has not been because immunity from
harmony with the public welfare to which all must yield," and said that the previous restraint upon publication has not been regarded as deserving of special
defendants had not indicated "any desire to conduct their business in the usual and emphasis, but chiefly because that immunity cannot be deemed to exhaust the
legitimate manner," the manifest inference is that, at least with respect to a [p713] conception of the liberty guaranteed by [p715] state and federal constitutions. The
new publication directed against official misconduct, the defendant would be held, point of criticism has been "that the mere exemption from previous restraints cannot
under penalty of punishment for contempt as provided in the statute, to a manner of be all that is secured by the constitutional provisions", and that
publication which the court considered to be "usual and legitimate" and consistent
with the public welfare. the liberty of the press might be rendered a mockery and a delusion, and the phrase
itself a byword, if, while every man was at liberty to publish what he pleased, the
If we cut through mere details of procedure, the operation and effect of the statute, public authorities might nevertheless punish him for harmless publications.
in substance, is that public authorities may bring the owner or publisher of a
newspaper or periodical before a judge upon a charge of conducting a business of 2 Cooley, Const.Lim., 8th ed., p. 885. But it is recognized that punishment for the
publishing scandalous and defamatory matter -- in particular, that the matter abuse of the liberty accorded to the press is essential to the protection of the public,
consists of charges against public officers of official dereliction -- and, unless the and that the common law rules that subject the libeler to responsibility for the public
owner or publisher is able and disposed to bring competent evidence to satisfy the offense, as well as for the private injury, are not abolished by the protection
judge that the charges are true and are published with good motives and for extended in our constitutions. Id., pp. 883, 884. The law of criminal libel rests upon
justifiable ends, his newspaper or periodical is suppressed and further publication is that secure foundation. There is also the conceded authority of courts to punish for
made punishable as a contempt. This is of the essence of censorship. contempt when publications directly tend to prevent the proper discharge of judicial
functions. Patterson v. Colorado, supra; Toledo Newspaper Co. v. United States, 247
The question is whether a statute authorizing such proceedings in restraint of U.S. 402, 419. [n5] In the present case, we have no occasion to inquire as to the
publication is consistent with the conception of the liberty of the press as historically permissible scope of subsequent punishment. For whatever wrong the appellant has
conceived and guaranteed. In determining the extent of the constitutional committed or may commit by his publications the State appropriately affords both
protection, it has been generally, if not universally, considered that it is the chief public and private redress by its libel laws. As has been noted, the statute in
purpose of the guaranty to prevent previous restraints upon publication. The question does not deal with punishments; it provides for no punishment, except in
struggle in England, directed against the legislative power of the licenser, resulted in case of contempt for violation of the court's order, but for suppression and
renunciation of the censorship of the press. [n4] The liberty deemed to be injunction, that is, for restraint upon publication.
established was thus described by Blackstone:
The objection has also been made that the principle as to immunity from previous
The liberty of the press is indeed essential to the nature of a free state; but this restraint is stated too [p716] broadly, if every such restraint is deemed to be
consists in laying no previous restraints upon publications, and not in freedom from prohibited. That is undoubtedly true; the protection even as to previous restraint is
censure for criminal matter when published. Every freeman has an [p714] not absolutely unlimited. But the limitation has been recognized only in exceptional
undoubted right to lay what sentiments he pleases before the public; to forbid this is cases:
to destroy the freedom of the press; but if he publishes what is improper,
mischievous or illegal, he must take the consequence of his own temerity. When a nation is at war, many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long as men fight,
4 Bl.Com. 151, 152; see Story on the Constitution, 1884, 1889. The distinction and that no Court could regard them as protected by any constitutional right.
was early pointed out between the extent of the freedom with respect to censorship
under our constitutional system and that enjoyed in England. Here, as Madison said, Schenck v. United States, 249 U.S. 47, 52. No one would question but that a
government might prevent actual obstruction to its recruiting service or the
the great and essential rights of the people are secured against legislative as well as publication of the sailing dates of transports or the number and location of troops.
against executive ambition. They are secured not by laws paramount to prerogative, [n6] On similar grounds, the primary requirements of decency may be enforced
but by constitutions paramount to laws. This security of the freedom of the press against obscene publications. The security of the community life may be protected
requires that it should be exempt not only from previous restraint by the Executive, against incitements to acts of violence and the overthrow by force of orderly
a in Great Britain, but from legislative restraint also. government. The constitutional guaranty of free speech does not

Report on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This Court said, protect a man from an injunction against uttering words that may have all the effect
in Patterson v. Colorado, 205 U.S. 454, 462: of force. Gompers v. Buck Stove & Range Co., 221 U.S. 418, 439.

In the first place, the main purpose of such constitutional provisions is "to prevent all Schenck v. United States, supra. These limitations are not applicable here. Nor are
such previous restraints upon publications as had been practiced by other we now concerned with questions as to the extent of authority to prevent
governments," and they do not prevent the subsequent punishment of such as may publications in order to protect private rights according to the principles governing
be deemed contrary to the public welfare. Commonwealth v. Blanding, 3 Pick. 304, the exercise of the jurisdiction of courts of equity. [n7]
313, 314; Respublica v. Oswald, 1 Dallas 319, 325. The preliminary freedom extends
as well to the false as to the true; the subsequent punishment may extend as well to The exceptional nature of its limitations places in a strong light the general
the true as to the false. This was the law of criminal libel apart from statute in most conception that liberty of the press, historically considered and taken up by the
cases, if not in all. Commonwealth v. Blanding, ubi sup.; 4 Bl.Com. 150. Federal Constitution, has meant, principally, although not exclusively, immunity from
previous restraints or censorship. The conception of the liberty of the press in this publication of newspapers and periodicals. The general principle that the
country had broadened with the exigencies of the colonial [p717] period and with constitutional guaranty of the liberty of the press gives immunity from previous
the efforts to secure freedom from oppressive administration. [n8] That liberty was restraints has been approved in many decisions under the provisions of state
especially cherished for the immunity it afforded from previous restraint of the constitutions. [n11]
publication of censure of public officers and charges of official misconduct. As was
said by Chief Justice Parker, in Commonwealth v. Blanding, 3 Pick. 304, 313, with The importance of this immunity has not lessened. While reckless assaults upon
respect to the constitution of Massachusetts: public men, and efforts to bring obloquy upon those who are endeavoring faithfully
to discharge official duties, exert a baleful influence and deserve the severest
Besides, it is well understood, and received as a commentary on this provision for condemnation in public opinion, it cannot be said that this abuse is greater, and it is
the liberty of the press, that it was intended to prevent all such previous restraints believed to be less, than that which characterized the period in which our
upon publications as had been practiced by other governments, and in early times institutions took shape. Meanwhile, the administration of government has become
here, to stifle the efforts of patriots towards enlightening their fellow subjects upon more complex, the opportunities for malfeasance and corruption have multiplied,
their rights and the duties of rulers. The liberty of the press was to be unrestrained, crime has grown to most serious proportions, and the danger of its protection by
but he who used it was to be responsible in case of its abuse. unfaithful officials and of the impairment of the fundamental security of life and
[p720] property by criminal alliances and official neglect, emphasizes the primary
In the letter sent by the Continental Congress (October 26, 1774) to the Inhabitants need of a vigilant and courageous press, especially in great cities. The fact that the
of Quebec, referring to the "five great rights," it was said: [n9] liberty of the press may be abused by miscreant purveyors of scandal does not
make any the less necessary the immunity of the press from previous restraint in
The last right we shall mention regards the freedom of the press. The importance of dealing with official misconduct. Subsequent punishment for such abuses as may
this consists, besides the advancement of truth, science, morality, and arts in exist is the appropriate remedy consistent with constitutional privilege.
general, in its diffusion of liberal sentiments on the administration of Government,
its ready communication of thoughts between subjects, and its consequential In attempted justification of the statute, it is said that it deals not with publication
promotion of union among them whereby oppressive officers are shamed or per se, but with the "business" of publishing defamation. If, however, the publisher
intimidated into more honourable and just modes of conducting affairs. has a constitutional right to publish, without previous restraint, an edition of his
newspaper charging official derelictions, it cannot be denied that he may publish
Madison, who was the leading spirit in the preparation of the First Amendment of the subsequent editions for the same purpose. He does not lose his right by exercising
Federal Constitution, thus described the practice and sentiment which led to the it. If his right exists, it may be exercised in publishing nine editions, as in this case,
guaranties of liberty of the press in state constitutions: [n10] [p718] as well as in one edition. If previous restraint is permissible, it may be imposed at
once; indeed, the wrong may be as serious in one publication as in several.
In every State, probably, in the Union, the press has exerted a freedom in Characterizing the publication as a business, and the business as a nuisance, does
canvassing the merits and measures of public men of every description which has not permit an invasion of the constitutional immunity against restraint. Similarly, it
not been confined to the strict limits of the common law. On this footing the freedom does not matter that the newspaper or periodical is found to be "largely" or "chiefly"
of the press has stood; on this footing it yet stands. . . . Some degree of abuse is devoted to the publication of such derelictions. If the publisher has a right, without
inseparable from the proper use of everything, and in no instance is this more true previous restraint, to publish them, his right cannot be deemed to be dependent
than in that of the press. It has accordingly been decided by the practice of the upon his publishing something else, more or less, with the matter to which objection
States that it is better to leave a few of its noxious branches to their luxuriant is made.
growth than, by pruning them away, to injure the vigour of those yielding the proper
fruits. And can the wisdom of this policy be doubted by any who reflect that to the Nor can it be said that the constitutional freedom from previous restraint is lost
press alone, chequered as it is with abuses, the world is indebted for all the triumphs because charges are made of derelictions which constitute crimes. With the
which have been gained by reason and humanity over error and oppression; who multiplying provisions of penal codes, and of municipal charters and ordinances
reflect that to the same beneficent source the United States owe much of the lights carrying penal sanctions, the conduct of [p721] public officers is very largely within
which conducted them to the ranks of a free and independent nation, and which the purview of criminal statutes. The freedom of the press from previous restraint
have improved their political system into a shape so auspicious to their happiness? has never been regarded as limited to such animadversions as lay outside the range
Had "Sedition Acts," forbidding every publication that might bring the constituted of penal enactments. Historically, there is no such limitation; it is inconsistent with
agents into contempt or disrepute, or that might excite the hatred of the people the reason which underlies the privilege, as the privilege so limited would be of
against the authors of unjust or pernicious measures, been uniformly enforced slight value for the purposes for which it came to be established.
against the press, might not the United States have been languishing at this day
under the infirmities of a sickly Confederation? Might they not, possibly, be The statute in question cannot be justified by reason of the fact that the publisher is
miserable colonies, groaning under a foreign yoke? permitted to show, before injunction issues, that the matter published is true and is
published with good motives and for justifiable ends. If such a statute, authorizing
The fact that, for approximately one hundred and fifty years, there has been almost suppression and injunction on such a basis, is constitutionally valid, it would be
an entire absence of attempts to impose previous restraints upon publications equally permissible for the legislature to provide that at any time the publisher of
relating to the malfeasance of public officers is significant of the deep-seated any newspaper could be brought before a court, or even an administrative officer (as
conviction that such restraints would violate constitutional right. Public officers, the constitutional protection may not be regarded as resting on mere procedural
whose character and [p719] conduct remain open to debate and free discussion in details) and required to produce proof of the truth of his publication, or of what he
the press, find their remedies for false accusations in actions under libel laws intended to publish, and of his motives, or stand enjoined. If this can be done, the
providing for redress and punishment, and not in proceedings to restrain the legislature may provide machinery for determining in the complete exercise of its
discretion what are justifiable ends, and restrain publication accordingly. And it We granted certiorari in these cases in which the United States seeks to enjoin the
would be but a step to a complete system of censorship. The recognition of authority New York Times and the Washington Post from publishing the contents of a classified
to impose previous restraint upon publication in order to protect the community study entitled "History of U.S. Decision-Making Process on Viet Nam Policy." Post, pp.
against the circulation of charges of misconduct, and especially of official 942, 943.
misconduct, necessarily would carry with it the admission of the authority of the "Any system of prior restraints of expression comes to this Court bearing a heavy
censor against which the constitutional barrier was erected. The preliminary presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372
freedom, by virtue of the very reason for its existence, does not depend, as this U. S. 58, 372 U. S. 70 (1963); see also Near v. Minnesota, 283 U. S. 697 (1931). The
Court has said, on proof of truth. Patterson v. Colorado, supra. Government "thus carries a heavy burden of showing justification for the imposition
of such a restraint." Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U.
Equally unavailing is the insistence that the statute is designed to prevent the S. 419 (1971). The District Court for the Southern District of New York, in the New
circulation of scandal which tends [p722] to disturb the public peace and to provoke York Times case, and the District Court for the District of Columbia and the Court of
assaults and the commission of crime. Charges of reprehensible conduct, and in Appeals for the District of Columbia Circuit, in the Washington Post case, held that
particular of official malfeasance, unquestionably create a public scandal, but the the Government had not met that burden. We agree.
theory of the constitutional guaranty is that even a more serious public evil would be
caused by authority to prevent publication. The judgment of the Court of Appeals for the District of Columbia Circuit is therefore
affirmed. The order of the Court of Appeals for the Second Circuit is reversed, and
To prohibit the intent to excite those unfavorable sentiments against those who the case is remanded with directions to enter a judgment affirming the judgment of
administer the Government is equivalent to a prohibition of the actual excitement of the District Court for the Southern District of New York. The stays entered June 25,
them, and to prohibit the actual excitement of them is equivalent to a prohibition of 1971, by the Court are vacated. The judgments shall issue forthwith.
discussions having that tendency and effect, which, again, is equivalent to a
protection of those who administer the Government, if they should at any time So ordered.
deserve the contempt or hatred of the people, against being exposed to it by free
animadversions on their characters and conduct. [n12] * Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to
the United States Court of Appeals for the District of Columbia Circuit.
There is nothing new in the fact that charges of reprehensible conduct may create
resentment and the disposition to resort to violent means of redress, but this well MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring.
understood tendency did not alter the determination to protect the press against
censorship and restraint upon publication. As was said in New Yorker Staats-Zeitung I adhere to the view that the Government's case against the Washington Post should
v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 72: have been dismissed, and that the injunction against the New York Times should
have been vacated without oral argument when the cases were first presented to
If the township may prevent the circulation of a newspaper for no reason other than this Court. I believe that every moment's continuance of the injunctions against
that some of its inhabitants may violently disagree with it, and resent its circulation these newspapers amounts to a flagrant, indefensible, and continuing violation of
by resorting to physical violence, there is no limit to what may be prohibited. the First Amendment. Furthermore, after oral argument, I agree completely that we
must affirm the judgment of the Court of Appeals for the District of Columbia Circuit
The danger of violent reactions becomes greater with effective organization of and reverse the judgment of the Court of Appeals for the Second Circuit for the
defiant groups resenting exposure, and if this consideration warranted legislative reasons stated by my Brothers DOUGLAS and BRENNAN. In my view, it is
interference with the initial freedom of publication, the constitutional protection unfortunate that some of my Brethren are apparently willing to hold that the
would be reduced to a mere form of words. publication of news may sometimes be enjoined. Such a holding would make a
shambles of the First Amendment.
For these reasons we hold the statute, so far as it authorized the proceedings in this
action under clause (b) [p723] of section one, to be an infringement of the liberty of Our Government was launched in 1789 with the adoption of the Constitution. The Bill
the press guaranteed by the Fourteenth Amendment. We should add that this of Rights, including the First Amendment, followed in 1791. Now, for the first time in
decision rests upon the operation and effect of the statute, without regard to the the 182 years since the founding of the Republic, the federal courts are asked to
question of the truth of the charges contained in the particular periodical. The fact hold that the First Amendment does not mean what it says, but rather means that
that the public officers named in this case, and those associated with the charges of the Government can halt the publication of current news of vital importance to the
official dereliction, may be deemed to be impeccable cannot affect the conclusion people of this country.
that the statute imposes an unconstitutional restraint upon publication. Judgment
reversed. In seeking injunctions against these newspapers, and in its presentation to the
New York Times Co. v. United States, 403 U.S. 713 (1971) Court, the Executive Branch seems to have forgotten the essential purpose and
The United States, which brought these actions to enjoin publication in the New York history of the First Amendment. When the Constitution was adopted, many people
Times and in the Washington Post of certain classified material, has not met the strongly opposed it because the document contained no Bill of Rights to safeguard
"heavy burden of showing justification for the enforcement of such a [prior] certain basic freedoms. [Footnote 1] They especially feared that the new powers
restraint." granted to a central government might be interpreted to permit the government to
curtail freedom of religion, press, assembly, and speech. In response to an
No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___ U.S.App.D.C. ___, 446 overwhelming public clamor, James Madison offered a series of amendments to
F.2d 1327, affirmed. satisfy citizens that these great liberties would remain safe and beyond the power of
government to abridge. Madison proposed what later became the First Amendment In other words, we are asked to hold that, despite the First Amendment's emphatic
in three parts, two of which are set out below, and one of which proclaimed: command, the Executive Branch, the Congress, and the Judiciary can make laws
enjoining publication of current news and abridging freedom of the press in the
"The people shall not be deprived or abridged of their right to speak, to write, or to name of "national security." The Government does not even attempt to rely on any
publish their sentiments, and the freedom of the press, as one of the great bulwarks act of Congress. Instead, it makes the bold and dangerously far-reaching contention
of liberty, shall be inviolable. [Footnote 2]" that the courts should take it upon themselves to "make" a law abridging freedom of
the press in the name of equity, presidential power and national security, even when
(Emphasis added.) The amendments were offered to curtail and restrict the general the representatives of the people in Congress have adhered to the command of the
powers granted to the Executive, Legislative, and Judicial Branches two years before First Amendment and refused to make such a law. [Footnote 5] See concurring
in the original Constitution. The Bill of Rights changed the original Constitution into a opinion of MR. JUSTICE DOUGLAS, post at 403 U. S. 721-722. To find that the
new charter under which no branch of government could abridge the people's President has "inherent power" to halt the publication of news by resort to the courts
freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues would wipe out the First Amendment and destroy the fundamental liberty and
and some members of the Court appear to agree that the general powers of the security of the very people the Government hopes to make "secure." No one can
Government adopted in the original Constitution should be interpreted to limit and read the history of the adoption of the First Amendment without being convinced
restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can beyond any doubt that it was injunctions like those sought here that Madison and his
imagine no greater perversion of history. Madison and the other Framers of the First collaborators intended to outlaw in this Nation for all time.
Amendment, able men that they were, wrote in language they earnestly believed
could never be misunderstood: "Congress shall make no law . . . abridging the The word "security" is a broad, vague generality whose contours should not be
freedom . . . of the press. . . ." Both the history and language of the First Amendment invoked to abrogate the fundamental law embodied in the First Amendment. The
support the view that the press must be left free to publish news, whatever the guarding of military and diplomatic secrets at the expense of informed
source, without censorship, injunctions, or prior restraints. representative government provides no real security for our Republic. The Framers
of the First Amendment, fully aware of both the need to defend a new nation and the
In the First Amendment, the Founding Fathers gave the free press the protection it abuses of the English and Colonial governments, sought to give this new society
must have to fulfill its essential role in our democracy. The press was to serve the strength and security by providing that freedom of speech, press, religion, and
governed, not the governors. The Government's power to censor the press was assembly should not be abridged. This thought was eloquently expressed in 1937 by
abolished so that the press would remain forever free to censure the Government. Mr. Chief Justice Hughes -- great man and great Chief Justice that he was -- when the
The press was protected so that it could bare the secrets of government and inform Court held a man could not be punished for attending a meeting run by
the people. Only a free and unrestrained press can effectively expose deception in Communists.
government. And paramount among the responsibilities of a free press is the duty to
prevent any part of the government from deceiving the people and sending them off "The greater the importance of safeguarding the community from incitements to the
to distant lands to die of foreign fevers and foreign shot and shell. In my view, far overthrow of our institutions by force and violence, the more imperative is the need
from deserving condemnation for their courageous reporting, the New York Times, to preserve inviolate the constitutional rights of free speech, free press and free
the Washington Post, and other newspapers should be commended for serving the assembly in order to maintain the opportunity for free political discussion, to the end
purpose that the Founding Fathers saw so clearly. In revealing the workings of that government may be responsive to the will of the people and that changes, if
government that led to the Vietnam war, the newspapers nobly did precisely that desired, may be obtained by peaceful means. Therein lies the security of the
which the Founders hoped and trusted they would do. Republic, the very foundation of constitutional government. [Footnote 6]"

The Government's case here is based on premises entirely different from those that [Footnote 1]In introducing the Bill of Rights in the House of Representatives, Madison
guided the Framers of the First Amendment. The Solicitor General has carefully and said:
emphatically stated:
"[B]ut I believe that the great mass of the people who opposed [the Constitution]
"Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well disliked it because it did not contain effectual provisions against the encroachments
known, and I certainly respect it. You say that no law means no law, and that should on particular rights. . . ."
be obvious. I can only say, Mr. Justice, that to me it is equally obvious that 'no law'
does not mean 'no law,' and I would seek to persuade the Court that that is true. . . . 1 Annals of Cong. 433. Congressman Goodhue added:
[T]here are other parts of the Constitution that grant powers and responsibilities to "[I]t is the wish of many of our constituents that something should be added to the
the Executive, and . . . the First Amendment was not intended to make it impossible Constitution to secure in a stronger manner their liberties from the inroads of
for the Executive to function or to protect the security of the United States. power." [Footnote 2]
[Footnote 3]"
The other parts were:
And the Government argues in its brief that, in spite of the First Amendment, "The civil rights of none shall be abridged on account of religious belief or worship,
nor shall any national religion be established, nor shall the full and equal rights of
"[t]he authority of the Executive Department to protect the nation against conscience be in any manner, or on any pretext, infringed."
publication of information whose disclosure would endanger the national security
stems from two interrelated sources: the constitutional power of the President over "The people shall not be restrained from peaceably assembling and consulting for
the conduct of foreign affairs and his authority as Commander-in-Chief. [Footnote 4]" their common good, nor from applying to the Legislature by petitions, or
remonstrances, for redress of their grievances."
Thus, it is apparent that Congress was capable of, and did, distinguish between
1 Annals of Cong. 434.[Footnote 3] publishing and communication in the various sections of the Espionage Act.

Tr. of Oral Arg. 76.[Footnote 4] The other evidence that 793 does not apply to the press is a rejected version of
Brief for the United States 13-14.[Footnote 5] 793. That version read:

Compare the views of the Solicitor General with those of James Madison, the author "During any national emergency resulting from a war to which the United States is a
of the First Amendment. When speaking of the Bill of Rights in the House of party, or from threat of such a war, the President may, by proclamation, declare the
Representatives, Madison said: existence of such emergency and, by proclamation, prohibit the publishing or
communicating of, or the attempting to publish or communicate any information
"If they [the first ten amendments] are incorporated into the Constitution, relating to the national defense which, in his judgment, is of such character that it is
independent tribunals of justice will consider themselves in a peculiar manner the or might be useful to the enemy."
guardians of those rights; they will be an impenetrable bulwark against every
assumption of power in the Legislative or Executive; they will be naturally led to 55 Cong.Rec. 1763. During the debates in the Senate, the First Amendment was
resist every encroachment upon rights expressly stipulated for in the Constitution by specifically cited, and that provision was defeated. 55 Cong.Rec. 2167.
the declaration of rights."
Judge Gurfein's holding in the Times case that this Act does not apply to this case
1 Annals of Cong. 439.[Footnote 6] was therefore preeminently sound. Moreover, the Act of September 23, 1950, in
amending 18 U.S.C. 793 states in 1(b) that:
De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365.
"Nothing in this Act shall be construed to authorize, require, or establish military or
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring. civilian censorship or in any way to limit or infringe upon freedom of the press or of
speech as guaranteed by the Constitution of the United States and no regulation
While I join the opinion of the Court, I believe it necessary to express my views more shall be promulgated hereunder having that effect."
64 Stat. 987. Thus, Congress has been faithful to the command of the First
It should be noted at the outset that the First Amendment provides that "Congress Amendment in this area.
shall male no law . . . abridging the freedom of speech, or of the press." That leaves,
in my view, no room for governmental restraint on the press. [Footnote 2/1] So any power that the Government possesses must come from its "inherent power."

There is, moreover, no statute barring the publication by the press of the material The power to wage war is "the power to wage war successfully." See Hirabayashi v.
which the Times and the Post seek to use. Title 18 U.S.C. 793(e) provides that United States, 320 U. S. 81, 320 U. S. 93. But the war power stems from a
declaration of war. The Constitution by Art. I, 8, gives Congress, not the President,
"[w]hoever having unauthorized possession of, access to, or control over any power "[t]o declare War." Nowhere are presidential wars authorized. We need not
document, writing . . . or information relating to the national defense which decide, therefore, what leveling effect the war power of Congress might have.
information the possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communicates . . . These disclosures [Footnote 2/3] may have a serious impact. But that is no basis for
the same to any person not entitled to receive it . . . [s]hall be fined not more than sanctioning a previous restraint on the press. As stated by Chief Justice Hughes in
$10,000 or imprisoned not more than ten years, or both." Near v. Minnesota, 283 U. S. 697, 283 U. S. 719-720:

The Government suggests that the word "communicates" is broad enough to "While reckless assaults upon public men, and efforts to bring obloquy upon those
encompass publication. who are endeavoring faithfully to discharge official duties, exert a baleful influence
and deserve the severest condemnation in public opinion, it cannot be said that this
There are eight sections in the chapter on espionage and censorship, 792-799. In abuse is greater, and it is believed to be less, than that which characterized the
three of those eight, "publish" is specifically mentioned: 794(b) applies to period in which our institutions took shape. Meanwhile, the administration of
government has become more complex, the opportunities for malfeasance and
"Whoever, in time of war, with intent that the same shall be communicated to the corruption have multiplied, crime has grown to most serious proportions, and the
enemy, collects, records, publishes, or communicates . . . [the disposition of armed danger of its protection by unfaithful officials and of the impairment of the
forces]." fundamental security of life and property by criminal alliances and official neglect,
emphasizes the primary need of a vigilant and courageous press, especially in great
Section 797 applies to whoever "reproduces, publishes, sells, or gives away" cities. The fact that the liberty of the press may be abused by miscreant purveyors
photographs of defense installations. of scandal does not make any the less necessary the immunity of the press from
Section 798, relating to cryptography, applies to whoever: "communicates, previous restraint in dealing with official misconduct."
furnishes, transmits, or otherwise makes available . . . or publishes" the described
material. [Footnote 2/2] (Emphasis added.) As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.
S. 415, 402 U. S. 419, "[a]ny prior restraint on expression comes to this Court with a
"heavy presumption" against its constitutional validity."
I write separately in these cases only to emphasize what should be apparent: that
The Government says that it has inherent powers to go into court and obtain an our judgments in the present cases may not be taken to indicate the propriety, in
injunction to protect the national interest, which, in this case, is alleged to be the future, of issuing temporary stays and restraining
national security.
Page 403 U. S. 725
Near v. Minnesota, 283 U. S. 697, repudiated that expansive doctrine in no uncertain
terms. orders to block the publication of material sought to be suppressed by the
Government. So far as I can determine, never before has the United States sought to
The dominant purpose of the First Amendment was to prohibit the widespread enjoin a newspaper from publishing information in its possession. The relative
practice of governmental suppression of embarrassing information. It is common novelty of the questions presented, the necessary haste with which decisions were
knowledge that the First Amendment was adopted against the widespread use of the reached, the magnitude of the interests asserted, and the fact that all the parties
common law of seditious libel to punish the dissemination of material that is have concentrated their arguments upon the question whether permanent restraints
embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of were proper may have justified at least some of the restraints heretofore imposed in
Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). these cases. Certainly it is difficult to fault the several courts below for seeking to
The present cases will, I think, go down in history as the most dramatic illustration of assure that the issues here involved were preserved for ultimate review by this
that principle. A debate of large proportions goes on in the Nation over our posture Court. But even if it be assumed that some of the interim restraints were proper in
in Vietnam. That debate antedated the disclosure of the contents of the present the two cases before us, that assumption has no bearing upon the propriety of
documents. The latter are highly relevant to the debate in progress. similar judicial action in the future. To begin with, there has now been ample time for
reflection and judgment; whatever values there may be in the preservation of novel
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic questions for appellate review may not support any restraints in the future. More
errors. Open debate and discussion of public issues are vital to our national health. important, the First Amendment stands as an absolute bar to the imposition of
On public questions, there should be "uninhibited, robust, and wide-open" debate. judicial restraints in circumstances of the kind presented by these cases.
New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 269-270.
I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay The error that has pervaded these cases from the outset was the granting of any
of the Court of Appeals in the Times case, and direct that it affirm the District Court. injunctive relief whatsoever, interim or otherwise. The entire thrust of the
Government's claim throughout these cases has been that publication of the
The stays in these cases that have been in effect for more than a week constitute a material sought to be enjoined "could," or "might," or "may" prejudice the national
flouting of the principles of the First Amendment as interpreted in Near v. Minnesota. interest in various ways. But the First Amendment tolerates absolutely no prior
[Footnote 2/1] judicial restraints of the press predicated upon surmise or conjecture that untoward
consequences may result.* Our cases, it is true, have indicated that there is a single,
See Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 267 (dissenting opinion of MR. extremely narrow class of cases in which the First Amendment's ban on prior judicial
JUSTICE BLACK), 284 (my dissenting opinion); Roth v. United States, 354 U. S. 476, restraint may be overridden. Our cases have thus far indicated that such cases may
354 U. S. 508 (my dissenting opinion which MR. JUSTICE BLACK joined); Yates v. arise only when the Nation "is at war," Schenck v. United States, 249 U. S. 47, 249 U.
United States, 354 U. S. 298, 354 U. S. 339 (separate opinion of MR. JUSTICE BLACK S. 52 (1919), during which times
which I joined); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 293
(concurring opinion of MR. JUSTICE BLACK which I joined); Garrison v. Louisiana, 379 "[n]o one would question but that a government might prevent actual obstruction to
U. S. 64, 379 U. S. 80 (my concurring opinion which MR. JUSTICE BLACK joined). its recruiting service or the publication of the sailing dates of transports or the
[Footnote 2/2] number and location of troops."

