You are on page 1of 43

Prior Restraints & Subsequent Punishment

Participation in such business shall constitute a commission of such nuisance and render the participant
Near v. Minnesota liable and subject to the proceedings, orders and judgments provided for in this Act. Ownership, in whole
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, magazine or other periodical," is guilty of a
or in part, directly or indirectly, of any such periodical, or of any stock or interest in any corporation or
nuisance, and authorizes suits, in the name of the State, in which such periodicals may be abated and their publishers organization which owns the same in whole or in part, or which publishes the same, shall constitute such
enjoined from future violations. In such a suit, malice may be inferred from the fact of publication. The defendant is participation.
permitted to prove, as a defense, that his publications were true and published "with good motives and for justifiable
ends." Disobedience of an injunction is punishable as a contempt. Held unconstitutional, as applied to publications In actions brought under (b) above, there shall be available the defense that the truth was published
charging neglect of duty and corruption upon the part of law-enforcing officers of the State. Pp. 704, 709, 712, 722. with good motives and for justifiable ends and in such actions the plaintiff shall not have the right to
2. Liberty of the press is within the liberty safeguarded by the due process clause of the Fourteenth Amendment from report (sic) to issues or editions of periodicals taking place more than three months before the
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.
commencement of the action.
4. In passing upon the constitutionality of the statute, the court has regard for substance, and not for form; the statute
must be tested by its operation and effect. P. 708. [p698] Section two provides that, whenever any such nuisance is committed or exists, the County Attorney of
5. Cutting through mere details of procedure, the operation and effect of the statute is that public authorities may bring any county where any such periodical is published or circulated, or, in case of his failure or refusal to
a publisher before a judge upon a charge of conducting a business of publishing scandalous and defamatory matter -- in proceed upon written request in good faith of a reputable citizen, the Attorney General, or, upon like
particular, that the matter consists of charges against public officials of official dereliction -- and, unless the publisher is failure or refusal of the latter, any citizen of the county may maintain an action in the district court of the
able and disposed to satisfy the judge that the charges are true and are published with good motives and for justifiable county in the name of the State to enjoin [p703] perpetually the persons committing or maintaining any
ends, his newspaper or periodical is suppressed and further publication is made punishable as a contempt. This is the
such nuisance from further committing or maintaining it. Upon such evidence as the court shall deem
essence of censorship. P. 713.
6. A statute authorizing such proceedings in restraint of publication is inconsistent with the conception of the liberty of sufficient, a temporary injunction may be granted. The defendants have the right to plead by demurrer
the press as historically conceived and guaranteed. P. 713. or answer, and the plaintiff may demur or reply as in other cases.
7. The chief purpose of the guaranty is to prevent previous restraints upon publication. The libeler, however, remains
criminally and civilly responsible for his libels. P. 713. The action, by section three, is to be " governed by the practice and procedure applicable to civil actions
8. There are undoubtedly limitations upon the immunity from previous restraint of the press, but they are not for injunctions," and, after trial, the court may enter judgment permanently enjoining the defendants
applicable in this case. P. 715. found guilty of violating the Act from continuing the violation, and, "in and by such judgment, such
9. The liberty of the press has been especially cherished in this country as respects publications censuring public officials
and charging official misconduct. P. 716.
nuisance may be wholly abated." The court is empowered, as in other cases of contempt, to punish
10. Public officers find their remedies for false accusations in actions for redress and punishment under the libel laws, disobedience to a temporary or permanent injunction by fine of not more than $1,000 or by
and not in proceedings to restrain the publication of newspapers and periodicals. P. 718. imprisonment in the county jail for not more than twelve months.
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 misconduct. P. 720. Under this statute, clause (b), the County Attorney of Hennepin County brought this action to enjoin the
12. Characterizing the publication of charges of official misconduct as a "business," and the business as a nuisance, does publication of what was described as a " malicious, scandalous and defamatory newspaper, magazine
not avoid the constitutional guaranty; nor does it matter that the periodical is largely or chiefly devoted to such charges. and periodical" known as " The Saturday Press," published by the defendants in the city of Minneapolis.
P. 720.
13. The guaranty against previous restraint extends to publications charging official derelictions that amount to crimes.
The complaint alleged that the defendants, on September 24, 1927, and on eight subsequent dates in
P. 720. October and November, 1927, published and circulated editions of that periodical which were "largely
14. Permitting the publisher to show in defense that the matter published is true and is published with good motives devoted to malicious, scandalous and defamatory articles" concerning Charles G. Davis, Frank W.
and for justifiable ends does not justify the statute. P. 721. Brunskill, the Minneapolis Tribune, the Minneapolis Journal, Melvin C. Passolt, George E. Leach, the
15. Nor can it be sustained as a measure for preserving the public peace and preventing assaults and crime. Pp. 721, Jewish Race, the members of the Grand Jury of Hennepin County impaneled in November, 1927, and
722. then holding office, and other persons, as more fully appeared in exhibits annexed to the complaint,
[p699] consisting of copies of the articles described and constituting 327 pages of the record. While the
APPEAL from a decree which sustained an injunction abating the publication of a periodical as malicious, scandalous
complaint did not so allege, it [p704] appears from the briefs of both parties that Charles G. Davis was a
and defamatory, and restraining future publication. The suit was based on a Minnesota statute. See also s.c., 174 Minn.
457, 219 N.W. 770. [p701] special law enforcement officer employed by a civic organization, that George E. Leach was Mayor of
TOP Minneapolis, that Frank W. Brunskill was its Chief of Police, and that Floyd B. Olson (the relator in this
Opinion action) was County Attorney.

HUGHES, C.J., Opinion of the Court Without attempting to summarize the contents of the voluminous exhibits attached to the complaint, we
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court. deem it sufficient to say that the articles charged in substance that a Jewish gangster was in control of
Chapter 285 of the Session Laws of Minnesota for the year 1925 [n1] provides for the abatement, as a gambling, bootlegging and racketeering in Minneapolis, and that law enforcing officers and agencies
public nuisance, of a "malicious, scandalous and defamatory newspaper, [p702] magazine or other were not energetically performing their duties. Most of the charges were directed against the Chief of
periodical." Section one of the Act is as follows: Police; he was charged with gross neglect of duty, illicit relations with gangsters, and with participation in
Section 1. Any person who, as an individual, or as a member or employee of a firm, or association or graft. The County Attorney was charged with knowing the existing conditions and with failure to take
organization, or as an officer, director, member or employee of a corporation, shall be engaged in the adequate measures to remedy them. The Mayor was accused of inefficiency and dereliction. One
business of regularly or customarily producing, publishing or circulating, having in possession, selling or member of the grand jury was stated to be in sympathy with the gangsters. A special grand jury and a
giving away special prosecutor were demanded to deal with the situation in general, and, in particular, to investigate
(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or an attempt to assassinate one Guilford, one of the original defendants, who, it appears from the articles,
(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical, is guilty of a was shot by gangsters after the first issue of the periodical had been published. There is no question but
nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter provided.
that the articles made serious accusations against the public officers named and others in connection
with the prevalence of crimes and the failure to expose and punish them. for defendants to construe the judgment as restraining them from operating a newspaper in harmony
with the public welfare, to which all must yield,
At the beginning of the action, on November 22, 1927, and upon the verified complaint, an order was
made directing the defendants to show cause why a temporary injunction should not issue and that the allegations of the complaint had been [p707] found to be true, and, though this was an
meanwhile forbidding the defendants to publish, circulate or have in their possession any editions of the equitable action, defendants had not indicated a desire "to conduct their business in the usual and
periodical from September [p705] 24, 1927, to November 19, 1927, inclusive, and from publishing, legitimate manner."
circulating, or having in their possession, "any future editions of said The Saturday Press" and
From the judgment as thus affirmed, the defendant Near appeals to this Court.
any publication, known by any other name whatsoever containing malicious, scandalous and defamatory
matter of the kind alleged in plaintiff's complaint herein or otherwise. This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not
unique, and raises questions of grave importance transcending the local interests involved in the
The defendants demurred to the complaint upon the ground that it did not state facts sufficient to particular action. It is no longer open to doubt that the liberty of the press, and of speech, is within the
constitute a cause of action, and on this demurrer challenged the constitutionality of the statute. The liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state
District Court overruled the demurrer and certified the question of constitutionality to the Supreme action. It was found impossible to conclude that this essential personal liberty of the citizen was left
Court of the State. The Supreme Court sustained the statute (174 Minn. 457, 219 N.W. 770), and it is unprotected by the general guaranty of fundamental rights of person and property. Gitlow v. New York,
conceded by the appellee that the Act was thus held to be valid over the objection that it violated not 268 U.S. 652, 666; Whitney v. California, 274 U.S. 357, 362, 373; Fiske v. Kansas, 274 U.S. 380, 382;
only the state constitution, but also the Fourteenth Amendment of the Constitution of the United States. Stromberg v. California, ante, p. 359. In maintaining this guaranty, the authority of the State to enact
laws to promote the health, safety, morals and general welfare of its people is necessarily admitted. The
Thereupon, the defendant Near, the present appellant, answered the complaint. He averred that he was limits of this sovereign power must always be determined with appropriate regard to the particular
the sole owner and proprietor of the publication in question. He admitted the publication of the articles subject of its exercise. Thus, while recognizing the broad discretion of the legislature in fixing rates to be
in the issues described in the complaint, but denied that they were malicious, scandalous or defamatory charged by those undertaking a public service, this Court has decided that the owner cannot
as alleged. He expressly invoked the protection of the due process clause of the Fourteenth Amendment. constitutionally be deprived of his right to a fair return, because that is deemed to be of the essence of
The case then came on for trial. The plaintiff offered in evidence the verified complaint, together with ownership. Railroad Commission Cases, 116 U.S. 307, 331; Northern Pacific Ry. Co. v. North Dakota, 236
the issues of the publication in question, which were attached to the complaint as exhibits. The U.S. 585, 596. So, while liberty of contract is not an absolute right, and the wide field of activity in the
defendant objected to the introduction of the evidence, invoking the constitutional provisions to which making of contracts is subject to legislative supervision (Frisbie v. United States, 157 U.S. 161, 165), this
his answer referred. The objection was overruled, no further evidence was presented, and the plaintiff Court has held that the power of the State stops short of interference with what are deemed [p708] to
rested. The defendant then rested without offering evidence. The plaintiff moved that the court direct be certain indispensable requirements of the liberty assured, notably with respect to the fixing of prices
the issue of a permanent injunction, and this was done. [p706] and 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 also not an absolute right, and the
The District Court made findings of fact which followed the allegations of the complaint and found in State may punish its abuse. Whitney v. California, supra; Stromberg v. California, supra. Liberty, in each
general terms that the editions in question were "chiefly devoted to malicious, scandalous and of its phases, has its history and connotation, and, in the present instance, the inquiry is as to the historic
defamatory articles" concerning the individuals named. The court further found that the defendants, conception of the liberty of the press and whether the statute under review violates the essential
through these publications, attributes of that liberty.

did engage in the business of regularly and customarily producing, publishing and circulating a malicious, The appellee insists that the questions of the application of the statute to appellant's periodical, and of
scandalous and defamatory newspaper, the construction of the judgment of the trial court, are not presented for review; that appellant's sole
attack was upon the constitutionality of the statute, however it might be applied. The appellee contends
and that "the said publication" "under said name of The Saturday Press, or any other name, constitutes a that no question either of motive in the publication, or whether the decree goes beyond the direction of
public nuisance under the laws of the State." Judgment was thereupon entered adjudging that "the the statute, is before us. The appellant replies that, in his view, the plain terms of the statute were not
newspaper, magazine and periodical known as The Saturday Press," as a public nuisance, "be and is departed from in this case, and that, even if they were, the statute is nevertheless unconstitutional
hereby abated." The Judgment perpetually enjoined the defendants under any reasonable construction of its terms. The appellant states that he has not argued that the
temporary and permanent injunctions were broader than were warranted by the statute; he insists that
from producing, editing, publishing, circulating, having in their possession, selling or giving away any what was done was properly done if the statute is valid, and that the action taken under the statute is a
publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by law, fair indication of its scope.

and also "from further conducting said nuisance under the name and title of said The Saturday Press or With respect to these contentions, it is enough to say that, in passing upon constitutional questions, the
any other name or title." court has regard to substance, and not to mere matters of form, and that, in accordance with familiar
principles, the statute must be tested by its operation and effect. Henderson v. Mayor, 92 U.S. 259, 268;
The defendant Near appealed from this judgment to the Supreme Court of the State, again asserting his Bailey v. Alabama, 219 [p709] U.S. 219, 244; United States v. Reynolds, 235 U.S. 133, 148, 149; St. Louis
right under the Federal Constitution, and the judgment was affirmed upon the authority of the former Southwestern R. Co. v. Arkansas, 235 U.S. 350, 362; Mountain Timber Co. v. Washington, 243 U.S. 219,
decision. 179 Minn. 40, 228 N.W. 326. With respect to the contention that the judgment went too far, 237. That operation and effect we think is clearly shown by the record in this case. We are not concerned
and prevented the defendants from publishing any kind of a newspaper, the court observed that the with mere errors of the trial court, if there be such, in going beyond the direction of the statute as
assignments of error did not go to the form of the judgment, and that the lower court had not been construed by the Supreme Court of the State. It is thus important to note precisely the purpose and
asked to modify it. The court added that it saw no reason effect of the statute as the state court has construed it.
Fourth. The statute not only operates to suppress the offending newspaper or periodical, but to put the
First. The statute is not aimed at the redress of individual or private wrongs. Remedies for libel remain publisher under an effective censorship. When a newspaper or periodical is found to be "malicious,
available and unaffected. The statute, said the state court, "is not directed at threatened libel, but at an scandalous, and defamatory," and is suppressed as such, resumption of publication is punishable as a
existing business which, generally speaking, involves more than libel." It is aimed at the distribution of contempt of court by fine or imprisonment. Thus, where a newspaper or periodical has been suppressed
scandalous matter as "detrimental to public morals and to the general welfare," tending "to disturb the because of the circulation of charges against public officers of official misconduct, it would seem to be
peace of the community" and "to provoke assaults and the commission of crime." In order to obtain an clear that the renewal of the publication of such charges would constitute a contempt, and that the
injunction to suppress the future publication of the newspaper or periodical, it is not necessary to prove judgment would lay a permanent restraint upon the publisher, to escape which he must satisfy the court
the falsity of the charges that have been made in the publication condemned. In the present action, as to the character of a new publication. Whether he would be permitted again to publish matter
there was no allegation that the matter published was not true. It is alleged, and the statute requires the deemed to be derogatory to the same or other public officers would depend upon the court's ruling. In
allegation, that the publication was "malicious." But, as in prosecutions for libel, there is no requirement the present instance, the judgment restrained the defendants from
of proof by the State of malice in fact, as distinguished from malice inferred from the mere publication of
the defamatory matter. [n2] The judgment in this case proceeded upon the mere proof of publication. publishing, circulating, having in their possession, selling or giving away any publication whatsoever
The statute permits the defense not of the truth alone, but only that the truth was published with good which is a malicious, scandalous or defamatory newspaper, as defined by law.
motives and [p710] for justifiable ends. It is apparent that, under the statute, the publication is to be
regarded as defamatory if it injures reputation, and that it is scandalous if it circulates charges of The law gives no definition except that covered by the words "scandalous and defamatory," and
reprehensible conduct, whether criminal or otherwise, and the publication is thus deemed to invite publications charging official misconduct are of that class. While the court, answering the objection that
public reprobation and to constitute a public scandal. The court sharply defined the purpose of the the judgment was too broad, saw no reason for construing it as restraining the defendants "from
statute, bringing out the precise point, in these words: operating a newspaper in harmony with the public welfare to which all must yield," and said that the
defendants had not indicated "any desire to conduct their business in the usual and legitimate manner,"
There is no constitutional right to publish a fact merely because it is true. It is a matter of common the manifest inference is that, at least with respect to a [p713] new publication directed against official
knowledge that prosecutions under the criminal libel statutes do not result in efficient repression or misconduct, the defendant would be held, under penalty of punishment for contempt as provided in the
suppression of the evils of scandal. Men who are the victims of such assaults seldom resort to the courts. statute, to a manner of publication which the court considered to be "usual and legitimate" and
This is especially true if their sins are exposed and the only question relates to whether it was done with consistent with the public welfare.
good motives and for justifiable ends. This law is not for the protection of the person attacked, nor to
punish the wrongdoer. It is for the protection of the pubic welfare. If we cut through mere details of procedure, the operation and effect of the statute, in substance, is that
public authorities may bring the owner or publisher of a newspaper or periodical before a judge upon a
Second. The statute is directed not simply at the circulation of scandalous and defamatory statements charge of conducting a business of publishing scandalous and defamatory matter -- in particular, that the
with regard to private citizens, but at the continued publication by newspapers and periodicals of matter consists of charges against public officers of official dereliction -- and, unless the owner or
charges against public officers of corruption, malfeasance in office, or serious neglect of duty. Such publisher is able and disposed to bring competent evidence to satisfy the judge that the charges are true
charges, by their very nature, create a public scandal. They are scandalous and defamatory within the and are published with good motives and for justifiable ends, his newspaper or periodical is suppressed
meaning of the statute, which has its normal operation in relation to publications dealing prominently and further publication is made punishable as a contempt. This is of the essence of censorship.
and chiefly with the alleged derelictions of public officers. [n3] [p711]
The question is whether a statute authorizing such proceedings in restraint of publication is consistent
Third. The object of the statute is not punishment, in the ordinary sense, but suppression of the with the conception of the liberty of the press as historically conceived and guaranteed. In determining
offending newspaper or periodical. The reason for the enactment, as the state court has said, is that the extent of the constitutional protection, it has been generally, if not universally, considered that it is
prosecutions to enforce penal statutes for libel do not result in "efficient repression or suppression of the chief purpose of the guaranty to prevent previous restraints upon publication. The struggle in
the evils of scandal." Describing the business of publication as a public nuisance does not obscure the England, directed against the legislative power of the licenser, resulted in renunciation of the censorship
substance of the proceeding which the statute authorizes. It is the continued publication of scandalous of the press. [n4] The liberty deemed to be established was thus described by Blackstone:
and defamatory matter that constitutes the business and the declared nuisance. In the case of public
officers, it is the reiteration of charges of official misconduct, and the fact that the newspaper or The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no
periodical is principally devoted to that purpose, that exposes it to suppression. In the present instance, previous restraints upon publications, and not in freedom from censure for criminal matter when
the proof was that nine editions of the newspaper or periodical in question were published on successive published. Every freeman has an [p714] undoubted right to lay what sentiments he pleases before the
dates, and that they were chiefly devoted to charges against public officers and in relation to the public; to forbid this is to destroy the freedom of the press; but if he publishes what is improper,
prevalence and protection of crime. In such a case, these officers are not left to their ordinary remedy in mischievous or illegal, he must take the consequence of his own temerity.
a suit for libel, or the authorities to a prosecution for criminal libel. Under this statute, a publisher of a
newspaper or periodical, undertaking to conduct a campaign to expose and to censure official 4 Bl.Com. 151, 152; see Story on the Constitution, 1884, 1889. The distinction was early pointed out
derelictions, and devoting his publication principally to that purpose, must face not simply the possibility between the extent of the freedom with respect to censorship under our constitutional system and that
of a verdict against him in a suit or prosecution for libel, but a determination that his newspaper or enjoyed in England. Here, as Madison said,
periodical is a public nuisance to be abated, and that this abatement and suppression will follow unless
he is prepared with legal evidence to prove the truth of the charges and also to satisfy the court that, in the great and essential rights of the people are secured against legislative as well as against executive
[p712] addition to being true, the matter was published with good motives and for justifiable ends. ambition. They are secured not by laws paramount to prerogative, but by constitutions paramount to
laws. This security of the freedom of the press requires that it should be exempt not only from previous
This suppression is accomplished by enjoining publication, and that restraint is the object and effect of restraint by the Executive, a in Great Britain, but from legislative restraint also.
the statute.
Report on the Virginia Resolutions, Madison's Works, vol. IV, p. 543. This Court said, in Patterson v. Schenck v. United States, supra. These limitations are not applicable here. Nor are we now concerned
Colorado, 205 U.S. 454, 462: with questions as to the extent of authority to prevent publications in order to protect private rights
according to the principles governing the exercise of the jurisdiction of courts of equity. [n7]
In the first place, the main purpose of such constitutional provisions is "to prevent all such previous
restraints upon publications as had been practiced by other governments," and they do not prevent the The exceptional nature of its limitations places in a strong light the general conception that liberty of the
subsequent punishment of such as may be deemed contrary to the public welfare. Commonwealth v. press, historically considered and taken up by the Federal Constitution, has meant, principally, although
Blanding, 3 Pick. 304, 313, 314; Respublica v. Oswald, 1 Dallas 319, 325. The preliminary freedom not exclusively, immunity from previous restraints or censorship. The conception of the liberty of the
extends as well to the false as to the true; the subsequent punishment may extend as well to the true as press in this country had broadened with the exigencies of the colonial [p717] period and with the
to the false. This was the law of criminal libel apart from statute in most cases, if not in all. efforts to secure freedom from oppressive administration. [n8] That liberty was especially cherished for
Commonwealth v. Blanding, ubi sup.; 4 Bl.Com. 150. the immunity it afforded from previous restraint of the publication of censure of public officers and
charges of official misconduct. As was said by Chief Justice Parker, in Commonwealth v. Blanding, 3 Pick.
The criticism upon Blackstone's statement has not been because immunity from previous restraint upon 304, 313, with respect to the constitution of Massachusetts:
publication has not been regarded as deserving of special emphasis, but chiefly because that immunity
cannot be deemed to exhaust the conception of the liberty guaranteed by [p715] state and federal Besides, it is well understood, and received as a commentary on this provision for the liberty of the
constitutions. The point of criticism has been "that the mere exemption from previous restraints cannot press, that it was intended to prevent all such previous restraints upon publications as had been
be all that is secured by the constitutional provisions", and that practiced by other governments, and in early times here, to stifle the efforts of patriots towards
enlightening their fellow subjects upon their rights and the duties of rulers. The liberty of the press was
the liberty of the press might be rendered a mockery and a delusion, and the phrase itself a byword, if, to be unrestrained, but he who used it was to be responsible in case of its abuse.
while every man was at liberty to publish what he pleased, the public authorities might nevertheless
punish him for harmless publications. In the letter sent by the Continental Congress (October 26, 1774) to the Inhabitants of Quebec, referring
to the "five great rights," it was said: [n9]
2 Cooley, Const.Lim., 8th ed., p. 885. But it is recognized that punishment for the abuse of the liberty
accorded to the press is essential to the protection of the public, and that the common law rules that The last right we shall mention regards the freedom of the press. The importance of this consists,
subject the libeler to responsibility for the public offense, as well as for the private injury, are not besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal
abolished by the protection extended in our constitutions. Id., pp. 883, 884. The law of criminal libel sentiments on the administration of Government, its ready communication of thoughts between
rests upon that secure foundation. There is also the conceded authority of courts to punish for contempt subjects, and its consequential promotion of union among them whereby oppressive officers are shamed
when publications directly tend to prevent the proper discharge of judicial functions. Patterson v. or intimidated into more honourable and just modes of conducting affairs.
Colorado, supra; Toledo Newspaper Co. v. United States, 247 U.S. 402, 419. [n5] In the present case, we
have no occasion to inquire as to the permissible scope of subsequent punishment. For whatever wrong Madison, who was the leading spirit in the preparation of the First Amendment of the Federal
the appellant has committed or may commit by his publications the State appropriately affords both Constitution, thus described the practice and sentiment which led to the guaranties of liberty of the
public and private redress by its libel laws. As has been noted, the statute in question does not deal with press in state constitutions: [n10] [p718]
punishments; it provides for no punishment, except in case of contempt for violation of the court's
order, but for suppression and injunction, that is, for restraint upon publication. In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and
measures of public men of every description which has not been confined to the strict limits of the
The objection has also been made that the principle as to immunity from previous restraint is stated too common law. On this footing the freedom of the press has stood; on this footing it yet stands. . . . Some
[p716] broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the degree of abuse is inseparable from the proper use of everything, and in no instance is this more true
protection even as to previous restraint is not absolutely unlimited. But the limitation has been than in that of the press. It has accordingly been decided by the practice of the States that it is better to
recognized only in exceptional cases: leave a few of its noxious branches to their luxuriant 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
When a nation is at war, many things that might be said in time of peace are such a hindrance to its reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs
effort that their utterance will not be endured so long as men fight, and that no Court could regard them which have been gained by reason and humanity over error and oppression; who reflect that to the
as protected by any constitutional right. same beneficent source the United States owe much of the lights which conducted them to the ranks of
a free and independent nation, and which have improved their political system into a shape so
Schenck v. United States, 249 U.S. 47, 52. No one would question but that a government might prevent auspicious to their happiness? Had "Sedition Acts," forbidding every publication that might bring the
actual obstruction to its recruiting service or the publication of the sailing dates of transports or the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the
number and location of troops. [n6] On similar grounds, the primary requirements of decency may be authors of unjust or pernicious measures, been uniformly enforced against the press, might not the
enforced against obscene publications. The security of the community life may be protected against United States have been languishing at this day under the infirmities of a sickly Confederation? Might
incitements to acts of violence and the overthrow by force of orderly government. The constitutional they not, possibly, be miserable colonies, groaning under a foreign yoke?
guaranty of free speech does not
The fact that, for approximately one hundred and fifty years, there has been almost an entire absence of
protect a man from an injunction against uttering words that may have all the effect of force. Gompers v. attempts to impose previous restraints upon publications relating to the malfeasance of public officers is
Buck Stove & Range Co., 221 U.S. 418, 439. significant of the deep-seated conviction that such restraints would violate constitutional right. Public
officers, whose character and [p719] conduct remain open to debate and free discussion in the press,
find their remedies for false accusations in actions under libel laws providing for redress and
punishment, and not in proceedings to restrain the publication of newspapers and periodicals. The
general principle that the constitutional guaranty of the liberty of the press gives immunity from Equally unavailing is the insistence that the statute is designed to prevent the circulation of scandal
previous restraints has been approved in many decisions under the provisions of state constitutions. which tends [p722] to disturb the public peace and to provoke assaults and the commission of crime.
[n11] Charges of reprehensible conduct, and in particular of official malfeasance, unquestionably create a
public scandal, but the theory of the constitutional guaranty is that even a more serious public evil would
The importance of this immunity has not lessened. While reckless assaults upon public men, and efforts be caused by authority to prevent publication.
to bring obloquy upon those 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 abuse is To prohibit the intent to excite those unfavorable sentiments against those who administer the
greater, and it is believed to be less, than that which characterized the period in which our institutions Government is equivalent to a prohibition of the actual excitement of them, and to prohibit the actual
took shape. Meanwhile, the administration of government has become more complex, the opportunities excitement of them is equivalent to a prohibition of discussions having that tendency and effect, which,
for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the again, is equivalent to a protection of those who administer the Government, if they should at any time
danger of its protection by unfaithful officials and of the impairment of the fundamental security of life deserve the contempt or hatred of the people, against being exposed to it by free animadversions on
and [p720] property by criminal alliances and official neglect, emphasizes the primary need of a vigilant their characters and conduct. [n12]
and courageous press, especially in great cities. 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 of the press from There is nothing new in the fact that charges of reprehensible conduct may create resentment and the
previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may disposition to resort to violent means of redress, but this well understood tendency did not alter the
exist is the appropriate remedy consistent with constitutional privilege. determination to protect the press against censorship and restraint upon publication. As was said in New
Yorker Staats-Zeitung v. Nolan, 89 N.J. Eq. 387, 388, 105 Atl. 72:
In attempted justification of the statute, it is said that it deals not with publication per se, but with the
"business" of publishing defamation. If, however, the publisher has a constitutional right to publish, If the township may prevent the circulation of a newspaper for no reason other than that some of its
without previous restraint, an edition of his newspaper charging official derelictions, it cannot be denied inhabitants may violently disagree with it, and resent its circulation by resorting to physical violence,
that he may publish subsequent editions for the same purpose. He does not lose his right by exercising it. there is no limit to what may be prohibited.
If his right exists, it may be exercised in publishing nine editions, as in this case, 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 The danger of violent reactions becomes greater with effective organization of defiant groups resenting
one publication as in several. Characterizing the publication as a business, and the business as a exposure, and if this consideration warranted legislative interference with the initial freedom of
nuisance, does not permit an invasion of the constitutional immunity against restraint. Similarly, it does publication, the constitutional protection would be reduced to a mere form of words.
not matter that the newspaper or periodical is found to be "largely" or "chiefly" devoted to the
publication of such derelictions. If the publisher has a right, without previous restraint, to publish them, For these reasons we hold the statute, so far as it authorized the proceedings in this action under clause
his right cannot be deemed to be dependent upon his publishing something else, more or less, with the (b) [p723] of section one, to be an infringement of the liberty of the press guaranteed by the Fourteenth
matter to which objection is made. Amendment. We should add that this decision rests upon the operation and effect of the statute,
without regard to the question of the truth of the charges contained in the particular periodical. The fact
Nor can it be said that the constitutional freedom from previous restraint is lost because charges are that the public officers named in this case, and those associated with the charges of official dereliction,
made of derelictions which constitute crimes. With the multiplying provisions of penal codes, and of may be deemed to be impeccable cannot affect the conclusion that the statute imposes an
municipal charters and ordinances carrying penal sanctions, the conduct of [p721] public officers is very unconstitutional restraint upon publication. Judgment reversed.
largely within the purview of criminal statutes. The freedom of the press from previous restraint has New York Times Co. v. United States, 403 U.S. 713 (1971)
never been regarded as limited to such animadversions as lay outside the range of penal enactments. The United States, which brought these actions to enjoin publication in the New York Times and in the
Historically, there is no such limitation; it is inconsistent with the reason which underlies the privilege, as Washington Post of certain classified material, has not met the "heavy burden of showing justification
the privilege so limited would be of slight value for the purposes for which it came to be established. for the enforcement of such a [prior] restraint."