These documents contain data concerning the communications system of the United Near v. Minnesota, 283 U. S. 697, 283 U. S. 716 (1931). Even if the present world
States, the publication of which is made a crime. But the criminal sanction is not situation were assumed to be tantamount to a time of war, or if the power of
urged by the United States as the basis of equity power. [Footnote 2/3] presently available armaments would justify even in peacetime the suppression of
information that would set in motion a nuclear holocaust, in neither of these actions
There are numerous sets of this material in existence, and they apparently are not has the Government presented or even alleged that publication of items from or
under any controlled custody. Moreover, the President has sent a set to the based upon the material at issue would cause the happening of an event of that
Congress. We start, then, with a case where there already is rather wide distribution nature. "[T]he chief purpose of [the First Amendment's] guaranty [is] to prevent
of the material that is destined for publicity, not secrecy. I have gone over the previous restraints upon publication." Near v. Minnesota, supra, at 283 U. S. 713.
material listed in the in camera brief of the United States. It is all history, not future Thus, only governmental allegation and proof that publication must inevitably,
events. None of it is more recent than 1968. directly, and immediately cause the occurrence of an event kindred to imperiling the
safety of a transport already at sea can support even the issuance of an interim
MR. JUSTICE BRENNAN, concurring. restraining order. In no event may mere conclusions be sufficient, for if the Executive
Branch seeks judicial aid in preventing publication, it must inevitably submit the
I basis upon which that aid is sought to scrutiny by the judiciary. And, therefore, every
restraint issued in this case, whatever its form, has violated the First Amendment --
and not less so because that restraint was justified as necessary to afford the courts
an opportunity to examine the claim more thoroughly. Unless and until the
Government has clearly made out its case, the First Amendment commands that no intent on self-protection or self-promotion. I should suppose, in short, that the
injunction may issue. hallmark of a truly effective internal security system would be the maximum
possible disclosure, recognizing that secrecy can best be preserved only when
* Freedman v. Maryland, 380 U. S. 51 (1965), and similar cases regarding temporary credibility is truly maintained. But, be that as it may, it is clear to me that it is the
restraints of allegedly obscene materials are not in point. For those cases rest upon constitutional duty of the Executive -- as a matter of sovereign prerogative, and not
the proposition that "obscenity is not protected by the freedoms of speech and as a matter of law as the courts know law -- through the promulgation and
press." Roth v. United States, 354 U. S. 476, 354 U. S. 481 (1957). Here there is no enforcement of executive regulations, to protect the confidentiality necessary to
question but that the material sought to be suppressed is within the protection of carry out its responsibilities in the fields of international relations and national
the First Amendment; the only question is whether, notwithstanding that fact, its defense.
publication may be enjoined for a time because of the presence of an overwhelming
national interest. Similarly, copyright cases have no pertinence here: the This is not to say that Congress and the courts have no role to play. Undoubtedly,
Government is not asserting an interest in the particular form of words chosen in the Congress has the power to enact specific and appropriate criminal laws to protect
documents, but is seeking to suppress the ideas expressed therein. And the government property and preserve government secrets. Congress has passed such
copyright laws, of course, protect only the form of expression, and not the ideas laws, and several of them are of very colorable relevance to the apparent
expressed. circumstances of these cases. And if a criminal prosecution is instituted, it will be the
responsibility of the courts to decide the applicability of the criminal law under which
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring. the charge is brought. Moreover, if Congress should pass a specific law authorizing
civil proceedings in this field, the courts would likewise have the duty to decide the
In the governmental structure created by our Constitution, the Executive is endowed constitutionality of such a law, as well as its applicability to the facts proved.
with enormous power in the two related areas of national defense and international
relations. This power, largely unchecked by the Legislative [Footnote 3/1] and But in the cases before us, we are asked neither to construe specific regulations nor
Judicial [Footnote 3/2] branches, has been pressed to the very hilt since the advent to apply specific laws. We are asked, instead, to perform a function that the
of the nuclear missile age. For better or for worse, the simple fact is that a Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to
prevent the publication by two newspapers of material that the Executive Branch
President of the United States possesses vastly greater constitutional independence insists should not, in the national interest, be published. I am convinced that the
in these two vital areas of power than does, say, a prime minister of a country with a Executive is correct with respect to some of the documents involved. But I cannot
parliamentary form of government. say that disclosure of any of them will surely result in direct, immediate, and
irreparable damage to our Nation or its people. That being so, there can under the
In the absence of the governmental checks and balances present in other areas of First Amendment be but one judicial resolution of the issues before us. I join the
our national life, the only effective restraint upon executive policy and power in the judgments of the Court. [Footnote 3/1]
areas of national defense and international affairs may lie in an enlightened citizenry
-- in an informed and critical public opinion which alone can here protect the values The President's power to make treaties and to appoint ambassadors is, of course,
of democratic government. For this reason, it is perhaps here that a press that is limited by the requirement of Art. II, 2, of the Constitution that he obtain the advice
alert, aware, and free most vitally serves the basic purpose of the First Amendment. and consent of the Senate. Article I, 8, empowers Congress to "raise and support
For, without an informed and free press, there cannot be an enlightened people. Armies," and "provide and maintain a Navy." And, of course, Congress alone can
declare war. This power was last exercised almost 30 years ago at the inception of
Yet it is elementary that the successful conduct of international diplomacy and the World War II. Since the end of that war in 1945, the Armed Forces of the United
maintenance of an effective national defense require both confidentiality and States have suffered approximately half a million casualties in various parts of the
secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual world. [Footnote 3/2]
trust unless they can be assured that their confidences will be kept. And, within our
own executive departments, the development of considered and intelligent See Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S. 103; Hirabayashi
international policies would be impossible if those charged with their formulation v. United States, 320 U. S. 81; United States v. Curtiss-Wright Corp., 299 U. S. 304;
could not communicate with each other freely, frankly, and in confidence. In the cf. Mora v. McNamara, 128 U.S.App.D.C. 297, 387 F.2d 862, cert. denied, 389 U. S.
area of basic national defense, the frequent need for absolute secrecy is, of course, 934. [Footnote 3/3]
"It is quite apparent that, if, in the maintenance of our international relations,
I think there can be but one answer to this dilemma, if dilemma it be. The embarrassment -- perhaps serious embarrassment -- is to be avoided and success
responsibility must be where the power is. [Footnote 3/3] If the Constitution gives for our aims achieved, congressional legislation which is to be made effective
the Executive a large degree of unshared power in the conduct of foreign affairs and through negotiation and inquiry within the international field must often accord to
the maintenance of our national defense, then, under the Constitution, the Executive the President a degree of discretion and freedom from statutory restriction which
must have the largely unshared duty to determine and preserve the degree of would not be admissible were domestic affairs alone involved. Moreover, he, not
internal security necessary to exercise that power successfully. It is an awesome Congress, has the better opportunity of knowing the conditions which prevail in
responsibility, requiring judgment and wisdom of a high order. I should suppose that foreign countries, and especially is this true in time of war. He has his confidential
moral, political, and practical considerations would dictate that a very first principle sources of information. He has his agents in the form of diplomatic, consular and
of that wisdom would be an insistence upon avoiding secrecy for its own sake. For other officials. Secrecy in respect of information gathered by them may be highly
when everything is classified, then nothing is classified, and the system becomes necessary, and the premature disclosure of it productive of harmful results. Indeed,
one to be disregarded by the cynical or the careless, and to be manipulated by those so clearly is this true that the first President refused to accede to a request to lay
before the House of Representatives the instructions, correspondence and What is more, terminating the ban on publication of the relatively few sensitive
documents relating to the negotiation of the Jay Treaty -- a refusal the wisdom of documents the Government now seeks to suppress does not mean that the law
which was recognized by the House itself, and has never since been doubted. . . ." either requires or invites newspapers or others to publish them, or that they will be
immune from criminal action if they do. Prior restraints require an unusually heavy
United States v. Curtiss-Wright Corp., 299 U. S. 304, 299 U. S. 320. justification under the First Amendment, but failure by the Government to justify
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring. prior restraints does not measure its constitutional entitlement to a conviction for
criminal publication. That the Government mistakenly chose to proceed by injunction
I concur in today's judgments, but only because of the concededly extraordinary does not mean that it could not successfully proceed in another way.
protection against prior restraints enjoyed by the press under our constitutional
system. I do not say that in no circumstances would the First Amendment permit an When the Espionage Act was under consideration in 1917, Congress eliminated from
injunction against publishing information about government plans or operations. the bill a provision that would have given the President broad powers in time of war
[Footnote 4/1] Nor, after examining the materials the Government characterizes as to proscribe, under threat of criminal penalty, the publication of various categories
the most sensitive and destructive, can I deny that revelation of these documents of information related to the national defense. [Footnote 4/3] Congress at that time
will do substantial damage to public interests. Indeed, I am confident that their was unwilling to clothe the President with such far-reaching powers to monitor the
disclosure will have that result. But I nevertheless agree that the United States has press, and those opposed to this part of the legislation assumed that a necessary
not satisfied the very heavy burden that it must meet to warrant an injunction concomitant of such power was the power to "filter out the news to the people
against publication in these cases, at least in the absence of express and through some man." 55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these
appropriately limited congressional authorization for prior restraints in same members of Congress appeared to have little doubt that newspapers would be
circumstances such as these. subject to criminal prosecution if they insisted on publishing information of the type
Congress had itself determined should not be revealed. Senator Ashurst, for
The Government's position is simply stated: the responsibility of the Executive for example, was quite sure that the editor of such a newspaper
the conduct of the foreign affairs and for the security of the Nation is so basic that
the President is entitled to an injunction against publication of a newspaper story "should be punished if he did publish information as to the movements of the fleet,
whenever he can convince a court that the information to be revealed threatens the troops, the aircraft, the location of powder factories, the location of defense
"grave and irreparable" injury to the public interest; [Footnote 4/2] and the works, and all that sort of thing."
injunction should issue whether or not the material to be published is classified, Id. at 2009. [Footnote 4/4]
whether or not publication would be lawful under relevant criminal statutes enacted
by Congress, and regardless of the circumstances by which the newspaper came The Criminal Code contains numerous provisions potentially relevant to these cases.
into possession of the information. At least in the absence of legislation by Congress, Section 797 [Footnote 4/5] makes it a crime to publish certain photographs or
based on its own investigations and findings, I am quite unable to agree that the drawings of military installations. Section 798, [Footnote 4/6] also in precise
inherent powers of the Executive and the courts reach so far as to authorize language, proscribes knowing and willful publication of any classified information
remedies having such sweeping potential for inhibiting publications by the press. concerning the cryptographic systems or communication intelligence activities of
Much of the difficulty inheres in the "grave and irreparable danger" standard the United States, as well as any information obtained from communication
suggested by the United States. If the United States were to have judgment under intelligence operations. [Footnote 4/7] If any of the material here at issue is of this
such a standard in these cases, our decision would be of little guidance to other nature, the newspapers are presumably now on full notice of the position of the
courts in other cases, for the material at issue here would not be available from the United States, and must face the consequences if they publish. I would have no
Court's opinion or from public records, nor would it be published by the press. difficulty in sustaining convictions under these sections on facts that would not
Indeed, even today, where we hold that the United States has not met its burden, justify the intervention of equity and the imposition of a prior restraint.
the material remains sealed in court records and it is properly not discussed in
today's opinions. Moreover, because the material poses substantial dangers to The same would be true under those sections of the Criminal Code casting a wider
national interests, and because of the hazards of criminal sanctions, a responsible net to protect the national defense. Section 793(e) [Footnote 4/8] makes it a criminal
press may choose never to publish the more sensitive materials. To sustain the act for any unauthorized possessor of a document "relating to the national defense"
Government in these cases would start the courts down a long and hazardous road either (1) willfully to communicate or cause to be communicated that document to
that I am not willing to travel, at least without congressional guidance and direction. any person not entitled to receive it or (2) willfully to retain the document and fail to
deliver it to an officer of the United States entitled to receive it. The subsection was
It is not easy to reject the proposition urged by the United States, and to deny relief added in 1950 because preexisting law provided no penalty for the unauthorized
on its good faith claims in these cases that publication will work serious damage to possessor unless demand for the documents was made. [Footnote 4/9]
the country. But that discomfiture is considerably dispelled by the infrequency of
prior-restraint cases. Normally, publication will occur and the damage be done "The dangers surrounding the unauthorized possession of such items are self-
before the Government has either opportunity or grounds for suppression. So here, evident, and it is deemed advisable to require their surrender in such a case,
publication has already begun, and a substantial part of the threatened damage has regardless of demand, especially since their unauthorized possession may be
already occurred. The fact of a massive breakdown in security is known, access to unknown to the authorities who would otherwise make the demand."
the documents by many unauthorized people is undeniable, and the efficacy of
equitable relief against these or other newspapers to avert anticipated damage is S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before
doubtful, at best. us, the unpublished documents have been demanded by the United States, and
their import has been made known at least to counsel for the newspapers involved.
In Gorin v. United States, 312 U. S. 19, 312 U. S. 28 (1941), the words "national
defense" as used in a predecessor of 793 were held by a unanimous Court to have States, or with respect to the plans or conduct of any naval or military operations, or
"a well understood connotation" -- a "generic concept of broad connotations, with respect to any works or measures undertaken for or connected with, or
referring to the military and naval establishments and the related activities of intended for the fortification or defense of any place, or any other information
national preparedness" -- and to be "sufficiently definite to apprise the public of relating to the public defense calculated to be useful to the enemy, shall be
prohibited activities" and to be consonant with due process. 312 U.S. at 312 U. S. 28. punished by a fine . . . or by imprisonment. . . ."
Also, as construed by the Court in Gorin, information "connected with the national
defense" is obviously not limited to that threatening "grave and irreparable" injury to 55 Cong.Rec. 2100.[Footnote 4/4]
the United States. [Footnote 4/10]
Senator Ashurst also urged that
It is thus clear that Congress has addressed itself to the problems of protecting the "'freedom of the press' means freedom from the restraints of a censor, means the
security of the country and the national defense from unauthorized disclosure of absolute liberty and right to publish whatever you wish; but you take your chances
potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 of punishment in the courts of your country for the violation of the laws of libel,
U. S. 579, 343 U. S. 585-586 (1952); see also id. at 343 U. S. 593-628 (Frankfurter, J., slander, and treason."
concurring). It has not, however, authorized the injunctive remedy against 55 Cong.Rec. 2005.[Footnote 4/5]
threatened publication. It has apparently been satisfied to rely on criminal sanctions
and their deterrent effect on the responsible, as well as the irresponsible, press. I am Title 18 U.S.C. 797 provides:
not, of course, saying that either of these newspapers has yet committed a crime, or "On and after thirty days from the date upon which the President defines any vital
that either would commit a crime if it published all the material now in its military or naval installation or equipment as being within the category
possession. That matter must await resolution in the context of a criminal contemplated under section 795 of this title, whoever reproduces, publishes, sells,
proceeding if one is instituted by the United States. In that event, the issue of guilt or gives away any photograph, sketch, picture, drawing, map, or graphical
or innocence would be determined by procedures and standards quite different from representation of the vital military or naval installations or equipment so defined,
those that have purported to govern these injunctive proceedings. [Footnote 4/1] without first obtaining permission of the commanding officer of the military or naval
post, camp, or station concerned, or higher authority, unless such photograph,
The Congress has authorized a strain of prior restraints against private parties in sketch, picture, drawing, map, or graphical representation has clearly indicated
certain instances. The National Labor Relations Board routinely issues cease and thereon that it has been censored by the proper military or naval authority, shall be
desist orders against employers who it finds have threatened or coerced employees fined not more than $1,000 or imprisoned not more than one year, or both."
in the exercise of protected rights. See 29 U.S.C. 160(c). Similarly, the Federal [Footnote 4/6]
Trade Commission is empowered to impose cease and desist orders against unfair
methods of competition. 15 U.S.C. 45(b). Such orders can, and quite often do, In relevant part 18 U.S.C. 798 provides:
restrict what may be spoken or written under certain circumstances. See, e.g., NLRB "(a) Whoever knowingly and willfully communicates, furnishes, transmits, or
v. Gissel Packing Co., 395 U. S. 575, 395 U. S. 616-620 (1969). Article I, 8, of the otherwise makes available to an unauthorized person, or publishes, or uses in any
Constitution authorizes Congress to secure the "exclusive right" of authors to their manner prejudicial to the safety or interest of the United States or for the benefit of
writings, and no one denies that a newspaper can properly be enjoined from any foreign government to the detriment of the United States any classified
publishing the copyrighted works of another. See Westermann Co. v. Dispatch Co., information -- "
249 U. S. 100 (1919). Newspapers do themselves rely from time to time on the "(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic
copyright as a means of protecting their accounts of important events. However, system of the United States or any foreign government; or"
those enjoined under the statutes relating to the National Labor Relations Board and "(2) concerning the design, construction, use, maintenance, or repair of any device,
the Federal Trade Commission are private parties, not the press, and, when the press apparatus, or appliance used or prepared or planned for use by the United States or
is enjoined under the copyright laws, the complainant is a private copyright holder any foreign government for cryptographic or communication intelligence purposes;
enforcing a private right. These situations are quite distinct from the Government's or"
request for an injunction against publishing information about the affairs of "(3) concerning the communication intelligence activities of the United States or any
government, a request admittedly not based on any statute. foreign government; or"
[Footnote 4/2] "(4) obtained by the process of communication intelligence from the
communications of any foreign government, knowing the same to have been
The "grave and irreparable danger" standard is that asserted by the Government in obtained by such processes -- "
this Court. In remanding to Judge Gurfein for further hearings in the Times litigation, "Shall be fined not more than $10,000 or imprisoned not more than ten years, or
five members of the Court of Appeals for the Second Circuit directed him to both."[Footnote 4/7]
determine whether disclosure of certain items specified with particularity by the
Government would "pose such grave and immediate danger to the security of the The purport of 18 U.S.C. 798 is clear. Both the House and Senate Reports on the
United States as to warrant their publication being enjoined." bill, in identical terms, speak of furthering the security of the United States by
preventing disclosure of information concerning the cryptographic systems and the
[Footnote 4/3] communication intelligence systems of the United States, and explaining that

"Whoever, in time of war, in violation of reasonable regulations to be prescribed by "[t]his bill makes it a crime to reveal the methods, techniques, and materiel used in
the President, which he is hereby authorized to make and promulgate, shall publish the transmission by this Nation of enciphered or coded messages. . . . Further, it
any information with respect to the movement, numbers, description, condition, or makes it a crime to reveal methods used by this Nation in breaking the secret codes
disposition of any of the armed forces, ships, aircraft, or war materials of the United of a foreign nation. It also prohibits under certain penalties the divulging of any
information which may have come into this Government's hands as a result of such "(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the
a code-breaking." unlawful dissemination of 'information relating to the national defense which
information the possessor has reason to believe could be used to the injury of the
H.R.Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute United States or to the advantage of any foreign nation.' The phrase 'which
was explained as covering "only a small category of classified matter, a category information the possessor has reason to believe could be used to the injury of the
which is both vital and vulnerable to an almost unique degree." Id. at 2. Existing United States or to the advantage of any foreign nation' would modify only
legislation was deemed inadequate. 'information relating to the national defense,' and not the other items enumerated in
the subsection. The fourth paragraph of section 793 is also amended to provide that
"At present, two other acts protect this information, but only in a limited way. These only those with lawful possession of the items relating to national defense
are the Espionage Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat. enumerated therein may retain them subject to demand therefor. Those who have
122). Under the first, unauthorized revelation of information of this kind can be unauthorized possession of such items are treated in a separate subsection."
penalized only if it can be proved that the person making the revelation did so with
an intent to injure the United States. Under the second, only diplomatic codes and "(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized
messages transmitted in diplomatic codes are protected. The present bill is designed possessors of items enumerated in paragraph 4 of section 793 must surrender
to protect against knowing and willful publication or any other revelation of all possession thereof to the proper authorities without demand. Existing law provides
important information affecting the United States communication intelligence no penalty for the unauthorized possession of such items unless a demand for them
operations and all direct information about all United States codes and ciphers." is made by the person entitled to receive them. The dangers surrounding the
unauthorized possession of such items are self-evident, and it is deemed advisable
Ibid. Section 798 obviously was intended to cover publications by nonemployees of to require their surrender in such a case, regardless of demand, especially since
the Government, and to ease the Government's burden in obtaining convictions. See their unauthorized possession may be unknown to the authorities who would
H.R.Rep. No. 1895, supra, at 2-5. The identical Senate Report, not cited in parallel in otherwise make the demand. The only difference between subsection (d) and
the text of this footnote, is S.Rep. No. 111, 81st Cong., 1st Sess. (1949). [Footnote subsection (e) of section 793 is that a demand by the person entitled to receive the
4/8] items would be a necessary element of an offense under subsection (d) where the
possession is lawful, whereas such a demand would not be a necessary element of
Section 793(e) of 18 U.S.C. provides that: an offense under subsection (e) where the possession is unauthorized."
"(e) Whoever having unauthorized possession of, access to, or control over any
document, writing, code book, signal book, sketch, photograph, photographic S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added).
negative, blueprint, plan, map, model, instrument, appliance, or note relating to the
national defense, or information relating to the national defense which information It seems clear from the foregoing, contrary to the intimations of the District Court for
the possessor has reason to believe could be used to the injury of the United States the Southern District of New York in this case, that, in prosecuting for
or to the advantage of any foreign nation, willfully communicates, delivers, transmits communicating or withholding a "document," as contrasted with similar action with
or causes to be communicated, delivered, or transmitted, or attempts to respect to "information," the Government need not prove an intent to injure the
communicate, deliver, transmit or cause to be communicated, delivered, or United States or to benefit a foreign nation, but only willful and knowing conduct.
transmitted the same to any person not entitled to receive it, or willfully retains the The District Court relied on Gorin v. United States, 312 U. S. 19 (1941). But that case
same and fails to deliver it to the officer or employee of the United States entitled to arose under other parts of the predecessor to 793, see 312 U.S. at 312 U. S. 21-22
receive it;" -- parts that imposed different intent standards not repeated in 793(d) or 793(e).
Cf. 18 U.S.C. 793(a), (b), and (c). Also, from the face of subsection (e) and from
is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It the context of the Act of which it was a part, it seems undeniable that a newspaper,
should also be noted that 18 U.S.C. 793(g), added in 1950 (see 64 Stat. 1004; as well as others unconnected with the Government, are vulnerable to prosecution
S.Rep. No. 239, pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides that, under 793(e) if they communicate or withhold the materials covered by that
section. The District Court ruled that "communication" did not reach publication by a
"[i]f two or more persons conspire to violate any of the foregoing provisions of this newspaper of documents relating to the national defense. I intimate no views on the
section, and one or more of such persons do any act to effect the object of the correctness of that conclusion. But neither communication nor publication is
conspiracy, each of the parties to such conspiracy shall be subject to the necessary to violate the subsection. [Footnote 4/10]
punishment provided for the offense which is the object of such conspiracy."
[Footnote 4/9] Also relevant is 18 U.S.C. 794. Subsection (b) thereof forbids in time of war the
collection or publication, with intent that it shall be communicated to the enemy, of
The amendment of 793 that added subsection (e) was part of the Subversive any information with respect to the movements of military forces,
Activities Control Act of 1950, which was, in turn, Title I of the Internal Security Act of
1950. See 64 Stat. 987. The report of the Senate Judiciary Committee best explains "or with respect to the plans or conduct . . . of any naval or military operations . . . or
the purposes of the amendment: any other information relating to the public defense, which might be useful to the
enemy. . . ."
"Section 18 of the bill amends section 793 of title 18 of the United States Code
(espionage statute). The several paragraphs of section 793 of title 18 are designated MR. JUSTICE MARSHALL, concurring.
as subsections (a) through (g) for purposes of convenient reference. The significant The Government contends that the only issue in these cases is whether, in a suit by
changes which would be made in section 793 of title 18 are as follows: " the United States, "the First Amendment bars a court from prohibiting a newspaper
from publishing material whose disclosure would pose a 'grave and immediate
danger to the security of the United States.' " Brief for the United States 7. With all a crime to receive, disclose, communicate, withhold, and publish certain documents,
due respect, I believe the ultimate issue in these cases is even more basic than the photographs, instruments, appliances, and information. The bulk of these statutes is
one posed by the Solicitor General. The issue is whether this Court or the Congress found in chapter 37 of U.S.C. Title 18, entitled Espionage and Censorship. [Footnote
has the power to make law. 5/3] In that chapter, Congress has provided penalties ranging from a $10,000 fine to
death for violating the various statutes.
In these cases, there is no problem concerning the President's power to classify
information as "secret" or "top secret." Congress has specifically recognized Thus, it would seem that in order for this Court to issue an injunction it would require
Presidential authority, which has been formally exercised in Exec.Order 10501 a showing that such an injunction would enhance the already exiting power of the
(1953), to classify documents and information. See, e.g., 18 U.S.C. 798; 50 U.S.C. Government to act. See Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d 439 (1938). It is a
783. [Footnote 5/1] Nor is there any issue here regarding the President's power as traditional axiom of equity that a court of equity will not do a useless thing, just as it
Chief Executive and Commander in Chief to protect national security by disciplining is a traditional axiom that equity will not enjoin the commission of a crime. See Z.
employees who disclose information and by taking precautions to prevent leaks. Chafee & E. Re, Equity 935-954 (5th ed.1967); 1 H. Joyce, Injunctions 580a
(1909). Here, there has been no attempt to make such a showing. The Solicitor
The problem here is whether, in these particular cases, the Executive Branch has General does not even mention in his brief whether the Government considers that
authority to invoke the equity jurisdiction of the courts to protect what it believes to there is probable cause to believe a crime has been committed, or whether there is
be the national interest. See In re Debs, 158 U. S. 564, 158 U. S. 584 (1895). The a conspiracy to commit future crimes.
Government argues that, in addition to the inherent power of any government to
protect itself, the President's power to conduct foreign affairs and his position as If the Government had attempted to show that there was no effective remedy under
Commander in Chief give him authority to impose censorship on the press to protect traditional criminal law, it would have had to show that there is no arguably
his ability to deal effectively with foreign nations and to conduct the military affairs applicable statute. Of course, at this stage, this Court could not and cannot
of the country. Of course, it is beyond cavil that the President has broad powers by determine whether there has been a violation of a particular statute or decide the
virtue of his primary responsibility for the conduct of our foreign affairs and his constitutionality of any statute. Whether a good faith prosecution could have been
position as Commander in Chief. Chicago & Southern Air Lines v. Waterman S.S. instituted under any statute could, however, be determined.
Corp., 333 U. S. 103 (1948); Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 93
(1943); United States v. Curtiss Page 403 U. S. 745