The statute in question cannot be justified by reason of the fact that the publisher is permitted to show, No. 1873, 44 F.2d 544, reversed and remanded; No. 1885, ___ U.S.App.D.C. ___, 446 F.2d 1327,
before injunction issues, that the matter published is true and is published with good motives and for affirmed.
justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is PER CURIAM
constitutionally valid, it would be equally permissible for the legislature to provide that at any time the We granted certiorari in these cases in which the United States seeks to enjoin the New York Times and
publisher of any newspaper could be brought before a court, or even an administrative officer (as the the Washington Post from publishing the contents of a classified study entitled "History of U.S. Decision-
constitutional protection may not be regarded as resting on mere procedural details) and required to Making Process on Viet Nam Policy." Post, pp. 942, 943.
produce proof of the truth of his publication, or of what he intended to publish, and of his motives, or "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its
stand enjoined. If this can be done, the legislature may provide machinery for determining in the constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U. S. 58, 372 U. S. 70 (1963); see also Near v.
complete exercise of its discretion what are justifiable ends, and restrain publication accordingly. And it Minnesota, 283 U. S. 697 (1931). The Government "thus carries a heavy burden of showing justification
would be but a step to a complete system of censorship. The recognition of authority to impose previous for the imposition of such a restraint." Organization for a Better Austin v. Keefe, 402 U. S. 415, 402 U. S.
restraint upon publication in order to protect the community against the circulation of charges of 419 (1971). The District Court for the Southern District of New York, in the New York Times case, and the
misconduct, and especially of official misconduct, necessarily would carry with it the admission of the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, in
authority of the censor against which the constitutional barrier was erected. The preliminary freedom, the Washington Post case, held that the Government had not met that burden. We agree.
by virtue of the very reason for its existence, does not depend, as this Court has said, on proof of truth.
Patterson v. Colorado, supra. 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 the case is remanded with directions to
enter a judgment affirming the judgment of the District Court for the Southern District of New York. The censure the Government. The press was protected so that it could bare the secrets of government and
stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith. inform the people. Only a free and unrestrained press can effectively expose deception in government.
And paramount among the responsibilities of a free press is the duty to prevent any part of the
So ordered. government from deceiving the people and sending them off to distant lands to die of foreign fevers and
foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the
* Together with No. 1885, United States v. Washington Post Co. et al., on certiorari to the United States New York Times, the Washington Post, and other newspapers should be commended for serving the
Court of Appeals for the District of Columbia Circuit. purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to
the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurring. would do.

I adhere to the view that the Government's case against the Washington Post should have been The Government's case here is based on premises entirely different from those that guided the Framers
dismissed, and that the injunction against the New York Times should have been vacated without oral of the First Amendment. The Solicitor General has carefully and emphatically stated:
argument when the cases were first presented to this Court. I believe that every moment's continuance
of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation "Now, Mr. Justice [BLACK], your construction of . . . [the First Amendment] is well known, and I certainly
of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the respect it. You say that no law means no law, and that should be obvious. I can only say, Mr. Justice, that
judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the to me it is equally obvious that 'no law' does not mean 'no law,' and I would seek to persuade the Court
Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. that that is true. . . . [T]here are other parts of the Constitution that grant powers and responsibilities to
In my view, it is unfortunate that some of my Brethren are apparently willing to hold that the publication the Executive, and . . . the First Amendment was not intended to make it impossible for the Executive to
of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment. function or to protect the security of the United States. [Footnote 3]"

Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including And the Government argues in its brief that, in spite of the First Amendment,
the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the
Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but "[t]he authority of the Executive Department to protect the nation against publication of information
rather means that the Government can halt the publication of current news of vital importance to the whose disclosure would endanger the national security stems from two interrelated sources: the
people of this country. constitutional power of the President over the conduct of foreign affairs and his authority as
Commander-in-Chief. [Footnote 4]"
In seeking injunctions against these newspapers, and in its presentation to the Court, the Executive
Branch seems to have forgotten the essential purpose and history of the First Amendment. When the In other words, we are asked to hold that, despite the First Amendment's emphatic command, the
Constitution was adopted, many people strongly opposed it because the document contained no Bill of Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news
Rights to safeguard certain basic freedoms. [Footnote 1] They especially feared that the new powers and abridging freedom of the press in the name of "national security." The Government does not even
granted to a central government might be interpreted to permit the government to curtail freedom of attempt to rely on any act of Congress. Instead, it makes the bold and dangerously far-reaching
religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison contention that the courts should take it upon themselves to "make" a law abridging freedom of the
offered a series of amendments to satisfy citizens that these great liberties would remain safe and press in the name of equity, presidential power and national security, even when the representatives of
beyond the power of government to abridge. Madison proposed what later became the First the people in Congress have adhered to the command of the First Amendment and refused to make such
Amendment in three parts, two of which are set out below, and one of which proclaimed: a law. [Footnote 5] See concurring opinion of MR. JUSTICE DOUGLAS, post at 403 U. S. 721-722. To find
that the President has "inherent power" to halt the publication of news by resort to the courts would
"The people shall not be deprived or abridged of their right to speak, to write, or to publish their wipe out the First Amendment and destroy the fundamental liberty and security of the very people the
sentiments, and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. Government hopes to make "secure." No one can read the history of the adoption of the First
[Footnote 2]" Amendment without being convinced beyond any doubt that it was injunctions like those sought here
that Madison and his collaborators intended to outlaw in this Nation for all time.
(Emphasis added.) The amendments were offered to curtail and restrict the general powers granted to
the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of The word "security" is a broad, vague generality whose contours should not be invoked to abrogate the
Rights changed the original Constitution into a new charter under which no branch of government could fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at
abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues the expense of informed representative government provides no real security for our Republic. The
and some members of the Court appear to agree that the general powers of the Government adopted in Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of
the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees the English and Colonial governments, sought to give this new society strength and security by providing
of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other that freedom of speech, press, religion, and assembly should not be abridged. This thought was
Framers of the First Amendment, able men that they were, wrote in language they earnestly believed eloquently expressed in 1937 by Mr. Chief Justice Hughes -- great man and great Chief Justice that he
could never be misunderstood: "Congress shall make no law . . . abridging the freedom . . . of the press. . was -- when the Court held a man could not be punished for attending a meeting run by Communists.
. ." Both the history and language of the First Amendment support the view that the press must be left
free to publish news, whatever the source, without censorship, injunctions, or prior restraints. "The greater the importance of safeguarding the community from incitements to the overthrow of our
institutions by force and violence, the more imperative is the need to preserve inviolate the
In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for
essential role in our democracy. The press was to serve the governed, not the governors. The free political discussion, to the end that government may be responsive to the will of the people and that
Government's power to censor the press was abolished so that the press would remain forever free to
changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the The Government suggests that the word "communicates" is broad enough to encompass publication.
very foundation of constitutional government. [Footnote 6]"
There are eight sections in the chapter on espionage and censorship, 792-799. In three of those eight,
[Footnote 1]In introducing the Bill of Rights in the House of Representatives, Madison said: "publish" is specifically mentioned: 794(b) applies to

"[B]ut I believe that the great mass of the people who opposed [the Constitution] disliked it because it "Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects,
did not contain effectual provisions against the encroachments on particular rights. . . ." records, publishes, or communicates . . . [the disposition of armed forces]."

1 Annals of Cong. 433. Congressman Goodhue added: Section 797 applies to whoever "reproduces, publishes, sells, or gives away" photographs of defense
"[I]t is the wish of many of our constituents that something should be added to the Constitution to installations.
secure in a stronger manner their liberties from the inroads of power." [Footnote 2] Section 798, relating to cryptography, applies to whoever: "communicates, furnishes, transmits, or
otherwise makes available . . . or publishes" the described material. [Footnote 2/2] (Emphasis added.)
The other parts were:
"The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national Thus, it is apparent that Congress was capable of, and did, distinguish between publishing and
religion be established, nor shall the full and equal rights of conscience be in any manner, or on any communication in the various sections of the Espionage Act.
pretext, infringed."
The other evidence that 793 does not apply to the press is a rejected version of 793. That version
"The people shall not be restrained from peaceably assembling and consulting for their common good, read:
nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances."
"During any national emergency resulting from a war to which the United States is a party, or from
1 Annals of Cong. 434.[Footnote 3] threat of such a war, the President may, by proclamation, declare the existence of such emergency and,
by proclamation, prohibit the publishing or communicating of, or the attempting to publish or
Tr. of Oral Arg. 76.[Footnote 4] communicate any information relating to the national defense which, in his judgment, is of such
Brief for the United States 13-14.[Footnote 5] character that it is or might be useful to the enemy."

Compare the views of the Solicitor General with those of James Madison, the author of the First 55 Cong.Rec. 1763. During the debates in the Senate, the First Amendment was specifically cited, and
Amendment. When speaking of the Bill of Rights in the House of Representatives, Madison said: that provision was defeated. 55 Cong.Rec. 2167.

"If they [the first ten amendments] are incorporated into the Constitution, independent tribunals of Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore
justice will consider themselves in a peculiar manner the guardians of those rights; they will be an preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. 793 states in
impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be 1(b) that:
naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the
declaration of rights." "Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or
in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution
1 Annals of Cong. 439.[Footnote 6] of the United States and no regulation shall be promulgated hereunder having that effect."

De Jonge v. Oregon, 299 U. S. 353, 299 U. S. 365. 64 Stat. 987. Thus, Congress has been faithful to the command of the First Amendment in this area.

MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK joins, concurring. So any power that the Government possesses must come from its "inherent power."

While I join the opinion of the Court, I believe it necessary to express my views more fully. The power to wage war is "the power to wage war successfully." See Hirabayashi v. 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,
It should be noted at the outset that the First Amendment provides that "Congress shall male no law . . . gives Congress, not the President, power "[t]o declare War." Nowhere are presidential wars authorized.
abridging the freedom of speech, or of the press." That leaves, in my view, no room for governmental We need not decide, therefore, what leveling effect the war power of Congress might have.
restraint on the press. [Footnote 2/1]
These disclosures [Footnote 2/3] may have a serious impact. But that is no basis for sanctioning a
There is, moreover, no statute barring the publication by the press of the material which the Times and previous restraint on the press. As stated by Chief Justice Hughes in Near v. Minnesota, 283 U. S. 697,
the Post seek to use. Title 18 U.S.C. 793(e) provides that 283 U. S. 719-720:

"[w]hoever having unauthorized possession of, access to, or control over any document, writing . . . or "While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring
information relating to the national defense which information the possessor has reason to believe could faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in
be used to the injury of the United States or to the advantage of any foreign nation, willfully public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which
communicates . . . the same to any person not entitled to receive it . . . [s]hall be fined not more than characterized the period in which our institutions took shape. Meanwhile, the administration of
$10,000 or imprisoned not more than ten years, or both." government has become more complex, the opportunities for malfeasance and corruption have
multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful
officials and of the impairment of the 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 I write separately in these cases only to emphasize what should be apparent: that our judgments in the
cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and
make any the less necessary the immunity of the press from previous restraint in dealing with official restraining
misconduct."
Page 403 U. S. 725
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 orders to block the publication of material sought to be suppressed by the Government. So far as I can
constitutional validity." determine, never before has the United States sought to enjoin a newspaper from publishing
information in its possession. The relative novelty of the questions presented, the necessary haste with
The Government says that it has inherent powers to go into court and obtain an injunction to protect the which decisions were reached, the magnitude of the interests asserted, and the fact that all the parties
national interest, which, in this case, is alleged to be national security. have concentrated their arguments upon the question whether permanent restraints were proper may
have justified at least some of the restraints heretofore imposed in these cases. Certainly it is difficult to
Near v. Minnesota, 283 U. S. 697, repudiated that expansive doctrine in no uncertain terms. fault the several courts below for seeking to assure that the issues here involved were preserved for
ultimate review by this Court. But even if it be assumed that some of the interim restraints were proper
The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental in the two cases before us, that assumption has no bearing upon the propriety of similar judicial action in
suppression of embarrassing information. It is common knowledge that the First Amendment was the future. To begin with, there has now been ample time for reflection and judgment; whatever values
adopted against the widespread use of the common law of seditious libel to punish the dissemination of there may be in the preservation of novel questions for appellate review may not support any restraints
material that is embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of in the future. More important, the First Amendment stands as an absolute bar to the imposition of
Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). The present cases will, judicial restraints in circumstances of the kind presented by these cases.
I think, go down in history as the most dramatic illustration of that principle. A debate of large
proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of II
the contents of the present documents. The latter are highly relevant to the debate in progress. The error that has pervaded these cases from the outset was the granting of any injunctive relief
whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these cases
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate has been that publication of the material sought to be enjoined "could," or "might," or "may" prejudice
and discussion of public issues are vital to our national health. On public questions, there should be the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial
"uninhibited, robust, and wide-open" debate. New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. restraints of the press predicated upon surmise or conjecture that untoward consequences may result.*
269-270. Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the
First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated
I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay of the Court of that such cases may arise only when the Nation "is at war," Schenck v. United States, 249 U. S. 47, 249 U.
Appeals in the Times case, and direct that it affirm the District Court. S. 52 (1919), during which times

The stays in these cases that have been in effect for more than a week constitute a flouting of the "[n]o one would question but that a government might prevent actual obstruction to its recruiting
principles of the First Amendment as interpreted in Near v. Minnesota. [Footnote 2/1] service or the publication of the sailing dates of transports or the number and location of troops."

See Beauharnais v. Illinois, 343 U. S. 250, 343 U. S. 267 (dissenting opinion of MR. JUSTICE BLACK), 284 Near v. Minnesota, 283 U. S. 697, 283 U. S. 716 (1931). Even if the present world situation were assumed
(my dissenting opinion); Roth v. United States, 354 U. S. 476, 354 U. S. 508 (my dissenting opinion which to be tantamount to a time of war, or if the power of presently available armaments would justify even
MR. JUSTICE BLACK joined); Yates v. United States, 354 U. S. 298, 354 U. S. 339 (separate opinion of MR. in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of
JUSTICE BLACK which I joined); New York Times Co. v. Sullivan, 376 U. S. 254, 376 U. S. 293 (concurring these actions has the Government presented or even alleged that publication of items from or based
opinion of MR. JUSTICE BLACK which I joined); Garrison v. Louisiana, 379 U. S. 64, 379 U. S. 80 (my upon the material at issue would cause the happening of an event of that nature. "[T]he chief purpose of
concurring opinion which MR. JUSTICE BLACK joined). [Footnote 2/2] [the First Amendment's] guaranty [is] to prevent previous restraints upon publication." Near v.
Minnesota, supra, at 283 U. S. 713. Thus, only governmental allegation and proof that publication must
These documents contain data concerning the communications system of the United States, the inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of
publication of which is made a crime. But the criminal sanction is not urged by the United States as the a transport already at sea can support even the issuance of an interim restraining order. In no event may
basis of equity power. [Footnote 2/3] mere conclusions be sufficient, for if the Executive Branch seeks judicial aid in preventing publication, it
must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And,
There are numerous sets of this material in existence, and they apparently are not under any controlled therefore, every restraint issued in this case, whatever its form, has violated the First Amendment -- and
custody. Moreover, the President has sent a set to the Congress. We start, then, with a case where there not less so because that restraint was justified as necessary to afford the courts an opportunity to
already is rather wide distribution of the material that is destined for publicity, not secrecy. I have gone examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the
over the material listed in the in camera brief of the United States. It is all history, not future events. First Amendment commands that no injunction may issue.
None of it is more recent than 1968.
* Freedman v. Maryland, 380 U. S. 51 (1965), and similar cases regarding temporary restraints of
MR. JUSTICE BRENNAN, concurring. allegedly obscene materials are not in point. For those cases rest upon the proposition that "obscenity is
not protected by the freedoms of speech and press." Roth v. United States, 354 U. S. 476, 354 U. S. 481
I (1957). Here there is no question but that the material sought to be suppressed is within the protection
of the First Amendment; the only question is whether, notwithstanding that fact, its publication may be
enjoined for a time because of the presence of an overwhelming national interest. Similarly, copyright But in the cases before us, we are asked neither to construe specific regulations nor to apply specific
cases have no pertinence here: the Government is not asserting an interest in the particular form of laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the
words chosen in the documents, but is seeking to suppress the ideas expressed therein. And the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the
copyright laws, of course, protect only the form of expression, and not the ideas expressed. Executive Branch insists should not, in the national interest, be published. I am convinced that the
Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of
MR. JUSTICE STEWART, with whom MR. JUSTICE WHITE joins, concurring. 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 First Amendment be but one judicial resolution of the issues before
In the governmental structure created by our Constitution, the Executive is endowed with enormous us. I join the judgments of the Court. [Footnote 3/1]
power in the two related areas of national defense and international relations. This power, largely
unchecked by the Legislative [Footnote 3/1] and Judicial [Footnote 3/2] branches, has been pressed to The President's power to make treaties and to appoint ambassadors is, of course, limited by the
the very hilt since the advent of the nuclear missile age. For better or for worse, the simple fact is that a requirement of Art. II, 2, of the Constitution that he obtain the advice and consent of the Senate.
Article I, 8, empowers Congress to "raise and support Armies," and "provide and maintain a Navy."
President of the United States possesses vastly greater constitutional independence in these two vital And, of course, Congress alone can declare war. This power was last exercised almost 30 years ago at the
areas of power than does, say, a prime minister of a country with a parliamentary form of government. inception of World War II. Since the end of that war in 1945, the Armed Forces of the United States have
suffered approximately half a million casualties in various parts of the world. [Footnote 3/2]
In the absence of the governmental checks and balances present in other areas of our national life, the
only effective restraint upon executive policy and power in the areas of national defense and See Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U. S. 103; Hirabayashi v. United States, 320
international affairs may lie in an enlightened citizenry -- in an informed and critical public opinion which U. S. 81; United States v. Curtiss-Wright Corp., 299 U. S. 304; cf. Mora v. McNamara, 128 U.S.App.D.C.
alone can here protect the values of democratic government. For this reason, it is perhaps here that a 297, 387 F.2d 862, cert. denied, 389 U. S. 934. [Footnote 3/3]
press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For,
without an informed and free press, there cannot be an enlightened people. "It is quite apparent that, if, in the maintenance of our international relations, embarrassment -- perhaps
serious embarrassment -- is to be avoided and success for our aims achieved, congressional legislation
Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an which is to be made effective through negotiation and inquiry within the international field must often
effective national defense require both confidentiality and secrecy. Other nations can hardly deal with accord to the President a degree of discretion and freedom from statutory restriction which would not
this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better
kept. And, within our own executive departments, the development of considered and intelligent opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in
international policies would be impossible if those charged with their formulation could not time of war. He has his confidential sources of information. He has his agents in the form of diplomatic,
communicate with each other freely, frankly, and in confidence. In the area of basic national defense, consular and other officials. Secrecy in respect of information gathered by them may be highly
the frequent need for absolute secrecy is, of course, self-evident. necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true
that the first President refused to accede to a request to lay before the House of Representatives the
I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where instructions, correspondence and documents relating to the negotiation of the Jay Treaty -- a refusal the
the power is. [Footnote 3/3] If the Constitution gives the Executive a large degree of unshared power in wisdom of which was recognized by the House itself, and has never since been doubted. . . ."
the conduct of foreign affairs and the maintenance of our national defense, then, under the Constitution,
the Executive must have the largely unshared duty to determine and preserve the degree of internal United States v. Curtiss-Wright Corp., 299 U. S. 304, 299 U. S. 320.
security necessary to exercise that power successfully. It is an awesome responsibility, requiring MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins, concurring.
judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations
would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for I concur in today's judgments, but only because of the concededly extraordinary protection against prior
its own sake. For when everything is classified, then nothing is classified, and the system becomes one to restraints enjoyed by the press under our constitutional system. I do not say that in no circumstances
be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or would the First Amendment permit an injunction against publishing information about government plans
self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system or operations. [Footnote 4/1] Nor, after examining the materials the Government characterizes as the
would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when most sensitive and destructive, can I deny that revelation of these documents will do substantial damage
credibility is truly maintained. But, be that as it may, it is clear to me that it is the constitutional duty of to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless
the Executive -- as a matter of sovereign prerogative, and not as a matter of law as the courts know law - agree that the United States has not satisfied the very heavy burden that it must meet to warrant an
- through the promulgation and enforcement of executive regulations, to protect the confidentiality injunction against publication in these cases, at least in the absence of express and appropriately limited
necessary to carry out its responsibilities in the fields of international relations and national defense. congressional authorization for prior restraints in circumstances such as these.

This is not to say that Congress and the courts have no role to play. Undoubtedly, Congress has the The Government's position is simply stated: the responsibility of the Executive for the conduct of the
power to enact specific and appropriate criminal laws to protect government property and preserve foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction
government secrets. Congress has passed such laws, and several of them are of very colorable relevance against publication of a newspaper story whenever he can convince a court that the information to be
to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the revealed threatens "grave and irreparable" injury to the public interest; [Footnote 4/2] and the
responsibility of the courts to decide the applicability of the criminal law under which the charge is injunction should issue whether or not the material to be published is classified, whether or not
brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in this field, the publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of the
courts would likewise have the duty to decide the constitutionality of such a law, as well as its circumstances by which the newspaper came into possession of the information. At least in the absence
applicability to the facts proved. of legislation by Congress, based on its own investigations and findings, I am quite unable to agree that
the inherent powers of the Executive and the courts reach so far as to authorize remedies having such The same would be true under those sections of the Criminal Code casting a wider net to protect the
sweeping potential for inhibiting publications by the press. Much of the difficulty inheres in the "grave national defense. Section 793(e) [Footnote 4/8] makes it a criminal act for any unauthorized possessor of
and irreparable danger" standard suggested by the United States. If the United States were to have a document "relating to the national defense" either (1) willfully to communicate or cause to be
judgment under such a standard in these cases, our decision would be of little guidance to other courts communicated that document to any person not entitled to receive it or (2) willfully to retain the
in other cases, for the material at issue here would not be available from the Court's opinion or from document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was
public records, nor would it be published by the press. Indeed, even today, where we hold that the added in 1950 because preexisting law provided no penalty for the unauthorized possessor unless
United States has not met its burden, the material remains sealed in court records and it is properly not demand for the documents was made. [Footnote 4/9]
discussed in today's opinions. Moreover, because the material poses substantial dangers to national
interests, and because of the hazards of criminal sanctions, a responsible press may choose never to "The dangers surrounding the unauthorized possession of such items are self-evident, and it is deemed
publish the more sensitive materials. To sustain the Government in these cases would start the courts advisable to require their surrender in such a case, regardless of demand, especially since their
down a long and hazardous road that I am not willing to travel, at least without congressional guidance unauthorized possession may be unknown to the authorities who would otherwise make the demand."
and direction.
S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the unpublished
It is not easy to reject the proposition urged by the United States, and to deny relief on its good faith documents have been demanded by the United States, and their import has been made known at least
claims in these cases that publication will work serious damage to the country. But that discomfiture is to counsel for the newspapers involved. In Gorin v. United States, 312 U. S. 19, 312 U. S. 28 (1941), the
considerably dispelled by the infrequency of prior-restraint cases. Normally, publication will occur and words "national defense" as used in a predecessor of 793 were held by a unanimous Court to have "a
the damage be done before the Government has either opportunity or grounds for suppression. So here, well understood connotation" -- a "generic concept of broad connotations, referring to the military and
publication has already begun, and a substantial part of the threatened damage has already occurred. naval establishments and the related activities of national preparedness" -- and to be "sufficiently
The fact of a massive breakdown in security is known, access to the documents by many unauthorized definite to apprise the public of prohibited activities" and to be consonant with due process. 312 U.S. at
people is undeniable, and the efficacy of equitable relief against these or other newspapers to avert 312 U. S. 28. Also, as construed by the Court in Gorin, information "connected with the national defense"
anticipated damage is doubtful, at best. is obviously not limited to that threatening "grave and irreparable" injury to the United States. [Footnote
4/10]
What is more, terminating the ban on publication of the relatively few sensitive documents the
Government now seeks to suppress does not mean that the law either requires or invites newspapers or It is thus clear that Congress has addressed itself to the problems of protecting the security of the
others to publish them, or that they will be immune from criminal action if they do. Prior restraints country and the national defense from unauthorized disclosure of potentially damaging information. Cf.
require an unusually heavy justification under the First Amendment, but failure by the Government to Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 343 U. S. 585-586 (1952); see also id. at 343 U. S.
justify prior restraints does not measure its constitutional entitlement to a conviction for criminal 593-628 (Frankfurter, J., concurring). It has not, however, authorized the injunctive remedy against
publication. That the Government mistakenly chose to proceed by injunction does not mean that it could threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent
not successfully proceed in another way. effect on the responsible, as well as the irresponsible, press. I am not, of course, saying that either of
these newspapers has yet committed a crime, or that either would commit a crime if it published all the
When the Espionage Act was under consideration in 1917, Congress eliminated from the bill a provision material now in its possession. That matter must await resolution in the context of a criminal proceeding
that would have given the President broad powers in time of war to proscribe, under threat of criminal if one is instituted by the United States. In that event, the issue of guilt or innocence would be
penalty, the publication of various categories of information related to the national defense. [Footnote determined by procedures and standards quite different from those that have purported to govern these
4/3] Congress at that time was unwilling to clothe the President with such far-reaching powers to injunctive proceedings. [Footnote 4/1]
monitor the press, and those opposed to this part of the legislation assumed that a necessary
concomitant of such power was the power to "filter out the news to the people through some man." 55 The Congress has authorized a strain of prior restraints against private parties in certain instances. The
Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these same members of Congress appeared to have National Labor Relations Board routinely issues cease and desist orders against employers who it finds
little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing have threatened or coerced employees in the exercise of protected rights. See 29 U.S.C. 160(c).
information of the type Congress had itself determined should not be revealed. Senator Ashurst, for Similarly, the Federal Trade Commission is empowered to impose cease and desist orders against unfair
example, was quite sure that the editor of such a newspaper methods of competition. 15 U.S.C. 45(b). Such orders can, and quite often do, restrict what may be
spoken or written under certain circumstances. See, e.g., NLRB v. Gissel Packing Co., 395 U. S. 575, 395
"should be punished if he did publish information as to the movements of the fleet, the troops, the U. S. 616-620 (1969). Article I, 8, of the Constitution authorizes Congress to secure the "exclusive right"
aircraft, the location of powder factories, the location of defense works, and all that sort of thing." of authors to their writings, and no one denies that a newspaper can properly be enjoined from
Id. at 2009. [Footnote 4/4] publishing the copyrighted works of another. See Westermann Co. v. Dispatch Co., 249 U. S. 100 (1919).
Newspapers do themselves rely from time to time on the copyright as a means of protecting their
The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 accounts of important events. However, those enjoined under the statutes relating to the National Labor
[Footnote 4/5] makes it a crime to publish certain photographs or drawings of military installations. Relations Board and the Federal Trade Commission are private parties, not the press, and, when the
Section 798, [Footnote 4/6] also in precise language, proscribes knowing and willful publication of any press is enjoined under the copyright laws, the complainant is a private copyright holder enforcing a
classified information concerning the cryptographic systems or communication intelligence activities of private right. These situations are quite distinct from the Government's request for an injunction against
the United States, as well as any information obtained from communication intelligence operations. publishing information about the affairs of government, a request admittedly not based on any statute.
[Footnote 4/7] If any of the material here at issue is of this nature, the newspapers are presumably now [Footnote 4/2]
on full notice of the position of the United States, and must face the consequences if they publish. I
would have no difficulty in sustaining convictions under these sections on facts that would not justify the The "grave and irreparable danger" standard is that asserted by the Government in this Court. In
intervention of equity and the imposition of a prior restraint. remanding to Judge Gurfein for further hearings in the Times litigation, five members of the Court of
Appeals for the Second Circuit directed him to determine whether disclosure of certain items specified
with particularity by the Government would "pose such grave and immediate danger to the security of this Nation in breaking the secret codes of a foreign nation. It also prohibits under certain penalties the
the United States as to warrant their publication being enjoined." divulging of any information which may have come into this Government's hands as a result of such a
code-breaking."
[Footnote 4/3]
H.R.Rep. No. 1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was explained as
"Whoever, in time of war, in violation of reasonable regulations to be prescribed by the President, which covering "only a small category of classified matter, a category which is both vital and vulnerable to an
he is hereby authorized to make and promulgate, shall publish any information with respect to the almost unique degree." Id. at 2. Existing legislation was deemed inadequate.
movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft, or
war materials of the United States, or with respect to the plans or conduct of any naval or military "At present, two other acts protect this information, but only in a limited way. These are the Espionage
operations, or with respect to any works or measures undertaken for or connected with, or intended for Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat. 122). Under the first, unauthorized
the fortification or defense of any place, or any other information relating to the public defense revelation of information of this kind can be penalized only if it can be proved that the person making
calculated to be useful to the enemy, shall be punished by a fine . . . or by imprisonment. . . ." the revelation did so with an intent to injure the United States. Under the second, only diplomatic codes
and messages transmitted in diplomatic codes are protected. The present bill is designed to protect
55 Cong.Rec. 2100.[Footnote 4/4] against knowing and willful publication or any other revelation of all important information affecting the
United States communication intelligence operations and all direct information about all United States
Senator Ashurst also urged that codes and ciphers."
"'freedom of the press' means freedom from the restraints of a censor, means the absolute liberty and
right to publish whatever you wish; but you take your chances of punishment in the courts of your Ibid. Section 798 obviously was intended to cover publications by nonemployees of the Government, and
country for the violation of the laws of libel, slander, and treason." to ease the Government's burden in obtaining convictions. See H.R.Rep. No. 1895, supra, at 2-5. The
55 Cong.Rec. 2005.[Footnote 4/5] identical Senate Report, not cited in parallel in the text of this footnote, is S.Rep. No. 111, 81st Cong., 1st
Sess. (1949). [Footnote 4/8]
Title 18 U.S.C. 797 provides:
"On and after thirty days from the date upon which the President defines any vital military or naval Section 793(e) of 18 U.S.C. provides that:
installation or equipment as being within the category contemplated under section 795 of this title, "(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code
whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing, map, or book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument,
graphical representation of the vital military or naval installations or equipment so defined, without first appliance, or note relating to the national defense, or information relating to the national defense which
obtaining permission of the commanding officer of the military or naval post, camp, or station information the possessor has reason to believe could be used to the injury of the United States or to the
concerned, or higher authority, unless such photograph, sketch, picture, drawing, map, or graphical advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be
representation has clearly indicated thereon that it has been censored by the proper military or naval communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be
authority, shall be fined not more than $1,000 or imprisoned not more than one year, or both." communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully
[Footnote 4/6] retains the same and fails to deliver it to the officer or employee of the United States entitled to receive
it;"
In relevant part 18 U.S.C. 798 provides:
"(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should also be noted
to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the that 18 U.S.C. 793(g), added in 1950 (see 64 Stat. 1004; S.Rep. No. 239, pt. 1, 81st Cong., 2d Sess., 9
United States or for the benefit of any foreign government to the detriment of the United States any (1950)), provides that,
classified information -- "
"(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the "[i]f two or more persons conspire to violate any of the foregoing provisions of this section, and one or
United States or any foreign government; or" more of such persons do any act to effect the object of the conspiracy, each of the parties to such
"(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or conspiracy shall be subject to the punishment provided for the offense which is the object of such
appliance used or prepared or planned for use by the United States or any foreign government for conspiracy." [Footnote 4/9]
cryptographic or communication intelligence purposes; or"
"(3) concerning the communication intelligence activities of the United States or any foreign The amendment of 793 that added subsection (e) was part of the Subversive Activities Control Act of
government; or" 1950, which was, in turn, Title I of the Internal Security Act of 1950. See 64 Stat. 987. The report of the
"(4) obtained by the process of communication intelligence from the communications of any foreign Senate Judiciary Committee best explains the purposes of the amendment:
government, knowing the same to have been obtained by such processes -- "
"Shall be fined not more than $10,000 or imprisoned not more than ten years, or both."[Footnote 4/7] "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 as subsections (a) through (g) for purposes of
The purport of 18 U.S.C. 798 is clear. Both the House and Senate Reports on the bill, in identical terms, convenient reference. The significant changes which would be made in section 793 of title 18 are as
speak of furthering the security of the United States by preventing disclosure of information concerning follows: "
the cryptographic systems and the communication intelligence systems of the United States, and "(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the unlawful
explaining that dissemination of '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 advantage of any foreign
"[t]his bill makes it a crime to reveal the methods, techniques, and materiel used in the transmission by nation.' The phrase 'which information the possessor has reason to believe could be used to the injury of
this Nation of enciphered or coded messages. . . . Further, it makes it a crime to reveal methods used by the United States or to the advantage of any foreign nation' would modify only 'information relating to
the national defense,' and not the other items enumerated in the subsection. The fourth paragraph of The problem here is whether, in these particular cases, the Executive Branch has authority to invoke the
section 793 is also amended to provide that only those with lawful possession of the items relating to equity jurisdiction of the courts to protect what it believes to be the national interest. See In re Debs,
national defense enumerated therein may retain them subject to demand therefor. Those who have 158 U. S. 564, 158 U. S. 584 (1895). The Government argues that, in addition to the inherent power of
unauthorized possession of such items are treated in a separate subsection." any government to protect itself, the President's power to conduct foreign affairs and his position as
Commander in Chief give him authority to impose censorship on the press to protect his ability to deal
"(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of items effectively with foreign nations and to conduct the military affairs of the country. Of course, it is beyond
enumerated in paragraph 4 of section 793 must surrender possession thereof to the proper authorities cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our
without demand. Existing law provides no penalty for the unauthorized possession of such items unless a foreign affairs and his position as Commander in Chief. Chicago & Southern Air Lines v. Waterman S.S.
demand for them is made by the person entitled to receive them. The dangers surrounding the Corp., 333 U. S. 103 (1948); Hirabayashi v. United States, 320 U. S. 81, 320 U. S. 93 (1943); United States
unauthorized possession of such items are self-evident, and it is deemed advisable to require their v. Curtiss
surrender in such a case, regardless of demand, especially since their unauthorized possession may be
unknown to the authorities who would otherwise make the demand. The only difference between Wright Corp., 299 U. S. 304 (1936). [Footnote 5/2] And, in some situations, it may be that, under
subsection (d) and subsection (e) of section 793 is that a demand by the person entitled to receive the whatever inherent powers the Government may have, as well as the implicit authority derived from the
items would be a necessary element of an offense under subsection (d) where the possession is lawful, President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis for the
whereas such a demand would not be a necessary element of an offense under subsection (e) where the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material
possession is unauthorized." damaging to "national security," however that term may be defined.

S.Rep. No. 2369, pt. 1, 81st Cong., 2d Sess., 8-9 (1950) (emphasis added). It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use
its power of contempt to prevent behavior that Congress has specifically declined to prohibit. There
It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern would be a similar damage to the basic concept of these co-equal branches of Government if, when the
District of New York in this case, that, in prosecuting for communicating or withholding a "document," as Executive Branch has adequate authority granted by Congress to protect "national security," it can
contrasted with similar action with respect to "information," the Government need not prove an intent choose, instead, to invoke the contempt power of a court to enjoin the threatened conduct. The
to injure the United States or to benefit a foreign nation, but only willful and knowing conduct. The Constitution provides that Congress shall make laws, the President execute laws, and courts interpret
District Court relied on Gorin v. United States, 312 U. S. 19 (1941). But that case arose under other parts laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). It did not provide for government by
of the predecessor to 793, see 312 U.S. at 312 U. S. 21-22 -- parts that imposed different intent injunction in which the courts and the Executive Branch can "make law" without regard to the action of
standards not repeated in 793(d) or 793(e). Cf. 18 U.S.C. 793(a), (b), and (c). Also, from the face of Congress. It may be more convenient for the Executive Branch if it need only convince a judge to prohibit
subsection (e) and from the context of the Act of which it was a part, it seems undeniable that a conduct, rather than ask the Congress to pass a law, and it may be more convenient to enforce a
newspaper, as well as others unconnected with the Government, are vulnerable to prosecution under contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be considered
793(e) if they communicate or withhold the materials covered by that section. The District Court ruled politically wise to get a court to share the responsibility for arresting those who the Executive Branch has
that "communication" did not reach publication by a newspaper of documents relating to the national probable cause to believe are violating the law. But convenience and political considerations of the
defense. I intimate no views on the correctness of that conclusion. But neither communication nor moment do not justify a basic departure from the principles of our system of government.
publication is necessary to violate the subsection. [Footnote 4/10]
In these cases, we are not faced with a situation where Congress has failed to provide the Executive with
Also relevant is 18 U.S.C. 794. Subsection (b) thereof forbids in time of war the collection or broad power to protect the Nation from disclosure of damaging state secrets. Congress has, on several
publication, with intent that it shall be communicated to the enemy, of any information with respect to occasions, given extensive consideration to the problem of protecting the military and strategic secrets
the movements of military forces, of the United States. This consideration has resulted in the enactment of statutes making it a crime to
receive, disclose, communicate, withhold, and publish certain documents, photographs, instruments,
"or with respect to the plans or conduct . . . of any naval or military operations . . . or any other appliances, and information. The bulk of these statutes is found in chapter 37 of U.S.C. Title 18, entitled
information relating to the public defense, which might be useful to the enemy. . . ." Espionage and Censorship. [Footnote 5/3] In that chapter, Congress has provided penalties ranging from
a $10,000 fine to death for violating the various statutes.
MR. JUSTICE MARSHALL, concurring.
The Government contends that the only issue in these cases is whether, in a suit by the United States, Thus, it would seem that in order for this Court to issue an injunction it would require a showing that
"the First Amendment bars a court from prohibiting a newspaper from publishing material whose such an injunction would enhance the already exiting power of the Government to act. See Bennett v.
disclosure would pose a 'grave and immediate danger to the security of the United States.' " Brief for the Laman, 277 N.Y. 368, 14 N.E.2d 439 (1938). It is a traditional axiom of equity that a court of equity will
United States 7. With all due respect, I believe the ultimate issue in these cases is even more basic than not do a useless thing, just as it is a traditional axiom that equity will not enjoin the commission of a
the one posed by the Solicitor General. The issue is whether this Court or the Congress has the power to crime. See Z. Chafee & E. Re, Equity 935-954 (5th ed.1967); 1 H. Joyce, Injunctions 580a (1909). Here,
make law. there has been no attempt to make such a showing. The Solicitor General does not even mention in his
brief whether the Government considers that there is probable cause to believe a crime has been
In these cases, there is no problem concerning the President's power to classify information as "secret" committed, or whether there is a conspiracy to commit future crimes.
or "top secret." Congress has specifically recognized Presidential authority, which has been formally
exercised in Exec.Order 10501 (1953), to classify documents and information. See, e.g., 18 U.S.C. 798; If the Government had attempted to show that there was no effective remedy under traditional criminal
50 U.S.C. 783. [Footnote 5/1] Nor is there any issue here regarding the President's power as Chief law, it would have had to show that there is no arguably applicable statute. Of course, at this stage, this
Executive and Commander in Chief to protect national security by disciplining employees who disclose Court could not and cannot determine whether there has been a violation of a particular statute or
information and by taking precautions to prevent leaks. decide the constitutionality of any statute. Whether a good faith prosecution could have been instituted
under any statute could, however, be determined.
Page 403 U. S. 745 Page 403 U. S. 747

At least one of the many statutes in this area seems relevant to these cases. Congress has provided in 18 the Executive Branch comes to this Court and asks that it be granted the power Congress refused to give.
U.S.C. 793(e) that whoever,
In 1957, the United States Commission on Government Security found that
"having unauthorized possession of, access to, or control over any document, writing, code book, signal
book . . . or note relating to the national defense, or information relating to the national defense which "[a]irplane journals, scientific periodicals, and even the daily newspaper have featured articles
information the possessor has reason to believe could be used to the injury of the United States or to the containing information and other data which should have been deleted in whole or in part for security
advantage of any foreign nation, willfully communicates, delivers, transmits . . . the same to any person reasons."
not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of
the United States entitled to receive it . . . [s]hall be fined not more than $10,000 or imprisoned not In response to this problem, the Commission proposed that
more than ten years, or both."
"Congress enact legislation making it a crime for any person willfully to disclose without proper
Congress has also made it a crime to conspire to commit any of the offenses listed in 18 U.S.C. 793(e). authorization, for any purpose whatever, information classified 'secret' or 'top secret,' knowing, or
having reasonable grounds to believe, such information to have been so classified."
It is true that Judge Gurfein found that Congress had not made it a crime to publish the items and
material specified in 793(e). He found that the words "communicates, delivers, transmits . . ." did not Report of Commission on Government Security 619-620 (1957). After substantial floor discussion on the
refer to publication of newspaper stories. And that view has some support in the legislative history, and proposal, it was rejected. See 103 Cong.Rec. 10447-10450. If the proposal that Sen. Cotton championed
conforms with the past practice of using the statute only to prosecute those charged with ordinary on the floor had been enacted, the publication of the documents involved here would certainly have
espionage. But see 103 Cong.Rec. 10449 (remarks of Sen. Humphrey). Judge Gurfein's view of the statute been a crime. Congress refused, however, to make it a crime. The Government is here asking this Court
is not, however, the only plausible construction that could be given. See my Brother WHITE's concurring to remake that decision. This Court has no such power.
opinion.
Either the Government has the power under statutory grant to use traditional criminal law to protect the
Even if it is determined that the Government could not in good faith bring criminal prosecutions against country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that
the New York Times and the Washington Post, it is clear that Congress has specifically rejected passing Congress has specifically refused to grant the authority the Government seeks from this Court. In either
legislation that would have clearly given the President the power he seeks here and made the current case, this Court does not have authority to grant the requested relief. It is not for this Court to fling itself
activity of the newspapers unlawful. When Congress specifically declines to make conduct unlawful, it is into every breach perceived by some Government official, nor is it for this Court to take on itself the
not for this Court burden of enacting law, especially a law that Congress has refused to pass.