Wright Corp., 299 U. S. 304 (1936). [Footnote 5/2] And, in some situations, it may be At least one of the many statutes in this area seems relevant to these cases.
that, under whatever inherent powers the Government may have, as well as the Congress has provided in 18 U.S.C. 793(e) that whoever,
implicit authority derived from the President's mandate to conduct foreign affairs
and to act as Commander in Chief, there is a basis for the invocation of the equity "having unauthorized possession of, access to, or control over any document,
jurisdiction of this Court as an aid to prevent the publication of material damaging to writing, code book, signal book . . . or note relating to the national defense, or
"national security," however that term may be defined. information relating to the national defense which information the possessor has
reason to believe could be used to the injury of the United States or to the
It would, however, be utterly inconsistent with the concept of separation of powers advantage of any foreign nation, willfully communicates, delivers, transmits . . . the
for this Court to use its power of contempt to prevent behavior that Congress has same to any person not entitled to receive it, or willfully retains the same and fails to
specifically declined to prohibit. There would be a similar damage to the basic deliver it to the officer or employee of the United States entitled to receive it . . .
concept of these co-equal branches of Government if, when the Executive Branch [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or
has adequate authority granted by Congress to protect "national security," it can both."
choose, instead, to invoke the contempt power of a court to enjoin the threatened
conduct. The Constitution provides that Congress shall make laws, the President Congress has also made it a crime to conspire to commit any of the offenses listed in
execute laws, and courts interpret laws. Youngstown Sheet & Tube Co. v. Sawyer, 18 U.S.C. 793(e).
343 U. S. 579 (1952). It did not provide for government by injunction in which the
courts and the Executive Branch can "make law" without regard to the action of It is true that Judge Gurfein found that Congress had not made it a crime to publish
Congress. It may be more convenient for the Executive Branch if it need only the items and material specified in 793(e). He found that the words
convince a judge to prohibit conduct, rather than ask the Congress to pass a law, "communicates, delivers, transmits . . ." did not refer to publication of newspaper
and it may be more convenient to enforce a contempt order than to seek a criminal stories. And that view has some support in the legislative history, and conforms with
conviction in a jury trial. Moreover, it may be considered politically wise to get a the past practice of using the statute only to prosecute those charged with ordinary
court to share the responsibility for arresting those who the Executive Branch has espionage. But see 103 Cong.Rec. 10449 (remarks of Sen. Humphrey). Judge
probable cause to believe are violating the law. But convenience and political Gurfein's view of the statute is not, however, the only plausible construction that
considerations of the moment do not justify a basic departure from the principles of could be given. See my Brother WHITE's concurring opinion.
our system of government.
Even if it is determined that the Government could not in good faith bring criminal
In these cases, we are not faced with a situation where Congress has failed to prosecutions against the New York Times and the Washington Post, it is clear that
provide the Executive with broad power to protect the Nation from disclosure of Congress has specifically rejected passing legislation that would have clearly given
damaging state secrets. Congress has, on several occasions, given extensive the President the power he seeks here and made the current activity of the
consideration to the problem of protecting the military and strategic secrets of the newspapers unlawful. When Congress specifically declines to make conduct
United States. This consideration has resulted in the enactment of statutes making it unlawful, it is not for this Court
Either the Government has the power under statutory grant to use traditional
Page 403 U. S. 746 criminal law to protect the country or, if there is no basis for arguing that Congress
has made the activity a crime, it is plain that Congress has specifically refused to
to redecide those issues -- to overrule Congress. See Youngstown Sheet & Tube Co. v. grant the authority the Government seeks from this Court. In either case, this Court
Sawyer, 343 U. S. 579 (1952). does not have authority to grant the requested relief. It is not for this Court to fling
itself into every breach perceived by some Government official, nor is it for this
On at least two occasions, Congress has refused to enact legislation that would have Court to take on itself the burden of enacting law, especially a law that Congress has
made the conduct engaged in here unlawful and given the President the power that refused to pass.
he seeks in this case. In 1917, during the debate over the original Espionage Act,
still the basic provisions of 793, Congress rejected a proposal to give the President I believe that the judgment of the United States Court of Appeals for the District of
in time of war or threat of war authority to directly prohibit by proclamation the Columbia Circuit should be affirmed and the judgment of the United States Court of
publication of information relating to national defense that might be useful to the Appeals for the Second Circuit should be reversed insofar as it remands the case for
enemy. The proposal provided that: further hearings. [Footnote 5/1]

"During any national emergency resulting from a war to which the United States is a See n.3, infra. [Footnote 5/2]
party, or from threat of such a war, the President may, by proclamation, declare the
existence of such emergency and, by proclamation, prohibit the publishing or But see Kent v. Dulles, 357 U. S. 116 (1958); Youngstown Sheet & Tube Co. v.
communicating of, or the attempting to publish or communicate any information Sawyer, 343 U. S. 579 (1952). [Footnote 5/3]
relating to the national defense which, in his judgment, is of such character that it is
or might be useful to the enemy. Whoever violates any such prohibition shall be There are several other statutory provisions prohibiting and punishing the
punished by a fine of not more than $10,000 or by imprisonment for not more than dissemination of information, the disclosure of which Congress thought sufficiently
10 years, or both: Provided, That nothing in this section shall be construed to limit or imperiled national security to warrant that result. These include 42 U.S.C. 2161
restrict any discussion, comment, or criticism of the acts or policies of the through 2166, relating to the authority of the Atomic Energy Commission to classify
Government or its representatives or the publication of the same." and declassify "Restricted Data" ["Restricted Data" is a term of art employed
uniquely by the Atomic Energy Act]. Specifically, 42 U.S.C. 2162 authorizes the
55 Cong.Rec. 1763. Congress rejected this proposal after war against Germany had Atomic Energy Commission to classify certain information. Title 42 U.S.C. 2274,
been declared, even though many believed that there was a grave national subsection (a), provides penalties for a person who "communicates, transmits, or
emergency and that the threat of security leaks and espionage was serious. The discloses [restricted data] . . . with intent to injure the United States or with intent to
Executive Branch has not gone to Congress and requested that the decision to secure an advantage to any foreign nation. . . ."
provide such power be reconsidered. Instead,
Subsection (b) of 2274 provides lesser penalties for one who "communicates,
Page 403 U. S. 747 transmits, or discloses" such information "with reason to believe such data will be
utilized to injure the United States or to secure an advantage to any foreign
the Executive Branch comes to this Court and asks that it be granted the power nation. . . ." Other sections of Title 42 of the United States Code dealing with atomic
Congress refused to give. energy prohibit and punish acquisition, removal, concealment, tampering with,
alteration, mutilation, or destruction of documents incorporating "Restricted Data"
In 1957, the United States Commission on Government Security found that and provide penalties for employees and former employees of the Atomic Energy
Commission, the armed services, contractors and licensees of the Atomic Energy
"[a]irplane journals, scientific periodicals, and even the daily newspaper have Commission. Title 42 U.S.C. 2276, 2277. Title 50 U.S.C.App. 781, 56 Stat. 390,
featured articles containing information and other data which should have been prohibits the making of any sketch or other representation of military installations or
deleted in whole or in part for security reasons." any military equipment located on any military installation, as specified; and,
indeed, Congress, in the National Defense Act of 1940, 54 Stat. 676, as amended, 56
In response to this problem, the Commission proposed that Stat. 179, conferred jurisdiction on federal district courts over civil actions "to enjoin
any violation" thereof. 50 U.S.C.App. 1152(6). Title 50 U.S.C. 783(b) makes it
"Congress enact legislation making it a crime for any person willfully to disclose unlawful for any officers or employees of the United States or any corporation which
without proper authorization, for any purpose whatever, information classified is owned by the United States to communicate material which has been "classified"
'secret' or 'top secret,' knowing, or having reasonable grounds to believe, such by the President to any person who that governmental employee knows or has
information to have been so classified." reason to believe is an agent or representative of any foreign government or any
Communist organization.
Report of Commission on Government Security 619-620 (1957). After substantial SORIANO v LAGUARDIA
floor discussion on the proposal, it was rejected. See 103 Cong.Rec. 10447-10450. If ELISEO F. SORIANO,
the proposal that Sen. Cotton championed on the floor had been enacted, the Petitioner,- versus -
publication of the documents involved here would certainly have been a crime. MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and
Congress refused, however, to make it a crime. The Government is here asking this Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND
Court to remake that decision. This Court has no such power. CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M.
Respondents. by the filing with this Court of a petition for certiorari and prohibition,[8] docketed as
x-------------------------------------------x G.R. No. 164785, to nullify the preventive suspension order thus issued.
Petitioner, On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision,
- versus - disposing as follows:
ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding
and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA respondent Soriano liable for his utterances and thereby imposing on him a penalty
CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. of three (3) months suspension from his program, Ang Dating Daan.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as
complainants before Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its
the MTRCB, owner, PBC, are hereby exonerated for lack of evidence.
G.R. No. 164785
G.R. No. 165636
Petitioner then filed this petition for certiorari and prohibition with prayer for
injunctive relief, docketed as G.R. No. 165636.
Promulgated: April 29, 2009
In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R.
No. 165636.
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. In G.R. No. 164785, petitioner raises the following issues:
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; (B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang (D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
itaas, o di ba! O, masahol pa sa putang babae yan. Sabi ng lola ko masahol pa sa (E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]
putang babae yan. Sobra ang kasinungalingan ng mga demonyong ito.[1] x x x
In G.R. No. 165636, petitioner relies on the following grounds:
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 I SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON
on August 16, 2004 in relation to the alleged use of some cuss words in the August THE CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND
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. II SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON
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 withdraw[7] his motion for reconsideration, followed
III [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by
RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT THERETO, k) To exercise such powers and functions as may be necessary or incidental to the
I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, 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
G.R. No. 164785 authority and functions expressly set forth in PD 1986, more particularly under its
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order Sec. 3(d), as quoted above, which empowers the MTRCB to supervise, regulate, and
of preventive suspension, although its implementability had already been overtaken grant, deny or cancel, permits for the x x x exhibition, and/or television broadcast of
and veritably been rendered moot by the equally assailed September 27, 2004 all motion pictures, television programs and publicity materials, to the end that no
decision. 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
It is petitioners threshold posture that the preventive suspension imposed against broadcast by television.
him and the relevant IRR provision authorizing it are invalid inasmuch as PD 1986
does not expressly authorize the MTRCB to issue preventive suspension. Surely, the power to issue preventive suspension forms part of the MTRCBs express
regulatory and supervisory statutory mandate and its investigatory and disciplinary
Petitioners contention is untenable. authority subsumed in or implied from such mandate. Any other construal would
render its power to regulate, supervise, or discipline illusory.

Administrative agencies have powers and functions which may be administrative,

investigatory, regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a
may be conferred by the Constitution or by statute.[12] They have in fine only such preliminary step in an administrative investigation.[15] And the power to discipline
powers or authority as are granted or delegated, expressly or impliedly, by law.[13] and impose penalties, if granted, carries with it the power to investigate
And in determining whether an agency has certain powers, the inquiry should be administrative complaints and, during such investigation, to preventively suspend
from the law itself. But once ascertained as existing, the authority given should be the person subject of the complaint.[16]
liberally construed.[14]
To reiterate, preventive suspension authority of the MTRCB springs from its powers
A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by conferred under PD 1986. The MTRCB did not, as petitioner insinuates, empower
the agency of the authority, albeit impliedly, to issue the challenged order of itself to impose preventive suspension through the medium of the IRR of PD 1986. It
preventive suspension. And this authority stems naturally from, and is necessary for is true that the matter of imposing preventive suspension is embodied only in the
the exercise of, its power of regulation and supervision. IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Sec. 3 of PD 1986 pertinently provides the following: 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
Section 3. Powers and Functions.The BOARD shall have the following functions, mandating the preventive x x x suspension of the permit/permits involved, and/or
powers and duties: closure of the x x x television network, cable TV station x x x provided that the
xxxx temporary/preventive order thus issued shall have a life of not more than twenty
(20) days from the date of issuance.
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, But the mere absence of a provision on preventive suspension in PD 1986, without
which, in the judgment of the board applying contemporary Filipino cultural values more, would not work to deprive the MTRCB a basic disciplinary tool, such as
as standard, are objectionable for being immoral, indecent, contrary to law and/or preventive suspension. Recall that the MTRCB is expressly empowered by statute to
good customs, injurious to the prestige of the Republic of the Philippines or its regulate and supervise television programs to obviate the exhibition or broadcast of,
people, or with a dangerous tendency to encourage the commission of violence or of among others, indecent or immoral materials and to impose sanctions for violations
wrong or crime such as but not limited to:x x x x and, corollarily, to prevent further violations as it investigates. Contrary to
petitioners assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986
vi) Those which are libelous or defamatory to the good name and reputation of any nor extended the effect of the law. Neither did the MTRCB, by imposing the assailed
person, whether living or dead; x x x x 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
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x repeat, to the MTRCBs duty of regulating or supervising television programs,
production, copying, distribution, sale, lease, exhibition, and/or television broadcast pending a determination of whether or not there has actually been a violation. In the
of all motion pictures, television programs and publicity materials, to the end that no final analysis, Sec. 3, Chapter XIII of the 2004 IRR merely formalized a power which
such pictures, programs and materials as are determined by the BOARD to be PD 1986 bestowed, albeit impliedly, on MTRCB.
objectionable in accordance with paragraph (c) hereof shall be x x x produced,
Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to within the purview of this case, simply too different to even consider whether or not
authorize the MTRCBs assailed action. Petitioners restrictive reading of PD 1986, there is a prima facie indication of oppressive inequality.
limiting the MTRCB to functions within the literal confines of the law, would give the Petitioner next injects the notion of religious freedom, submitting that what he
agency little leeway to operate, stifling and rendering it inutile, when Sec. 3(k) of PD uttered was religious speech, adding that words like putang babae were said in
1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation. exercise of his religious freedom.
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 The argument has no merit.
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 The Court is at a loss to understand how petitioners utterances in question can come
implication of the enabling act.[17] As we held in Angara v. Electoral Commission, within the pale of Sec. 5, Article III of the 1987 Constitution on religious freedom.
when a general grant of power is conferred or a duty enjoined, every particular The section reads as follows:
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 No law shall be made respecting the establishment of a religion, or prohibiting the
suspension pending investigation is one of the implied or inherent powers of MTRCB. free exercise thereof. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. No religious
We cannot agree with petitioners assertion that the aforequoted IRR provision on test shall be required for the exercise of civil or political rights.
preventive suspension is applicable only to motion pictures and publicity materials.
The scope of the MTRCBs authority extends beyond motion pictures. What the There is nothing in petitioners statements subject of the complaints expressing any
acronym MTRCB stands for would suggest as much. And while the law makes particular religious belief, nothing furthering his avowed evangelical mission. The
specific reference to the closure of a television network, the suspension of a fact that he came out with his statements in a televised bible exposition program
television program is a far less punitive measure that can be undertaken, with the does not automatically accord them the character of a religious discourse. Plain and
purpose of stopping further violations of PD 1986. Again, the MTRCB would simple insults directed at another person cannot be elevated to the status of
regretfully be rendered ineffective should it be subject to the restrictions petitioner religious speech. Even petitioners attempts to place his words in context show that
envisages. 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
Just as untenable is petitioners argument on the nullity of the preventive suspension statements respecting amounts Ang Dating Daan owed to a TV station does not
order on the ground of lack of hearing. As it were, the MTRCB handed out the convert the foul language used in retaliation as religious speech. We cannot accept
assailed order after petitioner, in response to a written notice, appeared before that that petitioner made his statements in defense of his reputation and religion, as they
Board for a hearing on private respondents complaint. No less than petitioner constitute no intelligible defense or refutation of the alleged lies being spread by a
admitted that the order was issued after the adjournment of the hearing,[19] rival religious group. They simply illustrate that petitioner had descended to the
proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII level of name-calling and foul-language discourse. Petitioner could have chosen to
of the IRR of PD 1986, preventive suspension shall issue [a]ny time during the contradict and disprove his detractors, but opted for the low road.
pendency of the case. In this particular case, it was done after MTRCB duly apprised
petitioner of his having possibly violated PD 1986[20] and of administrative Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-
complaints that had been filed against him for such violation.[21] day preventive suspension order, being, as insisted, an unconstitutional
abridgement of the freedom of speech and expression and an impermissible prior
At any event, that preventive suspension can validly be meted out even without a restraint. The main issue tendered respecting the adverted violation and the
hearing.[22] arguments holding such issue dovetails with those challenging the three-month
Petitioner next faults the MTRCB for denying him his right to the equal protection of suspension imposed under the assailed September 27, 2004 MTRCB decision subject
the law, arguing that, owing to the preventive suspension order, he was unable to of review under G.R. No. 165636. Both overlapping issues and arguments shall be
answer the criticisms coming from the INC ministers. jointly addressed.

Petitioners position does not persuade. The equal protection clause demands that all G.R. No. 165636
persons subject to legislation should be treated alike, under like circumstances and Petitioner urges the striking down of the decision suspending him from hosting Ang
conditions both in the privileges conferred and liabilities imposed.[23] It guards Dating Daan for three months on the main ground that the decision violates, apart
against undue favor and individual privilege as well as hostile discrimination.[24] from his religious freedom, his freedom of speech and expression guaranteed under
Surely, petitioner cannot, under the premises, place himself in the same shoes as Sec. 4, Art. III of the Constitution, which reads:
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, No law shall be passed abridging the freedom of speech, of expression, or of the
use language similar to that which he used in his own, necessitating the MTRCBs press, or the right of the people peaceably to assemble and petition the government
disciplinary action. If the immediate result of the preventive suspension order is that for redress of grievance.
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
He would also have the Court declare PD 1986, its Sec. 3(c) in particular,
belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on
unconstitutional for reasons articulated in this petition.
one hand, and the INC ministers, as hosts of Ang Tamang Daan, on the other, are,
There is no perfect definition of obscenity but the latest word is that of Miller v.
We are not persuaded as shall be explained shortly. But first, we restate certain California which established basic guidelines, to wit: (a) whether to the average
general concepts and principles underlying the freedom of speech and expression. 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
It is settled that expressions by means of newspapers, radio, television, and motion law; and (c) whether the work, taken as a whole, lacks serious literary, artistic,
pictures come within the broad protection of the free speech and expression clause. political, or scientific value. But, it would be a serious misreading of Miller to
[25] Each method though, because of its dissimilar presence in the lives of people conclude that the trier of facts has the unbridled discretion in determining what is
and accessibility to children, tends to present its own problems in the area of free patently offensive. x x x What remains clear is that obscenity is an issue proper for
speech protection, with broadcast media, of all forms of communication, enjoying a judicial determination and should be treated on a case to case basis and on the
lesser degree of protection.[26] Just as settled is the rule that restrictions, be it in judges sound discretion.[35]
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 Following the contextual lessons of the cited case of Miller v. California,[36] a
the press or other forms of expression in advance of actual publication or patently offensive utterance would come within the pale of the term obscenity
dissemination.[27] The freedom of expression, as with the other freedoms encased should it appeal to the prurient interest of an average listener applying
in the Bill of Rights, is, however, not absolute. It may be regulated to some extent to contemporary standards.
serve important public interests, some forms of speech not being protected. As has A cursory examination of the utterances complained of and the circumstances of the
been held, the limits of the freedom of expression are reached when the expression case reveal that to an average adult, the utterances Gago ka talaga x x x, masahol
touches upon matters of essentially private concern.[28] In the oft-quoted ka pa sa putang babae x x x. Yung putang babae ang gumagana lang doon yung
expression of Justice Holmes, the constitutional guarantee obviously was not ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not constitute
intended to give immunity for every possible use of language.[29] From Lucas v. obscene but merely indecent utterances. They can be viewed as figures of speech or
Royo comes this line: [T]he freedom to express ones sentiments and belief does not merely a play on words. In the context they were used, they may not appeal to the
grant one the license to vilify in public the honor and integrity of another. Any prurient interests of an adult. The problem with the challenged statements is that
sentiments must be expressed within the proper forum and with proper regard for they were uttered in a TV program that is rated G or for general viewership, and in a
the rights of others.[30] time slot that would likely reach even the eyes and ears of children.

Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain well- While adults may have understood that the terms thus used were not to be taken
defined and narrowly limited classes of speech that are harmful, the prevention and literally, children could hardly be expected to have the same discernment. Without
punishment of which has never been thought to raise any Constitutional problems. parental guidance, the unbridled use of such language as that of petitioner in a
In net effect, some forms of speech are not protected by the Constitution, meaning television broadcast could corrupt impressionable young minds. The term putang
that restrictions on unprotected speech may be decreed without running afoul of the babae means a female prostitute, a term wholly inappropriate for children, who
freedom of speech clause.[32] A speech would fall under the unprotected type if the could look it up in a dictionary and just get the literal meaning, missing the context
utterances involved are no essential part of any exposition of ideas, and are of such within which it was used. Petitioner further used the terms, ang gumagana lang
slight social value as a step of truth that any benefit that may be derived from them doon yung ibaba, making reference to the female sexual organ and how a female
is clearly outweighed by the social interest in order and morality.[33] Being of little prostitute uses it in her trade, then stating that Sandoval was worse than that by
or no value, there is, in dealing with or regulating them, no imperative call for the using his mouth in a similar manner. Children could be motivated by curiosity and
application of the clear and present danger rule or the balancing-of-interest test, ask the meaning of what petitioner said, also without placing the phrase in context.
they being essentially modes of weighing competing values,[34] or, with like effect, They may be inquisitive as to why Sandoval is different from a female prostitute and
determining which of the clashing interests should be advanced. 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
Petitioner asserts that his utterance in question is a protected form of speech. 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
The Court rules otherwise. It has been established in this jurisdiction that average person in the test for obscenity, we are speaking of the average child, not
unprotected speech or low-value expression refers to libelous statements, obscenity the average adult. The average child may not have the adults grasp of figures of
or pornography, false or misleading advertisement, insulting or fighting words, i.e., speech, and may lack the understanding that language may be colorful, and words
those which by their very utterance inflict injury or tend to incite an immediate may convey more than the literal meaning. Undeniably the subject speech is very
breach of peace and expression endangering national security. 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
The Court finds that petitioners statement can be treated as obscene, at least with freedom of speech.
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 Even if we concede that petitioners remarks are not obscene but merely indecent
definition of obscenity that would apply to all cases, but nonetheless stated the speech, still the Court rules that petitioner cannot avail himself of the constitutional
ensuing observations on the matter: 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. A view has been advanced that unprotected speech refers only to pornography,[43]
false or misleading advertisement,[44] advocacy of imminent lawless action, and
No doubt what petitioner said constitutes indecent or offensive utterances. But while expression endangering national security. But this list is not, as some members of
a jurisprudential pattern involving certain offensive utterances conveyed in different the Court would submit, exclusive or carved in stone. Without going into specifics, it
mediums has emerged, this case is veritably one of first impression, it being the first may be stated without fear of contradiction that US decisional law goes beyond the
time that indecent speech communicated via television and the applicable norm for aforesaid general exceptions. As the Court has been impelled to recognize
its regulation are, in this jurisdiction, made the focal point. Federal Communications exceptions to the rule against censorship in the past, this particular case constitutes
Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark case cited yet another exception, another instance of unprotected speech, created by the
in Eastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is a necessity of protecting the welfare of our children. As unprotected speech,
rich source of persuasive lessons. Foremost of these relates to indecent speech petitioners utterances can be subjected to restraint or regulation.
without prurient appeal component coming under the category of protected speech
depending on the context within which it was made, irresistibly suggesting that, Despite the settled ruling in FCC which has remained undisturbed since 1978,
within a particular context, such indecent speech may validly be categorized as petitioner asserts that his utterances must present a clear and present danger of
unprotected, ergo, susceptible to restriction. bringing about a substantive evil the State has a right and duty to prevent and such
danger must be grave and imminent.[45]
In FCC, seven of what were considered filthy words[40] earlier recorded in a
monologue by a satiric humorist later aired in the afternoon over a radio station Petitioners invocation of the clear and present danger doctrine, arguably the most
owned by Pacifica Foundation. Upon the complaint of a man who heard the pre- permissive of speech tests, would not avail him any relief, for the application of said
recorded monologue while driving with his son, FCC declared the language used as test is uncalled for under the premises. The doctrine, first formulated by Justice
patently offensive and indecent under a prohibiting law, though not necessarily Holmes, accords protection for utterances so that the printed or spoken words may
obscene. FCC added, however, that its declaratory order was issued in a special not be subject to prior restraint or subsequent punishment unless its expression
factual context, referring, in gist, to an afternoon radio broadcast when children creates a clear and present danger of bringing about a substantial evil which the
were undoubtedly in the audience. Acting on the question of whether the FCC could government has the power to prohibit.[46] Under the doctrine, freedom of speech
regulate the subject utterance, the US Supreme Court ruled in the affirmative, owing and of press is susceptible of restriction when and only when necessary to prevent
to two special features of the broadcast medium, to wit: (1) radio is a pervasive grave and immediate danger to interests which the government may lawfully
medium and (2) broadcasting is uniquely accessible to children. The US Court, protect. As it were, said doctrine evolved in the context of prosecutions for rebellion
however, hastened to add that the monologue would be protected speech in other and other crimes involving the overthrow of government.[47] It was originally
contexts, albeit it did not expound and identify a compelling state interest in putting designed to determine the latitude which should be given to speech that espouses
FCCs content-based regulatory action under scrutiny. anti-government action, or to have serious and substantial deleterious
consequences on the security and public order of the community.[48] The clear and
The Court in Chavez[41] elucidated on the distinction between regulation or present danger rule has been applied to this jurisdiction.[49] As a standard of
restriction of protected speech that is content-based and that which is content- limitation on free speech and press, however, the clear and present danger test is
neutral. A content-based restraint is aimed at the contents or idea of the expression, not a magic incantation that wipes out all problems and does away with analysis and
whereas a content-neutral restraint intends to regulate the time, place, and manner judgment in the testing of the legitimacy of claims to free speech and which
of the expression under well-defined standards tailored to serve a compelling state compels a court to release a defendant from liability the moment the doctrine is
interest, without restraint on the message of the expression. Courts subject content- invoked, absent proof of imminent catastrophic disaster.[50] As we observed in
based restraint to strict scrutiny. 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
With the view we take of the case, the suspension MTRCB imposed under the all forums.[51]
premises was, in one perspective, permissible restriction. We make this disposition
against the backdrop of the following interplaying factors: First, the indecent speech To be sure, the clear and present danger doctrine is not the only test which has been
was made via television, a pervasive medium that, to borrow from Gonzales v. Kalaw applied by the courts. Generally, said doctrine is applied to cases involving the
Katigbak,[42] easily reaches every home where there is a set [and where] [c]hildren overthrow of the government and even other evils which do not clearly undermine
will likely be among the avid viewers of the programs therein shown; second, the national security. Since not all evils can be measured in terms of proximity and
broadcast was aired at the time of the day when there was a reasonable risk that degree the Court, however, in several casesAyer Productions v. Capulong[52] and
children might be in the audience; and third, petitioner uttered his speech on a G or Gonzales v. COMELEC,[53] applied the balancing of interests test. Former Chief
for general patronage rated program. Under Sec. 2(A) of Chapter IV of the IRR of the Justice Fred Ruiz Castro, in Gonzales v. COMELEC, elucidated in his Separate Opinion
MTRCB, a show for general patronage is [s]uitable for all ages, meaning that the that where the legislation under constitutional attack interferes with the freedom of
material for television x x x in the judgment of the BOARD, does not contain speech and assembly in a more generalized way and where the effect of the speech
anything unsuitable for children and minors, and may be viewed without adult and assembly in terms of the probability of realization of a specific danger is not
guidance or supervision. The words petitioner used were, by any civilized norm, susceptible even of impressionistic calculation,[54] then the balancing of interests
clearly not suitable for children. Where a language is categorized as indecent, as in test can be applied.
petitioners utterances on a general-patronage rated TV program, it may be readily
proscribed as unprotected speech. 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 No doubt, one of the fundamental and most vital rights granted to citizens of a State
of the courts is to determine which of the two conflicting interests demands the is the freedom of speech or expression, for without the enjoyment of such right, a
greater protection under the particular circumstances presented. x x x We must, free, stable, effective, and progressive democratic state would be difficult to attain.
therefore, undertake the delicate and difficult task x x x to weigh the circumstances Arrayed against the freedom of speech is the right of the youth to their moral,
and to appraise the substantiality of the reasons advanced in support of the spiritual, intellectual, and social being which the State is constitutionally tasked to
regulation of the free enjoyment of rights x x x. 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
In enunciating standard premised on a judicial balancing of the conflicting social 1987 Constitution.
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 The Constitution has, therefore, imposed the sacred obligation and responsibility on
balancing-of-interests test which has found application in more recent decisions of the State to provide protection to the youth against illegal or improper activities
the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take which may prejudice their general well-being. The Article on youth, approved on
conscious and detailed consideration of the interplay of interests observable in a second reading by the Constitutional Commission, explained that the State shall
given situation or type of situation.x x x x extend social protection to minors against all forms of neglect, cruelty, exploitation,
immorality, and practices which may foster racial, religious or other forms of
Although the urgency of the public interest sought to be secured by Congressional discrimination.[58]
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 Indisputably, the State has a compelling interest in extending social protection to
point or line of equilibrium. Among these are (a) the social value and importance of minors against all forms of neglect, exploitation, and immorality which may pollute
the specific aspect of the particular freedom restricted by the legislation; (b) the innocent minds. It has a compelling interest in helping parents, through regulatory
specific thrust of the restriction, i.e., whether the restriction is direct or indirect, mechanisms, protect their childrens minds from exposure to undesirable materials
whether or not the persons affected are few; (c) the value and importance of the and corrupting experiences. The Constitution, no less, in fact enjoins the State, as
public interest sought to be secured by the legislationthe reference here is to the earlier indicated, to promote and protect the physical, moral, spiritual, intellectual,
nature and gravity of the evil which Congress seeks to prevent; (d) whether the and social well-being of the youth to better prepare them fulfill their role in the field
specific restriction decreed by Congress is reasonably appropriate and necessary for of nation-building.[59] In the same way, the State is mandated to support parents in
the protection of such public interest; and (e) whether the necessary safeguarding of the rearing of the youth for civic efficiency and the development of moral character.
the public interest involved may be achieved by some other measure less restrictive [60]
of the protected freedom.[55]
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
This balancing of interest test, to borrow from Professor Kauper,[56] rests on the welfare of children and the States mandate to protect and care for them, as parens
theory that it is the courts function in a case before it when it finds public interests patriae,[61] constitute a substantial and compelling government interest in
served by legislation, on the one hand, and the free expression clause affected by it, regulating petitioners utterances in TV broadcast as provided in PD 1986.
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 FCC explains the duty of the government to act as parens patriae to protect the
freedom, then the court will find the legislation valid. In short, the balance-of- children who, because of age or interest capacity, are susceptible of being corrupted
interests theory rests on the basis that constitutional freedoms are not absolute, not or prejudiced by offensive language, thus:
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 [B]roadcasting is uniquely accessible to children, even those too young to read.
mind of the Court, the balancing of interest doctrine is the more appropriate test to Although Cohens written message, [Fuck the Draft], might have been
follow. incomprehensible to a first grader, Pacificas broadcast could have enlarged a childs
In the case at bar, petitioner used indecent and obscene language and a three (3)- vocabulary in an instant. Other forms of offensive expression may be withheld from
month suspension was slapped on him for breach of MTRCB rules. In this setting, the the young without restricting the expression at its source. Bookstores and motion
assertion by petitioner of his enjoyment of his freedom of speech is ranged against picture theaters, for example, may be prohibited from making indecent material
the duty of the government to protect and promote the development and welfare of available to children. We held in Ginsberg v. New York that the governments interest
the youth. in the well-being of its youth and in supporting parents claim to authority in their
own household justified the regulation of otherwise protected expression. The ease
After a careful examination of the factual milieu and the arguments raised by with which children may obtain access to broadcast material, coupled with the
petitioner in support of his claim to free speech, the Court rules that the concerns recognized in Ginsberg, amply justify special treatment of indecent
governments interest to protect and promote the interests and welfare of the broadcasting.
children adequately buttresses the reasonable curtailment and valid restraint on
petitioners prayer to continue as program host of Ang Dating Daan during the Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to
suspension period. attend to the welfare of the young:
x x x It is the consensus of this Court that where television is concerned, a less permit or license before showing a motion picture or broadcasting a TV program.
liberal approach calls for observance. This is so because unlike motion pictures The Board can classify movies and television programs and can cancel permits for
where the patrons have to pay their way, television reaches every home where there exhibition of films or television broadcast.
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 The power of MTRCB to regulate and even impose some prior restraint on radio and
hardly the concern of the law to deal with the sexual fantasies of the adult television shows, even religious programs, was upheld in Iglesia Ni Cristo v. Court of
population. It cannot be denied though that the State as parens patriae is called Appeals. Speaking through Chief Justice Reynato S. Puno, the Court wrote:
upon to manifest an attitude of caring for the welfare of the young.[62]

We thus reject petitioners postulate that its religious program is per se beyond
The compelling need to protect the young impels us to sustain the regulatory action review by the respondent Board. Its public broadcast on TV of its religious program
MTRCB took in the narrow confines of the case. To reiterate, FCC justified the brings it out of the bosom of internal belief. Television is a medium that reaches
restraint on the TV broadcast grounded on the following considerations: (1) the use even the eyes and ears of children. The Court iterates the rule that the exercise of
of television with its unique accessibility to children, as a medium of broadcast of a religious freedom can be regulated by the State when it will bring about the clear
patently offensive speech; (2) the time of broadcast; and (3) the G rating of the Ang and present danger of some substantive evil which the State is duty bound to
Dating Daan program. And in agreeing with MTRCB, the court takes stock of and prevent, i.e., serious detriment to the more overriding interest of public health,
cites with approval the following excerpts from FCC: public morals, or public welfare. x x x
x x x xWhile the thesis has a lot to commend itself, we are not ready to hold that [PD
It is appropriate, in conclusion, to emphasize the narrowness of our holding. This 1986] is unconstitutional for Congress to grant an administrative body quasi-judicial
case does not involve a two-way radio conversation between a cab driver and a power to preview and classify TV programs and enforce its decision subject to review
dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an by our courts. As far back as 1921, we upheld this setup in Sotto vs. Ruiz, viz:
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 use of the mails by private persons is in the nature of a privilege which can be
The concept requires consideration of a host of variables. The time of day was regulated in order to avoid its abuse. Persons possess no absolute right to put into
emphasized by the [FFC]. The content of the program in which the language is used the mail anything they please, regardless of its character.[63]
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 Bernas adds:
entered the parlor, the exercise of its regulatory power does not depend on proof Under the decree a movie classification board is made the arbiter of what movies
that the pig is obscene. (Citation omitted.) 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
There can be no quibbling that the remarks in question petitioner uttered on prime- incite subversion, insurrection, rebellion or sedition, or tend to undermine the faith
time television are blatantly indecent if not outright obscene. It is the kind of speech and confidence of the people in their government and/or duly constituted
that PD 1986 proscribes necessitating the exercise by MTRCB of statutory authorities, etc. Moreover, its decisions are executory unless stopped by a court.[64]
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 Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the
language of FCC, a pig in the parlor. Public interest would be served if the pig is power of review and prior approval of MTRCB extends to all television programs and
reasonably restrained or even removed from the parlor. 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
Ergo, petitioners offensive and indecent language can be subjected to prior restraint. 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
Petitioner theorizes that the three (3)-month suspension is either prior restraint or necessary evil with the government taking the role of assigning bandwidth to
subsequent punishment that, however, includes prior restraint, albeit indirectly. individual broadcasters. The stations explicitly agreed to this regulatory scheme;
otherwise, chaos would result in the television broadcast industry as competing
After a review of the facts, the Court finds that what MTRCB imposed on petitioner is broadcasters will interfere or co-opt each others signals. In this scheme, station
an administrative sanction or subsequent punishment for his offensive and obscene owners and broadcasters in effect waived their right to the full enjoyment of their
language in Ang Dating Daan. 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
To clarify, statutes imposing prior restraints on speech are generally illegal and punishment, like suspension or cancellation of permit, among others.
presumed unconstitutional breaches of the freedom of speech. The exceptions to
prior restraint are movies, television, and radio broadcast censorship in view of its The three (3) months suspension in this case is not a prior restraint on the right of
access to numerous people, including the young who must be insulated from the petitioner to continue with the broadcast of Ang Dating Daan as a permit was
prejudicial effects of unprotected speech. PD 1986 was passed creating the Board of already issued to him by MTRCB for such broadcast. Rather, the suspension is in the
Review for Motion Pictures and Television (now MTRCB) and which requires prior 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 tries to place his words in perspective, arguing evidently as an afterthought that this
television program, Ang Dating Daan. It is a sanction that the MTRCB may validly was his method of refuting the alleged distortion of his statements by the INC hosts
impose under its charter without running afoul of the free speech clause. And the of Ang Tamang Daan. But on the night he uttered them in his television program, the
imposition is separate and distinct from the criminal action the Board may take word simply came out as profane language, without any warning or guidance for
pursuant to Sec. 3(i) of PD 1986 and the remedies that may be availed of by the undiscerning ears.
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 As to petitioners other argument about having been denied due process and equal
indecent broadcasting does not constitute forbidden censorship. Lest it be protection of the law, suffice it to state that we have at length debunked similar
overlooked, the sanction imposed is not per se for petitioners exercise of his arguments in G.R. No. 164785. There is no need to further delve into the fact that
freedom of speech via television, but for the indecent contents of his utterances in a petitioner was afforded due process when he attended the hearing of the MTRCB,
G rated TV program. and that he was unable to demonstrate that he was unjustly discriminated against in
the MTRCB proceedings.
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 Finally, petitioner argues that there has been undue delegation of legislative power,
station owners, program producers, and hosts have impliedly accepted the power of as PD 1986 does not provide for the range of imposable penalties that may be
MTRCB to regulate the broadcast industry. applied with respect to violations of the provisions of the law.
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 The argument is without merit.
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 In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative
suspension meted was simply part of the duties of the MTRCB in the enforcement power in the following wise:
and administration of the law which it is tasked to implement. Viewed in its proper It is a fundamental principle flowing from the doctrine of separation of powers that
context, the suspension sought to penalize past speech made on prime-time G rated Congress may not delegate its legislative power to the two other branches of the
TV program; it does not bar future speech of petitioner in other television programs; government, subject to the exception that local governments may over local affairs
it is a permissible subsequent administrative sanction; it should not be confused participate in its exercise. What cannot be delegated is the authority under the
with a prior restraint on speech. While not on all fours, the Court, in MTRCB,[66] Constitution to make laws and to alter and repeal them; the test is the completeness
sustained the power of the MTRCB to penalize a broadcast company for of the statute in all its term and provisions when it leaves the hands of the
exhibiting/airing a pre-taped TV episode without Board authorization in violation of legislature. To determine whether or not there is an undue delegation of legislative
Sec. 7 of PD 1986. 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
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of must be done, who is to do it, and what is the scope of his authority. For a complex
its authority were it to regulate and even restrain the prime-time television economy, that may indeed be the only way in which the legislative process can go
broadcast of indecent or obscene speech in a G rated program is not acceptable. As forward. A distinction has rightfully been made between delegation of power to
made clear in Eastern Broadcasting Corporation, the freedom of television and radio make laws which necessarily involves a discretion as to what it shall be, which
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper constitutionally may not be done, and delegation of authority or discretion as to its
and print media. The MTRCB, as a regulatory agency, must have the wherewithal to execution to be exercised under and in pursuance of the law, to which no valid
enforce its mandate, which would not be effective if its punitive actions would be objection can be made. The Constitution is thus not to be regarded as denying the
limited to mere fines. Television broadcasts should be subject to some form of legislature the necessary resources of flexibility and practicability.
regulation, considering the ease with which they can be accessed, and violations of
the regulations must be met with appropriate and proportional disciplinary action. To avoid the taint of unlawful delegation, there must be a standard, which implies at
The suspension of a violating television program would be a sufficient punishment the very least that the legislature itself determines matters of principle and lays
and serve as a deterrent for those responsible. The prevention of the broadcast of down fundamental policy. Otherwise, the charge of complete abdication may be hard
petitioners television program is justified, and does not constitute prohibited prior to repel. A standard thus defines legislative policy, marks its limits, maps out its
restraint. It behooves the Court to respond to the needs of the changing times, and boundaries and specifies the public agency to apply it. It indicates the circumstances
craft jurisprudence to reflect these times. 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
Petitioner, in questioning the three-month suspension, also tags as unconstitutional office designated may in pursuance of the above guidelines promulgate
the very law creating the MTRCB, arguing that PD 1986, as applied to him, infringes supplemental rules and regulations.[67]
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
Based on the foregoing pronouncements and analyzing the law in question,
sees no need to address anew the repetitive arguments on religious freedom. As
petitioners protestation about undue delegation of legislative power for the sole
earlier discussed in the disposition of the petition in G.R. No. 164785, what was
reason that PD 1986 does not provide for a range of penalties for violation of the law
uttered was in no way a religious speech. Parenthetically, petitioners attempt to
is untenable. His thesis is that MTRCB, in promulgating the IRR of PD 1986,
characterize his speech as a legitimate defense of his religion fails miserably. He
prescribing a schedule of penalties for violation of the provisions of the decree, went responsibility to regulate the public airwaves and employ such means as it can as a
beyond the terms of the law. guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with
Petitioners posture is flawed by the erroneous assumptions holding it together, the the standards to be applied to determine whether there have been statutory
first assumption being that PD 1986 does not prescribe the imposition of, or breaches. The MTRCB may evaluate motion pictures, television programs, and
authorize the MTRCB to impose, penalties for violators of PD 1986. As earlier publicity materials applying contemporary Filipino cultural values as standard, and,
indicated, however, the MTRCB, by express and direct conferment of power and from there, determine whether these audio and video materials are objectionable for
functions, is charged with supervising and regulating, granting, denying, or being immoral, indecent, contrary to law and/or good customs, [etc.] x x x and apply
canceling permits for the exhibition and/or television broadcast of all motion the sanctions it deems proper. The lawmaking body cannot possibly provide for all
pictures, television programs, and publicity materials to the end that no such the details in the enforcement of a particular statute.[69] The grant of the rule-
objectionable pictures, programs, and materials shall be exhibited and/or broadcast making power to administrative agencies is a relaxation of the principle of
by television. Complementing this provision is Sec. 3(k) of the decree authorizing the separation of powers and is an exception to the non-delegation of legislative powers.
MTRCB to exercise such powers and functions as may be necessary or incidental to [70] Administrative regulations or subordinate legislation calculated to promote the
the attainment of the purpose and objectives of [the law]. As earlier explained, the public interest are necessary because of the growing complexity of modern life, the
investiture of supervisory, regulatory, and disciplinary power would surely be a multiplication of the subjects of governmental regulations, and the increased
meaningless grant if it did not carry with it the power to penalize the supervised or difficulty of administering the law.[71] Allowing the MTRCB some reasonable elbow-
the regulated as may be proportionate to the offense committed, charged, and room in its operations and, in the exercise of its statutory disciplinary functions,
proved. As the Court said in Chavez v. National Housing Authority: 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
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular consistent with its mandate to effectively and efficiently regulate the movie and
power necessary for the exercise of the one or the performance of the other is also television industry.
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 But even as we uphold the power of the MTRCB to review and impose sanctions for
its function.[68] 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
Given the foregoing perspective, it stands to reason that the power of the MTRCB to appearing in television programs. The MTRCB, to be sure, may prohibit the broadcast
regulate and supervise the exhibition of TV programs carries with it or necessarily of such television programs or cancel permits for exhibition, but it may not suspend
implies the authority to take effective punitive action for violation of the law sought television personalities, for such would be beyond its jurisdiction. The MTRCB cannot
to be enforced. And would it not be logical too to say that the power to deny or extend its exercise of regulation beyond what the law provides. Only persons,
cancel a permit for the exhibition of a TV program or broadcast necessarily includes offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986
the lesser power to suspend? 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
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for
in Administrative Case No. 01-04 dated September 27, 2004 and the subsequent
reference, provides that agency with the power [to] promulgate such rules and
order issued pursuant to said decision must be modified. The suspension should
regulations as are necessary or proper for the implementation of this Act, and the
cover only the television program on which petitioner appeared and uttered the
accomplishment of its purposes and objectives x x x. And Chapter XIII, Sec. 1 of the
offensive and obscene language, which sanction is what the law and the facts
IRR providing:
obtaining call for.
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 In ending, what petitioner obviously advocates is an unrestricted speech paradigm
Implementing Rules and Regulations governing motion pictures, television programs, in which absolute permissiveness is the norm. Petitioners flawed belief that he may
and related promotional materials shall be penalized with suspension or cancellation simply utter gutter profanity on television without adverse consequences, under the
of permits and/or licenses issued by the Board and/or with the imposition of fines guise of free speech, does not lend itself to acceptance in this jurisdiction. We
and other administrative penalty/penalties. The Board recognizes the existing Table repeat: freedoms of speech and expression are not absolute freedoms. To say any
of Administrative Penalties attached without prejudice to the power of the Board to act that restrains speech should be greeted with furrowed brows is not to say that
amend it when the need arises. In the meantime the existing revised Table of any act that restrains or regulates speech or expression is per se invalid. This only
Administrative Penalties shall be enforced. (Emphasis added.) recognizes the importance of freedoms of speech and expression, and indicates the
necessity to carefully scrutinize acts that may restrain or regulate speech.

WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September
This is, in the final analysis, no more than a measure to specifically implement the
27, 2004 is hereby AFFIRMED with the MODIFICATION of limiting the suspension to
aforequoted provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the
the program Ang Dating Daan. As thus modified, the fallo of the MTRCB shall read as
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
WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a deserves, lesser in scope, especially as regards television, which reaches every
penalty of THREE (3) MONTHS SUSPENSION on the television program, Ang Dating home where there is a set, and where children will likely be among the avid viewers
Daan, subject of the instant petition. of the programs shown. The same case also laid the basis for the classification
Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its system of the MTRCB when it stated, "It cannot be denied though that the State as
owner, PBC, are hereby exonerated for lack of evidence.Costs against petitioner. SO parens patriae is called upon to manifest an attitude of caring for the welfare of the
ORDERED. young."5
MARCH 15, 2010
VELASCO, JR., J.: The penalty of suspension imposed on petitioner has driven him to liken the Court to
Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the "a blind man who was asked to describe an elephant, and by his description he
Decision of the Court dated April 29, 2009, modifying that of the Movie and stubbornly believed that an elephant is just the same as a Meralco post after
Television Review and Classification Board (MTRCB) by imposing the penalty of touching one if its legs."6 Petitioner makes this comparison with the view that the
three-month suspension on the television show Ang Dating Daan, instead of on factual backdrop against which his statements were made was purportedly not
petitioner Soriano, as host of that program. considered by the Court. As he presently argues:

Petitioner seeks reconsideration on the following grounds or issues: (1) the The Honorable Court should have rendered its decision in light of the surrounding
suspension thus meted out to the program constitutes prior restraint; (2) the Court circumstances why and what prompted herein petitioner to utter those words.
erred in ruling that his utterances1 did not constitute exercise of religion; (3) the Clearly, he was provoked because of the malicious and blatant splicing by the INC
Court erred in finding the language used as offensive and obscene; (4) the Court ministers of his recorded voice. Verily, Petitioner submits that the choice of words he
should have applied its policy of non-interference in cases of conflict between used has been harsh but strongly maintains that the same was consistent with his
religious groups; and (5) the Court erred in penalizing the television program for the constitutional right of freedom of speech and religion.
acts of petitioner.
Contrary to petitioners impression, the Court has, in fact, considered the factual
The motion has no merit. antecedents of and his motive in making his utterances, and has found those
Petitioners threshold posture that the suspension thus imposed constitutes prior circumstances wanting as defense for violating the programs "G" rating. Consider
restraint and an abridgement of his exercise of religion and freedom of expression is the following excerpts from the Courts Decision:
a mere rehash of the position he articulated in the underlying petitions for certiorari
and expounded in his memorandum.2 So are the supportive arguments and some of There is nothing in petitioners statements subject of the complaints expressing any
the citations of decisional law, Philippine and American, holding it together. They particular religious belief, nothing furthering his avowed evangelical mission. The
have been considered, sufficiently discussed in some detail, and found to be without fact that he came out with his statements in a televised bible exposition program
merit in our Decision. It would, thus, make little sense to embark on another lengthy does not automatically accord them the character of a religious discourse. Plain and
discussion of the same issues and arguments. 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
Suffice it to reiterate that the sanction imposed on the TV program in question does he was moved by anger and the need to seek retribution, not by any religious
not, under the factual milieu of the case, constitute prior restraint, but partakes of conviction. His claim, assuming its veracity, that some INC ministers distorted his
the nature of subsequent punishment for past violation committed by petitioner in statements respecting amounts Ang Dating Daan owed to a TV station does not
the course of the broadcast of the program on August 10, 2004. To be sure, convert the foul language used in retaliation as religious speech. We cannot accept
petitioner has not contested the fact of his having made statements on the air that that petitioner made his statements in defense of his reputation and religion, as they
were contextually violative of the programs "G" rating. To merit a "G" rating, the constitute no intelligible defense or refutation of the alleged lies being spread by a
program must be "suitable for all ages," which, in turn, means that the "material for rival religious group. They simply illustrate that petitioner had descended to the
television [does not], in the judgment of the [MTRCB], x x x contain anything level of name-calling and foul-language discourse. Petitioner could have chosen to
unsuitable for children and minors, and may be viewed without adult guidance or contradict and disprove his detractors, but opted for the low road.
supervision."3 As previously discussed by the Court, the vulgar language petitioner
used on prime-time television can in no way be characterized as suitable for all And just to set things straight, the penalty imposed is on the program, not on
ages, and is wholly inappropriate for children. petitioner.

Petitioner next harps on the primacy of his freedoms, referring particularly to the Petitioner would next have the Court adopt a hands-off approach to the conflict
exercise of his religious beliefs and profession, as presiding minister of his flock, over between him and the Iglesia Ni Cristo. In support of his urging, he cites Iglesia ni
the right and duty of the state as parens patriae. Petitioners position may be Cristo v. Court of Appeals.7
accorded some cogency, but for the fact that it fails to consider that the medium he
used to make his statements was a television broadcast, which is accessible to Petitioners invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous.
children of virtually all ages. As already laid down in the Decision subject of this Obviously, he fails to appreciate what the Court stated in that particular case when
recourse, the interest of the government in protecting children who may be it rejected the argument that a religious program is beyond MTRCBs review and
subjected to petitioners invectives must take precedence over his desire to air regulatory authority. We reproduce what the Court pertinently wrote in Iglesia ni
publicly his dirty laundry. The public soapbox that is television must be guarded by Cristo:
the state, which purpose the MTRCB serves, and has served, in suspending Ang
Dating Daan for petitioners statements. As emphasized in Gonzalez v. Kalaw We thus reject petitioners postulate that its religious program is per se beyond
Katigbak,4 the freedom of broadcast media is, in terms of degree of protection it review by the respondent [MTRCB]. Its public broadcast on TV of its religious
program brings it out of the bosom of internal belief. Television is a medium that the program did not contain anything unsuitable for children and minors. The hour at
reaches even the eyes and ears of children. The Court iterates the rule that the which it was broadcasted was of little moment in light of the guarantee that the
exercise of religious freedom can be regulated by the State when it will bring about program was safe for childrens viewing.
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, The suspension of the program has not been arrived at lightly. Taking into account all
public morals, or public welfare. A laissez faire policy on the exercise of religion can the factors involved and the arguments pressed on the Court, the suspension of the
be seductive to the liberal mind but history counsels the Court against its blind program is a sufficiently limited disciplinary action, both to address the violation and
adoption as religion is and continues to be a volatile area of concern in our country to serve as an object lesson for the future. The likelihood is great that any
today. Across the sea and in our shore, the bloodiest and bitterest wars fought by disciplinary action imposed on petitioner would be met with an equally energetic
men were caused by irreconcilable religious differences. Our country is still not safe defense as has been put up here. The simple but stubborn fact is that there has
from the recurrence of this stultifying strife considering our warring religious beliefs been a violation of government regulations that have been put in place with a
and the fanaticism with which some of us cling and claw to these beliefs. x x x For laudable purpose, and this violation must accordingly be dealt with. We are not
when religion divides and its exercise destroys, the State should not stand still.8 unmindful of the concerns on the restriction of freedoms that may occur in imposing
(Emphasis added.) sanctions upon erring individuals and institutions, but it cannot be over-emphasized
that the freedoms encased in the Bill of Rights are far from absolute. Each has its
Lastly, petitioner claims that there was violation of due process of law, alleging that own limits, responsibilities, and obligations. Everyone is expected to bear the burden
the registered producer of the program is not a party to the proceedings. Hence, the implicit in the exercise of these freedoms. So it must be here.
program cannot, so petitioner asserts, be penalized.
We will let the records speak for themselves to refute that argument. WHEREFORE, petitioners motion for reconsideration is hereby DENIED. No further
pleadings shall be entertained in this case. Let entry of judgment be made in due
As per petitioners admission in his petition for certiorari filed with the Court, he is course. SO ORDERED.
"the Executive Producer of Ang Dating Daan, a televised bible exposition program G.R. No. 155282 January 17, 2005
produced by the Philippine-based religious organization, Church of God MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB),
International."9 It is unclear, then, which producer the movant is referring to in petitioner,
claiming that there was no representation before the MTRCB. He was and is the vs.ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA,
representative of Ang Dating Daan, and the claim that there was no due process of respondents.
law is simply bereft of merit. D E C I S I O N: SANDOVAL-GUTIERREZ, J.:

Even as the foregoing disquisitions would suffice to write finis to the instant motion, For our resolution is the petition for review on certiorari under Rule 45 of the 1997
certain relevant issues have been raised by some members of the Court that ought Rules of Court, as amended, filed by petitioner Movie and Television Review and
to be addressed if only to put things in their proper perspective. We refer to the Classification Board (MTRCB) against ABS-CBN Broadcasting Corporation (ABS-CBN)
matter of obscenity. 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
As stressed at every possible turn in the challenged Courts Decision, the defining Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052.
standards to be employed in judging the harmful effects of the statements petitioner
used would be those for the average child, not those for the average adult. We note The facts are undisputed.
that the ratings and regulation of television broadcasts take into account the On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-
protection of the child, and it is from the childs narrow viewpoint that the utterances tuition," an episode of the television (TV) program "The Inside Story" produced and
must be considered, if not measured. The ratings "G," "PG" (parental guidance), "PG- hosted by respondent Legarda. It depicted female students moonlighting as
13," and "R" (restricted or for adults only) suggest as much. The concern was then, prostitutes to enable them to pay for their tuition fees. In the course of the program,
as now, that the program petitioner hosted and produced would reach an student prostitutes, pimps, customers, and some faculty members were interviewed.
unintended audience, the average child, and so it is how this audience would view The Philippine Womens University (PWU) was named as the school of some of the
his words that matters. The average child would not be concerned with colorful students involved and the facade of PWU Building at Taft Avenue, Manila
speech, but, instead, focus on the literal, everyday meaning of words used. It was conspicuously served as the background of the episode.
this literal approach that rendered petitioners utterances obscene.1avvphi1
The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia
The Court has taken stock of Action for Childrens Television v. FCC,10 but finds this P. de Guzman, Chancellor and Trustee of the PWU, and the PWU Parents and
U.S. case not to be of governing application to this jurisdiction under the present Teachers Association filed letter-complaints3 with petitioner MTRCB. Both
state of things. The so-called "safe harbor" of 10:00 p.m. to 6:00 a.m., adverted to in complainants alleged that the episode besmirched the name of the PWU and
Action for Childrens Television as the time wherein broadcast of indecent material resulted in the harassment of some of its female students.
may be permitted, is believed inapplicable here. As it were, there is no legislative
enactment or executive issuance setting a similar period in the Philippines wherein Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal
indecent material may be broadcast. Rather than fix a period for allowing indecent complaint with the MTRCB Investigating Committee, alleging among others, that
programming, what is used in this jurisdiction is the system of classification of respondents (1) did not submit "The Inside Story" to petitioner for its review and (2)
television programs, which the petitioner violated. His program was rated "G," exhibited the same without its permission, thus, violating Section 74 of Presidential
purported to be suitable for all ages. We cannot lose sight of the violation of his Decree (P.D.) No. 19865 and Section 3,6 Chapter III and Section 7,7 Chapter IV of the
programs classification that carried with it the producers implied assurance that MTRCB Rules and Regulations.8
socio-political editorials," are subject to petitioners power of review under Section 3
In their answer,9 respondents explained that the "The Inside Story" is a "public (b) of P.D. No. 1986 and pursuant to this Courts ruling in Iglesia ni Cristo vs. Court of
affairs program, news documentary and socio-political editorial," the airing of which Appeals ;25 second, television programs are more accessible to the public than
is protected by the constitutional provision on freedom of expression and of the newspapers, thus, the liberal regulation of the latter cannot apply to the former;
press. Accordingly, petitioner has no power, authority and jurisdiction to impose any third, petitioners power to review television programs under Section 3(b) of P. D. No.
form of prior restraint upon respondents. 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.
On February 5, 1993, after hearing and submission of the parties memoranda, the
MTRCB Investigating Committee rendered a Decision, the decretal portion of which Respondents take the opposite stance.
reads: 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.
"WHEREFORE, the aforementioned premises, the respondents are ordered to pay the The petition is impressed with merit.
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. The present controversy brings into focus the provisions of Section 3 of P. D. No.
1986, partly reproduced as follows:
Heretofore, all subsequent programs of the The Inside Story and all other programs "SEC. 3. Powers and Functions. The BOARD shall have the following functions,
of the ABS-CBN Channel 2 of the same category shall be submitted to the Board of powers and duties:x x x x x x
Review and Approval before showing; otherwise the Board will act b) To screen, review and examine all motion pictures as herein defined, television
accordingly."101awphi1.nt programs, including publicity materials such as advertisements, trailers and stills,
whether such motion pictures and publicity materials be for theatrical or non-
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a theatrical distribution, for television broadcast or for general viewing, imported or
Decision dated March 12, 1993 affirming the above ruling of its Investigating produced in the Philippines, and in the latter case, whether they be for local viewing
Committee.11 Respondents filed a motion for reconsideration but was denied in a or for export.1a\^/
Resolution dated April 14, 1993.12 c) To approve or disapprove, delete objectionable portions from and/or prohibit the
importation, exportation, production, copying, distribution, sale, lease exhibition
Respondents then filed a special civil action for certiorari with the Regional Trial and/or television broadcast of the motion pictures, television programs and publicity
Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as unconstitutional materials subject of the preceding paragraph, which, in the judgment of the BOARD
Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D. No. 1986 and Sections applying contemporary Filipino cultural values as standard, are objectionable for
3,19 7,20 and 2821 (a) of the MTRCB Rules and Regulations;22 (2) (in the being immoral, indecent, contrary to law and/or good customs, injurious to the
alternative) exclude the "The Inside Story" from the coverage of the above cited prestige of the Republic of the Philippines or its people, or with a dangerous
provisions; and (3) annul and set aside the MTRCB Decision dated March 12, 1993 tendency to encourage the commission of violence or of a wrong or crime, such as
and Resolution dated April 14, 1993. Respondents averred that the above-cited but not limited to:
provisions constitute "prior restraint" on respondents exercise of freedom of xxx
expression and of the press, and, therefore, unconstitutional. Furthermore, the d) To supervise, regulate, and grant, deny or cancel, permits for the importation,
above cited provisions do not apply to the "The Inside Story" because it falls under exportation, production, copying, distribution, sale, lease, exhibition, and/or
the category of "public affairs program, news documentary, or socio-political television broadcast of all motion pictures, television programs and publicity
editorials" governed by standards similar to those governing newspapers. 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)
On November 18, 1997, the RTC rendered a Decision23 in favor of respondents, the hereof shall be imported, exported, produced, copied, reproduced, distributed, sold,
dispositive portion of which reads: leased, exhibited and/or broadcast by television;
x x x x x x."
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB the power to review the television program "The Inside Story." The task is not
dated March 12, 1993; Herculean because it merely resurrects this Court En Bancs ruling in Iglesia ni Cristo
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. vs. Court of Appeals.26 There, the Iglesia ni Cristo sought exception from petitioners
No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules do not cover the TV review power contending that the term "television programs" under Sec. 3 (b) does
Program "The Inside Story" and other similar programs, they being public affairs not include "religious programs" which are protected under Section 5, Article III of
programs which can be equated to newspapers; and the Constitution.27 This Court, through Justice Reynato Puno, categorically ruled that
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in P.D. No. 1986 gives petitioner "the power to screen, review and examine "all
their behalf. television programs," emphasizing the phrase "all television programs," thus:
Petitioner filed a motion for reconsideration but was denied.24 "The law gives the Board the power to screen, review and examine all television
Hence, this petition for review on certiorari. 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
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs x x x. The law also directs the Board to apply contemporary
television programs, including "public affairs programs, news documentaries, or 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 Still in a desperate attempt to be exempted, respondents contend that the "The
prestige of the Republic of the Philippines and its people, or with a dangerous Inside Story" falls under the category of newsreels.
tendency to encourage the commission of violence or of a wrong or crime."
Their contention is unpersuasive.
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 P. D. No. 1986 does not define "newsreels." Websters dictionary defines newsreels
reason apparent in the law to justify it.28 Ubi lex non distinguit nec distinguere as short motion picture films portraying or dealing with current events.33 A glance
debemos. Thus, when the law says "all television programs," the word "all" covers all at actual samples of newsreels shows that they are mostly reenactments of events
television programs, whether religious, public affairs, news documentary, etc.29 The that had already happened. Some concrete examples are those of Dziga Vertovs
principle assumes that the legislative body made no qualification in the use of Russian Kino-Pravda newsreel series (Kino-Pravda means literally "film-truth," a term
general word or expression.30 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.
It then follows that since "The Inside Story" is a television program, it is within the They are depiction of "actualities." Correspondingly, the MTRCB Rules and
jurisdiction of the MTRCB over which it has power of review. Regulations35 implementing P. D. No. 1986 define newsreels as "straight news
reporting, as distinguished from news analyses, commentaries and opinions. Talk
Here, respondents sought exemption from the coverage of the term "television shows on a given issue are not considered newsreels."36 Clearly, the "The Inside
programs" on the ground that the "The Inside Story" is a "public affairs program, Story" cannot be considered a newsreel. It is more of a public affairs program which
news documentary and socio-political editorial" protected under Section 4,31 Article is described as a variety of news treatment; a cross between pure television news
III of the Constitution. Albeit, respondents basis is not freedom of religion, as in and news-related commentaries, analysis and/or exchange of opinions.37 Certainly,
Iglesia ni Cristo,32 but freedom of expression and of the press, the ruling in Iglesia ni such kind of program is within petitioners review power.
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 It bears stressing that the sole issue here is whether petitioner MTRCB has authority
status by the framers of our fundamental laws, past and present, "designed to to review "The Inside Story." Clearly, we are not called upon to determine whether
protect the broadest possible liberty of conscience, to allow each man to believe as petitioner violated Section 4, Article III (Bill of Rights) of the Constitution providing
his conscience directs x x x." Yet despite the fact that freedom of religion has been that no law shall be passed abridging the freedom of speech, of oppression or the
accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristos press. Petitioner did not disapprove or ban the showing of the program. Neither did it
religious program from petitioners review power. cancel respondents permit. Respondents were merely penalized for their failure to
submit to petitioner "The Inside Story" for its review and approval. Therefore, we
Respondents claim that the showing of "The Inside Story" is protected by the need not resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules
constitutional provision on freedom of speech and of the press. However, there has and Regulations specified by respondents contravene the Constitution.
been no declaration at all by the framers of the Constitution that freedom of
expression and of the press has a preferred status. 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
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the are unconstitutional. It is settled that no question involving the constitutionality or
jurisdiction and review power of petitioner MTRCB, with more reason, there is no validity of a law or governmental act may be heard and decided by the court unless
justification to exempt therefrom "The Inside Story" which, according to there is compliance with the legal requisites for judicial inquiry, namely: (1) that the
respondents, is protected by the constitutional provision on freedom of expression question must be raised by the proper party; (2) that there must be an actual case
and of the press, a freedom bearing no preferred status. 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
The only exceptions from the MTRCBs power of review are those expressly be necessary to the determination of the case itself.38
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 WHEREFORE, the instant petition is GRANTED.l^ The assailed RTC
(2) newsreels. Thus: 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.
"SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or Costs against respondents. SO ORDERED.
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 SPEECH AND RIGHT OF INFORMATION
publicity material, including trailers, and stills for lobby displays in connection with G.R. No. 74930 February 13, 1989
motion pictures, not duly authorized by the owner or his assignee and passed by the RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO
BOARD; or to print or cause to be printed on any motion picture to be exhibited in BARTOLOME, LEO OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN
any theater or public place or by television a label or notice showing the same to "NINOY" ALBA, PERCY LAPID, ROMMEL CORRO and ROLANDO FADUL,
have been officially passed by the BOARD when the same has not been previously petitioners,
authorized, except motion pictures, television programs or publicity material vs.FELICIANO BELMONTE, JR., respondent.
imprinted or exhibited by the Philippine Government and/or its departments and Ricardo C. Valmonte for and in his own behalf and his co-petitioners.
agencies, and newsreels." The Solicitor General for respondent.
Petitioners in this special civil action for mandamus with preliminary injunction As a violation of this confidentiality may mar the image of the GSIS as a reputable
invoke their right to information and pray that respondent be directed: financial institution, I regret very much that at this time we cannot respond
positively to your request.
Very truly yours,
(a) to furnish petitioners the list of the names of the Batasang Pambansa Deputy General CounseL [Rollo, p. 40.]
members belonging to the UNIDO and PDP-Laban who were able to secure clean
loans immediately before the February 7 election thru the intercession/marginal note On June 20, 1986, apparently not having yet received the reply of the Government
of the then First Lady Imelda Marcos; and/or Service and Insurance System (GSIS) Deputy General Counsel, petitioner Valmonte
(b) to furnish petitioners with certified true copies of the documents evidencing wrote respondent another letter, saying that for failure to receive a reply, "(W)e are
their respective loans; and/or now considering ourselves free to do whatever action necessary within the premises
(c) to allow petitioners access to the public records for the subject information. to pursue our desired objective in pursuance of public interest." [Rollo, p. 8.]
(Petition, pp. 4-5; paragraphing supplied.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
The controversy arose when petitioner Valmonte wrote respondent Belmonte the On July 19, 1986, the Daily Express carried a news item reporting that 137 former
following letter: members of the defunct interim and regular Batasang Pambansa, including ten (10)
June 4, 1986 opposition members, were granted housing loans by the GSIS [Rollo, p. 41.]
Hon. Feliciano Belmonte
GSIS General Manager Separate comments were filed by respondent Belmonte and the Solicitor General.
Arroceros, Manila After petitioners filed a consolidated reply, the petition was given due course and
Sir: the parties were required to file their memoranda. The parties having complied, the
As a lawyer, member of the media and plain citizen of our Republic, I am requesting case was deemed submitted for decision.
that I be furnished with the list of names of the opposition members of (the)
Batasang Pambansa who were able to secure a clean loan of P2 million each on In his comment respondent raises procedural objections to the issuance of a writ of
guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel Lopez of Manila mandamus, among which is that petitioners have failed to exhaust administrative
was one of those aforesaid MPs. Likewise, may we be furnished with the certified remedies.
true copies of the documents evidencing their loan. Expenses in connection herewith
shall be borne by us. Respondent claims that actions of the GSIS General Manager are reviewable by the
Board of Trustees of the GSIS. Petitioners, however, did not seek relief from the GSIS
If we could not secure the above documents could we have access to them? Board of Trustees. It is therefore asserted that since administrative remedies were
We are premising the above request on the following provision of the Freedom not exhausted, then petitioners have no cause of action.
Constitution of the present regime.
The right of the people to information on matters of public concern shall be To this objection, petitioners claim that they have raised a purely legal issue, viz.,
recognized. Access to official records, and to documents and papers pertaining to whether or not they are entitled to the documents sought, by virtue of their
official acts, transactions or decisions, shall be afforded the citizen subject to such constitutional right to information. Hence, it is argued that this case falls under one
limitation as may be provided by law. (Art. IV, Sec. 6). of the exceptions to the principle of exhaustion of administrative remedies.
We trust that within five (5) days from receipt hereof we will receive your favorable
response on the matter. Among the settled principles in administrative law is that before a party can be
Very truly yours, allowed to resort to the courts, he is expected to have exhausted all means of
(Sgd.) RICARDO C. VALMONTE [Rollo, p. 7.] administrative redress available under the law. The courts for reasons of law, comity
and convenience will not entertain a case unless the available administrative
To the aforesaid letter, the Deputy General Counsel of the GSIS replied: remedies have been resorted to and the appropriate authorities have been given
opportunity to act and correct the errors committed in the administrative forum.
June 17, 1986 However, the principle of exhaustion of administrative remedies is subject to settled
Atty. Ricardo C. Valmonte exceptions, among which is when only a question of law is involved [Pascual v.
108 E. Benin Street Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396,
Caloocan City July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984,
Dear Compaero: 129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of
Possibly because he must have thought that it contained serious legal implications, the scope of the constitutional right to information, is one which can be passed upon
President & General Manager Feliciano Belmonte, Jr. referred to me for study and by the regular courts more competently than the GSIS or its Board of Trustees,
reply your letter to him of June 4, 1986 requesting a list of the opposition members involving as it does a purely legal question. Thus, the exception of this case from the
of Batasang Pambansa who were able to secure a clean loan of P2 million each on application of the general rule on exhaustion of administrative remedies is
guaranty of Mrs. Imelda Marcos. warranted. Having disposed of this procedural issue, We now address ourselves to
My opinion in this regard is that a confidential relationship exists between the GSIS the issue of whether or not mandamus hes to compel respondent to perform the
and all those who borrow from it, whoever they may be; that the GSIS has a duty to acts sought by petitioners to be done, in pursuance of their right to information.
its customers to preserve this confidentiality; and that it would not be proper for the
GSIS to breach this confidentiality unless so ordered by the courts.
We shall deal first with the second and third alternative acts sought to be done, both and therefore restricted in application by the exercise of the freedoms of speech and
of which involve the issue of whether or not petitioners are entitled to access to the of the press. Far from it. The right to information goes hand-in-hand with the
documents evidencing loans granted by the GSIS. constitutional policies of full public disclosure * and honesty in the public service. **
It is meant to enhance the widening role of the citizenry in governmental decision-
This is not the first time that the Court is confronted with a controversy directly making as well as in checking abuse in government.
involving the constitutional right to information. In Taada v. Tuvera, G.R. No. 63915,
April 24,1985, 136 SCRA 27 and in the recent case of Legaspi v. Civil Service Yet, like all the constitutional guarantees, the right to information is not absolute. As
Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530, the Court upheld the stated in Legaspi, the people's right to information is limited to "matters of public
people's constitutional right to be informed of matters of public interest and ordered concern," and is further "subject to such limitations as may be provided by law."
the government agencies concerned to act as prayed for by the petitioners. Similarly, the State's policy of full disclosure is limited to "transactions involving
public interest," and is "subject to reasonable conditions prescribed by law."
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states:
Hence, before mandamus may issue, it must be clear that the information sought is
The right of the people to information on matters of public concern shall be of "public interest" or "public concern," and is not exempted by law from the
recognized. Access to official records, and to documents, and papers pertaining to operation of the constitutional guarantee [Legazpi v. Civil Service Commission,
official acts, transactions, or decisions, as well as to government research data used supra, at p. 542.]
as basis for policy development, shall be afforded the citizen, subject to such
limitations as may be provided by law. The Court has always grappled with the meanings of the terms "public interest" and
"public concern". As observed in Legazpi:
The right of access to information was also recognized in the 1973 Constitution, Art.
IV Sec. 6 of which provided: In determining whether or not a particular information is of public concern there is
no rigid test which can be applied. "Public concern" like "public interest" is a term
The right of the people to information on 'matters of public concern shall be that eludes exact definition. Both terms embrace a broad spectrum of subjects
recognized. Access to official records, and to documents and papers pertaining to which the public may want to know, either because these directly affect their lives,
official acts, transactions, or decisions, shall be afforded the citizen subject to such or simply because such matters naturally arouse the interest of an ordinary citezen.
limitations as may be provided by law. In the final analysis, it is for the courts to determine on a case by case basis whether
the matter at issue is of interest or importance, as it relates to or affects the public.
An informed citizenry with access to the diverse currents in political, moral and [Ibid. at p. 541]
artistic thought and data relative to them, and the free exchange of ideas and
discussion of issues thereon, is vital to the democratic government envisioned under In the Taada case the public concern deemed covered by the constitutional right to
our Constitution. The cornerstone of this republican system of government is information was the need for adequate notice to the public of the various laws which
delegation of power by the people to the State. In this system, governmental are to regulate the actions and conduct of citezens. In Legaspi, it was the "legitimate
agencies and institutions operate within the limits of the authority conferred by the concern of citezensof ensure that government positions requiring civil service
people. Denied access to information on the inner workings of government, the eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]
citizenry can become prey to the whims and caprices of those to whom the power
had been delegated. The postulate of public office as a public trust, institutionalized The information sought by petitioners in this case is the truth of reports that certain
in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of Members of the Batasang Pambansa belonging to the opposition were able to secure
governmental power, would certainly be were empty words if access to such "clean" loans from the GSIS immediately before the February 7, 1986 election
information of public concern is denied, except under limitations prescribed by through the intercession of th eformer First Lady, Mrs. Imelda Marcos.
implementing legislation adopted pursuant to the Constitution.
The GSIS is a trustee of contributions from the government and its employees and
Petitioners are practitioners in media. As such, they have both the right to gather the administrator of various insurance programs for the benefit of the latter.
and the obligation to check the accuracy of information the disseminate. For them, Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and 46
the freedom of the press and of speech is not only critical, but vital to the exercise of of P.D. 1146, as amended (the Revised Government Service Insurance Act of 1977),
their professions. The right of access to information ensures that these freedoms are provide for annual appropriations to pay the contributions, premiums, interest and
not rendered nugatory by the government's monopolizing pertinent information. For other amounts payable to GSIS by the government, as employer, as well as the
an essential element of these freedoms is to keep open a continuing dialogue or obligations which the Republic of the Philippines assumes or guarantees to pay.
process of communication between the government and the people. It is in the Considering the nature of its funds, the GSIS is expected to manage its resources
interest of the State that the channels for free political discussion be maintained to with utmost prudence and in strict compliance with the pertinent laws or rules and
the end that the government may perceive and be responsive to the people's will. regulations. Thus, one of the reasons that prompted the revision of the old GSIS law
Yet, this open dialogue can be effective only to the extent that the citizenry is (C.A. No. 186, as amended) was the necessity "to preserve at all times the actuarial
informed and thus able to formulate its will intelligently. Only when the participants solvency of the funds administered by the System" [Second Whereas Clause, P.D.
in the discussion are aware of the issues and have access to information relating No. 1146.] Consequently, as respondent himself admits, the GSIS "is not supposed
thereto can such bear fruit. to grant 'clean loans.'" [Comment, p. 8.] It is therefore the legitimate concern of the
public to ensure that these funds are managed properly with the end in view of
The right to information is an essential premise of a meaningful right to speech and maximizing the benefits that accrue to the insured government employees.
expression. But this is not to say that the right to information is merely an adjunct of Moreover, the supposed borrowers were Members of the defunct Batasang
Pambansa who themselves appropriated funds for the GSIS and were therefore Biscuit Co. [197 F. 982 (1912)], a corporation has no right of privacy in its name
expected to be the first to see to it that the GSIS performed its tasks with the since the entire basis of the right to privacy is an injury to the feelings and
greatest degree of fidelity and that an its transactions were above board. sensibilities of the party and a corporation would have no such ground for relief.

In sum, the public nature of the loanable funds of the GSIS and the public office held Neither can the GSIS through its General Manager, the respondent, invoke the right
by the alleged borrowers make the information sought clearly a matter of public to privacy of its borrowers. The right is purely personal in nature [Cf. Atkinson v. John
interest and concern. Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219 (1899); Schuyler v. Curtis,
147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)), and hence may be invoked only by
A second requisite must be met before the right to information may be enforced the person whose privacy is claimed to be violated.
through mandamus proceedings, viz., that the information sought must not be
among those excluded by law. It may be observed, however, that in the instant case, the concerned borrowers
themselves may not succeed if they choose to invoke their right to privacy,
Respondent maintains that a confidential relationship exists between the GSIS and considering the public offices they were holding at the time the loans were alleged
its borrowers. It is argued that a policy of confidentiality restricts the indiscriminate to have been granted. It cannot be denied that because of the interest they
dissemination of information. generate and their newsworthiness, public figures, most especially those holding
responsible positions in government, enjoy a more limited right to privacy as
Yet, respondent has failed to cite any law granting the GSIS the privilege of compared to ordinary individuals, their actions being subject to closer public scrutiny
confidentiality as regards the documents subject of this petition. His position is [Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380 and 82398, April 29,
apparently based merely on considerations of policy. The judiciary does not settle 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
policy issues. The Court can only declare what the law is, and not what the law
should be. Under our system of government, policy issues are within the domain of Respondent next asserts that the documents evidencing the loan transactions of the
the political branches of the government, and of the people themselves as the GSIS are private in nature and hence, are not covered by the Constitutional right to
repository of all State power. information on matters of public concern which guarantees "(a)ccess to official
records, and to documents, and papers pertaining to official acts, transactions, or
Respondent however contends that in view of the right to privacy which is equally decisions" only.
protected by the Constitution and by existing laws, the documents evidencing loan
transactions of the GSIS must be deemed outside the ambit of the right to It is argued that the records of the GSIS, a government corporation performing
information. proprietary functions, are outside the coverage of the people's right of access to
official records.
There can be no doubt that right to privacy is constitutionally protected. In the
landmark case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, It is further contended that since the loan function of the GSIS is merely incidental to
speaking through then Mr. Justice Fernando, stated: its insurance function, then its loan transactions are not covered by the
constitutional policy of full public disclosure and the right to information which is
... The right to privacy as such is accorded recognition independently of its applicable only to "official" transactions.
identification with liberty; in itself, it is fully deserving of constitutional protection.
The language of Prof. Emerson is particularly apt: "The concept of limited First of all, the "constituent ministrant" dichotomy characterizing government
government has always included the idea that governmental powers stop short of function has long been repudiated. In ACCFA v. Confederation of Unions and
certain intrusions into the personal life of the citizen. This is indeed one of the basic Government Corporations and Offices (G.R. Nos. L-21484 and L-23605, November
distinctions between absolute and limited government. UItimate and pervasive 29, 1969, 30 SCRA 6441, the Court said that the government, whether carrying out
control of the individual, in all aspects of his life, is the hallmark of the absolute. its sovereign attributes or running some business, discharges the same function of
state, In contrast, a system of limited government safeguards a private sector, service to the people.
which belongs to the individual, firmly distinguishing it from the public sector, which
the state can control. Protection of this private sector protection, in other words, Consequently, that the GSIS, in granting the loans, was exercising a proprietary
of the dignity and integrity of the individual has become increasingly important as function would not justify the exclusion of the transactions from the coverage and
modem society has developed. All the forces of technological age scope of the right to information.
industrialization, urbanization, and organization operate to narrow the area of
privacy and facilitate intrusion into it. In modern terms, the capacity to maintain and Moreover, the intent of the members of the Constitutional Commission of 1986, to
support this enclave of private life marks the difference between a democratic and a include government-owned and controlled corporations and transactions entered
totalitarian society." [at pp. 444-445.] into by them within the coverage of the State policy of fun public disclosure is
manifest from the records of the proceedings:
When the information requested from the government intrudes into the privacy of a xxx xxx xxx
citizen, a potential conflict between the rights to information and to privacy may THE PRESIDING OFFICER (Mr. Colayco).
arise. However, the competing interests of these rights need not be resolved in this Commissioner Suarez is recognized.
case. Apparent from the above-quoted statement of the Court in Morfe is that the MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
right to privacy belongs to the individual in his private capacity, and not to public MR. OPLE. Very gladly.
and governmental agencies like the GSIS. Moreover, the right cannot be invoked by MR. SUAREZ. Thank you.
juridical entities like the GSIS. As held in the case of Vassar College v. Loose Wills
When we declare a "policy of full public disclosure of all its transactions" referring WHEREFORE, the instant petition is hereby granted and respondent General
to the transactions of the State and when we say the "State" which I suppose Manager of the Government Service Insurance System is ORDERED to allow
would include all of the various agencies, departments, ministries and petitioners access to documents and records evidencing loans granted to Members
instrumentalities of the government.... of the former Batasang Pambansa, as petitioners may specify, subject to reasonable
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer. regulations as to the time and manner of inspection, not incompatible with this
MR. SUAREZ. Including government-owned and controlled corporations. decision, as the GSIS may deem necessary. SO ORDERED.
MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should be distinguished AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA
from contracts, agreements, or treaties or whatever, does the Gentleman refer to SAMAHAN SA KANAYUNAN ("PKSK") et al. vs THOMAS G. AQUINO, in his capacity as
the steps leading to the consummation of the contract, or does he refer to the Undersecretary of the Department of Trade and Industry (DTI) and Chairman and
contract itself? Chief Delegate of the Philippine Coordinating Committee (PCC) for the Japan-
MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in his capacity as
can cover both steps leading to a contract, and already a consummated contract, Undersecretary of the Department of Foreign Affairs (DFA) et al.
Mr. Presiding Officer. CARPIO MORALES, J.:
MR. SUAREZ. This contemplates inclusion of negotiations leading to the G.R. No. 170516 July 16, 2008
consummation of the transaction. Petitioners non-government organizations, Congresspersons, citizens and
MR. OPLE. Yes, subject only to reasonable safeguards on the national interest. taxpayers seek via the present petition for mandamus and prohibition to obtain
MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] from respondents the full text of the Japan-Philippines Economic Partnership
(Emphasis supplied.) Agreement (JPEPA) including the Philippine and Japanese offers submitted during the
negotiation process and all pertinent attachments and annexes thereto.
Considering the intent of the framers of the Constitution which, though not binding
upon the Court, are nevertheless persuasive, and considering further that Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January
government-owned and controlled corporations, whether performing proprietary or 25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade
governmental functions are accountable to the people, the Court is convinced that agreements then being negotiated by the Philippine government, particularly the
transactions entered into by the GSIS, a government-controlled corporation created JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the
by special legislation are within the ambit of the people's right to be informed House Special Committee on Globalization (the House Committee) into the
pursuant to the constitutional policy of transparency in government dealings. negotiations of the JPEPA.

In fine, petitioners are entitled to access to the documents evidencing loans granted In the course of its inquiry, the House Committee requested herein respondent
by the GSIS, subject to reasonable regulations that the latter may promulgate Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine
relating to the manner and hours of examination, to the end that damage to or loss Coordinating Committee created under Executive Order No. 213 ("Creation of A
of the records may be avoided, that undue interference with the duties of the Philippine Coordinating Committee to Study the Feasibility of the Japan-Philippines
custodian of the records may be prevented and that the right of other persons Economic Partnership Agreement")1 to study and negotiate the proposed JPEPA, and
entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, to furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino
supra at p. 538, quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the did not heed the request, however.
second and third alternative acts sought to be done by petitioners, is meritorious.
Congressman Aguja later requested for the same document, but Usec. Aquino, by
However, the same cannot be said with regard to the first act sought by petitioners, letter of November 2, 2005, replied that the Congressman shall be provided with a
i.e., "to furnish petitioners the list of the names of the Batasang Pambansa members copy thereof "once the negotiations are completed and as soon as a thorough legal
belonging to the UNIDO and PDP-Laban who were able to secure clean loans review of the proposed agreement has been conducted."
immediately before the February 7 election thru the intercession/marginal note of
the then First Lady Imelda Marcos." In a separate move, the House Committee, through Congressman Herminio G. Teves,
requested Executive Secretary Eduardo Ermita to furnish it with "all documents on
Although citizens are afforded the right to information and, pursuant thereto, are the subject including the latest draft of the proposed agreement, the requests and
entitled to "access to official records," the Constitution does not accord them a right offers etc."2 Acting on the request, Secretary Ermita, by letter of June 23, 2005,
to compel custodians of official records to prepare lists, abstracts, summaries and wrote Congressman Teves as follows:
the like in their desire to acquire information on matters of public concern.
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign]
It must be stressed that it is essential for a writ of mandamus to issue that the A[ffairs] explains that the Committees request to be furnished all documents on the
applicant has a well-defined, clear and certain legal right to the thing demanded and JPEPA may be difficult to accomplish at this time, since the proposed Agreement has
that it is the imperative duty of defendant to perform the act required. The been a work in progress for about three years. A copy of the draft JPEPA will however
corresponding duty of the respondent to perform the required act must be clear and be forwarded to the Committee as soon as the text thereof is settled and complete.
specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA 203; (Emphasis supplied)
Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of
the petitioners fails to meet this standard, there being no duty on the part of Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff
respondent to prepare the list requested. Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the
latest text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff are all suing in their capacity as citizens and groups of citizens including petitioners-
Commission does not have a copy of the documents being requested, albeit he was members of the House of Representatives who additionally are suing in their
certain that Usec. Aquino would provide the Congressman with a copy "once the capacity as such, the standing of petitioners to file the present suit is grounded in
negotiation is completed." And by letter of July 18, 2005, NEDA Assistant Director- jurisprudence.
General Margarita R. Songco informed the Congressman that his request addressed
to Director-General Neri had been forwarded to Usec. Aquino who would be "in the Mootness
best position to respond" to the request.
Considering, however, that "[t]he principal relief petitioners are praying for is the
In its third hearing conducted on August 31, 2005, the House Committee resolved to disclosure of the contents of the JPEPA prior to its finalization between the two
issue a subpoena for the most recent draft of the JPEPA, but the same was not States parties,"10 public disclosure of the text of the JPEPA after its signing by the
pursued because by Committee Chairman Congressman Teves information, then President, during the pendency of the present petition, has been largely rendered
House Speaker Jose de Venecia had requested him to hold in abeyance the issuance moot and academic.
of the subpoena until the President gives her consent to the disclosure of the
documents.3 With the Senate deliberations on the JPEPA still pending, the agreement as it now
stands cannot yet be considered as final and binding between the two States. Article
Amid speculations that the JPEPA might be signed by the Philippine government 164 of the JPEPA itself provides that the agreement does not take effect immediately
within December 2005, the present petition was filed on December 9, 2005.4 The upon the signing thereof. For it must still go through the procedures required by the
agreement was to be later signed on September 9, 2006 by President Gloria laws of each country for its entry into force, viz:
Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland,
following which the President endorsed it to the Senate for its concurrence pursuant Article 164
to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being Entry into Force
deliberated upon by the Senate.
This Agreement shall enter into force on the thirtieth day after the date on which the
The JPEPA, which will be the first bilateral free trade agreement to be entered into by Governments of the Parties exchange diplomatic notes informing each other that
the Philippines with another country in the event the Senate grants its consent to it, their respective legal procedures necessary for entry into force of this Agreement
covers a broad range of topics which respondents enumerate as follows: trade in have been completed. It shall remain in force unless terminated as provided for in
goods, rules of origin, customs procedures, paperless trading, trade in services, Article 165.11 (Emphasis supplied)
investment, intellectual property rights, government procurement, movement of
natural persons, cooperation, competition policy, mutual recognition, dispute President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of
avoidance and settlement, improvement of the business environment, and general the legal procedures which must be met prior to the agreements entry into force.
and final provisions.5
The text of the JPEPA having then been made accessible to the public, the petition
While the final text of the JPEPA has now been made accessible to the public since has become moot and academic to the extent that it seeks the disclosure of the "full
September 11, 2006,6 respondents do not dispute that, at the time the petition was text" thereof.
filed up to the filing of petitioners Reply when the JPEPA was still being negotiated
the initial drafts thereof were kept from public view. The petition is not entirely moot, however, because petitioners seek to obtain, not
merely the text of the JPEPA, but also the Philippine and Japanese offers in the
Before delving on the substantive grounds relied upon by petitioners in support of course of the negotiations.12
the petition, the Court finds it necessary to first resolve some material procedural
issues. A discussion of the substantive issues, insofar as they impinge on petitioners
demand for access to the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners
For a petition for mandamus such as the one at bar to be given due course, it must
be instituted by a party aggrieved by the alleged inaction of any tribunal, Petitioners assert, first, that the refusal of the government to disclose the
corporation, board or person which unlawfully excludes said party from the documents bearing on the JPEPA negotiations violates their right to information on
enjoyment of a legal right.7 Respondents deny that petitioners have such standing matters of public concern13 and contravenes other constitutional provisions on
to sue. "[I]n the interest of a speedy and definitive resolution of the substantive transparency, such as that on the policy of full public disclosure of all transactions
issues raised," however, respondents consider it sufficient to cite a portion of the involving public interest.14 Second, they contend that non-disclosure of the same
ruling in Pimentel v. Office of Executive Secretary8 which emphasizes the need for a documents undermines their right to effective and reasonable participation in all
"personal stake in the outcome of the controversy" on questions of standing. levels of social, political, and economic decision-making.15 Lastly, they proffer that
divulging the contents of the JPEPA only after the agreement has been concluded will
In a petition anchored upon the right of the people to information on matters of effectively make the Senate into a mere rubber stamp of the Executive, in violation
public concern, which is a public right by its very nature, petitioners need not show of the principle of separation of powers.
that they have any legal or special interest in the result, it being sufficient to show
that they are citizens and, therefore, part of the general public which possesses the
right.9 As the present petition is anchored on the right to information and petitioners
Significantly, the grounds relied upon by petitioners for the disclosure of the latest now, these are evidently covered by executive privilege consistent with existing
text of the JPEPA are, except for the last, the same as those cited for the disclosure legal provisions and settled jurisprudence.
of the Philippine and Japanese offers.
Practical and strategic considerations likewise counsel against the disclosure of the
The first two grounds relied upon by petitioners which bear on the merits of "rolling texts" which may undergo radical change or portions of which may be totally
respondents claim of privilege shall be discussed. The last, being purely speculatory abandoned. Furthermore, the negotiations of the representatives of the Philippines
given that the Senate is still deliberating on the JPEPA, shall not. as well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of
The JPEPA is a matter of public concern opinions are accorded strict confidentiality.22 (Emphasis and underscoring supplied)

To be covered by the right to information, the information sought must meet the The ground relied upon by respondents is thus not simply that the information
threshold requirement that it be a matter of public concern. Apropos is the teaching sought involves a diplomatic matter, but that it pertains to diplomatic negotiations
of Legaspi v. Civil Service Commission: then in progress.