Page 403 U. S. 746 I believe that the judgment of the United States Court of Appeals for the District of Columbia Circuit
should be affirmed and the judgment of the United States Court of Appeals for the Second Circuit should
to redecide those issues -- to overrule Congress. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. be reversed insofar as it remands the case for further hearings. [Footnote 5/1]
579 (1952).
See n.3, infra. [Footnote 5/2]
On at least two occasions, Congress has refused to enact legislation that would have made the conduct
engaged in here unlawful and given the President the power that he seeks in this case. In 1917, during But see Kent v. Dulles, 357 U. S. 116 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579
the debate over the original Espionage Act, still the basic provisions of 793, Congress rejected a (1952). [Footnote 5/3]
proposal to give the President in time of war or threat of war authority to directly prohibit by
proclamation the publication of information relating to national defense that might be useful to the There are several other statutory provisions prohibiting and punishing the dissemination of information,
enemy. The proposal provided that: the disclosure of which Congress thought sufficiently imperiled national security to warrant that result.
These include 42 U.S.C. 2161 through 2166, relating to the authority of the Atomic Energy
"During any national emergency resulting from a war to which the United States is a party, or from Commission to classify and declassify "Restricted Data" ["Restricted Data" is a term of art employed
threat of such a war, the President may, by proclamation, declare the existence of such emergency and, uniquely by the Atomic Energy Act]. Specifically, 42 U.S.C. 2162 authorizes the Atomic Energy
by proclamation, prohibit the publishing or communicating of, or the attempting to publish or Commission to classify certain information. Title 42 U.S.C. 2274, subsection (a), provides penalties for a
communicate any information relating to the national defense which, in his judgment, is of such person who "communicates, transmits, or discloses [restricted data] . . . with intent to injure the United
character that it is or might be useful to the enemy. Whoever violates any such prohibition shall be States or with intent to secure an advantage to any foreign nation. . . ."
punished by a fine of not more than $10,000 or by imprisonment for not more than 10 years, or both:
Provided, That nothing in this section shall be construed to limit or restrict any discussion, comment, or Subsection (b) of 2274 provides lesser penalties for one who "communicates, transmits, or discloses"
criticism of the acts or policies of the Government or its representatives or the publication of the same." such information "with reason to believe such data will be utilized to injure the United States or to
secure an advantage to any foreign nation. . . ." Other sections of Title 42 of the United States Code
55 Cong.Rec. 1763. Congress rejected this proposal after war against Germany had been declared, even dealing with atomic energy prohibit and punish acquisition, removal, concealment, tampering with,
though many believed that there was a grave national emergency and that the threat of security leaks alteration, mutilation, or destruction of documents incorporating "Restricted Data" and provide
and espionage was serious. The Executive Branch has not gone to Congress and requested that the penalties for employees and former employees of the Atomic Energy Commission, the armed services,
decision to provide such power be reconsidered. Instead, contractors and licensees of the Atomic Energy Commission. Title 42 U.S.C. 2276, 2277. Title 50
U.S.C.App. 781, 56 Stat. 390, prohibits the making of any sketch or other representation of military After a preliminary conference in which petitioner appeared, the MTRCB, by Order of August 16, 2004,
installations or any military equipment located on any military installation, as specified; and, indeed, preventively suspended the showing of Ang Dating Daan program for 20 days, in accordance with Section
Congress, in the National Defense Act of 1940, 54 Stat. 676, as amended, 56 Stat. 179, conferred 3(d) of Presidential Decree No. (PD) 1986, creating the MTRCB, in relation to Sec. 3, Chapter XIII of the
jurisdiction on federal district courts over civil actions "to enjoin any violation" thereof. 50 U.S.C.App. 2004 Implementing Rules and Regulations (IRR) of PD 1986 and Sec. 7, Rule VII of the MTRCB Rules of
1152(6). Title 50 U.S.C. 783(b) makes it unlawful for any officers or employees of the United States or Procedure.[5] The same order also set the case for preliminary investigation.
any corporation which is owned by the United States to communicate material which has been
"classified" by the President to any person who that governmental employee knows or has reason to The following day, petitioner sought reconsideration of the preventive suspension order, praying that
believe is an agent or representative of any foreign government or any Communist organization. Chairperson Consoliza P. Laguardia and two other members of the adjudication board recuse themselves
SORIANO v LAGUARDIA from hearing the case.[6] Two days after, however, petitioner sought to withdraw[7] his motion for
ELISEO F. SORIANO, reconsideration, followed by the filing with this Court of a petition for certiorari and prohibition,[8]
Petitioner,- versus - docketed as G.R. No. 164785, to nullify the preventive suspension order thus issued.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and Television Review and
Classification Board, MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, JESSIE L. GALAPON, On September 27, 2004, in Adm. Case No. 01-04, the MTRCB issued a decision, disposing as follows:
ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, finding respondent Soriano
Respondents. liable for his utterances and thereby imposing on him a penalty of three (3) months suspension from his
x-------------------------------------------x program, Ang Dating Daan.
ELISEO F. SORIANO,
Petitioner, Co-respondents Joselito Mallari, Luzviminda Cruz and UNTV Channel 37 and its owner, PBC, are hereby
- versus - exonerated for lack of evidence.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE, JACKIE AQUINO-
GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E. ROMERO IV, and FLORIMONDO C. ROUS, in SO ORDERED.[9]
their capacity as members of the Hearing and Adjudication Committee of the MTRCB, JESSIE L. Petitioner then filed this petition for certiorari and prohibition with prayer for injunctive relief, docketed
GALAPON, ANABEL M. DELA CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, as G.R. No. 165636.
BERNABE S. YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as
complainants before In a Resolution dated April 4, 2005, the Court consolidated G.R. No. 164785 with G.R. No. 165636.
the MTRCB, In G.R. No. 164785, petitioner raises the following issues:
Respondents.
G.R. No. 164785 THE ORDER OF PREVENTIVE SUSPENSION PROMULGATED BY RESPONDENT [MTRCB] DATED 16 AUGUST
G.R. No. 165636 2004 AGAINST THE TELEVISION PROGRAM ANG DATING DAAN x x x IS NULL AND VOID FOR BEING
ISSUED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
Promulgated: April 29, 2009 (A) BY REASON THAT THE [IRR] IS INVALID INSOFAR AS IT PROVIDES FOR THE ISSUANCE OF
D E C I S I O N-- VELASCO, JR., J.: PREVENTIVE SUSPENSION ORDERS;
(B) BY REASON OF LACK OF DUE HEARING IN THE CASE AT BENCH;
In these two petitions for certiorari and prohibition under Rule 65, petitioner Eliseo F. Soriano seeks to (C) FOR BEING VIOLATIVE OF EQUAL PROTECTION UNDER THE LAW;
nullify and set aside an order and a decision of the Movie and Television Review and Classification Board (D) FOR BEING VIOLATIVE OF FREEDOM OF RELIGION; AND
(MTRCB) in connection with certain utterances he made in his television show, Ang Dating Daan. (E) FOR BEING VIOLATIVE OF FREEDOM OF SPEECH AND EXPRESSION.[10]
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 In G.R. No. 165636, petitioner relies on the following grounds:
UNTV 37, made the following remarks:
SECTION 3(C) OF [PD] 1986, IS PATENTLY UNCONSTITUTIONAL AND ENACTED WITHOUT OR IN EXCESS OF
Lehitimong anak ng demonyo; sinungaling; JURISDICTION x x x CONSIDERING THAT:
Gago ka talaga Michael, masahol ka pa sa putang babae o di ba. Yung putang babae ang gumagana lang
doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! O, masahol pa sa putang babae I SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
yan. Sabi ng lola ko masahol pa sa putang babae yan. Sobra ang kasinungalingan ng mga demonyong CONSTITUTIONAL GUARANTEE OF FREEDOM OF RELIGION, SPEECH, AND EXPRESSION AS IT PARTAKES
ito.[1] x x x OF THE NATURE OF A SUBSEQUENT PUNISHMENT CURTAILING THE SAME; CONSEQUENTLY, THE
IMPLEMENTING RULES AND REGULATIONS, RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB
Two days after, before the MTRCB, separate but almost identical affidavit-complaints were lodged by PURSUANT THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004,
Jessie L. Galapon and seven other private respondents, all members of the Iglesia ni Cristo (INC),[2] ARE LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH;
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 II SECTION 3(C) OF [PD] 1986, AS APPLIED TO PETITIONER, UNDULY INFRINGES ON THE
Ang Tamang Daan.[3] Forthwith, the MTRCB sent petitioner a notice of the hearing on August 16, 2004 in CONSTITUTIONAL GUARANTEE OF DUE PROCESS OF LAW AND EQUAL PROTECTION UNDER THE LAW;
relation to the alleged use of some cuss words in the August 10, 2004 episode of Ang Dating Daan.[4] CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT
THERETO, I.E., DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH; AND
The issuance of a preventive suspension comes well within the scope of the MTRCBs authority and
III [PD] 1986 IS NOT COMPLETE IN ITSELF AND DOES NOT PROVIDE FOR A SUFFICIENT STANDARD FOR functions expressly set forth in PD 1986, more particularly under its Sec. 3(d), as quoted above, which
ITS IMPLEMENTATION THEREBY RESULTING IN AN UNDUE DELEGATION OF LEGISLATIVE POWER BY empowers the MTRCB to supervise, regulate, and grant, deny or cancel, permits for the x x x exhibition,
REASON THAT IT DOES NOT PROVIDE FOR THE PENALTIES FOR VIOLATIONS OF ITS PROVISIONS. and/or television broadcast of all motion pictures, television programs and publicity materials, to the
CONSEQUENTLY, THE [IRR], RULES OF PROCEDURE, AND OFFICIAL ACTS OF THE MTRCB PURSUANT end that no such pictures, programs and materials as are determined by the BOARD to be objectionable
THERETO, I.E. DECISION DATED 27 SEPTEMBER 2004 AND ORDER DATED 19 OCTOBER 2004, ARE in accordance with paragraph (c) hereof shall be x x x exhibited and/or broadcast by television.
LIKEWISE CONSTITUTIONALLY INFIRM AS APPLIED IN THE CASE AT BENCH[11]
Surely, the power to issue preventive suspension forms part of the MTRCBs express regulatory and
G.R. No. 164785 supervisory statutory mandate and its investigatory and disciplinary authority subsumed in or implied
We shall first dispose of the issues in G.R. No. 164785, regarding the assailed order of preventive from such mandate. Any other construal would render its power to regulate, supervise, or discipline
suspension, although its implementability had already been overtaken and veritably been rendered illusory.
moot by the equally assailed September 27, 2004 decision.
Preventive suspension, it ought to be noted, is not a penalty by itself, being merely a preliminary step in
It is petitioners threshold posture that the preventive suspension imposed against him and the relevant an administrative investigation.[15] And the power to discipline and impose penalties, if granted, carries
IRR provision authorizing it are invalid inasmuch as PD 1986 does not expressly authorize the MTRCB to with it the power to investigate administrative complaints and, during such investigation, to preventively
issue preventive suspension. suspend the person subject of the complaint.[16]

Petitioners contention is untenable. To reiterate, preventive suspension authority of the MTRCB springs from its powers conferred under PD
1986. The MTRCB did not, as petitioner insinuates, empower itself to impose preventive suspension
Administrative agencies have powers and functions which may be administrative, investigatory, through the medium of the IRR of PD 1986. It is true that the matter of imposing preventive suspension
regulatory, quasi-legislative, or quasi-judicial, or a mix of the five, as may be conferred by the is embodied only in the IRR of PD 1986. Sec. 3, Chapter XIII of the IRR provides:
Constitution or by statute.[12] They have in fine only such powers or authority as are granted or Sec. 3. PREVENTION SUSPENSION ORDER.Any time during the pendency of the case, and in order to
delegated, expressly or impliedly, by law.[13] And in determining whether an agency has certain powers, prevent or stop further violations or for the interest and welfare of the public, the Chairman of the Board
the inquiry should be from the law itself. But once ascertained as existing, the authority given should be may issue a Preventive Suspension Order mandating the preventive x x x suspension of the
liberally construed.[14] permit/permits involved, and/or closure of the x x x television network, cable TV station x x x provided
that the temporary/preventive order thus issued shall have a life of not more than twenty (20) days from
A perusal of the MTRCBs basic mandate under PD 1986 reveals the possession by the agency of the the date of issuance.
authority, albeit impliedly, to issue the challenged order of preventive suspension. And this authority
stems naturally from, and is necessary for the exercise of, its power of regulation and supervision. But the mere absence of a provision on preventive suspension in PD 1986, without more, would not
Sec. 3 of PD 1986 pertinently provides the following: work to deprive the MTRCB a basic disciplinary tool, such as preventive suspension. Recall that the
MTRCB is expressly empowered by statute to regulate and supervise television programs to obviate the
Section 3. Powers and Functions.The BOARD shall have the following functions, powers and duties: exhibition or broadcast of, among others, indecent or immoral materials and to impose sanctions for
xxxx violations and, corollarily, to prevent further violations as it investigates. Contrary to petitioners
assertion, the aforequoted Sec. 3 of the IRR neither amended PD 1986 nor extended the effect of the
c) To approve or disapprove, delete objectionable portions from and/or prohibit the x x x production, x law. Neither did the MTRCB, by imposing the assailed preventive suspension, outrun its authority under
x x exhibition and/or television broadcast of the motion pictures, television programs and publicity the law. Far from it. The preventive suspension was actually done in furtherance of the law, imposed
materials subject of the preceding paragraph, which, in the judgment of the board applying pursuant, to repeat, to the MTRCBs duty of regulating or supervising television programs, pending a
contemporary Filipino cultural values as standard, are objectionable for being immoral, indecent, determination of whether or not there has actually been a violation. In the final analysis, Sec. 3, Chapter
contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its XIII of the 2004 IRR merely formalized a power which PD 1986 bestowed, albeit impliedly, on MTRCB.
people, or with a dangerous tendency to encourage the commission of violence or of wrong or crime
such as but not limited to:x x x x Sec. 3(c) and (d) of PD 1986 finds application to the present case, sufficient to authorize the MTRCBs
assailed action. Petitioners restrictive reading of PD 1986, limiting the MTRCB to functions within the
vi) Those which are libelous or defamatory to the good name and reputation of any person, whether literal confines of the law, would give the agency little leeway to operate, stifling and rendering it inutile,
living or dead; x x x x when Sec. 3(k) of PD 1986 clearly intends to grant the MTRCB a wide room for flexibility in its operation.
Sec. 3(k), we reiterate, provides, To exercise such powers and functions as may be necessary or
(d) To supervise, regulate, and grant, deny or cancel, permits for the x x x production, copying, incidental to the attainment of the purposes and objectives of this Act x x x. Indeed, the power to impose
distribution, sale, lease, exhibition, and/or television broadcast of all motion pictures, television preventive suspension is one of the implied powers of MTRCB. As distinguished from express powers,
programs and publicity materials, to the end that no such pictures, programs and materials as are implied powers are those that can be inferred or are implicit in the wordings or conferred by necessary
determined by the BOARD to be objectionable in accordance with paragraph (c) hereof shall be x x x or fair implication of the enabling act.[17] As we held in Angara v. Electoral Commission, when a general
produced, copied, reproduced, distributed, sold, leased, exhibited and/or broadcast by television; grant of power is conferred or a duty enjoined, every particular power necessary for the exercise of one
xxxx or the performance of the other is also conferred by necessary implication.[18] Clearly, the power to
impose preventive suspension pending investigation is one of the implied or inherent powers of MTRCB.
k) To exercise such powers and functions as may be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. (Emphasis added.) We cannot agree with petitioners assertion that the aforequoted IRR provision on preventive suspension
is applicable only to motion pictures and publicity materials. The scope of the MTRCBs authority extends
beyond motion pictures. What the acronym MTRCB stands for would suggest as much. And while the law petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have
makes specific reference to the closure of a television network, the suspension of a television program is chosen to contradict and disprove his detractors, but opted for the low road.
a far less punitive measure that can be undertaken, with the purpose of stopping further violations of PD
1986. Again, the MTRCB would regretfully be rendered ineffective should it be subject to the restrictions Petitioner, as a final point in G.R. No. 164785, would have the Court nullify the 20-day preventive
petitioner envisages. suspension order, being, as insisted, an unconstitutional abridgement of the freedom of speech and
expression and an impermissible prior restraint. The main issue tendered respecting the adverted
Just as untenable is petitioners argument on the nullity of the preventive suspension order on the violation and the arguments holding such issue dovetails with those challenging the three-month
ground of lack of hearing. As it were, the MTRCB handed out the assailed order after petitioner, in suspension imposed under the assailed September 27, 2004 MTRCB decision subject of review under
response to a written notice, appeared before that Board for a hearing on private respondents G.R. No. 165636. Both overlapping issues and arguments shall be jointly addressed.
complaint. No less than petitioner admitted that the order was issued after the adjournment of the
hearing,[19] proving that he had already appeared before the MTRCB. Under Sec. 3, Chapter XIII of the G.R. No. 165636
IRR of PD 1986, preventive suspension shall issue [a]ny time during the pendency of the case. In this Petitioner urges the striking down of the decision suspending him from hosting Ang Dating Daan for
particular case, it was done after MTRCB duly apprised petitioner of his having possibly violated PD three months on the main ground that the decision violates, apart from his religious freedom, his
1986[20] and of administrative complaints that had been filed against him for such violation.[21] freedom of speech and expression guaranteed under Sec. 4, Art. III of the Constitution, which reads:

At any event, that preventive suspension can validly be meted out even without a hearing.[22] No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the
Petitioner next faults the MTRCB for denying him his right to the equal protection of the law, arguing people peaceably to assemble and petition the government for redress of grievance.
that, owing to the preventive suspension order, he was unable to answer the criticisms coming from the
INC ministers. He would also have the Court declare PD 1986, its Sec. 3(c) in particular, unconstitutional for reasons
articulated in this petition.
Petitioners position does not persuade. The equal protection clause demands that all persons subject to
legislation should be treated alike, under like circumstances and conditions both in the privileges We are not persuaded as shall be explained shortly. But first, we restate certain general concepts and
conferred and liabilities imposed.[23] It guards against undue favor and individual privilege as well as principles underlying the freedom of speech and expression.
hostile discrimination.[24] Surely, petitioner cannot, under the premises, place himself in the same shoes
as the INC ministers, who, for one, are not facing administrative complaints before the MTRCB. For It is settled that expressions by means of newspapers, radio, television, and motion pictures come within
another, he offers no proof that the said ministers, in their TV programs, use language similar to that the broad protection of the free speech and expression clause.[25] Each method though, because of its
which he used in his own, necessitating the MTRCBs disciplinary action. If the immediate result of the dissimilar presence in the lives of people and accessibility to children, tends to present its own problems
preventive suspension order is that petitioner remains temporarily gagged and is unable to answer his in the area of free speech protection, with broadcast media, of all forms of communication, enjoying a
critics, this does not become a deprivation of the equal protection guarantee. The Court need not lesser degree of protection.[26] Just as settled is the rule that restrictions, be it in the form of prior
belabor the fact that the circumstances of petitioner, as host of Ang Dating Daan, on one hand, and the restraint, e.g., judicial injunction against publication or threat of cancellation of license/franchise, or
INC ministers, as hosts of Ang Tamang Daan, on the other, are, within the purview of this case, simply subsequent liability, whether in libel and damage suits, prosecution for sedition, or contempt
too different to even consider whether or not there is a prima facie indication of oppressive inequality. proceedings, are anathema to the freedom of expression. Prior restraint means official government
Petitioner next injects the notion of religious freedom, submitting that what he uttered was religious restrictions on the press or other forms of expression in advance of actual publication or
speech, adding that words like putang babae were said in exercise of his religious freedom. dissemination.[27] The freedom of expression, as with the other freedoms encased in the Bill of Rights,
is, however, not absolute. It may be regulated to some extent to serve important public interests, some
The argument has no merit. forms of speech not being protected. As has been held, the limits of the freedom of expression are
reached when the expression touches upon matters of essentially private concern.[28] In the oft-quoted
The Court is at a loss to understand how petitioners utterances in question can come within the pale of expression of Justice Holmes, the constitutional guarantee obviously was not intended to give immunity
Sec. 5, Article III of the 1987 Constitution on religious freedom. The section reads as follows: for every possible use of language.[29] From Lucas v. Royo comes this line: [T]he freedom to express
ones sentiments and belief does not grant one the license to vilify in public the honor and integrity of
No law shall be made respecting the establishment of a religion, or prohibiting the free exercise thereof. another. Any sentiments must be expressed within the proper forum and with proper regard for the
The free exercise and enjoyment of religious profession and worship, without discrimination or rights of others.[30]
preference, shall forever be allowed. No religious test shall be required for the exercise of civil or
political rights. Indeed, as noted in Chaplinsky v. State of New Hampshire,[31] there are certain well-defined and
narrowly limited classes of speech that are harmful, the prevention and punishment of which has never
There is nothing in petitioners statements subject of the complaints expressing any particular religious been thought to raise any Constitutional problems. In net effect, some forms of speech are not protected
belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements by the Constitution, meaning that restrictions on unprotected speech may be decreed without running
in a televised bible exposition program does not automatically accord them the character of a religious afoul of the freedom of speech clause.[32] A speech would fall under the unprotected type if the
discourse. Plain and simple insults directed at another person cannot be elevated to the status of utterances involved are no essential part of any exposition of ideas, and are of such slight social value as
religious speech. Even petitioners attempts to place his words in context show that he was moved by a step of truth that any benefit that may be derived from them is clearly outweighed by the social
anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, interest in order and morality.[33] Being of little or no value, there is, in dealing with or regulating them,
that some INC ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV no imperative call for the application of the clear and present danger rule or the balancing-of-interest
station does not convert the foul language used in retaliation as religious speech. We cannot accept that test, they being essentially modes of weighing competing values,[34] or, with like effect, determining
petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible which of the clashing interests should be advanced.
defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that
Petitioner asserts that his utterance in question is a protected form of speech. Even if we concede that petitioners remarks are not obscene but merely indecent speech, still the Court
rules that petitioner cannot avail himself of the constitutional protection of free speech. Said statements
The Court rules otherwise. It has been established in this jurisdiction that unprotected speech or low- were made in a medium easily accessible to children. With respect to the young minds, said utterances
value expression refers to libelous statements, obscenity or pornography, false or misleading are to be treated as unprotected speech.
advertisement, insulting or fighting words, i.e., those which by their very utterance inflict injury or tend
to incite an immediate breach of peace and expression endangering national security. No doubt what petitioner said constitutes indecent or offensive utterances. But while a jurisprudential
pattern involving certain offensive utterances conveyed in different mediums has emerged, this case is
The Court finds that petitioners statement can be treated as obscene, at least with respect to the veritably one of first impression, it being the first time that indecent speech communicated via television
average child. Hence, it is, in that context, unprotected speech. In Fernando v. Court of Appeals, the and the applicable norm for its regulation are, in this jurisdiction, made the focal point. Federal
Court expressed difficulty in formulating a definition of obscenity that would apply to all cases, but Communications Commission (FCC) v. Pacifica Foundation,[37] a 1978 American landmark case cited in
nonetheless stated the ensuing observations on the matter: Eastern Broadcasting Corporation v. Dans, Jr.[38] and Chavez v. Gonzales,[39] is a rich source of
persuasive lessons. Foremost of these relates to indecent speech without prurient appeal component
There is no perfect definition of obscenity but the latest word is that of Miller v. California which coming under the category of protected speech depending on the context within which it was made,
established basic guidelines, to wit: (a) whether to the average person, applying contemporary standards irresistibly suggesting that, within a particular context, such indecent speech may validly be categorized
would find the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or as unprotected, ergo, susceptible to restriction.
describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law;
and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. In FCC, seven of what were considered filthy words[40] earlier recorded in a monologue by a satiric
But, it would be a serious misreading of Miller to conclude that the trier of facts has the unbridled humorist later aired in the afternoon over a radio station owned by Pacifica Foundation. Upon the
discretion in determining what is patently offensive. x x x What remains clear is that obscenity is an issue complaint of a man who heard the pre-recorded monologue while driving with his son, FCC declared the
proper for judicial determination and should be treated on a case to case basis and on the judges sound language used as patently offensive and indecent under a prohibiting law, though not necessarily
discretion.[35] obscene. FCC added, however, that its declaratory order was issued in a special factual context,
referring, in gist, to an afternoon radio broadcast when children were undoubtedly in the audience.
Acting on the question of whether the FCC could regulate the subject utterance, the US Supreme Court
Following the contextual lessons of the cited case of Miller v. California,[36] a patently offensive ruled in the affirmative, owing to two special features of the broadcast medium, to wit: (1) radio is a
utterance would come within the pale of the term obscenity should it appeal to the prurient interest of pervasive medium and (2) broadcasting is uniquely accessible to children. The US Court, however,
an average listener applying contemporary standards. hastened to add that the monologue would be protected speech in other contexts, albeit it did not
A cursory examination of the utterances complained of and the circumstances of the case reveal that to expound and identify a compelling state interest in putting FCCs content-based regulatory action under
an average adult, the utterances Gago ka talaga x x x, masahol ka pa sa putang babae x x x. Yung putang scrutiny.
babae ang gumagana lang doon yung ibaba, [dito] kay Michael ang gumagana ang itaas, o di ba! may not
constitute obscene but merely indecent utterances. They can be viewed as figures of speech or merely a The Court in Chavez[41] elucidated on the distinction between regulation or restriction of protected
play on words. In the context they were used, they may not appeal to the prurient interests of an adult. speech that is content-based and that which is content-neutral. A content-based restraint is aimed at the
The problem with the challenged statements is that they were uttered in a TV program that is rated G or contents or idea of the expression, whereas a content-neutral restraint intends to regulate the time,
for general viewership, and in a time slot that would likely reach even the eyes and ears of children. place, and manner of the expression under well-defined standards tailored to serve a compelling state
interest, without restraint on the message of the expression. Courts subject content-based restraint to
While adults may have understood that the terms thus used were not to be taken literally, children could strict scrutiny.
hardly be expected to have the same discernment. Without parental guidance, the unbridled use of such
language as that of petitioner in a television broadcast could corrupt impressionable young minds. The With the view we take of the case, the suspension MTRCB imposed under the premises was, in one
term putang babae means a female prostitute, a term wholly inappropriate for children, who could look perspective, permissible restriction. We make this disposition against the backdrop of the following
it up in a dictionary and just get the literal meaning, missing the context within which it was used. interplaying factors: First, the indecent speech was made via television, a pervasive medium that, to
Petitioner further used the terms, ang gumagana lang doon yung ibaba, making reference to the female borrow from Gonzales v. Kalaw Katigbak,[42] easily reaches every home where there is a set [and where]
sexual organ and how a female prostitute uses it in her trade, then stating that Sandoval was worse than [c]hildren will likely be among the avid viewers of the programs therein shown; second, the broadcast
that by using his mouth in a similar manner. Children could be motivated by curiosity and ask the was aired at the time of the day when there was a reasonable risk that children might be in the
meaning of what petitioner said, also without placing the phrase in context. They may be inquisitive as to audience; and third, petitioner uttered his speech on a G or for general patronage rated program. Under
why Sandoval is different from a female prostitute and the reasons for the dissimilarity. And upon Sec. 2(A) of Chapter IV of the IRR of the MTRCB, a show for general patronage is [s]uitable for all ages,
learning the meanings of the words used, young minds, without the guidance of an adult, may, from meaning that the material for television x x x in the judgment of the BOARD, does not contain anything
their end, view this kind of indecent speech as obscene, if they take these words literally and use them in unsuitable for children and minors, and may be viewed without adult guidance or supervision. The words
their own speech or form their own ideas on the matter. In this particular case, where children had the petitioner used were, by any civilized norm, clearly not suitable for children. Where a language is
opportunity to hear petitioners words, when speaking of the average person in the test for obscenity, we categorized as indecent, as in petitioners utterances on a general-patronage rated TV program, it may be
are speaking of the average child, not the average adult. The average child may not have the adults grasp readily proscribed as unprotected speech.
of figures of speech, and may lack the understanding that language may be colorful, and words may
convey more than the literal meaning. Undeniably the subject speech is very suggestive of a female A view has been advanced that unprotected speech refers only to pornography,[43] false or misleading
sexual organ and its function as such. In this sense, we find petitioners utterances obscene and not advertisement,[44] advocacy of imminent lawless action, and expression endangering national security.
entitled to protection under the umbrella of freedom of speech. But this list is not, as some members of the Court would submit, exclusive or carved in stone. Without
going into specifics, it may be stated without fear of contradiction that US decisional law goes beyond
the aforesaid general exceptions. As the Court has been impelled to recognize exceptions to the rule
against censorship in the past, this particular case constitutes yet another exception, another instance of in the concrete, not on the basis of abstractions, a wide range of factors are necessarily relevant in
unprotected speech, created by the necessity of protecting the welfare of our children. As unprotected ascertaining the point or line of equilibrium. Among these are (a) the social value and importance of the
speech, petitioners utterances can be subjected to restraint or regulation. specific aspect of the particular freedom restricted by the legislation; (b) the specific thrust of the
restriction, i.e., whether the restriction is direct or indirect, whether or not the persons affected are few;
Despite the settled ruling in FCC which has remained undisturbed since 1978, petitioner asserts that his (c) the value and importance of the public interest sought to be secured by the legislationthe reference
utterances must present a clear and present danger of bringing about a substantive evil the State has a here is to the nature and gravity of the evil which Congress seeks to prevent; (d) whether the specific
right and duty to prevent and such danger must be grave and imminent.[45] restriction decreed by Congress is reasonably appropriate and necessary for the protection of such public
interest; and (e) whether the necessary safeguarding of the public interest involved may be achieved by
Petitioners invocation of the clear and present danger doctrine, arguably the most permissive of speech some other measure less restrictive of the protected freedom.[55]
tests, would not avail him any relief, for the application of said test is uncalled for under the premises.
The doctrine, first formulated by Justice Holmes, accords protection for utterances so that the printed or
spoken words may not be subject to prior restraint or subsequent punishment unless its expression This balancing of interest test, to borrow from Professor Kauper,[56] rests on the theory that it is the
creates a clear and present danger of bringing about a substantial evil which the government has the courts function in a case before it when it finds public interests served by legislation, on the one hand,
power to prohibit.[46] Under the doctrine, freedom of speech and of press is susceptible of restriction and the free expression clause affected by it, on the other, to balance one against the other and arrive at
when and only when necessary to prevent grave and immediate danger to interests which the a judgment where the greater weight shall be placed. If, on balance, it appears that the public interest
government may lawfully protect. As it were, said doctrine evolved in the context of prosecutions for served by restrictive legislation is of such nature that it outweighs the abridgment of freedom, then the
rebellion and other crimes involving the overthrow of government.[47] It was originally designed to court will find the legislation valid. In short, the balance-of-interests theory rests on the basis that
determine the latitude which should be given to speech that espouses anti-government action, or to constitutional freedoms are not absolute, not even those stated in the free speech and expression
have serious and substantial deleterious consequences on the security and public order of the clause, and that they may be abridged to some extent to serve appropriate and important interests.[57]
community.[48] The clear and present danger rule has been applied to this jurisdiction.[49] As a standard To the mind of the Court, the balancing of interest doctrine is the more appropriate test to follow.
of limitation on free speech and press, however, the clear and present danger test is not a magic In the case at bar, petitioner used indecent and obscene language and a three (3)-month suspension was
incantation that wipes out all problems and does away with analysis and judgment in the testing of the slapped on him for breach of MTRCB rules. In this setting, the assertion by petitioner of his enjoyment of
legitimacy of claims to free speech and which compels a court to release a defendant from liability the his freedom of speech is ranged against the duty of the government to protect and promote the
moment the doctrine is invoked, absent proof of imminent catastrophic disaster.[50] As we observed in development and welfare of the youth.
Eastern Broadcasting Corporation, the clear and present danger test does not lend itself to a simplistic
and all embracing interpretation applicable to all utterances in all forums.[51] After a careful examination of the factual milieu and the arguments raised by petitioner in support of his
claim to free speech, the Court rules that the governments interest to protect and promote the interests
To be sure, the clear and present danger doctrine is not the only test which has been applied by the and welfare of the children adequately buttresses the reasonable curtailment and valid restraint on
courts. Generally, said doctrine is applied to cases involving the overthrow of the government and even petitioners prayer to continue as program host of Ang Dating Daan during the suspension period.
other evils which do not clearly undermine national security. Since not all evils can be measured in terms
of proximity and degree the Court, however, in several casesAyer Productions v. Capulong[52] and No doubt, one of the fundamental and most vital rights granted to citizens of a State is the freedom of
Gonzales v. COMELEC,[53] applied the balancing of interests test. Former Chief Justice Fred Ruiz Castro, speech or expression, for without the enjoyment of such right, a free, stable, effective, and progressive
in Gonzales v. COMELEC, elucidated in his Separate Opinion that where the legislation under democratic state would be difficult to attain. Arrayed against the freedom of speech is the right of the
constitutional attack interferes with the freedom of speech and assembly in a more generalized way and youth to their moral, spiritual, intellectual, and social being which the State is constitutionally tasked to
where the effect of the speech and assembly in terms of the probability of realization of a specific danger promote and protect. Moreover, the State is also mandated to recognize and support the vital role of the
is not susceptible even of impressionistic calculation,[54] then the balancing of interests test can be youth in nation building as laid down in Sec. 13, Art. II of the 1987 Constitution.
applied.
The Constitution has, therefore, imposed the sacred obligation and responsibility on the State to provide
The Court explained also in Gonzales v. COMELEC the balancing of interests test: protection to the youth against illegal or improper activities which may prejudice their general well-
When particular conduct is regulated in the interest of public order, and the regulation results in an being. The Article on youth, approved on second reading by the Constitutional Commission, explained
indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of the that the State shall extend social protection to minors against all forms of neglect, cruelty, exploitation,
two conflicting interests demands the greater protection under the particular circumstances presented. x immorality, and practices which may foster racial, religious or other forms of discrimination.[58]
x x We must, therefore, undertake the delicate and difficult task x x x to weigh the circumstances and to
appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of Indisputably, the State has a compelling interest in extending social protection to minors against all
rights x x x. forms of neglect, exploitation, and immorality which may pollute innocent minds. It has a compelling
interest in helping parents, through regulatory mechanisms, protect their childrens minds from exposure
In enunciating standard premised on a judicial balancing of the conflicting social values and individual to undesirable materials and corrupting experiences. The Constitution, no less, in fact enjoins the State,
interests competing for ascendancy in legislation which restricts expression, the court in Douds laid the as earlier indicated, to promote and protect the physical, moral, spiritual, intellectual, and social well-
basis for what has been called the balancing-of-interests test which has found application in more recent being of the youth to better prepare them fulfill their role in the field of nation-building.[59] In the same
decisions of the U.S. Supreme Court. Briefly stated, the balancing test requires a court to take conscious way, the State is mandated to support parents in the rearing of the youth for civic efficiency and the
and detailed consideration of the interplay of interests observable in a given situation or type of development of moral character.[60]
situation.x x x x
Petitioners offensive and obscene language uttered in a television broadcast, without doubt, was easily
Although the urgency of the public interest sought to be secured by Congressional power restricting the accessible to the children. His statements could have exposed children to a language that is unacceptable
individuals freedom, and the social importance and value of the freedom so restricted, are to be judged in everyday use. As such, the welfare of children and the States mandate to protect and care for them, as
parens patriae,[61] constitute a substantial and compelling government interest in regulating petitioners Petitioner theorizes that the three (3)-month suspension is either prior restraint or subsequent
utterances in TV broadcast as provided in PD 1986. punishment that, however, includes prior restraint, albeit indirectly.

FCC explains the duty of the government to act as parens patriae to protect the children who, because of After a review of the facts, the Court finds that what MTRCB imposed on petitioner is an administrative
age or interest capacity, are susceptible of being corrupted or prejudiced by offensive language, thus: sanction or subsequent punishment for his offensive and obscene language in Ang Dating Daan.

[B]roadcasting is uniquely accessible to children, even those too young to read. Although Cohens written To clarify, statutes imposing prior restraints on speech are generally illegal and presumed
message, [Fuck the Draft], might have been incomprehensible to a first grader, Pacificas broadcast could unconstitutional breaches of the freedom of speech. The exceptions to prior restraint are movies,
have enlarged a childs vocabulary in an instant. Other forms of offensive expression may be withheld television, and radio broadcast censorship in view of its access to numerous people, including the young
from the young without restricting the expression at its source. Bookstores and motion picture theaters, who must be insulated from the prejudicial effects of unprotected speech. PD 1986 was passed creating
for example, may be prohibited from making indecent material available to children. We held in the Board of Review for Motion Pictures and Television (now MTRCB) and which requires prior permit or
Ginsberg v. New York that the governments interest in the well-being of its youth and in supporting license before showing a motion picture or broadcasting a TV program. The Board can classify movies
parents claim to authority in their own household justified the regulation of otherwise protected and television programs and can cancel permits for exhibition of films or television broadcast.
expression. The ease with which children may obtain access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting. The power of MTRCB to regulate and even impose some prior restraint on radio and television shows,
even religious programs, was upheld in Iglesia Ni Cristo v. Court of Appeals. Speaking through Chief
Moreover, Gonzales v. Kalaw Katigbak likewise stressed the duty of the State to attend to the welfare of Justice Reynato S. Puno, the Court wrote:
the young:
x x x It is the consensus of this Court that where television is concerned, a less liberal approach calls for We thus reject petitioners postulate that its religious program is per se beyond review by the respondent
observance. This is so because unlike motion pictures where the patrons have to pay their way, Board. Its public broadcast on TV of its religious program brings it out of the bosom of internal belief.
television reaches every home where there is a set. Children then will likely will be among the avid Television is a medium that reaches even the eyes and ears of children. The Court iterates the rule that
viewers of the programs therein shown. As was observed by Circuit Court of Appeals Judge Jerome the exercise of religious freedom can be regulated by the State when it will bring about the clear and
Frank, it is hardly the concern of the law to deal with the sexual fantasies of the adult population. It present danger of some substantive evil which the State is duty bound to prevent, i.e., serious detriment
cannot be denied though that the State as parens patriae is called upon to manifest an attitude of caring to the more overriding interest of public health, public morals, or public welfare. x x x
for the welfare of the young.[62] x x x xWhile the thesis has a lot to commend itself, we are not ready to hold that [PD 1986] is
unconstitutional for Congress to grant an administrative body quasi-judicial power to preview and
The compelling need to protect the young impels us to sustain the regulatory action MTRCB took in the classify TV programs and enforce its decision subject to review by our courts. As far back as 1921, we
narrow confines of the case. To reiterate, FCC justified the restraint on the TV broadcast grounded on upheld this setup in Sotto vs. Ruiz, viz:
the following considerations: (1) the use of television with its unique accessibility to children, as a
medium of broadcast of a patently offensive speech; (2) the time of broadcast; and (3) the G rating of The use of the mails by private persons is in the nature of a privilege which can be regulated in order to
the Ang Dating Daan program. And in agreeing with MTRCB, the court takes stock of and cites with avoid its abuse. Persons possess no absolute right to put into the mail anything they please, regardless of
approval the following excerpts from FCC: its character.[63]