In determining whether or not a particular information is of public concern there is Privileged character of diplomatic negotiations
no rigid test which can be applied. Public concern like public interest is a term that
eludes exact definition. Both terms embrace a broad spectrum of subjects which the The privileged character of diplomatic negotiations has been recognized in this
public may want to know, either because these directly affect their lives, or simply jurisdiction. In discussing valid limitations on the right to information, the Court in
because such matters naturally arouse the interest of an ordinary citizen. In the final Chavez v. PCGG held that "information on inter-government exchanges prior to the
analysis, it is for the courts to determine on a case by case basis whether the matter conclusion of treaties and executive agreements may be subject to reasonable
at issue is of interest or importance, as it relates to or affects the public.16 safeguards for the sake of national interest."23 Even earlier, the same privilege was
(Underscoring supplied) upheld in Peoples Movement for Press Freedom (PMPF) v. Manglapus24 wherein the
Court discussed the reasons for the privilege in more precise terms.
From the nature of the JPEPA as an international trade agreement, it is evident that
the Philippine and Japanese offers submitted during the negotiations towards its In PMPF v. Manglapus, the therein petitioners were seeking information from the
execution are matters of public concern. This, respondents do not dispute. They only Presidents representatives on the state of the then on-going negotiations of the RP-
claim that diplomatic negotiations are covered by the doctrine of executive privilege, US Military Bases Agreement.25 The Court denied the petition, stressing that
thus constituting an exception to the right to information and the policy of full public "secrecy of negotiations with foreign countries is not violative of the constitutional
disclosure. provisions of freedom of speech or of the press nor of the freedom of access to
information." The Resolution went on to state, thus:
Respondents claim of privilege
The nature of diplomacy requires centralization of authority and expedition of
It is well-established in jurisprudence that neither the right to information nor the decision which are inherent in executive action. Another essential characteristic of
policy of full public disclosure is absolute, there being matters which, albeit of public diplomacy is its confidential nature. Although much has been said about "open" and
concern or public interest, are recognized as privileged in nature. The types of "secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes
information which may be considered privileged have been elucidated in Almonte v. and Stimson have clearly analyzed and justified the practice. In the words of Mr.
Vasquez,17 Chavez v. PCGG,18 Chavez v. Public Estates Authority,19 and most Stimson:
recently in Senate v. Ermita20 where the Court reaffirmed the validity of the doctrine
of executive privilege in this jurisdiction and dwelt on its scope. "A complicated negotiation . . . cannot be carried through without many, many
private talks and discussion, man to man; many tentative suggestions and
Whether a claim of executive privilege is valid depends on the ground invoked to proposals. Delegates from other countries come and tell you in confidence of their
justify it and the context in which it is made.21 In the present case, the ground for troubles at home and of their differences with other countries and with other
respondents claim of privilege is set forth in their Comment, viz: delegates; they tell you of what they would do under certain circumstances and
would not do under other circumstances. . . If these reports . . . should become
x x x The categories of information that may be considered privileged includes public . . . who would ever trust American Delegations in another conference?
matters of diplomatic character and under negotiation and review. In this case, the (United States Department of State, Press Releases, June 7, 1930, pp. 282-284.)."
privileged character of the diplomatic negotiations has been categorically invoked
and clearly explained by respondents particularly respondent DTI Senior xxxx
Undersecretary. There is frequent criticism of the secrecy in which negotiation with foreign powers on
nearly all subjects is concerned. This, it is claimed, is incompatible with the
The documents on the proposed JPEPA as well as the text which is subject to substance of democracy. As expressed by one writer, "It can be said that there is no
negotiations and legal review by the parties fall under the exceptions to the right of more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the
access to information on matters of public concern and policy of public disclosure. Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the
They come within the coverage of executive privilege. At the time when the conclusion of the World War declared that we must have "open covenants, openly
Committee was requesting for copies of such documents, the negotiations were arrived at." He quickly abandoned his thought.
ongoing as they are still now and the text of the proposed JPEPA is still uncertain and
subject to change. Considering the status and nature of such documents then and
No one who has studied the question believes that such a method of publicity is Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction,
possible. In the moment that negotiations are started, pressure groups attempt to the JPEPA negotiations constituting no exception. It bears emphasis, however, that
"muscle in." An ill-timed speech by one of the parties or a frank declaration of the such privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type
concession which are exacted or offered on both sides would quickly lead to of information as privileged does not mean that it will be considered privileged in all
widespread propaganda to block the negotiations. After a treaty has been drafted instances. Only after a consideration of the context in which the claim is made may
and its terms are fully published, there is ample opportunity for discussion before it it be determined if there is a public interest that calls for the disclosure of the
is approved. (The New American Government and Its Works, James T. Young, 4th desired information, strong enough to overcome its traditionally privileged status.
Edition, p. 194) (Emphasis and underscoring supplied)
Whether petitioners have established the presence of such a public interest shall be
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright discussed later. For now, the Court shall first pass upon the arguments raised by
Export Corp.26 that the President is the sole organ of the nation in its negotiations petitioners against the application of PMPF v. Manglapus to the present case.
with foreign countries, viz:
Arguments proffered by petitioners against the application of PMPF v. Manglapus
"x x x In this vast external realm, with its important, complicated, delicate and
manifold problems, the President alone has the power to speak or listen as a Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present
representative of the nation. He makes treaties with the advice and consent of the case, there being substantial factual distinctions between the two.
Senate; but he alone negotiates. Into the field of negotiation the Senate cannot
intrude; and Congress itself is powerless to invade it. As Marshall said in his great To petitioners, the first and most fundamental distinction lies in the nature of the
argument of March 7, 1800, in the House of Representatives, "The President is the treaty involved. They stress that PMPF v. Manglapus involved the Military Bases
sole organ of the nation in its external relations, and its sole representative with Agreement which necessarily pertained to matters affecting national security;
foreign nations." Annals, 6th Cong., col. 613. . . (Emphasis supplied; underscoring in whereas the present case involves an economic treaty that seeks to regulate trade
the original) and commerce between the Philippines and Japan, matters which, unlike those
covered by the Military Bases Agreement, are not so vital to national security to
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final disallow their disclosure.
text of the JPEPA may not be kept perpetually confidential since there should be
"ample opportunity for discussion before [a treaty] is approved" the offers Petitioners argument betrays a faulty assumption that information, to be considered
exchanged by the parties during the negotiations continue to be privileged even privileged, must involve national security. The recognition in Senate v. Ermita29 that
after the JPEPA is published. It is reasonable to conclude that the Japanese executive privilege has encompassed claims of varying kinds, such that it may even
representatives submitted their offers with the understanding that "historic be more accurate to speak of "executive privileges," cautions against such
confidentiality"27 would govern the same. Disclosing these offers could impair the generalization.
ability of the Philippines to deal not only with Japan but with other foreign
governments in future negotiations. While there certainly are privileges grounded on the necessity of safeguarding
national security such as those involving military secrets, not all are founded
A ruling that Philippine offers in treaty negotiations should now be open to public thereon. One example is the "informers privilege," or the privilege of the
scrutiny would discourage future Philippine representatives from frankly expressing Government not to disclose the identity of a person or persons who furnish
their views during negotiations. While, on first impression, it appears wise to deter information of violations of law to officers charged with the enforcement of that
Philippine representatives from entering into compromises, it bears noting that law.30 The suspect involved need not be so notorious as to be a threat to national
treaty negotiations, or any negotiation for that matter, normally involve a process of security for this privilege to apply in any given instance. Otherwise, the privilege
quid pro quo, and oftentimes negotiators have to be willing to grant concessions in would be inapplicable in all but the most high-profile cases, in which case not only
an area of lesser importance in order to obtain more favorable terms in an area of would this be contrary to long-standing practice. It would also be highly prejudicial
greater national interest. Apropos are the following observations of Benjamin S. to law enforcement efforts in general.
Duval, Jr.:
Also illustrative is the privilege accorded to presidential communications, which are
x x x [T]hose involved in the practice of negotiations appear to be in agreement that presumed privileged without distinguishing between those which involve matters of
publicity leads to "grandstanding," tends to freeze negotiating positions, and inhibits national security and those which do not, the rationale for the privilege being that
the give-and-take essential to successful negotiation. As Sissela Bok points out, if
"negotiators have more to gain from being approved by their own sides than by x x x [a] frank exchange of exploratory ideas and assessments, free from the glare
making a reasoned agreement with competitors or adversaries, then they are of publicity and pressure by interested parties, is essential to protect the
inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little independence of decision-making of those tasked to exercise Presidential,
option. It would be a brave, or foolish, Arab leader who expressed publicly a Legislative and Judicial power. x x x31 (Emphasis supplied)
willingness for peace with Israel that did not involve the return of the entire West
Bank, or Israeli leader who stated publicly a willingness to remove Israel's existing In the same way that the privilege for judicial deliberations does not depend on the
settlements from Judea and Samaria in return for peace.28 (Emphasis supplied) nature of the case deliberated upon, so presidential communications are privileged
whether they involve matters of national security.
Indeed, by hampering the ability of our representatives to compromise, we may be
jeopardizing higher national goals for the sake of securing less critical ones. It bears emphasis, however, that the privilege accorded to presidential
communications is not absolute, one significant qualification being that "the
Executive cannot, any more than the other branches of government, invoke a The policies behind the deliberative process privilege support non-disclosure. Much
general confidentiality privilege to shield its officials and employees from harm could accrue to the negotiations process if these notes were revealed.
investigations by the proper governmental institutions into possible criminal Exposure of the pre-agreement positions of the French negotiators might well offend
wrongdoing." 32 This qualification applies whether the privilege is being invoked in foreign governments and would lead to less candor by the U. S. in recording the
the context of a judicial trial or a congressional investigation conducted in aid of events of the negotiations process. As several months pass in between negotiations,
legislation.33 this lack of record could hinder readily the U. S. negotiating team. Further disclosure
would reveal prematurely adopted policies. If these policies should be changed,
Closely related to the "presidential communications" privilege is the deliberative public confusion would result easily.
process privilege recognized in the United States. As discussed by the U.S. Supreme
Court in NLRB v. Sears, Roebuck & Co,34 deliberative process covers documents Finally, releasing these snapshot views of the negotiations would be comparable to
reflecting advisory opinions, recommendations and deliberations comprising part of releasing drafts of the treaty, particularly when the notes state the tentative
a process by which governmental decisions and policies are formulated. Notably, the provisions and language agreed on. As drafts of regulations typically are protected
privileged status of such documents rests, not on the need to protect national by the deliberative process privilege, Arthur Andersen & Co. v. Internal Revenue
security but, on the "obvious realization that officials will not communicate candidly Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be
among themselves if each remark is a potential item of discovery and front page accorded the same protection. (Emphasis and underscoring supplied)
news," the objective of the privilege being to enhance the quality of agency
decisions Clearly, the privilege accorded to diplomatic negotiations follows as a logical
rs=WLW7.07&serialnum=1975129772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=- consequence from the privileged character of the deliberative process.
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind The Court is not unaware that in Center for International Environmental Law (CIEL),
%2fdefault.wl&mt=WLIGeneralSubscription. 35 et al. v. Office of U.S. Trade Representative38 where the plaintiffs sought
information relating to the just-completed negotiation of a United States-Chile Free
The diplomatic negotiations privilege bears a close resemblance to the deliberative Trade Agreement the same district court, this time under Judge Friedman,
process and presidential communications privilege. It may be readily perceived that consciously refrained from applying the doctrine in Fulbright and ordered the
the rationale for the confidential character of diplomatic negotiations, deliberative disclosure of the information being sought.
process, and presidential communications is similar, if not identical.
Since the factual milieu in CIEL seemed to call for the straight application of the
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for doctrine in Fulbright, a discussion of why the district court did not apply the same
diplomatic negotiations is meant to encourage a frank exchange of exploratory ideas would help illumine this Courts own reasons for deciding the present case along the
between the negotiating parties by shielding such negotiations from public view. lines of Fulbright.
Similar to the privilege for presidential communications, the diplomatic negotiations
privilege seeks, through the same means, to protect the independence in decision- In both Fulbright and CIEL, the U.S. government cited a statutory basis for
making of the President, particularly in its capacity as "the sole organ of the nation withholding information, namely, Exemption 5 of the Freedom of Information Act
in its external relations, and its sole representative with foreign nations." And, as (FOIA).39 In order to qualify for protection under Exemption 5, a document must
with the deliberative process privilege, the privilege accorded to diplomatic satisfy two conditions: (1) it must be either inter-agency or intra-agency in nature,
negotiations arises, not on account of the content of the information per se, but and (2) it must be both pre-decisional and part of the agency's deliberative or
because the information is part of a process of deliberation which, in pursuit of the decision-making process.40
public interest, must be presumed confidential.
Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context"
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. between the two cases, based his decision on what he perceived to be a significant
Department of the Treasury37 enlightens on the close relation between diplomatic distinction: he found the negotiators notes that were sought in Fulbright to be
negotiations and deliberative process privileges. The plaintiffs in that case sought "clearly internal," whereas the documents being sought in CIEL were those produced
access to notes taken by a member of the U.S. negotiating team during the U.S.- by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright
French tax treaty negotiations. Among the points noted therein were the issues to be being clearly internal in character, the question of disclosure therein turned not on
discussed, positions which the French and U.S. teams took on some points, the draft the threshold requirement of Exemption 5 that the document be inter-agency, but on
language agreed on, and articles which needed to be amended. Upholding the whether the documents were part of the agency's pre-decisional deliberative
confidentiality of those notes, Judge Green ruled, thus: process. On this basis, Judge Friedman found that "Judge Green's discussion [in
Fulbright] of the harm that could result from disclosure therefore is irrelevant, since
Negotiations between two countries to draft a treaty represent a true example of a the documents at issue [in CIEL] are not inter-agency, and the Court does not reach
deliberative process. Much give-and-take must occur for the countries to reach an the question of deliberative process." (Emphasis supplied)
accord. A description of the negotiations at any one point would not provide an
onlooker a summary of the discussions which could later be relied on as law. It would In fine, Fulbright was not overturned. The court in CIEL merely found the same to be
not be "working law" as the points discussed and positions agreed on would be irrelevant in light of its distinct factual setting. Whether this conclusion was valid a
subject to change at any date until the treaty was signed by the President and question on which this Court would not pass the ruling in Fulbright that
ratified by the Senate. "[n]egotiations between two countries to draft a treaty represent a true example of a
deliberative process" was left standing, since the CIEL court explicitly stated that it
did not reach the question of deliberative process.
deliberations], and may be asserted, with differing degrees of success, in the
Going back to the present case, the Court recognizes that the information sought by context of either judicial or legislative investigations,"41 implies that a privilege,
petitioners includes documents produced and communicated by a party external to once recognized, may be invoked under different procedural settings. That this
the Philippine government, namely, the Japanese representatives in the JPEPA principle holds true particularly with respect to diplomatic negotiations may be
negotiations, and to that extent this case is closer to the factual circumstances of inferred from PMPF v. Manglapus itself, where the Court held that it is the President
CIEL than those of Fulbright. alone who negotiates treaties, and not even the Senate or the House of
Representatives, unless asked, may intrude upon that process.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the
principle articulated in Fulbright that the public policy underlying the deliberative Clearly, the privilege for diplomatic negotiations may be invoked not only against
process privilege requires that diplomatic negotiations should also be accorded citizens demands for information, but also in the context of legislative
privileged status, even if the documents subject of the present case cannot be investigations.
described as purely internal in character.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of
It need not be stressed that in CIEL, the court ordered the disclosure of information diplomatic negotiations cannot be considered irrelevant in resolving the present
based on its finding that the first requirement of FOIA Exemption 5 that the case, the contextual differences between the two cases notwithstanding.
documents be inter-agency was not met. In determining whether the government
may validly refuse disclosure of the exchanges between the U.S. and Chile, it As third and last point raised against the application of PMPF v. Manglapus in this
necessarily had to deal with this requirement, it being laid down by a statute binding case, petitioners proffer that "the socio-political and historical contexts of the two
on them. cases are worlds apart." They claim that the constitutional traditions and concepts
prevailing at the time PMPF v. Manglapus came about, particularly the school of
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any thought that the requirements of foreign policy and the ideals of transparency were
statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine incompatible with each other or the "incompatibility hypothesis," while valid when
courts, when assessing a claim of privilege for diplomatic negotiations, are more free international relations were still governed by power, politics and wars, are no longer
to focus directly on the issue of whether the privilege being claimed is indeed so in this age of international cooperation.42
supported by public policy, without having to consider as the CIEL court did if
these negotiations fulfill a formal requirement of being "inter-agency." Important Without delving into petitioners assertions respecting the "incompatibility
though that requirement may be in the context of domestic negotiations, it need not hypothesis," the Court notes that the ruling in PMPF v. Manglapus is grounded more
be accorded the same significance when dealing with international negotiations. on the nature of treaty negotiations as such than on a particular socio-political
school of thought. If petitioners are suggesting that the nature of treaty negotiations
There being a public policy supporting a privilege for diplomatic negotiations for the have so changed that "[a]n ill-timed speech by one of the parties or a frank
reasons explained above, the Court sees no reason to modify, much less abandon, declaration of the concession which are exacted or offered on both sides" no longer
the doctrine in PMPF v. Manglapus. "lead[s] to widespread propaganda to block the negotiations," or that parties in
treaty negotiations no longer expect their communications to be governed by
A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus historic confidentiality, the burden is on them to substantiate the same. This
from the present case is the fact that the petitioners therein consisted entirely of petitioners failed to discharge.
members of the mass media, while petitioners in the present case include members
of the House of Representatives who invoke their right to information not just as Whether the privilege applies only at certain stages of the negotiation process
citizens but as members of Congress.
Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a
Petitioners thus conclude that the present case involves the right of members of reasonable amount of confidentiality so as not to jeopardize the diplomatic process."
Congress to demand information on negotiations of international trade agreements They argue, however, that the same is privileged "only at certain stages of the
from the Executive branch, a matter which was not raised in PMPF v. Manglapus. negotiating process, after which such information must necessarily be revealed to
the public."43 They add that the duty to disclose this information was vested in the
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the government when the negotiations moved from the formulation and exploratory
mass media, it would be incorrect to claim that the doctrine laid down therein has no stage to the firming up of definite propositions or official recommendations, citing
bearing on a controversy such as the present, where the demand for information has Chavez v. PCGG44 and Chavez v. PEA.45
come from members of Congress, not only from private citizens.
The following statement in Chavez v. PEA, however, suffices to show that the
The privileged character accorded to diplomatic negotiations does not ipso facto doctrine in both that case and Chavez v. PCGG with regard to the duty to disclose
lose all force and effect simply because the same privilege is now being claimed "definite propositions of the government" does not apply to diplomatic negotiations:
under different circumstances. The probability of the claim succeeding in the new
context might differ, but to say that the privilege, as such, has no validity at all in We rule, therefore, that the constitutional right to information includes official
that context is another matter altogether. information on on-going negotiations before a final contract. The information,
however, must constitute definite propositions by the government and should not
The Courts statement in Senate v. Ermita that "presidential refusals to furnish cover recognized exceptions like privileged information, military and diplomatic
information may be actuated by any of at least three distinct kinds of considerations secrets and similar matters affecting national security and public order. x x x46
[state secrets privilege, informers privilege, and a generic privilege for internal (Emphasis and underscoring supplied)
x x x xThe sufficiency of the Committee's showing of need has come to depend,
It follows from this ruling that even definite propositions of the government may not therefore, entirely on whether the subpoenaed materials are critical to the
be disclosed if they fall under "recognized exceptions." The privilege for diplomatic performance of its legislative functions. x x x (Emphasis and underscoring supplied)
negotiations is clearly among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an authority. In re Sealed Case52 involved a claim of the deliberative process and presidential
communications privileges against a subpoena duces tecum of a grand jury. On the
Whether there is sufficient public interest to overcome the claim of privilege claim of deliberative process privilege, the court stated:

It being established that diplomatic negotiations enjoy a presumptive privilege The deliberative process privilege is a qualified privilege and can be overcome by a
against disclosure, even against the demands of members of Congress for sufficient showing of need. This need determination is to be made flexibly on a case-
information, the Court shall now determine whether petitioners have shown the by-case, ad hoc basis. "[E]ach time [the deliberative process privilege] is asserted
existence of a public interest sufficient to overcome the privilege in this instance. the district court must undertake a fresh balancing of the competing interests,"
taking into account factors such as "the relevance of the evidence," "the availability
To clarify, there are at least two kinds of public interest that must be taken into of other evidence," "the seriousness of the litigation," "the role of the government,"
account. One is the presumed public interest in favor of keeping the subject and the "possibility of future timidity by government employees. x x x (Emphasis,
information confidential, which is the reason for the privilege in the first place, and italics and underscoring supplied)
the other is the public interest in favor of disclosure, the existence of which must be
shown by the party asking for information. 47 Petitioners have failed to present the strong and "sufficient showing of need"
referred to in the immediately cited cases. The arguments they proffer to establish
The criteria to be employed in determining whether there is a sufficient public their entitlement to the subject documents fall short of this standard.
interest in favor of disclosure may be gathered from cases such as U.S. v. Nixon,48
Senate Select Committee on Presidential Campaign Activities v. Nixon,49 and In re Petitioners go on to assert that the non-involvement of the Filipino people in the
Sealed Case.50 JPEPA negotiation process effectively results in the bargaining away of their
economic and property rights without their knowledge and participation, in violation
U.S. v. Nixon, which involved a claim of the presidential communications privilege of the due process clause of the Constitution. They claim, moreover, that it is
against the subpoena duces tecum of a district court in a criminal case, emphasized essential for the people to have access to the initial offers exchanged during the
the need to balance such claim of privilege against the constitutional duty of courts negotiations since only through such disclosure can their constitutional right to
to ensure a fair administration of criminal justice. effectively participate in decision-making be brought to life in the context of
international trade agreements.
x x x the allowance of the privilege to withhold evidence that is demonstrably
relevant in a criminal trial would cut deeply into the guarantee of due process of law Whether it can accurately be said that the Filipino people were not involved in the
and gravely impair the basic function of the courts. A Presidents acknowledged JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it
need for confidentiality in the communications of his office is general in nature, to state that respondents had presented documents purporting to show that public
whereas the constitutional need for production of relevant evidence in a criminal consultations were conducted on the JPEPA. Parenthetically, petitioners consider
proceeding is specific and central to the fair adjudication of a particular criminal these "alleged consultations" as "woefully selective and inadequate."53
case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The Presidents broad interest in AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine
confidentiality of communications will not be vitiated by disclosure of a limited and Japanese representatives have not been disclosed to the public, the Court shall
number of conversations preliminarily shown to have some bearing on the pending pass upon the issue of whether access to the documents bearing on them is, as
criminal cases. (Emphasis, italics and underscoring supplied) petitioners claim, essential to their right to participate in decision-making.

Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the The case for petitioners has, of course, been immensely weakened by the disclosure
presidential communications privilege against the subpoena duces tecum of a of the full text of the JPEPA to the public since September 11, 2006, even as it is still
Senate committee, spoke of the need to balance such claim with the duty of being deliberated upon by the Senate and, therefore, not yet binding on the
Congress to perform its legislative functions. Philippines. Were the Senate to concur with the validity of the JPEPA at this moment,
there has already been, in the words of PMPF v. Manglapus, "ample opportunity for
The staged decisional structure established in Nixon v. Sirica was designed to ensure discussion before [the treaty] is approved."
that the President and those upon whom he directly relies in the performance of his
duties could continue to work under a general assurance that their deliberations The text of the JPEPA having been published, petitioners have failed to convince this
would remain confidential. So long as the presumption that the public interest favors Court that they will not be able to meaningfully exercise their right to participate in
confidentiality can be defeated only by a strong showing of need by another decision-making unless the initial offers are also published.
institution of government- a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the President's It is of public knowledge that various non-government sectors and private citizens
deliberations- we believed in Nixon v. Sirica, and continue to believe, that the have already publicly expressed their views on the JPEPA, their comments not being
effective functioning of the presidential office will not be impaired. x x x limited to general observations thereon but on its specific provisions. Numerous
articles and statements critical of the JPEPA have been posted on the Internet.54
Given these developments, there is no basis for petitioners claim that access to the
Philippine and Japanese offers is essential to the exercise of their right to participate governments, extend or withhold recognition, maintain diplomatic relations, enter
in decision-making. into treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other states.
Petitioner-members of the House of Representatives additionally anchor their claim
to have a right to the subject documents on the basis of Congress inherent power to Nonetheless, while the President has the sole authority to negotiate and enter into
regulate commerce, be it domestic or international. They allege that Congress treaties, the Constitution provides a limitation to his power by requiring the
cannot meaningfully exercise the power to regulate international trade agreements concurrence of 2/3 of all the members of the Senate for the validity of the treaty
such as the JPEPA without being given copies of the initial offers exchanged during entered into by him. x x x (Emphasis and underscoring supplied)
the negotiations thereof. In the same vein, they argue that the President cannot
exclude Congress from the JPEPA negotiations since whatever power and authority While the power then to fix tariff rates and other taxes clearly belongs to Congress,
the President has to negotiate international trade agreements is derived only by and is exercised by the President only by delegation of that body, it has long been
delegation of Congress, pursuant to Article VI, Section 28(2) of the Constitution and recognized that the power to enter into treaties is vested directly and exclusively in
Sections 401 and 402 of Presidential Decree No. 1464.55 the President, subject only to the concurrence of at least two-thirds of all the
Members of the Senate for the validity of the treaty. In this light, the authority of the
The subject of Article VI Section 28(2) of the Constitution is not the power to President to enter into trade agreements with foreign nations provided under P.D.
negotiate treaties and international agreements, but the power to fix tariff rates, 146458 may be interpreted as an acknowledgment of a power already inherent in its
import and export quotas, and other taxes. Thus it provides: office. It may not be used as basis to hold the President or its representatives
accountable to Congress for the conduct of treaty negotiations.
(2) The Congress may, by law, authorize the President to fix within specified limits,
and subject to such limitations and restrictions as it may impose, tariff rates, import This is not to say, of course, that the Presidents power to enter into treaties is
and export quotas, tonnage and wharfage dues, and other duties or imposts within unlimited but for the requirement of Senate concurrence, since the President must
the framework of the national development program of the Government. still ensure that all treaties will substantively conform to all the relevant provisions of
the Constitution.
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of
Article VII the article on the Executive Department which states: It follows from the above discussion that Congress, while possessing vast legislative
powers, may not interfere in the field of treaty negotiations. While Article VII, Section
No treaty or international agreement shall be valid and effective unless concurred in 21 provides for Senate concurrence, such pertains only to the validity of the treaty
by at least two-thirds of all the Members of the Senate. under consideration, not to the conduct of negotiations attendant to its conclusion.
Moreover, it is not even Congress as a whole that has been given the authority to
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the concur as a means of checking the treaty-making power of the President, but only
President, being the sole organ of the nation in its external relations, was echoed in the Senate.
BAYAN v. Executive Secretary56 where the Court held:
Thus, as in the case of petitioners suing in their capacity as private citizens,
By constitutional fiat and by the intrinsic nature of his office, the President, as head petitioners-members of the House of Representatives fail to present a "sufficient
of State, is the sole organ and authority in the external affairs of the country. In showing of need" that the information sought is critical to the performance of the
many ways, the President is the chief architect of the nation's foreign policy; his functions of Congress, functions that do not include treaty-negotiation.
"dominance in the field of foreign relations is (then) conceded." Wielding vast
powers and influence, his conduct in the external affairs of the nation, as Jefferson Respondents alleged failure to timely claim executive privilege
describes, is "executive altogether."
On respondents invocation of executive privilege, petitioners find the same
As regards the power to enter into treaties or international agreements, the defective, not having been done seasonably as it was raised only in their Comment
Constitution vests the same in the President, subject only to the concurrence of at to the present petition and not during the House Committee hearings.
least two thirds vote of all the members of the Senate. In this light, the negotiation
of the VFA and the subsequent ratification of the agreement are exclusive acts which That respondents invoked the privilege for the first time only in their Comment to
pertain solely to the President, in the lawful exercise of his vast executive and the present petition does not mean that the claim of privilege should not be
diplomatic powers granted him no less than by the fundamental law itself. Into the credited. Petitioners position presupposes that an assertion of the privilege should
field of negotiation the Senate cannot intrude, and Congress itself is powerless to have been made during the House Committee investigations, failing which
invade it. x x x (Italics in the original; emphasis and underscoring supplied) respondents are deemed to have waived it.

The same doctrine was reiterated even more recently in Pimentel v. Executive When the House Committee and petitioner-Congressman Aguja requested
Secretary57 where the Court ruled: respondents for copies of the documents subject of this case, respondents replied
that the negotiations were still on-going and that the draft of the JPEPA would be
In our system of government, the President, being the head of state, is regarded as released once the text thereof is settled and complete. There was no intimation that
the sole organ and authority in external relations and is the country's sole the requested copies are confidential in nature by reason of public policy. The
representative with foreign nations. As the chief architect of foreign policy, the response may not thus be deemed a claim of privilege by the standards of Senate v.
President acts as the country's mouthpiece with respect to international affairs. Ermita, which recognizes as claims of privilege only those which are accompanied by
Hence, the President is vested with the authority to deal with foreign states and
precise and certain reasons for preserving the confidentiality of the information There is, at least, a core meaning of the phrase "sole organ of the nation in its
being sought. external relations" which is not being disputed, namely, that the power to directly
negotiate treaties and international agreements is vested by our Constitution only in
Respondents failure to claim the privilege during the House Committee hearings the Executive. Thus, the dissent states that "Congress has the power to regulate
may not, however, be construed as a waiver thereof by the Executive branch. As the commerce with foreign nations but does not have the power to negotiate
immediately preceding paragraph indicates, what respondents received from the international agreements directly."62
House Committee and petitioner-Congressman Aguja were mere requests for What is disputed is how this principle applies to the case at bar.
information. And as priorly stated, the House Committee itself refrained from The dissent opines that petitioner-members of the House of Representatives, by
pursuing its earlier resolution to issue a subpoena duces tecum on account of then asking for the subject JPEPA documents, are not seeking to directly participate in the
Speaker Jose de Venecias alleged request to Committee Chairperson Congressman negotiations of the JPEPA, hence, they cannot be prevented from gaining access to
Teves to hold the same in abeyance. these documents.

While it is a salutary and noble practice for Congress to refrain from issuing On the other hand, We hold that this is one occasion where the following ruling in
subpoenas to executive officials out of respect for their office until resort to it Agan v. PIATCO63 and in other cases both before and since should be applied:
becomes necessary, the fact remains that such requests are not a compulsory
process. Being mere requests, they do not strictly call for an assertion of executive This Court has long and consistently adhered to the legal maxim that those that
privilege. cannot be done directly cannot be done indirectly. To declare the PIATCO contracts
valid despite the clear statutory prohibition against a direct government guarantee
The privilege is an exemption to Congress power of inquiry.59 So long as Congress would not only make a mockery of what the BOT Law seeks to prevent -- which is to
itself finds no cause to enforce such power, there is no strict necessity to assert the expose the government to the risk of incurring a monetary obligation resulting from
privilege. In this light, respondents failure to invoke the privilege during the House a contract of loan between the project proponent and its lenders and to which the
Committee investigations did not amount to a waiver thereof. Government is not a party to -- but would also render the BOT Law useless for what
it seeks to achieve - to make use of the resources of the private sector in the
The Court observes, however, that the claim of privilege appearing in respondents "financing, operation and maintenance of infrastructure and development projects"
Comment to this petition fails to satisfy in full the requirement laid down in Senate v. which are necessary for national growth and development but which the
Ermita that the claim should be invoked by the President or through the Executive government, unfortunately, could ill-afford to finance at this point in time.64
Secretary "by order of the President."60 Respondents claim of privilege is being
sustained, however, its flaw notwithstanding, because of circumstances peculiar to Similarly, while herein petitioners-members of the House of Representatives may not
the case. have been aiming to participate in the negotiations directly, opening the JPEPA
negotiations to their scrutiny even to the point of giving them access to the offers
The assertion of executive privilege by the Executive Secretary, who is one of the exchanged between the Japanese and Philippine delegations would have made a
respondents herein, without him adding the phrase "by order of the President," shall mockery of what the Constitution sought to prevent and rendered it useless for what
be considered as partially complying with the requirement laid down in Senate v. it sought to achieve when it vested the power of direct negotiation solely with the
Ermita. The requirement that the phrase "by order of the President" should President.
accompany the Executive Secretarys claim of privilege is a new rule laid down for
the first time in Senate v. Ermita, which was not yet final and executory at the time What the U.S. Constitution sought to prevent and aimed to achieve in defining the
respondents filed their Comment to the petition.61 A strict application of this treaty-making power of the President, which our Constitution similarly defines, may
requirement would thus be unwarranted in this case. be gathered from Hamiltons explanation of why the U.S. Constitution excludes the
House of Representatives from the treaty-making process:
Response to the Dissenting Opinion of the Chief Justice x x x The fluctuating, and taking its future increase into account, the multitudinous
composition of that body, forbid us to expect in it those qualities which are essential
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to to the proper execution of such a trust. Accurate and comprehensive knowledge of
protect our peoples right to information against any abuse of executive privilege. It foreign politics; a steady and systematic adherence to the same views; a nice and
is a zeal that We fully share. uniform sensibility to national character, decision, secrecy and dispatch; are
incompatible with a body so variable and so numerous. The very complication of the
The Court, however, in its endeavor to guard against the abuse of executive business by introducing a necessity of the concurrence of so many different bodies,
privilege, should be careful not to veer towards the opposite extreme, to the point would of itself afford a solid objection. The greater frequency of the calls upon the
that it would strike down as invalid even a legitimate exercise thereof. house of representatives, and the greater length of time which it would often be
necessary to keep them together when convened, to obtain their sanction in the
We respond only to the salient arguments of the Dissenting Opinion which have not progressive stages of a treaty, would be source of so great inconvenience and
yet been sufficiently addressed above. expense, as alone ought to condemn the project.65
These considerations a fortiori apply in this jurisdiction, since the Philippine
1. After its historical discussion on the allocation of power over international trade Constitution, unlike that of the U.S., does not even grant the Senate the power to
agreements in the United States, the dissent concludes that "it will be turning advise the Executive in the making of treaties, but only vests in that body the power
somersaults with history to contend that the President is the sole organ for external to concur in the validity of the treaty after negotiations have been concluded.66
relations" in that jurisdiction. With regard to this opinion, We make only the following Much less, therefore, should it be inferred that the House of Representatives has this
observations: power.
Since allowing petitioner-members of the House of Representatives access to the
subject JPEPA documents would set a precedent for future negotiations, leading to In asserting that the balance in this instance tilts in favor of disclosing the JPEPA
the contravention of the public interests articulated above which the Constitution documents, the dissent contends that the Executive has failed to show how
sought to protect, the subject documents should not be disclosed. disclosing them after the conclusion of negotiations would impair the performance of
its functions. The contention, with due respect, misplaces the onus probandi. While,
2. The dissent also asserts that respondents can no longer claim the diplomatic in keeping with the general presumption of transparency, the burden is initially on
secrets privilege over the subject JPEPA documents now that negotiations have been the Executive to provide precise and certain reasons for upholding its claim of
concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of privilege, once the Executive is able to show that the documents being sought are
Sec. Ermita, and later in their Comment, necessarily apply only for as long as the covered by a recognized privilege, the burden shifts to the party seeking information
negotiations were still pending; to overcome the privilege by a strong showing of need.

In their Comment, respondents contend that "the negotiations of the representatives When it was thus established that the JPEPA documents are covered by the privilege
of the Philippines as well as of Japan must be allowed to explore alternatives in the for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose
course of the negotiations in the same manner as judicial deliberations and working that their disclosure would impair the performance of executive functions. It was
drafts of opinions are accorded strict confidentiality." That respondents liken the then incumbent on petitioner- requesting parties to show that they have a strong
documents involved in the JPEPA negotiations to judicial deliberations and working need for the information sufficient to overcome the privilege. They have not,
drafts of opinions evinces, by itself, that they were claiming confidentiality not only however.
until, but even after, the conclusion of the negotiations.
4. Respecting the failure of the Executive Secretary to explicitly state that he is
Judicial deliberations do not lose their confidential character once a decision has claiming the privilege "by order of the President," the same may not be strictly
been promulgated by the courts. The same holds true with respect to working drafts applied to the privilege claim subject of this case.
of opinions, which are comparable to intra-agency recommendations. Such intra- When the Court in Senate v. Ermita limited the power of invoking the privilege to the
agency recommendations are privileged even after the position under consideration President alone, it was laying down a new rule for which there is no counterpart
by the agency has developed into a definite proposition, hence, the rule in this even in the United States from which the concept of executive privilege was
jurisdiction that agencies have the duty to disclose only definite propositions, and adopted. As held in the 2004 case of Judicial Watch, Inc. v. Department of Justice,69
not the inter-agency and intra-agency communications during the stage when citing In re Sealed Case,70 "the issue of whether a President must personally invoke
common assertions are still being formulated.67 the [presidential communications] privilege remains an open question." U.S. v.
Reynolds,71 on the other hand, held that "[t]here must be a formal claim of
3. The dissent claims that petitioner-members of the House of Representatives have privilege, lodged by the head of the department which has control over the matter,
sufficiently shown their need for the same documents to overcome the privilege. after actual personal consideration by that officer."
Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue The rule was thus laid down by this Court, not in adherence to any established
its earlier intention to subpoena the documents. This strongly undermines the precedent, but with the aim of preventing the abuse of the privilege in light of its
assertion that access to the same documents by the House Committee is critical to highly exceptional nature. The Courts recognition that the Executive Secretary also
the performance of its legislative functions. If the documents were indeed critical, bears the power to invoke the privilege, provided he does so "by order of the
the House Committee should have, at the very least, issued a subpoena duces President," is meant to avoid laying down too rigid a rule, the Court being aware that
tecum or, like what the Senate did in Senate v. Ermita, filed the present petition as a it was laying down a new restriction on executive privilege. It is with the same spirit
legislative body, rather than leaving it to the discretion of individual Congressmen that the Court should not be overly strict with applying the same rule in this peculiar
whether to pursue an action or not. Such acts would have served as strong indicia instance, where the claim of executive privilege occurred before the judgment in
that Congress itself finds the subject information to be critical to its legislative Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the
Further, given that respondents have claimed executive privilege, petitioner- dissent implies that the Court therein erred in citing US v. Curtiss Wright72 and the
members of the House of Representatives should have, at least, shown how its lack book entitled The New American Government and Its Work73 since these
of access to the Philippine and Japanese offers would hinder the intelligent crafting authorities, so the dissent claims, may not be used to calibrate the importance of
of legislation. Mere assertion that the JPEPA covers a subject matter over which the right to information in the Philippine setting.
Congress has the power to legislate would not suffice. As Senate Select Committee The dissent argues that since Curtiss-Wright referred to a conflict between the
v. Nixon68 held, the showing required to overcome the presumption favoring executive and legislative branches of government, the factual setting thereof was
confidentiality turns, not only on the nature and appropriateness of the function in different from that of PMPF v. Manglapus which involved a collision between
the performance of which the material was sought, but also the degree to which the governmental power over the conduct of foreign affairs and the citizens right to
material was necessary to its fulfillment. This petitioners failed to do. information.

Furthermore, from the time the final text of the JPEPA including its annexes and That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of
attachments was published, petitioner-members of the House of Representatives diplomatic negotiations against congressional demands for information in the
have been free to use it for any legislative purpose they may see fit. Since such course of laying down a ruling on the public right to information only serves to
publication, petitioners need, if any, specifically for the Philippine and Japanese underscore the principle mentioned earlier that the privileged character accorded to
offers leading to the final version of the JPEPA, has become even less apparent.
diplomatic negotiations does not ipso facto lose all force and effect simply because support of the confidentiality of treaty negotiations would be different had it been
the same privilege is now being claimed under different circumstances. written after the FOIA. Such assumption is, with due respect, at best, speculative.

PMPF v. Manglapus indeed involved a demand for information from private citizens As to the claim in the dissent that "[i]t is more doubtful if the same book be used to
and not an executive-legislative conflict, but so did Chavez v. PEA74 which held that calibrate the importance of the right of access to information in the Philippine
"the [publics] right to information . . . does not extend to matters recognized as setting considering its elevation as a constitutional right," we submit that the
privileged information under the separation of powers." What counts as privileged elevation of such right as a constitutional right did not set it free from the legitimate
information in an executive-legislative conflict is thus also recognized as such in restrictions of executive privilege which is itself constitutionally-based.76 Hence, the
cases involving the publics right to information. comments in that book which were cited in PMPF v. Manglapus remain valid doctrine.

Chavez v. PCGG75 also involved the publics right to information, yet the Court 6. The dissent further asserts that the Court has never used "need" as a test to
recognized as a valid limitation to that right the same privileged information based uphold or allow inroads into rights guaranteed under the Constitution. With due
on separation of powers closed-door Cabinet meetings, executive sessions of respect, we assert otherwise. The Court has done so before, albeit without using the
either house of Congress, and the internal deliberations of the Supreme Court. term "need."

These cases show that the Court has always regarded claims of privilege, whether in In executive privilege controversies, the requirement that parties present a
the context of an executive-legislative conflict or a citizens demand for information, "sufficient showing of need" only means, in substance, that they should show a
as closely intertwined, such that the principles applicable to one are also applicable public interest in favor of disclosure sufficient in degree to overcome the claim of
to the other. privilege.77 Verily, the Court in such cases engages in a balancing of interests. Such
a balancing of interests is certainly not new in constitutional adjudication involving
The reason is obvious. If the validity of claims of privilege were to be assessed by fundamental rights. Secretary of Justice v. Lantion,78 which was cited in the dissent,
entirely different criteria in each context, this may give rise to the absurd result applied just such a test.
where Congress would be denied access to a particular information because of a
claim of executive privilege, but the general public would have access to the same Given that the dissent has clarified that it does not seek to apply the "clear and
information, the claim of privilege notwithstanding. present danger" test to the present controversy, but the balancing test, there seems
to be no substantial dispute between the position laid down in this ponencia and
Absurdity would be the ultimate result if, for instance, the Court adopts the "clear that reflected in the dissent as to what test to apply. It would appear that the only
and present danger" test for the assessment of claims of privilege against citizens disagreement is on the results of applying that test in this instance.
demands for information. If executive information, when demanded by a citizen, is
privileged only when there is a clear and present danger of a substantive evil that The dissent, nonetheless, maintains that "it suffices that information is of public
the State has a right to prevent, it would be very difficult for the Executive to concern for it to be covered by the right, regardless of the publics need for the
establish the validity of its claim in each instance. In contrast, if the demand comes information," and that the same would hold true even "if they simply want to know it
from Congress, the Executive merely has to show that the information is covered by because it interests them." As has been stated earlier, however, there is no dispute
a recognized privilege in order to shift the burden on Congress to present a strong that the information subject of this case is a matter of public concern. The Court has
showing of need. This would lead to a situation where it would be more difficult for earlier concluded that it is a matter of public concern, not on the basis of any
Congress to access executive information than it would be for private citizens. specific need shown by petitioners, but from the very nature of the JPEPA as an
international trade agreement.
We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present a However, when the Executive has as in this case invoked the privilege, and it has
"strong showing of need," whether that party is Congress or a private citizen. been established that the subject information is indeed covered by the privilege
being claimed, can a party overcome the same by merely asserting that the
The rule that the same "showing of need" test applies in both these contexts, information being demanded is a matter of public concern, without any further
however, should not be construed as a denial of the importance of analyzing the showing required? Certainly not, for that would render the doctrine of executive
context in which an executive privilege controversy may happen to be placed. privilege of no force and effect whatsoever as a limitation on the right to
Rather, it affirms it, for it means that the specific need being shown by the party information, because then the sole test in such controversies would be whether an
seeking information in every particular instance is highly significant in determining information is a matter of public concern.
whether to uphold a claim of privilege. This "need" is, precisely, part of the context
in light of which every claim of privilege should be assessed. Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing
the documents of the JPEPA negotiations, the Philippine government runs the grave
Since, as demonstrated above, there are common principles that should be applied risk of betraying the trust reposed in it by the Japanese representatives, indeed, by
to executive privilege controversies across different contexts, the Court in PMPF v. the Japanese government itself. How would the Philippine government then explain
Manglapus did not err when it cited the Curtiss-Wright case. itself when that happens? Surely, it cannot bear to say that it just had to release the
information because certain persons simply wanted to know it "because it interests
The claim that the book cited in PMPF v. Manglapus entitled The New American them."
Government and Its Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations in that book in Thus, the Court holds that, in determining whether an information is covered by the
right to information, a specific "showing of need" for such information is not a
relevant consideration, but only whether the same is a matter of public concern.
When, however, the government has claimed executive privilege, and it has Conclusion
established that the information is indeed covered by the same, then the party To recapitulate, petitioners demand to be furnished with a copy of the full text of the
demanding it, if it is to overcome the privilege, must show that that the information JPEPA has become moot and academic, it having been made accessible to the public
is vital, not simply for the satisfaction of its curiosity, but for its ability to effectively since September 11, 2006. As for their demand for copies of the Philippine and
and reasonably participate in social, political, and economic decision-making.79 Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents claim of executive privilege being valid.
7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v.
where the people can exercise their right to participate in the discussion whether the Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction
Senate should concur in its ratification or not." (Emphasis supplied) It adds that this and the reasons proffered by petitioners against the application of the ruling therein
right "will be diluted unless the people can have access to the subject JPEPA to the present case have not persuaded the Court. Moreover, petitioners both
documents". What, to the dissent, is a dilution of the right to participate in decision- private citizens and members of the House of Representatives have failed to
making is, to Us, simply a recognition of the qualified nature of the publics right to present a "sufficient showing of need" to overcome the claim of privilege in this
information. It is beyond dispute that the right to information is not absolute and case.
that the doctrine of executive privilege is a recognized limitation on that right. That the privilege was asserted for the first time in respondents Comment to the
Moreover, contrary to the submission that the right to participate in decision-making present petition, and not during the hearings of the House Special Committee on
would be diluted, We reiterate that our people have been exercising their right to Globalization, is of no moment, since it cannot be interpreted as a waiver of the
participate in the discussion on the issue of the JPEPA, and they have been able to privilege on the part of the Executive branch.
articulate their different opinions without need of access to the JPEPA negotiation For reasons already explained, this Decision shall not be interpreted as departing
documents. from the ruling in Senate v. Ermita that executive privilege should be invoked by the
Thus, we hold that the balance in this case tilts in favor of executive privilege. President or through the Executive Secretary "by order of the President."
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select G.R. No. 177314 May 4, 2007 ( NOTE: Conso case w/G.R. No. 177271
Committee case, and In re Sealed Case, are similarly applicable to the present May 4, 2007)
controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY
there addressing only the Presidents assertion of privilege in the context of a KATARUNGAN FOUNDATION, Petitioners, vs.
criminal trial, not a civil litigation nor a congressional demand for information. What THE COMMISSION ON ELECTIONS, Respondent.
this caveat means, however, is only that courts must be careful not to hastily apply D E C I S I O N: GARCIA, J.:
the ruling therein to other contexts. It does not, however, absolutely mean that the
principles applied in that case may never be applied in such contexts. Before the Court are these two consolidated petitions for certiorari and mandamus
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of to nullify and set aside certain issuances of the Commission on Elections (Comelec)
executive privilege in contexts other than a criminal trial, as in the case of Nixon v. respecting party-list groups which have manifested their intention to participate in
Administrator of General Services80 which involved former President Nixons the party-list elections on May 14, 2007.
invocation of executive privilege to challenge the constitutionality of the
"Presidential Recordings and Materials Preservation Act"81 and the above- In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic Act
mentioned In re Sealed Case which involved a claim of privilege against a subpoena (BA-RA 7941, for short) and the Urban Poor for Legal Reforms (UP-LR, for short)
duces tecum issued in a grand jury investigation. assail the various Comelec resolutions accrediting private respondents Biyaheng
Pinoy et al., to participate in the forthcoming party-list elections on May 14, 2007
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in without simultaneously determining whether or not their respective nominees
the other cases already mentioned, We are merely affirming what the Chief Justice possess the requisite qualifications defined in Republic Act (R.A.) No. 7941, or the
stated in his Dissenting Opinion in Neri v. Senate Committee on Accountability82 a "Party-List System Act" and belong to the marginalized and underrepresented sector
case involving an executive-legislative conflict over executive privilege. That each seeks to represent. In the second, docketed as G.R. No. 177314, petitioners
dissenting opinion stated that, while Nixon was not concerned with the balance Loreta Ann P. Rosales, Kilosbayan Foundation and Bantay Katarungan Foundation
between the Presidents generalized interest in confidentiality and congressional impugn Comelec Resolution 07-0724 dated April 3, 2007 effectively denying their
demands for information, "[n]onetheless the [U.S.] Court laid down principles and request for the release or disclosure of the names of the nominees of the fourteen
procedures that can serve as torch lights to illumine us on the scope and use of (14) accredited participating party-list groups mentioned in petitioner Rosales
Presidential communication privilege in the case at bar."83 While the Court was previous letter-request.
divided in Neri, this opinion of the Chief Justice was not among the points of
disagreement, and We similarly hold now that the Nixon case is a useful guide in the While both petitions commonly seek to compel the Comelec to disclose or publish
proper resolution of the present controversy, notwithstanding the difference in the names of the nominees of the various party-list groups named in the petitions,1
context. the petitioners in G.R. No. 177271 have the following additional prayers: 1) that the
Verily, while the Court should guard against the abuse of executive privilege, it 33 private respondents named therein be "declare[d] as unqualified to participate in
should also give full recognition to the validity of the privilege whenever it is claimed the party-list elections as sectoral organizations, parties or coalition for failure to
within the proper bounds of executive power, as in this case. Otherwise, the Court comply with the guidelines prescribed by the [Court] in [Ang Bagong Bayani v.
would undermine its own credibility, for it would be perceived as no longer aiming to Comelec2]" and, 2) correspondingly, that the Comelec be enjoined from allowing
strike a balance, but seeking merely to water down executive privilege to the point respondent groups from participating in the May 2007 elections.
of irrelevance.
In separate resolutions both dated April 24, 2007, the Court en banc required the
public and private respondents to file their respective comments on the petitions RESOLVED, moreover, that the Commission will disclose/publicize the names of
within a non-extendible period of five (5) days from notice. Apart from respondent party-list nominees in connection with the May 14, 2007 Elections only after 3:00
Comelec, seven (7) private respondents3 in G.R. No. 177271 and one party-list p.m. on election day.
group4 mentioned in G.R. No. 177314 submitted their separate comments. In the
main, the separate comments of the private respondents focused on the Let the Law Department implement this resolution and reply to all letters addressed
untenability and prematurity of the plea of petitioners BA-RA 7941 and UP-LR to to the Commission inquiring on the party-list nominees. (Emphasis added.)
nullify their accreditation as party-list groups and thus disqualify them and their
respective nominees from participating in the May 14, 2007 party-list elections. According to petitioner Rosales, she was able to obtain a copy of the April 3, 2007
Resolution only on April 21, 2007. She would later state the observation that the last
The facts: part of the "Order empowering the Law Department to implement this resolution
On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and and reply to all letters inquiring on the party-list nominees is apparently a fool-
regulations to govern the filing of manifestation of intent to participate and proof bureaucratic way to distort and mangle the truth and give the impression that
submission of names of nominees under the party-list system of representation in the antedated Resolution of April 3, 2007 is the final answer to the two formal
connection with the May 14, 2007 elections. Pursuant thereto, a number of requests of Petitioners".10
organized groups filed the necessary manifestations. Among these and ostensibly
subsequently accredited by the Comelec to participate in the 2007 elections - are 14 The herein consolidated petitions are cast against the foregoing factual setting,
party-list groups, namely: (1) BABAE KA; (2) ANG KASANGGA; (3) AKBAY PINOY; (4) albeit petitioners BA-RA 7941 and UP-LR appear not to be aware, when they filed
AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW PARTY; (8) BIYAHENG PINOY; (9) ANAD; their petition on April 18, 2007, of the April 3, 2007 Comelec Resolution 07-0724.
AGING PINOY. Petitioners BA-RA 7941 and UP-LR presented a longer, albeit an To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the
overlapping, list. accreditation accorded by the Comelec to the respondent party-list groups named in
their petition on the ground that these groups and their respective nominees do not
Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent appear to be qualified. In the words of petitioners BA-RA 7941 and UP-LR, Comelec -
Petition to Disqualify, thereunder seeking to disqualify the nominees of certain party-
list organizations. Both petitioners appear not to have the names of the nominees xxx committed grave abuse of discretion when it granted the assailed
sought to be disqualified since they still asked for a copy of the list of nominees. accreditations even without simultaneously determining whether the nominees of
Docketed in the Comelec as SPA Case No 07-026, this urgent petition has yet to be herein private respondents are qualified or not, or whether or not the nominees are
resolved. likewise belonging to the marginalized and underrepresented sector they claim to
represent in Congress, in accordance with No. 7 of the eight-point guidelines
Meanwhile, reacting to the emerging public perception that the individuals behind prescribed by the Honorable Supreme in the Ang Bagong Bayani11 case which
the aforementioned 14 party-list groups do not, as they should, actually represent states that, "not only the candidate party or organization must represent
the poor and marginalized sectors, petitioner Rosales, in G.R. No. 177314, addressed marginalized and underrepresented sectors; so also must its nominees." In the case
a letter5 dated March 29, 2007 to Director Alioden Dalaig of the Comelecs Law of private respondents, public respondent Comelec granted accreditations without
Department requesting a list of that groups nominees. Another letter6 of the same the required simultaneous determination of the qualification of the nominees as part
tenor dated March 31, 2007 followed, this time petitioner Rosales impressing upon of the accreditation process of the party-list organization itself. (Words in bracket
Atty. Dalaig the particular urgency of the subject request. added; italization in the original)12

Neither the Comelec Proper nor its Law Department officially responded to petitioner The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR
Rosales requests. The April 13, 2007 issue of the Manila Bulletin, however, carried for cancellation of accreditation on the grounds thus advanced in their petition. For,
the front-page banner headline "COMELEC WONT BARE PARTY-LIST NOMINEES",7 such course of action would entail going over and evaluating the qualities of the
with the following sub-heading: "Abalos says party-list polls not personality sectoral groups or parties in question, particularly whether or not they indeed
oriented." represent marginalized/underrepresented groups. The exercise would require the
Court to make a factual determination, a matter which is outside the office of judicial
On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their review by way of special civil action for certiorari. In certiorari proceedings, the
own behalves and as counsels of petitioner Rosales, forwarded a letter8 to the Court is not called upon to decide factual issues and the case must be decided on
Comelec formally requesting action and definitive decision on Rosales earlier plea the undisputed facts on record.13 The sole function of a writ of certiorari is to
for information regarding the names of several party-list nominees. Invoking their address issues of want of jurisdiction or grave abuse of discretion and does not
constitutionally-guaranteed right to information, Messrs. Capulong and Salonga at include a review of the tribunals evaluation of the evidence.14
the same time drew attention to the banner headline adverted to earlier, with a
request for the Comelec, "collectively or individually, to issue a formal clarification, Not lost on the Court of course is the pendency before the Comelec of SPA Case No.
either confirming or denying the banner headline and the alleged statement of 07-026 in which petitioners BA-RA 7941 and UP-LR themselves seek to disqualify the
Chairman Benjamin Abalos, Sr. xxx" Evidently unbeknownst then to Ms. Rosales, et nominees of the respondent party-list groups named in their petition.
al., was the issuance of Comelec en banc Resolution 07-07249 under date April 3,
2007 virtually declaring the nominees names confidential and in net effect denying Petitioners BA-RA 7941s and UP-LRs posture that the Comelec committed grave
petitioner Rosales basic disclosure request. In its relevant part, Resolution 07-0724 abuse of discretion when it granted the assailed accreditations without
reads as follows: simultaneously determining the qualifications of their nominees is without basis.
Nowhere in R.A. No. 7941 is there a requirement that the qualification of a party-list official acts, transactions, or decisions, as well to government research data used as
nominee be determined simultaneously with the accreditation of an organization. basis for policy development, shall be afforded the citizen, subject to such
And as aptly pointed out by private respondent Babae Para sa Kaunlaran (Babae Ka), limitations as may be provided by law.
Section 4 of R.A. No. 7941 requires a petition for registration of a party-list
organization to be filed with the Comelec "not later than ninety (90) days before the Complementing and going hand in hand with the right to information is another
election" whereas the succeeding Section 8 requires the submission "not later than constitutional provision enunciating the policy of full disclosure and transparency in
forty-five (45) days before the election" of the list of names whence party-list Government. We refer to Section 28, Article II of the Constitution reading:
representatives shall be chosen. Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
Now to the other but core issues of the case. The petition in G.R. No. 177314 interest.
formulates and captures the main issues tendered by the petitioners in these
consolidated cases and they may be summarized as follows: The right to information is a public right where the real parties in interest are the
public, or the citizens to be precise. And for every right of the people recognized as
1. Whether respondent Comelec, by refusing to reveal the names of the nominees of fundamental lies a corresponding duty on the part of those who govern to respect
the various party-list groups, has violated the right to information and free access to and protect that right. This is the essence of the Bill of Rights in a constitutional
documents as guaranteed by the Constitution; and regime.16 Without a governments acceptance of the limitations upon it by the
2. Whether respondent Comelec is mandated by the Constitution to disclose to the Constitution in order to uphold individual liberties, without an acknowledgment on
public the names of said nominees. its part of those duties exacted by the rights pertaining to the citizens, the Bill of
Rights becomes a sophistry.
While the Comelec did not explicitly say so, it based its refusal to disclose the names
of the nominees of subject party-list groups on Section 7 of R.A. 7941. This provision, By weight of jurisprudence, any citizen can challenge any attempt to obstruct the
while commanding the publication and the posting in polling places of a certified list exercise of his right to information and may seek its enforcement by mandamus.17
of party-list system participating groups, nonetheless tells the Comelec not to show And since every citizen by the simple fact of his citizenship possesses the right to be
or include the names of the party-list nominees in said certified list. Thus: informed, objections on ground of locus standi are ordinarily unavailing.18

SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty Like all constitutional guarantees, however, the right to information and its
(60) days before election, prepare a certified list of national, regional, or sectoral companion right of access to official records are not absolute. As articulated in
parties, organizations or coalitions which have applied or who have manifested their Legaspi, supra, the peoples right to know is limited to "matters of public concern"
desire to participate under the party-list system and distribute copies thereof to all and is further subject to such limitation as may be provided by law. Similarly, the
precincts for posting in the polling places on election day. The names of the party-list policy of full disclosure is confined to transactions involving "public interest" and is
nominees shall not be shown on the certified list. (Emphasis added.) subject to reasonable conditions prescribed by law. Too, there is also the need of
preserving a measure of confidentiality on some matters, such as military, trade,
And doubtless part of Comelecs reason for keeping the names of the party list banking and diplomatic secrets or those affecting national security.19
nominees away from the public is deducible from the following excerpts of the news
report appearing in the adverted April 13, 2007 issue of the Manila Bulletin: The terms "public concerns" and "public interest" have eluded precise definition. But
both terms embrace, to borrow from Legaspi, a broad spectrum of subjects which
The Commission on Elections (COMELEC) firmed up yesterday its decision not to the public may want to know, either because these directly affect their lives, or
release the names of nominees of sectoral parties, organizations, or coalitions simply because such matters naturally whet the interest of an ordinary citizen. At
accredited to participate in the party-list election which will be held simultaneously the end of the day, it is for the courts to determine, on a case to case basis, whether
with the May 14 mid-term polls. or not at issue is of interest or importance to the public.