It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a Bernas adds:
two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan Under the decree a movie classification board is made the arbiter of what movies and television
comedy. We have not decided that an occasional expletive in either setting would justify any sanction. x programs or parts of either are fit for public consumption. It decides what movies are immoral, indecent,
x x The [FFCs] decision rested entirely on a nuisance rationale under which context is all important. The contrary to law and/or good customs, injurious to the prestige of the Republic of the Philippines or its
concept requires consideration of a host of variables. The time of day was emphasized by the [FFC]. The people, and what tend to incite subversion, insurrection, rebellion or sedition, or tend to undermine the
content of the program in which the language is used will affect the composition of the audience x x x. As faith and confidence of the people in their government and/or duly constituted authorities, etc.
Mr. Justice Sutherland wrote a nuisance may be merely a right thing in the wrong place, like a pig in the Moreover, its decisions are executory unless stopped by a court.[64]
parlor instead of the barnyard. We simply hold that when the [FCC] finds that a pig has entered the
parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. (Citation
omitted.) Moreover, in MTRCB v. ABS-CBN Broadcasting Corporation,[65] it was held that the power of review and
prior approval of MTRCB extends to all television programs and is valid despite the freedom of speech
There can be no quibbling that the remarks in question petitioner uttered on prime-time television are guaranteed by the Constitution. Thus, all broadcast networks are regulated by the MTRCB since they are
blatantly indecent if not outright obscene. It is the kind of speech that PD 1986 proscribes necessitating required to get a permit before they air their television programs. Consequently, their right to enjoy
the exercise by MTRCB of statutory disciplinary powers. It is the kind of speech that the State has the their freedom of speech is subject to that requirement. As lucidly explained by Justice Dante O. Tinga,
inherent prerogative, nay duty, to regulate and prevent should such action served and further government regulations through the MTRCB became a necessary evil with the government taking the
compelling state interests. One who utters indecent, insulting, or offensive words on television when role of assigning bandwidth to individual broadcasters. The stations explicitly agreed to this regulatory
unsuspecting children are in the audience is, in the graphic language of FCC, a pig in the parlor. Public scheme; otherwise, chaos would result in the television broadcast industry as competing broadcasters
interest would be served if the pig is reasonably restrained or even removed from the parlor. will interfere or co-opt each others signals. In this scheme, station owners and broadcasters in effect
waived their right to the full enjoyment of their right to freedom of speech in radio and television
Ergo, petitioners offensive and indecent language can be subjected to prior restraint. programs and impliedly agreed that said right may be subject to prior restraintdenial of permit or
subsequent punishment, like suspension or cancellation of permit, among others.
The three (3) months suspension in this case is not a prior restraint on the right of petitioner to continue need to further delve into the fact that petitioner was afforded due process when he attended the
with the broadcast of Ang Dating Daan as a permit was already issued to him by MTRCB for such hearing of the MTRCB, and that he was unable to demonstrate that he was unjustly discriminated
broadcast. Rather, the suspension is in the form of permissible administrative sanction or subsequent against in the MTRCB proceedings.
punishment for the offensive and obscene remarks he uttered on the evening of August 10, 2004 in his
television program, Ang Dating Daan. It is a sanction that the MTRCB may validly impose under its Finally, petitioner argues that there has been undue delegation of legislative power, as PD 1986 does not
charter without running afoul of the free speech clause. And the imposition is separate and distinct from provide for the range of imposable penalties that may be applied with respect to violations of the
the criminal action the Board may take pursuant to Sec. 3(i) of PD 1986 and the remedies that may be provisions of the law.
availed of by the aggrieved private party under the provisions on libel or tort, if applicable. As FCC
teaches, the imposition of sanctions on broadcasters who indulge in profane or indecent broadcasting The argument is without merit.
does not constitute forbidden censorship. Lest it be overlooked, the sanction imposed is not per se for
petitioners exercise of his freedom of speech via television, but for the indecent contents of his In Edu v. Ericta, the Court discussed the matter of undue delegation of legislative power in the following
utterances in a G rated TV program. wise:
It is a fundamental principle flowing from the doctrine of separation of powers that Congress may not
More importantly, petitioner is deemed to have yielded his right to his full enjoyment of his freedom of delegate its legislative power to the two other branches of the government, subject to the exception that
speech to regulation under PD 1986 and its IRR as television station owners, program producers, and local governments may over local affairs participate in its exercise. What cannot be delegated is the
hosts have impliedly accepted the power of MTRCB to regulate the broadcast industry. authority under the Constitution to make laws and to alter and repeal them; the test is the completeness
Neither can petitioners virtual inability to speak in his program during the period of suspension be of the statute in all its term and provisions when it leaves the hands of the legislature. To determine
plausibly treated as prior restraint on future speech. For viewed in its proper perspective, the suspension whether or not there is an undue delegation of legislative power, the inquiry must be directed to the
is in the nature of an intermediate penalty for uttering an unprotected form of speech. It is definitely a scope and definiteness of the measure enacted. The legislature does not abdicate its functions when it
lesser punishment than the permissible cancellation of exhibition or broadcast permit or license. In fine, describes what job must be done, who is to do it, and what is the scope of his authority. For a complex
the suspension meted was simply part of the duties of the MTRCB in the enforcement and economy, that may indeed be the only way in which the legislative process can go forward. A distinction
administration of the law which it is tasked to implement. Viewed in its proper context, the suspension has rightfully been made between delegation of power to make laws which necessarily involves a
sought to penalize past speech made on prime-time G rated TV program; it does not bar future speech of discretion as to what it shall be, which constitutionally may not be done, and delegation of authority or
petitioner in other television programs; it is a permissible subsequent administrative sanction; it should discretion as to its execution to be exercised under and in pursuance of the law, to which no valid
not be confused with a prior restraint on speech. While not on all fours, the Court, in MTRCB,[66] objection can be made. The Constitution is thus not to be regarded as denying the legislature the
sustained the power of the MTRCB to penalize a broadcast company for exhibiting/airing a pre-taped TV necessary resources of flexibility and practicability.
episode without Board authorization in violation of Sec. 7 of PD 1986.
To avoid the taint of unlawful delegation, there must be a standard, which implies at the very least that
Any simplistic suggestion, however, that the MTRCB would be crossing the limits of its authority were it the legislature itself determines matters of principle and lays down fundamental policy. Otherwise, the
to regulate and even restrain the prime-time television broadcast of indecent or obscene speech in a G charge of complete abdication may be hard to repel. A standard thus defines legislative policy, marks its
rated program is not acceptable. As made clear in Eastern Broadcasting Corporation, the freedom of limits, maps out its boundaries and specifies the public agency to apply it. It indicates the circumstances
television and radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper under which the legislative command is to be effected. It is the criterion by which legislative purpose
and print media. The MTRCB, as a regulatory agency, must have the wherewithal to enforce its mandate, may be carried out. Thereafter, the executive or administrative office designated may in pursuance of
which would not be effective if its punitive actions would be limited to mere fines. Television broadcasts the above guidelines promulgate supplemental rules and regulations.[67]
should be subject to some form of regulation, considering the ease with which they can be accessed, and
violations of the regulations must be met with appropriate and proportional disciplinary action. The
suspension of a violating television program would be a sufficient punishment and serve as a deterrent Based on the foregoing pronouncements and analyzing the law in question, petitioners protestation
for those responsible. The prevention of the broadcast of petitioners television program is justified, and about undue delegation of legislative power for the sole reason that PD 1986 does not provide for a
does not constitute prohibited prior restraint. It behooves the Court to respond to the needs of the range of penalties for violation of the law is untenable. His thesis is that MTRCB, in promulgating the IRR
changing times, and craft jurisprudence to reflect these times. of PD 1986, prescribing a schedule of penalties for violation of the provisions of the decree, went beyond
the terms of the law.
Petitioner, in questioning the three-month suspension, also tags as unconstitutional the very law
creating the MTRCB, arguing that PD 1986, as applied to him, infringes also upon his freedom of religion. Petitioners posture is flawed by the erroneous assumptions holding it together, the first assumption
The Court has earlier adequately explained why petitioners undue reliance on the religious freedom being that PD 1986 does not prescribe the imposition of, or authorize the MTRCB to impose, penalties
cannot lend justification, let alone an exempting dimension to his licentious utterances in his program. for violators of PD 1986. As earlier indicated, however, the MTRCB, by express and direct conferment of
The Court sees no need to address anew the repetitive arguments on religious freedom. As earlier power and functions, is charged with supervising and regulating, granting, denying, or canceling permits
discussed in the disposition of the petition in G.R. No. 164785, what was uttered was in no way a for the exhibition and/or television broadcast of all motion pictures, television programs, and publicity
religious speech. Parenthetically, petitioners attempt to characterize his speech as a legitimate defense materials to the end that no such objectionable pictures, programs, and materials shall be exhibited
of his religion fails miserably. He tries to place his words in perspective, arguing evidently as an and/or broadcast by television. Complementing this provision is Sec. 3(k) of the decree authorizing the
afterthought that this was his method of refuting the alleged distortion of his statements by the INC MTRCB to exercise such powers and functions as may be necessary or incidental to the attainment of the
hosts of Ang Tamang Daan. But on the night he uttered them in his television program, the word simply purpose and objectives of [the law]. As earlier explained, the investiture of supervisory, regulatory, and
came out as profane language, without any warning or guidance for undiscerning ears. disciplinary power would surely be a meaningless grant if it did not carry with it the power to penalize
the supervised or the regulated as may be proportionate to the offense committed, charged, and
As to petitioners other argument about having been denied due process and equal protection of the law, proved. As the Court said in Chavez v. National Housing Authority:
suffice it to state that we have at length debunked similar arguments in G.R. No. 164785. There is no
x x x [W]hen a general grant of power is conferred or duty enjoined, every particular power necessary for its jurisdiction. The MTRCB cannot extend its exercise of regulation beyond what the law provides. Only
the exercise of the one or the performance of the other is also conferred. x x x [W]hen the statute does persons, offenses, and penalties clearly falling clearly within the letter and spirit of PD 1986 will be
not specify the particular method to be followed or used by a government agency in the exercise of the considered to be within the decrees penal or disciplinary operation. And when it exists, the reasonable
power vested in it by law, said agency has the authority to adopt any reasonable method to carry out its doubt must be resolved in favor of the person charged with violating the statute and for whom the
function.[68] penalty is sought. Thus, the MTRCBs decision in Administrative Case No. 01-04 dated September 27,
2004 and the subsequent order issued pursuant to said decision must be modified. The suspension
should cover only the television program on which petitioner appeared and uttered the offensive and
Given the foregoing perspective, it stands to reason that the power of the MTRCB to regulate and obscene language, which sanction is what the law and the facts obtaining call for.
supervise the exhibition of TV programs carries with it or necessarily implies the authority to take
effective punitive action for violation of the law sought to be enforced. And would it not be logical too to In ending, what petitioner obviously advocates is an unrestricted speech paradigm in which absolute
say that the power to deny or cancel a permit for the exhibition of a TV program or broadcast necessarily permissiveness is the norm. Petitioners flawed belief that he may simply utter gutter profanity on
includes the lesser power to suspend? television without adverse consequences, under the guise of free speech, does not lend itself to
acceptance in this jurisdiction. We repeat: freedoms of speech and expression are not absolute
The MTRCB promulgated the IRR of PD 1986 in accordance with Sec. 3(a) which, for reference, provides freedoms. To say any act that restrains speech should be greeted with furrowed brows is not to say that
that agency with the power [to] promulgate such rules and regulations as are necessary or proper for the any act that restrains or regulates speech or expression is per se invalid. This only recognizes the
implementation of this Act, and the accomplishment of its purposes and objectives x x x. And Chapter importance of freedoms of speech and expression, and indicates the necessity to carefully scrutinize acts
XIII, Sec. 1 of the IRR providing: that may restrain or regulate speech.
Section 1. VIOLATIONS AND ADMINISTRATIVE SANCTIONS.Without prejudice to the immediate filing of
the appropriate criminal action and the immediate seizure of the pertinent articles pursuant to Section WHEREFORE, the decision of the MTRCB in Adm. Case No. 01-04 dated September 27, 2004 is hereby
13, any violation of PD 1986 and its Implementing Rules and Regulations governing motion pictures, AFFIRMED with the MODIFICATION of limiting the suspension to the program Ang Dating Daan. As thus
television programs, and related promotional materials shall be penalized with suspension or modified, the fallo of the MTRCB shall read as follows:
cancellation of permits and/or licenses issued by the Board and/or with the imposition of fines and other WHEREFORE, in view of all the foregoing, a Decision is hereby rendered, imposing a penalty of THREE (3)
administrative penalty/penalties. The Board recognizes the existing Table of Administrative Penalties MONTHS SUSPENSION on the television program, Ang Dating Daan, subject of the instant petition.
attached without prejudice to the power of the Board to amend it when the need arises. In the Co-respondents Joselito Mallari, Luzviminda Cruz, and UNTV Channel 37 and its owner, PBC, are hereby
meantime the existing revised Table of Administrative Penalties shall be enforced. (Emphasis added.) exonerated for lack of evidence.Costs against petitioner. SO ORDERED.
MARCH 15, 2010
VELASCO, JR., J.:
This is, in the final analysis, no more than a measure to specifically implement the aforequoted Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the Decision of the Court
provisions of Sec. 3(d) and (k). Contrary to what petitioner implies, the IRR does not expand the mandate dated April 29, 2009, modifying that of the Movie and Television Review and Classification Board
of the MTRCB under the law or partake of the nature of an unauthorized administrative legislation. The (MTRCB) by imposing the penalty of three-month suspension on the television show Ang Dating Daan,
MTRCB cannot shirk its responsibility to regulate the public airwaves and employ such means as it can as instead of on petitioner Soriano, as host of that program.
a guardian of the public.
In Sec. 3(c), one can already find the permissible actions of the MTRCB, along with the standards to be Petitioner seeks reconsideration on the following grounds or issues: (1) the suspension thus meted out
applied to determine whether there have been statutory breaches. The MTRCB may evaluate motion to the program constitutes prior restraint; (2) the Court erred in ruling that his utterances1 did not
pictures, television programs, and publicity materials applying contemporary Filipino cultural values as constitute exercise of religion; (3) the Court erred in finding the language used as offensive and obscene;
standard, and, from there, determine whether these audio and video materials are objectionable for (4) the Court should have applied its policy of non-interference in cases of conflict between religious
being immoral, indecent, contrary to law and/or good customs, [etc.] x x x and apply the sanctions it groups; and (5) the Court erred in penalizing the television program for the acts of petitioner.
deems proper. The lawmaking body cannot possibly provide for all the details in the enforcement of a
particular statute.[69] The grant of the rule-making power to administrative agencies is a relaxation of The motion has no merit.
the principle of separation of powers and is an exception to the non-delegation of legislative powers.[70] Petitioners threshold posture that the suspension thus imposed constitutes prior restraint and an
Administrative regulations or subordinate legislation calculated to promote the public interest are abridgement of his exercise of religion and freedom of expression is a mere rehash of the position he
necessary because of the growing complexity of modern life, the multiplication of the subjects of articulated in the underlying petitions for certiorari and expounded in his memorandum.2 So are the
governmental regulations, and the increased difficulty of administering the law.[71] Allowing the MTRCB supportive arguments and some of the citations of decisional law, Philippine and American, holding it
some reasonable elbow-room in its operations and, in the exercise of its statutory disciplinary functions, together. They have been considered, sufficiently discussed in some detail, and found to be without
according it ample latitude in fixing, by way of an appropriate issuance, administrative penalties with due merit in our Decision. It would, thus, make little sense to embark on another lengthy discussion of the
regard for the severity of the offense and attending mitigating or aggravating circumstances, as the case same issues and arguments.
may be, would be consistent with its mandate to effectively and efficiently regulate the movie and
television industry. Suffice it to reiterate that the sanction imposed on the TV program in question does not, under the
factual milieu of the case, constitute prior restraint, but partakes of the nature of subsequent
But even as we uphold the power of the MTRCB to review and impose sanctions for violations of PD punishment for past violation committed by petitioner in the course of the broadcast of the program on
1986, its decision to suspend petitioner must be modified, for nowhere in that issuance, particularly the August 10, 2004. To be sure, petitioner has not contested the fact of his having made statements on the
power-defining Sec. 3 nor in the MTRCB Schedule of Administrative Penalties effective January 1, 1999 is air that were contextually violative of the programs "G" rating. To merit a "G" rating, the program must
the Board empowered to suspend the program host or even to prevent certain people from appearing in be "suitable for all ages," which, in turn, means that the "material for television [does not], in the
television programs. The MTRCB, to be sure, may prohibit the broadcast of such television programs or judgment of the [MTRCB], x x x contain anything unsuitable for children and minors, and may be viewed
cancel permits for exhibition, but it may not suspend television personalities, for such would be beyond without adult guidance or 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 ages, and is program is beyond MTRCBs review and regulatory authority. We reproduce what the Court pertinently
wholly inappropriate for children. wrote in Iglesia ni Cristo:

Petitioner next harps on the primacy of his freedoms, referring particularly to the exercise of his religious We thus reject petitioners postulate that its religious program is per se beyond review by the
beliefs and profession, as presiding minister of his flock, over the right and duty of the state as parens respondent [MTRCB]. Its public broadcast on TV of its religious program brings it out of the bosom of
patriae. Petitioners position may be accorded some cogency, but for the fact that it fails to consider that internal belief. Television is a medium that reaches even the eyes and ears of children. The Court iterates
the medium he used to make his statements was a television broadcast, which is accessible to children of the rule that the exercise of religious freedom can be regulated by the State when it will bring about the
virtually all ages. As already laid down in the Decision subject of this recourse, the interest of the clear and present danger of some substantive evil which the State is duty bound to prevent, i.e. serious
government in protecting children who may be subjected to petitioners invectives must take detriment to the more overriding interest of public health, public morals, or public welfare. A laissez faire
precedence over his desire to air publicly his dirty laundry. The public soapbox that is television must be policy on the exercise of religion can be seductive to the liberal mind but history counsels the Court
guarded by the state, which purpose the MTRCB serves, and has served, in suspending Ang Dating Daan against its blind adoption as religion is and continues to be a volatile area of concern in our country
for petitioners statements. As emphasized in Gonzalez v. Kalaw Katigbak,4 the freedom of broadcast today. Across the sea and in our shore, the bloodiest and bitterest wars fought by men were caused by
media is, in terms of degree of protection it deserves, lesser in scope, especially as regards television, irreconcilable religious differences. Our country is still not safe from the recurrence of this stultifying
which reaches every home where there is a set, and where children will likely be among the avid viewers strife considering our warring religious beliefs and the fanaticism with which some of us cling and claw to
of the programs shown. The same case also laid the basis for the classification system of the MTRCB these beliefs. x x x For when religion divides and its exercise destroys, the State should not stand still.8
when it stated, "It cannot be denied though that the State as parens patriae is called upon to manifest an (Emphasis added.)
attitude of caring for the welfare of the young."5
Lastly, petitioner claims that there was violation of due process of law, alleging that the registered
The penalty of suspension imposed on petitioner has driven him to liken the Court to "a blind man who producer of the program is not a party to the proceedings. Hence, the program cannot, so petitioner
was asked to describe an elephant, and by his description he stubbornly believed that an elephant is just asserts, be penalized.
the same as a Meralco post after touching one if its legs."6 Petitioner makes this comparison with the We will let the records speak for themselves to refute that argument.
view that the factual backdrop against which his statements were made was purportedly not considered
by the Court. As he presently argues: As per petitioners admission in his petition for certiorari filed with the Court, he is "the Executive
Producer of Ang Dating Daan, a televised bible exposition program produced by the Philippine-based
The Honorable Court should have rendered its decision in light of the surrounding circumstances why religious organization, Church of God International."9 It is unclear, then, which producer the movant is
and what prompted herein petitioner to utter those words. Clearly, he was provoked because of the referring to in claiming that there was no representation before the MTRCB. He was and is the
malicious and blatant splicing by the INC ministers of his recorded voice. Verily, Petitioner submits that representative of Ang Dating Daan, and the claim that there was no due process of law is simply bereft of
the choice of words he used has been harsh but strongly maintains that the same was consistent with his merit.
constitutional right of freedom of speech and religion.
Even as the foregoing disquisitions would suffice to write finis to the instant motion, certain relevant
Contrary to petitioners impression, the Court has, in fact, considered the factual antecedents of and his issues have been raised by some members of the Court that ought to be addressed if only to put things
motive in making his utterances, and has found those circumstances wanting as defense for violating the in their proper perspective. We refer to the matter of obscenity.
programs "G" rating. Consider the following excerpts from the Courts Decision:
As stressed at every possible turn in the challenged Courts Decision, the defining standards to be
There is nothing in petitioners statements subject of the complaints expressing any particular religious employed in judging the harmful effects of the statements petitioner used would be those for the
belief, nothing furthering his avowed evangelical mission. The fact that he came out with his statements average child, not those for the average adult. We note that the ratings and regulation of television
in a televised bible exposition program does not automatically accord them the character of a religious broadcasts take into account the protection of the child, and it is from the childs narrow viewpoint that
discourse. Plain and simple insults directed at another person cannot be elevated to the status of the utterances must be considered, if not measured. The ratings "G," "PG" (parental guidance), "PG-13,"
religious speech. Even petitioners attempts to place his words in context show that he was moved by and "R" (restricted or for adults only) suggest as much. The concern was then, as now, that the program
anger and the need to seek retribution, not by any religious conviction. His claim, assuming its veracity, petitioner hosted and produced would reach an unintended audience, the average child, and so it is how
that some INC ministers distorted his statements respecting amounts Ang Dating Daan owed to a TV this audience would view his words that matters. The average child would not be concerned with
station does not convert the foul language used in retaliation as religious speech. We cannot accept that colorful speech, but, instead, focus on the literal, everyday meaning of words used. It was this literal
petitioner made his statements in defense of his reputation and religion, as they constitute no intelligible approach that rendered petitioners utterances obscene.1avvphi1
defense or refutation of the alleged lies being spread by a rival religious group. They simply illustrate that
petitioner had descended to the level of name-calling and foul-language discourse. Petitioner could have The Court has taken stock of Action for Childrens Television v. FCC,10 but finds this U.S. case not to be of
chosen to contradict and disprove his detractors, but opted for the low road. governing application to this jurisdiction under the present state of things. The so-called "safe harbor" of
10:00 p.m. to 6:00 a.m., adverted to in Action for Childrens Television as the time wherein broadcast of
And just to set things straight, the penalty imposed is on the program, not on petitioner. indecent material 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 indecent material
Petitioner would next have the Court adopt a hands-off approach to the conflict between him and the may be broadcast. Rather than fix a period for allowing indecent programming, what is used in this
Iglesia Ni Cristo. In support of his urging, he cites Iglesia ni Cristo v. Court of Appeals.7 jurisdiction is the system of classification of television programs, which the petitioner violated. His
program was rated "G," purported to be suitable for all ages. We cannot lose sight of the violation of his
Petitioners invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous. Obviously, he fails programs classification that carried with it the producers implied assurance that the program did not
to appreciate what the Court stated in that particular case when it rejected the argument that a religious contain anything unsuitable for children and minors. The hour at which it was broadcasted was of little
moment in light of the guarantee that the program was safe for childrens viewing.
"WHEREFORE, the aforementioned premises, the respondents are ordered to pay the sum of TWENTY
The suspension of the program has not been arrived at lightly. Taking into account all the factors THOUSAND PESOS (P20,000.00) for non-submission of the program, subject of this case for review and
involved and the arguments pressed on the Court, the suspension of the program is a sufficiently limited approval of the MTRCB.
disciplinary action, both to address the violation and to serve as an object lesson for the future. The
likelihood is great that any disciplinary action imposed on petitioner would be met with an equally Heretofore, all subsequent programs of the The Inside Story and all other programs of the ABS-CBN
energetic defense as has been put up here. The simple but stubborn fact is that there has been a Channel 2 of the same category shall be submitted to the Board of Review and Approval before showing;
violation of government regulations that have been put in place with a laudable purpose, and this otherwise the Board will act accordingly."101awphi1.nt
violation must accordingly be dealt with. We are not unmindful of the concerns on the restriction of
freedoms that may occur in imposing sanctions upon erring individuals and institutions, but it cannot be On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB, issued a Decision dated
over-emphasized that the freedoms encased in the Bill of Rights are far from absolute. Each has its own March 12, 1993 affirming the above ruling of its Investigating Committee.11 Respondents filed a motion
limits, responsibilities, and obligations. Everyone is expected to bear the burden implicit in the exercise for reconsideration but was denied in a Resolution dated April 14, 1993.12
of these freedoms. So it must be here.
Respondents then filed a special civil action for certiorari with the Regional Trial Court (RTC), Branch 77,
WHEREFORE, petitioners motion for reconsideration is hereby DENIED. No further pleadings shall be Quezon City. It seeks to: (1) declare as unconstitutional Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and
entertained in this case. Let entry of judgment be made in due course. SO ORDERED. 1118 of P. D. No. 1986 and Sections 3,19 7,20 and 2821 (a) of the MTRCB Rules and Regulations;22 (2) (in
G.R. No. 155282 January 17, 2005 the alternative) exclude the "The Inside Story" from the coverage of the above cited provisions; and (3)
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD (MTRCB), petitioner, annul and set aside the MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993.
vs.ABS-CBN BROADCASTING CORPORATION and LOREN LEGARDA, respondents. Respondents averred that the above-cited provisions constitute "prior restraint" on respondents
D E C I S I O N: SANDOVAL-GUTIERREZ, J.: exercise of freedom of expression and of the press, and, therefore, unconstitutional. Furthermore, the
above cited provisions do not apply to the "The Inside Story" because it falls under the category of
For our resolution is the petition for review on certiorari under Rule 45 of the 1997 Rules of Court, as "public affairs program, news documentary, or socio-political editorials" governed by standards similar to
amended, filed by petitioner Movie and Television Review and Classification Board (MTRCB) against ABS- those governing newspapers.
CBN Broadcasting Corporation (ABS-CBN) and former Senator Loren Legarda, respondents, assailing the
(a) Decision dated November 18, 1997,1 and (b) Order dated August 26, 20022 of the Regional Trial On November 18, 1997, the RTC rendered a Decision23 in favor of respondents, the dispositive portion
Court, Branch 77, Quezon City, in Civil Case No. Q-93-16052. of which reads:

The facts are undisputed. "WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired "Prosti-tuition," an episode of
the television (TV) program "The Inside Story" produced and hosted by respondent Legarda. It depicted 1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution of MTRCB dated March 12,
female students moonlighting as prostitutes to enable them to pay for their tuition fees. In the course of 1993;
the program, student prostitutes, pimps, customers, and some faculty members were interviewed. The 2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and 11 of P.D. No. 1986 and Sections
Philippine Womens University (PWU) was named as the school of some of the students involved and the 3, 7, 28 (a) of its Implementing Rules do not cover the TV Program "The Inside Story" and other similar
facade of PWU Building at Taft Avenue, Manila conspicuously served as the background of the episode. programs, they being public affairs programs which can be equated to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all persons acting in their behalf.
The showing of "The Inside Story" caused uproar in the PWU community. Dr. Leticia P. de Guzman, SO ORDERED."
Chancellor and Trustee of the PWU, and the PWU Parents and Teachers Association filed letter- Petitioner filed a motion for reconsideration but was denied.24
complaints3 with petitioner MTRCB. Both complainants alleged that the episode besmirched the name Hence, this petition for review on certiorari.
of the PWU and resulted in the harassment of some of its female students.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all television programs,
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal complaint with the MTRCB including "public affairs programs, news documentaries, or socio-political editorials," are subject to
Investigating Committee, alleging among others, that respondents (1) did not submit "The Inside Story" petitioners power of review under Section 3 (b) of P.D. No. 1986 and pursuant to this Courts ruling in
to petitioner for its review and (2) exhibited the same without its permission, thus, violating Section 74 Iglesia ni Cristo vs. Court of Appeals ;25 second, television programs are more accessible to the public
of Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter III and Section 7,7 Chapter IV of the than newspapers, thus, the liberal regulation of the latter cannot apply to the former; third, petitioners
MTRCB Rules and Regulations.8 power to review television programs under Section 3(b) of P. D. No. 1986 does not amount to "prior
restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not violate respondents constitutional
In their answer,9 respondents explained that the "The Inside Story" is a "public affairs program, news freedom of expression and of the press.
documentary and socio-political editorial," the airing of which is protected by the constitutional
provision on freedom of expression and of the press. Accordingly, petitioner has no power, authority and Respondents take the opposite stance.
jurisdiction to impose any form of prior restraint upon respondents. 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.
On February 5, 1993, after hearing and submission of the parties memoranda, the MTRCB Investigating The petition is impressed with merit.
Committee rendered a Decision, the decretal portion of which reads:
The present controversy brings into focus the provisions of Section 3 of P. D. No. 1986, partly reproduced
as follows:
"SEC. 3. Powers and Functions. The BOARD shall have the following functions, powers and duties:x x x x Court declared that freedom of religion has been accorded a preferred status by the framers of our
xx fundamental laws, past and present, "designed to protect the broadest possible liberty of conscience, to
b) To screen, review and examine all motion pictures as herein defined, television programs, including allow each man to believe as his conscience directs x x x." Yet despite the fact that freedom of religion
publicity materials such as advertisements, trailers and stills, whether such motion pictures and publicity has been accorded a preferred status, still this Court, did not exempt the Iglesia ni Cristos religious
materials be for theatrical or non-theatrical distribution, for television broadcast or for general viewing, program from petitioners review power.
imported or produced in the Philippines, and in the latter case, whether they be for local viewing or for
export.1a\^/phi1.net Respondents claim that the showing of "The Inside Story" is protected by the constitutional provision on
c) To approve or disapprove, delete objectionable portions from and/or prohibit the importation, freedom of speech and of the press. However, there has been no declaration at all by the framers of the
exportation, production, copying, distribution, sale, lease exhibition and/or television broadcast of the Constitution that freedom of expression and of the press has a preferred status.
motion pictures, television programs and publicity materials subject of the preceding paragraph, which,
in the judgment of the BOARD applying contemporary Filipino cultural values as standard, are If this Court, in Iglesia ni Cristo, did not exempt religious programs from the jurisdiction and review
objectionable for being immoral, indecent, contrary to law and/or good customs, injurious to the power of petitioner MTRCB, with more reason, there is no justification to exempt therefrom "The Inside
prestige of the Republic of the Philippines or its people, or with a dangerous tendency to encourage the Story" which, according to respondents, is protected by the constitutional provision on freedom of
commission of violence or of a wrong or crime, such as but not limited to: expression and of the press, a freedom bearing no preferred status.
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for the importation, exportation, The only exceptions from the MTRCBs power of review are those expressly mentioned in Section 7 of P.
production, copying, distribution, sale, lease, exhibition, and/or television broadcast of all motion D. No. 1986, such as (1) television programs imprinted or exhibited by the Philippine Government and/or
pictures, television programs and publicity materials, to the end and that no such pictures, programs and its departments and agencies, and (2) newsreels. Thus:
materials as are determined by the BOARD to be objectionable in accordance with paragraph (c) hereof
shall be imported, exported, produced, copied, reproduced, distributed, sold, leased, exhibited and/or "SEC. 7. Unauthorized showing or exhibition. It shall be unlawful for any person or entity to exhibit or
broadcast by television; cause to be exhibited in any moviehouse, theatre, or public place or by television within the Philippines
x x x x x x." any motion picture, television program or publicity material, including trailers, and stills for lobby
displays in connection with motion pictures, not duly authorized by the owner or his assignee and passed
Vis-a-vis the foregoing provisions, our task is to decide whether or not petitioner has the power to by the BOARD; or to print or cause to be printed on any motion picture to be exhibited in any theater or
review the television program "The Inside Story." The task is not Herculean because it merely resurrects public place or by television a label or notice showing the same to have been officially passed by the
this Court En Bancs ruling in Iglesia ni Cristo vs. Court of Appeals.26 There, the Iglesia ni Cristo sought BOARD when the same has not been previously authorized, except motion pictures, television programs
exception from petitioners review power contending that the term "television programs" under Sec. 3 or publicity material imprinted or exhibited by the Philippine Government and/or its departments and
(b) does not include "religious programs" which are protected under Section 5, Article III of the agencies, and newsreels."
Constitution.27 This Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986 gives
petitioner "the power to screen, review and examine "all television programs," emphasizing the phrase Still in a desperate attempt to be exempted, respondents contend that the "The Inside Story" falls under
"all television programs," thus: the category of newsreels.

"The law gives the Board the power to screen, review and examine all television programs. By the clear Their contention is unpersuasive.
terms of the law, the Board has the power to approve, delete x x x and/or prohibit the x x x exhibition
and/or television broadcast of x x x television programs x x x. The law also directs the Board to apply P. D. No. 1986 does not define "newsreels." Websters dictionary defines newsreels as short motion
contemporary Filipino cultural values as standard to determine those which are objectionable for being picture films portraying or dealing with current events.33 A glance at actual samples of newsreels shows
immoral, indecent, contrary to law and/or good customs, injurious to the prestige of the Republic of the that they are mostly reenactments of events that had already happened. Some concrete examples are
Philippines and its people, or with a dangerous tendency to encourage the commission of violence or of those of Dziga Vertovs Russian Kino-Pravda newsreel series (Kino-Pravda means literally "film-truth," a
a wrong or crime." term that was later translated literally into the French cinema verite) and Frank Capras Why We Fight
series.34 Apparently, newsreels are straight presentation of events. They are depiction of "actualities."
Settled is the rule in statutory construction that where the law does not make any exception, courts may Correspondingly, the MTRCB Rules and Regulations35 implementing P. D. No. 1986 define newsreels as
not except something therefrom, unless there is compelling reason apparent in the law to justify it.28 "straight news reporting, as distinguished from news analyses, commentaries and opinions. Talk shows
Ubi lex non distinguit nec distinguere debemos. Thus, when the law says "all television programs," the on a given issue are not considered newsreels."36 Clearly, the "The Inside Story" cannot be considered a
word "all" covers all television programs, whether religious, public affairs, news documentary, etc.29 The newsreel. It is more of a public affairs program which is described as a variety of news treatment; a cross
principle assumes that the legislative body made no qualification in the use of general word or between pure television news and news-related commentaries, analysis and/or exchange of opinions.37
expression.30 Certainly, such kind of program is within petitioners review power.

It then follows that since "The Inside Story" is a television program, it is within the jurisdiction of the It bears stressing that the sole issue here is whether petitioner MTRCB has authority to review "The
MTRCB over which it has power of review. Inside Story." Clearly, we are not called upon to determine whether petitioner violated Section 4, Article
III (Bill of Rights) of the Constitution providing that no law shall be passed abridging the freedom of
Here, respondents sought exemption from the coverage of the term "television programs" on the speech, of oppression or the press. Petitioner did not disapprove or ban the showing of the program.
ground that the "The Inside Story" is a "public affairs program, news documentary and socio-political Neither did it cancel respondents permit. Respondents were merely penalized for their failure to submit
editorial" protected under Section 4,31 Article III of the Constitution. Albeit, respondents basis is not to petitioner "The Inside Story" for its review and approval. Therefore, we need not resolve whether
freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression and of the press, the ruling in certain provisions of P. D. No. 1986 and the MTRCB Rules and Regulations specified by respondents
Iglesia ni Cristo applies squarely to the instant issue. It is significant to note that in Iglesia ni Cristo, this contravene the Constitution.
We trust that within five (5) days from receipt hereof we will receive your favorable response on the
Consequently, we cannot sustain the RTCs ruling that Sections 3 (c) (d), 4, 7 and 11 of P. D. No. 1986 and matter.
Sections 3, 7 and 28 (a) of the MTRCB Rules and Regulations are unconstitutional. It is settled that no Very truly yours,
question involving the constitutionality or validity of a law or governmental act may be heard and (Sgd.) RICARDO C. VALMONTE [Rollo, p. 7.]
decided by the court unless there is compliance with the legal requisites for judicial inquiry, namely: (1)
that the question must be raised by the proper party; (2) that there must be an actual case or To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
controversy; (3) that the question must be raised at the earliest possible opportunity; and, (4) that the
decision on the constitutional or legal question must be necessary to the determination of the case June 17, 1986
itself.38 Atty. Ricardo C. Valmonte
108 E. Benin Street
WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed RTC Decision dated November Caloocan City
18, 1997 and Order dated August 26, 2002 are hereby REVERSED. The Decision dated March 12, 1993 of Dear Compaero:
petitioner MTRCB is AFFIRMED. Costs against respondents. SO ORDERED. Possibly because he must have thought that it contained serious legal implications, President & General
Manager Feliciano Belmonte, Jr. referred to me for study and reply your letter to him of June 4, 1986
SPEECH AND RIGHT OF INFORMATION requesting a list of the opposition members of Batasang Pambansa who were able to secure a clean loan
G.R. No. 74930 February 13, 1989 of P2 million each on guaranty of Mrs. Imelda Marcos.
RICARDO VALMONTE, OSWALDO CARBONELL, DOY DEL CASTILLO, ROLANDO BARTOLOME, LEO My opinion in this regard is that a confidential relationship exists between the GSIS and all those who
OBLIGAR, JUN GUTIERREZ, REYNALDO BAGATSING, JUN "NINOY" ALBA, PERCY LAPID, ROMMEL borrow from it, whoever they may be; that the GSIS has a duty to its customers to preserve this
CORRO and ROLANDO FADUL, petitioners, confidentiality; and that it would not be proper for the GSIS to breach this confidentiality unless so
vs.FELICIANO BELMONTE, JR., respondent. ordered by the courts.
Ricardo C. Valmonte for and in his own behalf and his co-petitioners. As a violation of this confidentiality may mar the image of the GSIS as a reputable financial institution, I
The Solicitor General for respondent. regret very much that at this time we cannot respond positively to your request.
CORTES, J.: Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Petitioners in this special civil action for mandamus with preliminary injunction invoke their right to Deputy General CounseL [Rollo, p. 40.]
information and pray that respondent be directed:
On June 20, 1986, apparently not having yet received the reply of the Government Service and Insurance
System (GSIS) Deputy General Counsel, petitioner Valmonte wrote respondent another letter, saying
that for failure to receive a reply, "(W)e are now considering ourselves free to do whatever action
(a) to furnish petitioners the list of the names of the Batasang Pambansa members belonging to necessary within the premises to pursue our desired objective in pursuance of public interest." [Rollo, p.
the UNIDO and PDP-Laban who were able to secure clean loans immediately before the February 7 8.]
election thru the intercession/marginal note of the then First Lady Imelda Marcos; and/or
(b) to furnish petitioners with certified true copies of the documents evidencing their respective On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant suit.
loans; and/or On July 19, 1986, the Daily Express carried a news item reporting that 137 former members of the
(c) to allow petitioners access to the public records for the subject information. (Petition, pp. 4-5; defunct interim and regular Batasang Pambansa, including ten (10) opposition members, were granted
paragraphing supplied.] housing loans by the GSIS [Rollo, p. 41.]

The controversy arose when petitioner Valmonte wrote respondent Belmonte the following letter: Separate comments were filed by respondent Belmonte and the Solicitor General. After petitioners filed
June 4, 1986 a consolidated reply, the petition was given due course and the parties were required to file their
Hon. Feliciano Belmonte memoranda. The parties having complied, the case was deemed submitted for decision.
GSIS General Manager
Arroceros, Manila In his comment respondent raises procedural objections to the issuance of a writ of mandamus, among
Sir: which is that petitioners have failed to exhaust administrative remedies.
As a lawyer, member of the media and plain citizen of our Republic, I am requesting that I be furnished
with the list of names of the opposition members of (the) Batasang Pambansa who were able to secure a Respondent claims that actions of the GSIS General Manager are reviewable by the Board of Trustees of
clean loan of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand that OIC Mel the GSIS. Petitioners, however, did not seek relief from the GSIS Board of Trustees. It is therefore
Lopez of Manila was one of those aforesaid MPs. Likewise, may we be furnished with the certified true asserted that since administrative remedies were not exhausted, then petitioners have no cause of
copies of the documents evidencing their loan. Expenses in connection herewith shall be borne by us. action.

If we could not secure the above documents could we have access to them? To this objection, petitioners claim that they have raised a purely legal issue, viz., whether or not they
We are premising the above request on the following provision of the Freedom Constitution of the are entitled to the documents sought, by virtue of their constitutional right to information. Hence, it is
present regime. argued that this case falls under one of the exceptions to the principle of exhaustion of administrative
The right of the people to information on matters of public concern shall be recognized. Access to official remedies.
records, and to documents and papers pertaining to official acts, transactions or decisions, shall be
afforded the citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6).
Among the settled principles in administrative law is that before a party can be allowed to resort to the information. For an essential element of these freedoms is to keep open a continuing dialogue or
courts, he is expected to have exhausted all means of administrative redress available under the law. The process of communication between the government and the people. It is in the interest of the State that
courts for reasons of law, comity and convenience will not entertain a case unless the available the channels for free political discussion be maintained to the end that the government may perceive
administrative remedies have been resorted to and the appropriate authorities have been given and be responsive to the people's will. Yet, this open dialogue can be effective only to the extent that the
opportunity to act and correct the errors committed in the administrative forum. However, the principle citizenry is informed and thus able to formulate its will intelligently. Only when the participants in the
of exhaustion of administrative remedies is subject to settled exceptions, among which is when only a discussion are aware of the issues and have access to information relating thereto can such bear fruit.
question of law is involved [Pascual v. Provincial Board, 106 Phil. 466 (1959); Aguilar v. Valencia, et al.,
G.R. No. L-30396, July 30, 1971, 40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, The right to information is an essential premise of a meaningful right to speech and expression. But this
129 SCRA 359.] The issue raised by petitioners, which requires the interpretation of the scope of the is not to say that the right to information is merely an adjunct of and therefore restricted in application
constitutional right to information, is one which can be passed upon by the regular courts more by the exercise of the freedoms of speech and of the press. Far from it. The right to information goes
competently than the GSIS or its Board of Trustees, involving as it does a purely legal question. Thus, the hand-in-hand with the constitutional policies of full public disclosure * and honesty in the public service.
exception of this case from the application of the general rule on exhaustion of administrative remedies ** It is meant to enhance the widening role of the citizenry in governmental decision-making as well as
is warranted. Having disposed of this procedural issue, We now address ourselves to the issue of in checking abuse in government.
whether or not mandamus hes to compel respondent to perform the acts sought by petitioners to be
done, in pursuance of their right to information. Yet, like all the constitutional guarantees, the right to information is not absolute. As stated in Legaspi,
the people's right to information is limited to "matters of public concern," and is further "subject to such
We shall deal first with the second and third alternative acts sought to be done, both of which involve limitations as may be provided by law." Similarly, the State's policy of full disclosure is limited to
the issue of whether or not petitioners are entitled to access to the documents evidencing loans granted "transactions involving public interest," and is "subject to reasonable conditions prescribed by law."
by the GSIS.
Hence, before mandamus may issue, it must be clear that the information sought is of "public interest"
This is not the first time that the Court is confronted with a controversy directly involving the or "public concern," and is not exempted by law from the operation of the constitutional guarantee
constitutional right to information. In Taada v. Tuvera, G.R. No. 63915, April 24,1985, 136 SCRA 27 and [Legazpi v. Civil Service Commission, supra, at p. 542.]
in the recent case of Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150 SCRA 530,
the Court upheld the people's constitutional right to be informed of matters of public interest and The Court has always grappled with the meanings of the terms "public interest" and "public concern". As
ordered the government agencies concerned to act as prayed for by the petitioners. observed in Legazpi:

The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which states: In determining whether or not a particular information is of public concern there is no rigid test which
can be applied. "Public concern" like "public interest" is a term that eludes exact definition. Both terms
The right of the people to information on matters of public concern shall be recognized. Access to official embrace a broad spectrum of subjects which the public may want to know, either because these directly
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to affect their lives, or simply because such matters naturally arouse the interest of an ordinary citezen. In
government research data used as basis for policy development, shall be afforded the citizen, subject to the final analysis, it is for the courts to determine on a case by case basis whether the matter at issue is
such limitations as may be provided by law. of interest or importance, as it relates to or affects the public. [Ibid. at p. 541]

The right of access to information was also recognized in the 1973 Constitution, Art. IV Sec. 6 of which In the Taada case the public concern deemed covered by the constitutional right to information was the
provided: need for adequate notice to the public of the various laws which are to regulate the actions and conduct
of citezens. In Legaspi, it was the "legitimate concern of citezensof ensure that government positions
The right of the people to information on 'matters of public concern shall be recognized. Access to requiring civil service eligibility are occupied only by persons who are eligibles" [Supra at p. 539.]
official records, and to documents and papers pertaining to official acts, transactions, or decisions, shall
be afforded the citizen subject to such limitations as may be provided by law. The information sought by petitioners in this case is the truth of reports that certain Members of the
Batasang Pambansa belonging to the opposition were able to secure "clean" loans from the GSIS
An informed citizenry with access to the diverse currents in political, moral and artistic thought and data immediately before the February 7, 1986 election through the intercession of th eformer First Lady, Mrs.
relative to them, and the free exchange of ideas and discussion of issues thereon, is vital to the Imelda Marcos.
democratic government envisioned under our Constitution. The cornerstone of this republican system of
government is delegation of power by the people to the State. In this system, governmental agencies The GSIS is a trustee of contributions from the government and its employees and the administrator of
and institutions operate within the limits of the authority conferred by the people. Denied access to various insurance programs for the benefit of the latter. Undeniably, its funds assume a public character.
information on the inner workings of government, the citizenry can become prey to the whims and More particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised Government Service
caprices of those to whom the power had been delegated. The postulate of public office as a public trust, Insurance Act of 1977), provide for annual appropriations to pay the contributions, premiums, interest
institutionalized in the Constitution (in Art. XI, Sec. 1) to protect the people from abuse of governmental and other amounts payable to GSIS by the government, as employer, as well as the obligations which the
power, would certainly be were empty words if access to such information of public concern is denied, Republic of the Philippines assumes or guarantees to pay. Considering the nature of its funds, the GSIS is
except under limitations prescribed by implementing legislation adopted pursuant to the Constitution. expected to manage its resources with utmost prudence and in strict compliance with the pertinent laws
or rules and regulations. Thus, one of the reasons that prompted the revision of the old GSIS law (C.A.
Petitioners are practitioners in media. As such, they have both the right to gather and the obligation to No. 186, as amended) was the necessity "to preserve at all times the actuarial solvency of the funds
check the accuracy of information the disseminate. For them, the freedom of the press and of speech is administered by the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as respondent
not only critical, but vital to the exercise of their professions. The right of access to information ensures himself admits, the GSIS "is not supposed to grant 'clean loans.'" [Comment, p. 8.] It is therefore the
that these freedoms are not rendered nugatory by the government's monopolizing pertinent legitimate concern of the public to ensure that these funds are managed properly with the end in view of
maximizing the benefits that accrue to the insured government employees. Moreover, the supposed
borrowers were Members of the defunct Batasang Pambansa who themselves appropriated funds for It may be observed, however, that in the instant case, the concerned borrowers themselves may not
the GSIS and were therefore expected to be the first to see to it that the GSIS performed its tasks with succeed if they choose to invoke their right to privacy, considering the public offices they were holding at
the greatest degree of fidelity and that an its transactions were above board. the time the loans were alleged to have been granted. It cannot be denied that because of the interest
they generate and their newsworthiness, public figures, most especially those holding responsible
In sum, the public nature of the loanable funds of the GSIS and the public office held by the alleged positions in government, enjoy a more limited right to privacy as compared to ordinary individuals, their
borrowers make the information sought clearly a matter of public interest and concern. actions being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v. Capulong, G.R. Nos. 82380
and 82398, April 29, 1988; See also Cohen v. Marx, 211 P. 2d 321 (1949).]
A second requisite must be met before the right to information may be enforced through mandamus
proceedings, viz., that the information sought must not be among those excluded by law. Respondent next asserts that the documents evidencing the loan transactions of the GSIS are private in
nature and hence, are not covered by the Constitutional right to information on matters of public
Respondent maintains that a confidential relationship exists between the GSIS and its borrowers. It is concern which guarantees "(a)ccess to official records, and to documents, and papers pertaining to
argued that a policy of confidentiality restricts the indiscriminate dissemination of information. official acts, transactions, or decisions" only.