COMELEC Chairman Benjamin S. Abalos, Sr. said he and [the other five COMELEC] If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons
Commissioners --- believe that the party list elections must not be personality employed as sanitarians of a health department of a city are civil service eligibles,
oriented. surely the identity of candidates for a lofty elective public office should be a matter
of highest public concern and interest.
Abalos said under [R.A.] 7941 , the people are to vote for sectoral parties,
organizations, or coalitions, not for their nominees. As may be noted, no national security or like concerns is involved in the disclosure of
the names of the nominees of the party-list groups in question. Doubtless, the
He said there is nothing in R.A. 7941 that requires the Comelec to disclose the Comelec committed grave abuse of discretion in refusing the legitimate demands of
names of nominees. xxx (Words in brackets and emphasis added) the petitioners for a list of the nominees of the party-list groups subject of their
respective petitions. Mandamus, therefore, lies.
Insofar as the disclosure issue is concerned, the petitions are impressed with merit.
Assayed against the non-disclosure stance of the Comelec and the given rationale The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list
therefor is the right to information enshrined in the self-executory15 Section 7, nominees shall not be shown on the certified list" is certainly not a justifying card for
Article III of the Constitution, viz: the Comelec to deny the requested disclosure. To us, the prohibition imposed on the
Sec.7. The right of the people to information on matters of public concern shall be Comelec under said Section 7 is limited in scope and duration, meaning, that it
recognized. Access to official records, and to documents, and papers pertaining to extends only to the certified list which the same provision requires to be posted in
the polling places on election day. To stretch the coverage of the prohibition to the November 17, 2003 charging Judge Amor A. Reyes, Regional Trial Court (RTC) of
absolute is to read into the law something that is not intended. As it were, there is Manila, Branch 21, with gross ignorance of the law, gross inefficiency, dereliction of
absolutely nothing in R.A. No. 7941 that prohibits the Comelec from disclosing or duty, serious misconduct, partiality and violation of the Code of Judicial Conduct
even publishing through mediums other than the "Certified List" the names of the relative to Special Proceedings No. 00-97505 for issuance of letters of administration
party-list nominees. The Comelec obviously misread the limited non-disclosure entitled "Intestate Estate of Roberto S. Benedicto."
aspect of the provision as an absolute bar to public disclosure before the May 2007
elections. The interpretation thus given by the Comelec virtually tacks an Complainant Alfredo Hilado is the plaintiff in Civil Case No. 95-9137 entitled "Manuel
unconstitutional dimension on the last sentence of Section 7 of R.A. No. 7941. Lacson, et al. v. Roberto Benedicto, et al.," filed before the RTC of Bacolod City,
Branch 44, while complainants Lopez Sugar Corporation and First Farmers Holding
The Comelecs reasoning that a party-list election is not an election of personalities Corporation are the lead plaintiffs/intervenors in Civil Case No. 11178 pending
is valid to a point. It cannot be taken, however, to justify its assailed non-disclosure before the RTC of Bacolod City, Branch 41. Upon the death of Roberto Benedicto in
stance which comes, as it were, with a weighty presumption of invalidity, impinging, May 2000, he was substituted by his estate in the aforementioned civil cases.
as it does, on a fundamental right to information.20 While the vote cast in a party-
list elections is a vote for a party, such vote, in the end, would be a vote for its Special Proceedings No. 00-97505 was raffled to the sala of the respondent Judge.
nominees, who, in appropriate cases, would eventually sit in the House of She, thereafter, appointed Julita Campos Benedicto as the administratrix of the
Representatives. estate in an Order2 dated August 2, 2000, and letters of administration were,
thereafter, issued in favor of the latter. According to the complainants, the
The Court is very much aware of newspaper reports detailing the purported reasons appointed administratrix acknowledged their claims against the estate of the
behind the Comelecs disinclination to release the names of party-list nominees. It is deceased as major liabilities thereof in an Inventory3 dated January 18, 2001. The
to be stressed, however, that the Court is in the business of dispensing justice on complainants further alleged, thus:
the basis of hard facts and applicable statutory and decisional laws. And lest it be
overlooked, the Court always assumes, at the first instance, the presumptive validity 5. Shortly prior to September 2001, Complainants uncovered serious lapses in
and regularity of official acts of government officials and offices. the observance and enforcement by Respondent Judge of the mandatory
prescriptions of the Rules governing the administration of the estate and in collation
It has been repeatedly said in various contexts that the people have the right to and preservation of its assets.
elect their representatives on the basis of an informed judgment. Hence the need for 6. Among others, Petitioners discovered that while the Respondent
voters to be informed about matters that have a bearing on their choice. The ideal Administratrix had been issued Letters of Administration as early as August 2, 2000
cannot be achieved in a system of blind voting, as veritably advocated in the and had been granted by the Respondent Court, in an Order dated April 24, 2001,
assailed resolution of the Comelec. The Court, since the 1914 case of Gardiner v. [a] final extended period until May 31, 2001 for the submission of "a completed and
Romulo,21 has consistently made it clear that it frowns upon any interpretation of updated inventory and appraisal report," what had been submitted was still an
the law or rules that would hinder in any way the free and intelligent casting of the unverified, incomplete and unappraised inventory dated January 18, 2001. Worse, in
votes in an election.22 So it must be here for still other reasons articulated earlier. submitting the practically worthless inventory, Respondent Administratrix declined
to vouch for the accuracy of the same,
In all, we agree with the petitioners that respondent Comelec has a constitutional
duty to disclose and release the names of the nominees of the party-list groups 7. Likewise, it was discovered by Complainants that despite the lapse of over a
named in the herein petitions. year since the issuance of her letters of administration, the Administratrix had failed
to render an annual account of her administration as mandatorily required by
WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it seeks to Section 8 of Rule 85.4
nullify the accreditation of the respondents named therein. However, insofar as it The complainants further alleged that the respondent Judge had, likewise, approved
seeks to compel the Comelec to disclose or publish the names of the nominees of the sale of substantial and valuable assets of the estate without serving notice to
party-list groups, sectors or organizations accredited to participate in the May 14, them and other persons interested, in violation of Section 7, Rule 89 of the Rules of
2007 elections, the same petition and the petition in G.R. No. 177314 are GRANTED. Court. Despite this, the respondent Judge failed to issue any order directing the
Accordingly, the Comelec is hereby ORDERED to immediately disclose and release administratrix to comply with the rules. The records of the intestate estate
the names of the nominees of the party-list groups, sectors or organizations proceedings furthermore revealed a deliberate design to prejudice and preclude the
accredited to participate in the May 14, 2007 party-list elections. The Comelec is opportune participation of the complainants. Thus:
further DIRECTED to submit to the Court its compliance herewith within five (5) days
from notice hereof. 9.1 Under Section 2 of Rule 79, the application for letters of administration is
This Decision is declared immediately executory upon its receipt by the Comelec. No required to state, among others, "the names, ages and residences of the heirs, and
pronouncement as to cost. SO ORDERED. the names and residences of the creditors, of the decedent" "so far as known to the
A.M. No. RTJ-05-1910 April 15, 2005 petitioner." However, although the Petition for Letters of Administration filed by the
ALFREDO HILADO, LOPEZ SUGAR CORPORATION and FIRST FARMERS Administratrix acknowledged the existence of liabilities, and the List of Liabilities
HOLDING CORPORATION, Complainants, vs.JUDGE AMOR A. REYES, submitted with her inventory named the Complainants together with the Bureau of
Regional Trial Court of Manila, Branch 21, Respondent. Internal Revenue as the major creditors of the estate, Administratrix did not name
D E C I S I O N: CALLEJO, SR., J.: and list Complainants as creditors of the decedent in her Petition. In fact, no
creditor was named at all.
The instant administrative matter arose when Alfredo Hilado, Lopez Sugar 9.2 Pursuant to Section 5 of the same Rule 79, letters of administration may be
Corporation and First Farmers Holding Corporation filed a verified Complaint1 dated validly issued only after it is "first shown that notice has been given as required"
by Section 3 of the same rule, that is to say, notice "to the known heirs and creditors relative thereto. The complainants filed a motion for reconsideration, which she
of the decedent and to any other persons believed to have an interest in the estate," denied on March 12, 2002. The respondent Judge pointed out that her ruling was
given not only via publication but also by mail "addressed [to them] at their elevated to the Court of Appeals (CA) via a petition for certiorari.
places of residence, and deposited at least twenty (20) days before the hearing" or
by "personal service at least ten (10) days before the days of hearing " On the complainants' contention that she failed in her responsibility towards the
appointed administratrix of the estate, the respondent Judge explained that the
Admittedly, no notice of whatever kind was served on Complainants. latter had already filed an initial inventory less than a year after the issuance of the
9.3 Significantly, the Purchase and Sale Agreement disposing of the assets of letters of administration and that the administratrix was still in the process of
Traders Royal Bank, which the Respondent Judge approved without notice to preparing the supplemental inventory. Nonetheless, the respondent Judge issued an
Complainants, explicitly, categorically and discriminatorily excluded, from the Order dated October 16, 2003 directing the administratrix to submit an updated
liabilities to be assumed by the Bank of Commerce as Purchaser, Petitioners' claims inventory within thirty (30) days from receipt of the said Order. The administratrix
in the pending Bacolod suits against TRB and the estate, claims which had filed a motion for extension as she had been continuously working on the
previously been acknowledged in the [Administratrix's] Inventory as major liabilities preparation of the inventory of the estate and the delay was due to the difficulties of
of the estate.5 verifying the decedents' stock investments. The motion for extension filed by the
administratrix was granted by the court on November 26, 2003.
In light of these discoveries, the complainants, through counsel, filed a
Manifestation/Motion Ex Abudanti Cautela6 dated September 24, 2001 identifying The respondent Judge contended that the complaint was baseless, malicious and
themselves as among the major creditors in the inventory prepared by the was intended to harass her, and was filed in retaliation for her unfavorable rulings
appointed administratrix, and prayed that the Branch Clerk of Court be required to against the complainants. She further contended that she resolved the motions filed
furnish the petitioners, through their counsel, copies of all the processes and orders by the complainants according to her own judgment and understanding of the law
issued by the court, and to require the administratrix to serve copies of all the and the attendant circumstances. The respondent Judge, therefore, prayed for the
proceedings to their counsel. Pending the resolution of this motion, the dismissal of the case for lack of merit.
complainants also filed urgent pleadings bringing to the attention of the respondent
Judge her procedural lapses.7 However, the respondent Judge issued an Order8 The complainants filed a Supplemental Complaint on February 6, 2004 contending
dated January 2, 2002 refusing to recognize the complainants as interested parties that the respondent Judge had not yet required the administratrix of the estate to
entitled to participate and intervene in the proceedings. This compelled the submit an inventory and annual account despite the lapse of time under the rules.
complainants to file a motion for reconsideration of the said order, which was, They also claimed that they were again denied participation in the proceedings of
likewise, denied by the respondent Judge. the settlement of the estate, and access to the court records which are considered
public. They prayed for the inhibition of the respondent Judge in trying Sp. Proc. No.
According to the complainants, the respondent Judge failed to consider the fact that 00-97505.
no less than the appointed administratrix recognized their claims as major liabilities
of the estate. They further claimed that the respondent Judge's action only shows In the comment of the respondent Judge to the supplemental complaint, she
that there was a deliberate design to preclude their participation in the intestate maintained that the complainants were not considered parties-in-interest since their
proceedings. The complainants further alleged that a probate judge, such as the claims remain contingent on the outcome of the cases still pending in the RTC of
respondent, should know the "elementary doctrines" regarding the settlement of Bacolod City. The respondent Judge also pointed out that the appeal of the
estates, failing which he may be held guilty of ignorance of the law. The complainants to her court order, declaring the latter as not parties-in-interest in the
complainants averred that it is a well settled judicial policy to favor the liberal settlement of the estate of the decedent, was still pending consideration by the
participation of all parties having an interest, however minimal, in the proper appellate court. Thus:
settlement of the estate of the deceased. Hence, the respondent Judge's failure to
apply and observe the elementary doctrines bearing on the settlement of estate a) The law does not give blanket authority to any person to have access to official
which are presumed to be known to a probate court reflects inexcusable ignorance records and to documents and papers pertaining to official acts. As worded, only
of the law. matters of public concern may a person [be] accorded access. In the present case,
complainants' interest is more of personal than of public concern. The ruling of the
Aside from praying that the appropriate disciplinary sanction to be meted on the Supreme Court in the case of Valentin L. Legaspi v. Civil Service Commission (G.R.
respondent Judge, the complainants also prayed that the respondent Judge be No. 72119, May 29, 1987) is the case in point.
disqualified from further trying Sp. Proc. No. 00-97505. They, likewise, prayed that "But the constitutional guarantee to information on matters of public concern is not
the said proceedings be forwarded to the Executive Judge of the RTC of Manila for re- absolute. It does not open every door to any and all information. Under the
raffle to another sala. Constitution, access to official records, papers, etc., 'are subject to limitations as
may be provided by law' (Art. III, Sec. 7, second sentence). xxx in every case, the
For her part, the respondent Judge explained that prior to her Order dated January 2, availability of access to a particular public record must be circumscribed by the
2002, the complainants, through counsel, filed a motion with a prayer that an order nature of the information sought, i.e., (a) being of public concern or one that
be issued requiring the Branch Clerk of Court to furnish them (complainants) with involves public interest, and (b) not being exempted by law from the operation of
copies of all processes and orders, and to require the administratrix to serve them the constitutional guarantee. The threshold question is, therefore, whether or not
copies of all pleadings in the proceedings. In her Order dated January 2, 2002, the the information sought is of public interest or public concern."
respondent Judge declared that under the Rules, the complainants were without
personality to participate in the intestate proceedings, thus, cannot intervene b) Although complainants assert that they have the right to information based on
therein, much less be furnished with copies of orders, pleadings and processes the cases cited in the Supplemental Complaint, it is further clarified by this
respondent that the position taken by them is utterly different because the parties respondent Judge. Records of the case show that respondent Judge issued several
involved in the cited cases are complainants themselves while in the case at hand, Orders resolving other motions.
they are not considered parties-in-interest, their claim being contingent as their case
is still pending with the RTC, Branch 44, Bacolod; 9 Complainants fault respondent Judge for failing to order the administratrix to file a
completed and updated inventory even as late as the date of this Complaint.
The complainants filed a Second Supplemental Complaint on April 30, 2004,
reiterating the charges against the respondent Judge. They also filed a motion to In the [administratrix's] motion for extension of time, she stated that the Inventory
withdraw their previous prayer for inhibition. was complete except for the valuation of some shares of stock and to obtain the
same, full auditing of the entire corporation complete with the actual field
In a Resolution dated August 11, 2004, the Court resolved to refer the matter to verification of recorded cases was needed. The same appears to be meritorious
Court of Appeals Associate Justice Remedios A. Salazar-Fernando for investigation, considering the vast estate of the deceased.
report and recommendation.
When the administratrix did not submit the updated inventory after the deadline on
In her Final Report and Recommendation dated November 8, 2004, the Investigating May 31, 2001, respondent Judge on October 16, 2003, directed the administratrix to
Justice found that based on the records, the respondent Judge was not remiss in her file the updated inventory. For which reason, administratrix filed another two (2)
duties relative to Sp. Proc. No. 00-97505, thus: motions for extension of time to file the same.

On August 2, 2000, respondent Judge appointed Julita Campos Benedicto as

administratrix of the estate of the deceased Roberto S. Benedicto [Records, Vol. I, p.
13]. Upon filing of the bond in the amount of five million (P5,000,000) pesos, The delay in the submission of the inventory was aptly explained by the motions for
[letters] of administration [were] issued in favor of the administratrix and [a] notice extension of time filed by the administratrix.
dated August 23, 2000 to file money claims against the decedent was ordered
published. The above ruling went on to expound that the administrator's unexplained delay in
filing the inventory may be a ground for his removal. Hence, the judge may not be
Under Section 1, Rule 83 of the Revised Rules of Court, the administratrix should faulted for the [administratrix's] delay. However, only the heirs or beneficiaries of
return/file with the court a true inventory and appraisal of all the real and personal the estate may move for the removal of the administratrix on the grounds provided
estate of the deceased which came to her possession or knowledge. for in Rule 82.

On December 12, 2000, the administratrix filed a motion for extension of time to file Likewise, the failure to render an account is a ground for the removal of the
an Inventory on the ground that she was in the process of gathering documents and administratrix by the proper parties.
data necessary for the preparation of an inventory which were made difficult
because of the very personalized way the deceased had been recording his assets The mandatory character of the requirement of an account or accounting one (1)
and conducting his business affairs. year from the time of receiving letters testamentary or of administration admits of
exception, i.e., when the Court, otherwise, directs.
On December 13, 2000, the motion for extension of item was granted.
In this case, the one-year mandatory period within which to render an accounting
On January 12, 2001, the administratrix filed another extension of fifteen (15) days should be reckoned from December 16, 2003. Hence, accounting of the estate is
from January 15, 2001 within which to file an inventory which could not be finalized not yet due.10
due to lack of necessary data such as the probable value of some specific assets.
The motion was granted by respondent Judge. However, the Investigating Justice opined that the respondent Judge arbitrarily
denied the complainants access to the case records of Sp. Proc. No. 00-97505 by
The Inventory was submitted on January 19, 2001, which placed the estate's value refusing requests for photocopying of the same, and made the following conclusion
at P36,799,822.25. Accordingly, respondent Judge ordered the payment of and recommendation:
additional filing fee based on the declared value of the estate [Ibid, p. 58].
This Investigator concludes that respondent Judge is not guilty of inaction or failure
After finding that the initial inventory had no appraisal on March 26, 2001, to require observance of the Rules by the Administratrix.
respondent Judge directed the administratrix to submit the completed and updated
inventory and appraisal report. Additional bond was also ordered to be posted [Ibid, However, respondent Judge's refusal to give the complainants access to the case
p. 60]. records of SP-97505 is arbitrary. The right to information on matters of public
concern is a constitutional right. Access to official records and to documents and
The administratrix asked for an extension of time or until May 31, 2001 to file an papers pertaining to official acts, transactions, or decisions shall be afforded the
updated inventory [Ibid, p. 63]. The same was granted on April 24, 2001 [Ibid, p. citizen, subject to such limitations as may be provided by law.
WHEREFORE, PREMISES CONSIDERED, it is hereby recommended that respondent
On the preceding facts alone, it could be gleaned that respondent Judge dutifully Judge be adjudged guilty of dereliction of duty and improper conduct bordering on
fulfilled her responsibility in exacting from the administratrix the observance of her oppression and accordingly be CENSURED, REPRIMANDED and WARNED that a
responsibilities. Please note that those were not the only actions taken by the repetition of the same in the future will be dealt with more severely.11
The findings and recommendation of Justice Salazar-Fernando are well taken. The incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can be no
The Court holds that the respondent Judge erred in denying the complainants access realistic perception by the public of the nation's problems, nor a meaningful
to the court records of Sp. Proc. No. 00-97505. Admittedly, the complainants could democratic decision-making if they are denied access to information of general
not demand that they be furnished with the court's orders and the pleadings filed by interest. Information is needed to enable the members of society to cope with the
the parties, in as much as the respondent Judge had already ruled that they were exigencies of the times. As has been aptly observed: "Maintaining the flow of such
not parties-in-interest. However, the Court finds that the respondent Judge should information depends on protection for both its acquisition and its dissemination
not have prohibited the complainants from going over the records of the case and since, if either process is interrupted, the flow inevitably ceases." However,
securing copies of pertinent orders and pleadings.12 restrictions on access to certain records may be imposed by law. Thus, access
restrictions imposed to control civil insurrection have been permitted upon a
Courts in the United States have recognized the general right to inspect and copy showing of immediate and impending danger that renders ordinary means of control
public records and documents, including judicial records and documents.13 In our inadequate to maintain order.21
jurisdiction, the right is enshrined in Section 7, Article III of the Constitution, which
provides: We agree with the following ratiocination of the Investigating Justice:
However, the constitutional guarantee to information on matters of public concern is
Sec. 7. The right of the people to information on matters of public concern shall be not absolute. Under the Constitution, access to official records, papers, etc., are
recognized. Access to official records, and to documents and papers pertaining to "subject to limitations as may be provided by law." Therefore, a law may exempt
official acts, transactions or decisions, as well as to government research data used certain types of information from public scrutiny such as matters on national
as basis for policy development, shall be afforded the citizen, subject to such security. Otherwise stated, the availability of access to a particular public record
limitations as may be provided by law. must be restricted by the nature of the information sought, i.e., (a) of public concern
or one that involves public interest, and (b) not being exempted by law from the
The reliance of the respondent Judge on the ruling of the Court in Legaspi v. Civil operation of the constitutional guarantee.
Service Commission,14 to justify the denial of access to court records is misplaced.
On the contrary, the following pronouncement in the said case further bolsters the The privilege against disclosure is recognized with respect to state secrets bearing
claim of the complainants: on military, diplomatic and similar matters. This privilege is based upon public
interest of such paramount importance which transcends the individual interests of a
In determining whether or not a particular information is of public concern there is private citizen, even though, as a consequence thereof, the plaintiff cannot enforce
no rigid test which can be applied. "Public concern," like public interest, is a term his legal rights.
that eludes exact definition. Both terms embrace a broad spectrum of subjects
which the public may want to know, either because these directly affect their lives, SP No. 97505 does not contain any military or diplomatic secret which will be
or simply because such matters naturally arouse the interest of an ordinary citizen. disclosed by its production. Neither is there any law or regulation which considers
In the final analysis, it is for the courts to determine in a case by case basis whether the case records as classified information.
the matter at issue is of interest or importance, as it relates to or affects the
public.15 The right to information is subject to reasonable regulations and restrictions.
However, while public officers in custody or control of public records have the
The presumption that the public has a right to see and copy judicial records attaches discretion to regulate the manner in which such records may be inspected,
to those documents which properly come before the court in the course of an examined or copied by interested persons, such discretion does not carry with it the
adjudicatory proceeding and which are relevant to the adjudication.16 Hence, authority to prohibit such access, inspection, examination or copying.22
relevant documents which are submitted to, and accepted by, a court of competent
jurisdiction in the course of adjudicatory proceedings, become documents to which The Court thus rules that for denying the complainants access to court records, the
the presumption of public access applies.17 The policy reasons for granting public respondent Judge must be reprimanded.
access to criminal proceedings include the public's right to monitor the functioning
of our courts, thereby ensuring quality, honesty and respect for our legal system. The respondent Judge cannot be similarly chastised for ruling that the complainants
Such policy reasons apply to the grant of public access to civil cases as well.18 were not parties-in-interest in the subject case. It is settled that as a matter of
policy, the acts of a judge in his judicial capacity are not subject to disciplinary
The importance of access to public records, court records more particularly, was action. He cannot be subjected to liability civil, criminal or administrative for any
explained in Lantaco, Sr. v. Llamas,19 where the respondent Judge therein refused to of his official acts, no matter how erroneous, as long as he acts in good faith.23 Only
furnish the complainants a copy of his decision. According to the Court, the judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate
importance of this right to access to court records is predicated on the right of the intent to do an injustice will be administratively sanctioned.24 To hold, otherwise,
people to acquire information on matters of public concern in which the public has a would be to render judicial office untenable, for no one called upon to try the facts or
legitimate interest. It was further explained that while the public officers in custody interpret the law in the process of administering justice can be infallible in his
of control of public records have the discretion to regulate the manner in which such judgment.25 Indeed, an administrative complaint against a judge cannot be pursued
records may be inspected, examined or copied by interested persons, such simultaneously with the judicial remedies accorded to parties aggrieved by his
discretion does not carry with it the authority to prohibit such access, inspection, erroneous order or judgment. Administrative remedies are neither alternative nor
examination or copying. To drive home the point, the Court cited its pronouncement cumulative to judicial review where such review is available to the aggrieved parties
in Baldoza v. Dimaano,20 to wit: and the same has not yet been resolved with finality. For until there is a final
declaration by the appellate court that the challenged order or judgment is appeal, or a petition for certiorari, unless the assailed order or decision is tainted
manifestly erroneous, there will be no basis to conclude whether respondent judge is with fraud, malice, or dishonesty.28 The Court has to be shown acts or conduct of
administratively liable.26 the judge clearly indicative of arbitrariness or prejudice before the latter can be
branded the stigma of being biased and partial. Good faith and absence of malice,
Thus, the remedy of the aggrieved party is not to file an administrative complaint corrupt motives or improper considerations, are sufficient defenses in which a judge
against the judge, but to elevate the assailed decision or order to the higher court charged with ignorance of the law can find refuge.29 In this case, no bad faith can
for review and correction,27 which in this case the complainants have already done. be attributed to the respondent Judge for relying on the ruling of this Court in
The Court notes that in a Decision dated February 27, 2004, the CA dismissed the Lantaco v. Llamas,30 albeit erroneously.
petition questioning the ruling of the respondent Judge that the complainants were
not parties-in-interest in Sp. Proc. 00-97505, and that the complainants elevated WHEREFORE, for denying the complainants access to court records, respondent
such dismissal to this Court via a petition for review. Judge Amor A. Reyes is hereby REPRIMANDED. She is sternly warned that a
repetition of the same or similar act in the future shall be dealt with more severely.
It must be stressed that an administrative complaint is not an appropriate remedy
where judicial recourse is still available, such as a motion for reconsideration, an SO ORDERED.