Yet, respondent has failed to cite any law granting the GSIS the privilege of confidentiality as regards the It is argued that the records of the GSIS, a government corporation performing proprietary functions, are
documents subject of this petition. His position is apparently based merely on considerations of policy. outside the coverage of the people's right of access to official records.
The judiciary does not settle policy issues. The Court can only declare what the law is, and not what the
law should be. Under our system of government, policy issues are within the domain of the political It is further contended that since the loan function of the GSIS is merely incidental to its insurance
branches of the government, and of the people themselves as the repository of all State power. function, then its loan transactions are not covered by the constitutional policy of full public disclosure
and the right to information which is applicable only to "official" transactions.
Respondent however contends that in view of the right to privacy which is equally protected by the
Constitution and by existing laws, the documents evidencing loan transactions of the GSIS must be First of all, the "constituent ministrant" dichotomy characterizing government function has long been
deemed outside the ambit of the right to information. repudiated. In ACCFA v. Confederation of Unions and Government Corporations and Offices (G.R. Nos. L-
21484 and L-23605, November 29, 1969, 30 SCRA 6441, the Court said that the government, whether
There can be no doubt that right to privacy is constitutionally protected. In the landmark case of Morfe v. carrying out its sovereign attributes or running some business, discharges the same function of service to
Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this Court, speaking through then Mr. Justice Fernando, the people.
stated:
Consequently, that the GSIS, in granting the loans, was exercising a proprietary function would not justify
... The right to privacy as such is accorded recognition independently of its identification with liberty; in the exclusion of the transactions from the coverage and scope of the right to information.
itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is particularly apt:
"The concept of limited government has always included the idea that governmental powers stop short Moreover, the intent of the members of the Constitutional Commission of 1986, to include government-
of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions owned and controlled corporations and transactions entered into by them within the coverage of the
between absolute and limited government. UItimate and pervasive control of the individual, in all State policy of fun public disclosure is manifest from the records of the proceedings:
aspects of his life, is the hallmark of the absolute. state, In contrast, a system of limited government xxx xxx xxx
safeguards a private sector, which belongs to the individual, firmly distinguishing it from the public THE PRESIDING OFFICER (Mr. Colayco).
sector, which the state can control. Protection of this private sector protection, in other words, of the Commissioner Suarez is recognized.
dignity and integrity of the individual has become increasingly important as modem society has MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
developed. All the forces of technological age industrialization, urbanization, and organization MR. OPLE. Very gladly.
operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity to MR. SUAREZ. Thank you.
maintain and support this enclave of private life marks the difference between a democratic and a When we declare a "policy of full public disclosure of all its transactions" referring to the transactions
totalitarian society." [at pp. 444-445.] of the State and when we say the "State" which I suppose would include all of the various agencies,
departments, ministries and instrumentalities of the government....
When the information requested from the government intrudes into the privacy of a citizen, a potential MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.
conflict between the rights to information and to privacy may arise. However, the competing interests of MR. SUAREZ. Including government-owned and controlled corporations.
these rights need not be resolved in this case. Apparent from the above-quoted statement of the Court MR. OPLE. That is correct, Mr. Presiding Officer.
in Morfe is that the right to privacy belongs to the individual in his private capacity, and not to public and MR. SUAREZ. And when we say "transactions" which should be distinguished from contracts,
governmental agencies like the GSIS. Moreover, the right cannot be invoked by juridical entities like the agreements, or treaties or whatever, does the Gentleman refer to the steps leading to the
GSIS. As held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982 (1912)], a corporation has consummation of the contract, or does he refer to the contract itself?
no right of privacy in its name since the entire basis of the right to privacy is an injury to the feelings and MR. OPLE. The "transactions" used here I suppose is generic and, therefore, it can cover both steps
sensibilities of the party and a corporation would have no such ground for relief. leading to a contract, and already a consummated contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of the
Neither can the GSIS through its General Manager, the respondent, invoke the right to privacy of its transaction.
borrowers. The right is purely personal in nature [Cf. Atkinson v. John Doherty & Co., 121 Mich 372, 80 MR. OPLE. Yes, subject only to reasonable safeguards on the national interest.
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 MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-25.] (Emphasis
hence may be invoked only by the person whose privacy is claimed to be violated. supplied.)
subsequently conducted by the House Special Committee on Globalization (the House Committee) into
Considering the intent of the framers of the Constitution which, though not binding upon the Court, are the negotiations of the JPEPA.
nevertheless persuasive, and considering further that government-owned and controlled corporations,
whether performing proprietary or governmental functions are accountable to the people, the Court is In the course of its inquiry, the House Committee requested herein respondent Undersecretary Tomas
convinced that transactions entered into by the GSIS, a government-controlled corporation created by Aquino (Usec. Aquino), Chairman of the Philippine Coordinating Committee created under Executive
special legislation are within the ambit of the people's right to be informed pursuant to the Order No. 213 ("Creation of A Philippine Coordinating Committee to Study the Feasibility of the Japan-
constitutional policy of transparency in government dealings. Philippines Economic Partnership Agreement")1 to study and negotiate the proposed JPEPA, and to
furnish the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed the
In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject request, however.
to reasonable regulations that the latter may promulgate relating to the manner and hours of
examination, to the end that damage to or loss of the records may be avoided, that undue interference Congressman Aguja later requested for the same document, but Usec. Aquino, by letter of November 2,
with the duties of the custodian of the records may be prevented and that the right of other persons 2005, replied that the Congressman shall be provided with a copy thereof "once the negotiations are
entitled to inspect the records may be insured [Legaspi v. Civil Service Commission, supra at p. 538, completed and as soon as a thorough legal review of the proposed agreement has been conducted."
quoting Subido v. Ozaeta, 80 Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious. In a separate move, the House Committee, through Congressman Herminio G. Teves, requested
Executive Secretary Eduardo Ermita to furnish it with "all documents on the subject including the latest
However, the same cannot be said with regard to the first act sought by petitioners, i.e., "to furnish draft of the proposed agreement, the requests and offers etc."2 Acting on the request, Secretary Ermita,
petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP- by letter of June 23, 2005, wrote Congressman Teves as follows:
Laban who were able to secure clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda Marcos." In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs] explains that
the Committees request to be furnished all documents on the JPEPA may be difficult to accomplish at
Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to this time, since the proposed Agreement has been a work in progress for about three years. A copy of
official records," the Constitution does not accord them a right to compel custodians of official records to the draft JPEPA will however be forwarded to the Committee as soon as the text thereof is settled and
prepare lists, abstracts, summaries and the like in their desire to acquire information on matters of complete. (Emphasis supplied)
public concern.
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff Commission Chairman
It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well- Edgardo Abon, by letter of July 1, 2005, for copies of the latest text of the JPEPA.
defined, clear and certain legal right to the thing demanded and that it is the imperative duty of Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission does not have a
defendant to perform the act required. The corresponding duty of the respondent to perform the copy of the documents being requested, albeit he was certain that Usec. Aquino would provide the
required act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126 SCRA Congressman with a copy "once the negotiation is completed." And by letter of July 18, 2005, NEDA
203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.] The request of the petitioners Assistant Director-General Margarita R. Songco informed the Congressman that his request addressed to
fails to meet this standard, there being no duty on the part of respondent to prepare the list requested. Director-General Neri had been forwarded to Usec. Aquino who would be "in the best position to
respond" to the request.
WHEREFORE, the instant petition is hereby granted and respondent General Manager of the
Government Service Insurance System is ORDERED to allow petitioners access to documents and records In its third hearing conducted on August 31, 2005, the House Committee resolved to issue a subpoena
evidencing loans granted to Members of the former Batasang Pambansa, as petitioners may specify, for the most recent draft of the JPEPA, but the same was not pursued because by Committee Chairman
subject to reasonable regulations as to the time and manner of inspection, not incompatible with this Congressman Teves information, then House Speaker Jose de Venecia had requested him to hold in
decision, as the GSIS may deem necessary. SO ORDERED. abeyance the issuance of the subpoena until the President gives her consent to the disclosure of the
documents.3
AKBAYAN CITIZENS ACTION PARTY ("AKBAYAN"), PAMBANSANG KATIPUNAN NG MGA SAMAHAN SA
KANAYUNAN ("PKSK") et al. vs THOMAS G. AQUINO, in his capacity as Undersecretary of the Department Amid speculations that the JPEPA might be signed by the Philippine government within December 2005,
of Trade and Industry (DTI) and Chairman and Chief Delegate of the Philippine Coordinating Committee the present petition was filed on December 9, 2005.4 The agreement was to be later signed on
(PCC) for the Japan-Philippines Economic Partnership Agreement, EDSEL T. CUSTODIO, in his capacity as September 9, 2006 by President Gloria Macapagal-Arroyo and Japanese Prime Minister Junichiro Koizumi
Undersecretary of the Department of Foreign Affairs (DFA) et al. in Helsinki, Finland, following which the President endorsed it to the Senate for its concurrence pursuant
CARPIO MORALES, J.: to Article VII, Section 21 of the Constitution. To date, the JPEPA is still being deliberated upon by the
G.R. No. 170516 July 16, 2008 Senate.
Petitioners non-government organizations, Congresspersons, citizens and taxpayers seek via the
present petition for mandamus and prohibition to obtain from respondents the full text of the Japan- The JPEPA, which will be the first bilateral free trade agreement to be entered into by the Philippines
Philippines Economic Partnership Agreement (JPEPA) including the Philippine and Japanese offers with another country in the event the Senate grants its consent to it, covers a broad range of topics
submitted during the negotiation process and all pertinent attachments and annexes thereto. which respondents enumerate as follows: trade in goods, rules of origin, customs procedures, paperless
trading, trade in services, investment, intellectual property rights, government procurement, movement
Petitioners Congressmen Lorenzo R. Taada III and Mario Joyo Aguja filed on January 25, 2005 House of natural persons, cooperation, competition policy, mutual recognition, dispute avoidance and
Resolution No. 551 calling for an inquiry into the bilateral trade agreements then being negotiated by the settlement, improvement of the business environment, and general and final provisions.5
Philippine government, particularly the JPEPA. The Resolution became the basis of an inquiry
While the final text of the JPEPA has now been made accessible to the public since September 11, 2006,6 A discussion of the substantive issues, insofar as they impinge on petitioners demand for access to the
respondents do not dispute that, at the time the petition was filed up to the filing of petitioners Reply Philippine and Japanese offers, is thus in order.
when the JPEPA was still being negotiated the initial drafts thereof were kept from public view.
Grounds relied upon by petitioners
Before delving on the substantive grounds relied upon by petitioners in support of the petition, the Court
finds it necessary to first resolve some material procedural issues. Petitioners assert, first, that the refusal of the government to disclose the documents bearing on the
JPEPA negotiations violates their right to information on matters of public concern13 and contravenes
Standing other constitutional provisions on transparency, such as that on the policy of full public disclosure of all
transactions involving public interest.14 Second, they contend that non-disclosure of the same
For a petition for mandamus such as the one at bar to be given due course, it must be instituted by a documents undermines their right to effective and reasonable participation in all levels of social,
party aggrieved by the alleged inaction of any tribunal, corporation, board or person which unlawfully political, and economic decision-making.15 Lastly, they proffer that divulging the contents of the JPEPA
excludes said party from the enjoyment of a legal right.7 Respondents deny that petitioners have such only after the agreement has been concluded will effectively make the Senate into a mere rubber stamp
standing to sue. "[I]n the interest of a speedy and definitive resolution of the substantive issues raised," of the Executive, in violation of the principle of separation of powers.
however, respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of
Executive Secretary8 which emphasizes the need for a "personal stake in the outcome of the Significantly, the grounds relied upon by petitioners for the disclosure of the latest text of the JPEPA are,
controversy" on questions of standing. except for the last, the same as those cited for the disclosure of the Philippine and Japanese offers.

In a petition anchored upon the right of the people to information on matters of public concern, which is The first two grounds relied upon by petitioners which bear on the merits of respondents claim of
a public right by its very nature, petitioners need not show that they have any legal or special interest in privilege shall be discussed. The last, being purely speculatory given that the Senate is still deliberating
the result, it being sufficient to show that they are citizens and, therefore, part of the general public on the JPEPA, shall not.
which possesses the right.9 As the present petition is anchored on the right to information and
petitioners are all suing in their capacity as citizens and groups of citizens including petitioners-members The JPEPA is a matter of public concern
of the House of Representatives who additionally are suing in their capacity as such, the standing of
petitioners to file the present suit is grounded in jurisprudence. To be covered by the right to information, the information sought must meet the threshold requirement
that it be a matter of public concern. Apropos is the teaching of Legaspi v. Civil Service Commission:
Mootness
In determining whether or not a particular information is of public concern there is no rigid test which
Considering, however, that "[t]he principal relief petitioners are praying for is the disclosure of the can be applied. Public concern like public interest is a term that eludes exact definition. Both terms
contents of the JPEPA prior to its finalization between the two States parties,"10 public disclosure of the embrace a broad spectrum of subjects which the public may want to know, either because these directly
text of the JPEPA after its signing by the President, during the pendency of the present petition, has been affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In
largely rendered moot and academic. 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.16 (Underscoring supplied)
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 164 of the JPEPA itself provides that the From the nature of the JPEPA as an international trade agreement, it is evident that the Philippine and
agreement does not take effect immediately upon the signing thereof. For it must still go through the Japanese offers submitted during the negotiations towards its execution are matters of public concern.
procedures required by the laws of each country for its entry into force, viz: This, respondents do not dispute. They only claim that diplomatic negotiations are covered by the
doctrine of executive privilege, thus constituting an exception to the right to information and the policy
Article 164 of full public disclosure.
Entry into Force
Respondents claim of privilege
This Agreement shall enter into force on the thirtieth day after the date on which the Governments of
the Parties exchange diplomatic notes informing each other that their respective legal procedures It is well-established in jurisprudence that neither the right to information nor the policy of full public
necessary for entry into force of this Agreement have been completed. It shall remain in force unless disclosure is absolute, there being matters which, albeit of public concern or public interest, are
terminated as provided for in Article 165.11 (Emphasis supplied) recognized as privileged in nature. The types of information which may be considered privileged have
been elucidated in Almonte v. Vasquez,17 Chavez v. PCGG,18 Chavez v. Public Estates Authority,19 and
President Arroyos endorsement of the JPEPA to the Senate for concurrence is part of the legal most recently in Senate v. Ermita20 where the Court reaffirmed the validity of the doctrine of executive
procedures which must be met prior to the agreements entry into force. privilege in this jurisdiction and dwelt on its scope.

The text of the JPEPA having then been made accessible to the public, the petition has become moot and Whether a claim of executive privilege is valid depends on the ground invoked to justify it and the
academic to the extent that it seeks the disclosure of the "full text" thereof. context in which it is made.21 In the present case, the ground for respondents claim of privilege is set
forth in their Comment, viz:
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 course of the negotiations.12 x x x The categories of information that may be considered privileged includes matters of diplomatic
character and under negotiation and review. In this case, the privileged character of the diplomatic
negotiations has been categorically invoked and clearly explained by respondents particularly conclusion of the World War declared that we must have "open covenants, openly arrived at." He quickly
respondent DTI Senior Undersecretary. abandoned his thought.

The documents on the proposed JPEPA as well as the text which is subject to negotiations and legal No one who has studied the question believes that such a method of publicity is possible. In the moment
review by the parties fall under the exceptions to the right of access to information on matters of public that negotiations are started, pressure groups attempt to "muscle in." An ill-timed speech by one of the
concern and policy of public disclosure. They come within the coverage of executive privilege. At the parties or a frank declaration of the concession which are exacted or offered on both sides would quickly
time when the Committee was requesting for copies of such documents, the negotiations were ongoing lead to widespread propaganda to block the negotiations. After a treaty has been drafted and its terms
as they are still now and the text of the proposed JPEPA is still uncertain and subject to change. are fully published, there is ample opportunity for discussion before it is approved. (The New American
Considering the status and nature of such documents then and now, these are evidently covered by Government and Its Works, James T. Young, 4th Edition, p. 194) (Emphasis and underscoring supplied)
executive privilege consistent with existing legal provisions and settled jurisprudence.
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export Corp.26 that
Practical and strategic considerations likewise counsel against the disclosure of the "rolling texts" which the President is the sole organ of the nation in its negotiations with foreign countries, viz:
may undergo radical change or portions of which may be totally abandoned. Furthermore, the
negotiations of the representatives of the Philippines as well as of Japan must be allowed to explore "x x x In this vast external realm, with its important, complicated, delicate and manifold problems, the
alternatives in the course of the negotiations in the same manner as judicial deliberations and working President alone has the power to speak or listen as a representative of the nation. He makes treaties
drafts of opinions are accorded strict confidentiality.22 (Emphasis and underscoring supplied) with the advice and consent of the Senate; but he alone negotiates. Into the field of negotiation the
Senate cannot intrude; and Congress itself is powerless to invade it. As Marshall said in his great
The ground relied upon by respondents is thus not simply that the information sought involves a argument of March 7, 1800, in the House of Representatives, "The President is the sole organ of the
diplomatic matter, but that it pertains to diplomatic negotiations then in progress. nation in its external relations, and its sole representative with foreign nations." Annals, 6th Cong., col.
613. . . (Emphasis supplied; underscoring in the original)
Privileged character of diplomatic negotiations
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text of the JPEPA
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In discussing may not be kept perpetually confidential since there should be "ample opportunity for discussion
valid limitations on the right to information, the Court in Chavez v. PCGG held that "information on inter- before [a treaty] is approved" the offers exchanged by the parties during the negotiations continue to
government exchanges prior to the conclusion of treaties and executive agreements may be subject to be privileged even after the JPEPA is published. It is reasonable to conclude that the Japanese
reasonable safeguards for the sake of national interest."23 Even earlier, the same privilege was upheld in representatives submitted their offers with the understanding that "historic confidentiality"27 would
Peoples Movement for Press Freedom (PMPF) v. Manglapus24 wherein the Court discussed the reasons govern the same. Disclosing these offers could impair the ability of the Philippines to deal not only with
for the privilege in more precise terms. Japan but with other foreign governments in future negotiations.

In PMPF v. Manglapus, the therein petitioners were seeking information from the Presidents A ruling that Philippine offers in treaty negotiations should now be open to public scrutiny would
representatives on the state of the then on-going negotiations of the RP-US Military Bases Agreement.25 discourage future Philippine representatives from frankly expressing their views during negotiations.
The Court denied the petition, stressing that "secrecy of negotiations with foreign countries is not While, on first impression, it appears wise to deter Philippine representatives from entering into
violative of the constitutional provisions of freedom of speech or of the press nor of the freedom of compromises, it bears noting that treaty negotiations, or any negotiation for that matter, normally
access to information." The Resolution went on to state, thus: involve a process of quid pro quo, and oftentimes negotiators have to be willing to grant concessions in
an area of lesser importance in order to obtain more favorable terms in an area of greater national
The nature of diplomacy requires centralization of authority and expedition of decision which are interest. Apropos are the following observations of Benjamin S. Duval, Jr.:
inherent in executive action. Another essential characteristic of diplomacy is its confidential nature.
Although much has been said about "open" and "secret" diplomacy, with disparagement of the latter, x x x [T]hose involved in the practice of negotiations appear to be in agreement that publicity leads to
Secretaries of State Hughes and Stimson have clearly analyzed and justified the practice. In the words of "grandstanding," tends to freeze negotiating positions, and inhibits the give-and-take essential to
Mr. Stimson: successful negotiation. As Sissela Bok points out, if "negotiators have more to gain from being approved
by their own sides than by making a reasoned agreement with competitors or adversaries, then they are
"A complicated negotiation . . . cannot be carried through without many, many private talks and inclined to 'play to the gallery . . .'' In fact, the public reaction may leave them little option. It would be a
discussion, man to man; many tentative suggestions and proposals. Delegates from other countries brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel that did not
come and tell you in confidence of their troubles at home and of their differences with other countries involve the return of the entire West Bank, or Israeli leader who stated publicly a willingness to remove
and with other delegates; they tell you of what they would do under certain circumstances and would Israel's existing settlements from Judea and Samaria in return for peace.28 (Emphasis supplied)
not do under other circumstances. . . If these reports . . . should become public . . . who would ever trust
American Delegations in another conference? (United States Department of State, Press Releases, June Indeed, by hampering the ability of our representatives to compromise, we may be jeopardizing higher
7, 1930, pp. 282-284.)." national goals for the sake of securing less critical ones.

xxxx Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the JPEPA
There is frequent criticism of the secrecy in which negotiation with foreign powers on nearly all subjects negotiations constituting no exception. It bears emphasis, however, that such privilege is only
is concerned. This, it is claimed, is incompatible with the substance of democracy. As expressed by one presumptive. For as Senate v. Ermita holds, recognizing a type of information as privileged does not
writer, "It can be said that there is no more rigid system of silence anywhere in the world." (E.J. Young, mean that it will be considered privileged in all instances. Only after a consideration of the context in
Looking Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his efforts for the which the claim is made may it be determined if there is a public interest that calls for the disclosure of
the desired information, strong enough to overcome its traditionally privileged status.
remark is a potential item of discovery and front page news," the objective of the privilege being to
Whether petitioners have established the presence of such a public interest shall be discussed later. For enhance the quality of agency
now, the Court shall first pass upon the arguments raised by petitioners against the application of PMPF decisionshttp://web2.westlaw.com/find/default.wl?rs=WLW7.07&serialnum=1975129772&fn=_top&sv=
v. Manglapus to the present case. Split&tc=-1&findtype=Y&tf=-1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-
C20D9BAA36C4%7d&vr=2.0&rp=%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 35
Arguments proffered by petitioners against the application of PMPF v. Manglapus
The diplomatic negotiations privilege bears a close resemblance to the deliberative process and
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present case, there being presidential communications privilege. It may be readily perceived that the rationale for the confidential
substantial factual distinctions between the two. character of diplomatic negotiations, deliberative process, and presidential communications is similar, if
not identical.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty involved. They
stress that PMPF v. Manglapus involved the Military Bases Agreement which necessarily pertained to The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic negotiations is
matters affecting national security; whereas the present case involves an economic treaty that seeks to meant to encourage a frank exchange of exploratory ideas between the negotiating parties by shielding
regulate trade and commerce between the Philippines and Japan, matters which, unlike those covered such negotiations from public view. Similar to the privilege for presidential communications, the
by the Military Bases Agreement, are not so vital to national security to disallow their disclosure. diplomatic negotiations privilege seeks, through the same means, to protect the independence in
decision-making of the President, particularly in its capacity as "the sole organ of the nation in its
Petitioners argument betrays a faulty assumption that information, to be considered privileged, must external relations, and its sole representative with foreign nations." And, as with the deliberative process
involve national security. The recognition in Senate v. Ermita29 that executive privilege has privilege, the privilege accorded to diplomatic negotiations arises, not on account of the content of the
encompassed claims of varying kinds, such that it may even be more accurate to speak of "executive information per se, but because the information is part of a process of deliberation which, in pursuit of
privileges," cautions against such generalization. the public interest, must be presumed confidential.

While there certainly are privileges grounded on the necessity of safeguarding national security such as The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v. Department of the
those involving military secrets, not all are founded thereon. One example is the "informers privilege," Treasury37 enlightens on the close relation between diplomatic negotiations and deliberative process
or the privilege of the Government not to disclose the identity of a person or persons who furnish privileges. The plaintiffs in that case sought access to notes taken by a member of the U.S. negotiating
information of violations of law to officers charged with the enforcement of that law.30 The suspect team during the U.S.-French tax treaty negotiations. Among the points noted therein were the issues to
involved need not be so notorious as to be a threat to national security for this privilege to apply in any be discussed, positions which the French and U.S. teams took on some points, the draft language agreed
given instance. Otherwise, the privilege would be inapplicable in all but the most high-profile cases, in on, and articles which needed to be amended. Upholding the confidentiality of those notes, Judge Green
which case not only would this be contrary to long-standing practice. It would also be highly prejudicial ruled, thus:
to law enforcement efforts in general.
Negotiations between two countries to draft a treaty represent a true example of a deliberative process.
Also illustrative is the privilege accorded to presidential communications, which are presumed privileged Much give-and-take must occur for the countries to reach an accord. A description of the negotiations at
without distinguishing between those which involve matters of national security and those which do not, any one point would not provide an onlooker a summary of the discussions which could later be relied
the rationale for the privilege being that on as law. It would not be "working law" as the points discussed and positions agreed on would be
subject to change at any date until the treaty was signed by the President and ratified by the Senate.
x x x [a] frank exchange of exploratory ideas and assessments, free from the glare of publicity and
pressure by interested parties, is essential to protect the independence of decision-making of those The policies behind the deliberative process privilege support non-disclosure. Much harm could accrue
tasked to exercise Presidential, Legislative and Judicial power. x x x31 (Emphasis supplied) to the negotiations process if these notes were revealed. Exposure of the pre-agreement positions of the
French negotiators might well offend foreign governments and would lead to less candor by the U. S. in
In the same way that the privilege for judicial deliberations does not depend on the nature of the case recording the events of the negotiations process. As several months pass in between negotiations, this
deliberated upon, so presidential communications are privileged whether they involve matters of lack of record could hinder readily the U. S. negotiating team. Further disclosure would reveal
national security. prematurely adopted policies. If these policies should be changed, public confusion would result easily.

It bears emphasis, however, that the privilege accorded to presidential communications is not absolute, Finally, releasing these snapshot views of the negotiations would be comparable to releasing drafts of
one significant qualification being that "the Executive cannot, any more than the other branches of the treaty, particularly when the notes state the tentative provisions and language agreed on. As drafts
government, invoke a general confidentiality privilege to shield its officials and employees from of regulations typically are protected by the deliberative process privilege, Arthur Andersen & Co. v.
investigations by the proper governmental institutions into possible criminal wrongdoing." 32 This Internal Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of treaties should be accorded
qualification applies whether the privilege is being invoked in the context of a judicial trial or a the same protection. (Emphasis and underscoring supplied)
congressional investigation conducted in aid of legislation.33
Clearly, the privilege accorded to diplomatic negotiations follows as a logical consequence from the
Closely related to the "presidential communications" privilege is the deliberative process privilege privileged character of the deliberative process.
recognized in the United States. As discussed by the U.S. Supreme Court in NLRB v. Sears, Roebuck &
Co,34 deliberative process covers documents reflecting advisory opinions, recommendations and The Court is not unaware that in Center for International Environmental Law (CIEL), et al. v. Office of U.S.
deliberations comprising part of a process by which governmental decisions and policies are formulated. Trade Representative38 where the plaintiffs sought information relating to the just-completed
Notably, the privileged status of such documents rests, not on the need to protect national security but, negotiation of a United States-Chile Free Trade Agreement the same district court, this time under
on the "obvious realization that officials will not communicate candidly among themselves if each
Judge Friedman, consciously refrained from applying the doctrine in Fulbright and ordered the disclosure There being a public policy supporting a privilege for diplomatic negotiations for the reasons explained
of the information being sought. above, the Court sees no reason to modify, much less abandon, the doctrine in PMPF v. Manglapus.

Since the factual milieu in CIEL seemed to call for the straight application of the doctrine in Fulbright, a A second point petitioners proffer in their attempt to differentiate PMPF v. Manglapus from the present
discussion of why the district court did not apply the same would help illumine this Courts own reasons case is the fact that the petitioners therein consisted entirely of members of the mass media, while
for deciding the present case along the lines of Fulbright. petitioners in the present case include members of the House of Representatives who invoke their right
to information not just as citizens but as members of Congress.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding information,
namely, Exemption 5 of the Freedom of Information Act (FOIA).39 In order to qualify for protection Petitioners thus conclude that the present case involves the right of members of Congress to demand
under Exemption 5, a document must satisfy two conditions: (1) it must be either inter-agency or intra- information on negotiations of international trade agreements from the Executive branch, a matter
agency in nature, and (2) it must be both pre-decisional and part of the agency's deliberative or decision- which was not raised in PMPF v. Manglapus.
making process.40
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the mass media, it
Judge Friedman, in CIEL, himself cognizant of a "superficial similarity of context" between the two cases, would be incorrect to claim that the doctrine laid down therein has no bearing on a controversy such as
based his decision on what he perceived to be a significant distinction: he found the negotiators notes the present, where the demand for information has come from members of Congress, not only from
that were sought in Fulbright to be "clearly internal," whereas the documents being sought in CIEL were private citizens.
those produced by or exchanged with an outside party, i.e. Chile. The documents subject of Fulbright
being clearly internal in character, the question of disclosure therein turned not on the threshold The privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect
requirement of Exemption 5 that the document be inter-agency, but on whether the documents were simply because the same privilege is now being claimed under different circumstances. The probability of
part of the agency's pre-decisional deliberative process. On this basis, Judge Friedman found that "Judge the claim succeeding in the new context might differ, but to say that the privilege, as such, has no
Green's discussion [in Fulbright] of the harm that could result from disclosure therefore is irrelevant, validity at all in that context is another matter altogether.
since the documents at issue [in CIEL] are not inter-agency, and the Court does not reach the question of
deliberative process." (Emphasis supplied) The Courts statement in Senate v. Ermita that "presidential refusals to furnish information may be
actuated by any of at least three distinct kinds of considerations [state secrets privilege, informers
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be irrelevant in light of privilege, and a generic privilege for internal deliberations], and may be asserted, with differing degrees
its distinct factual setting. Whether this conclusion was valid a question on which this Court would not of success, in the context of either judicial or legislative investigations,"41 implies that a privilege, once
pass the ruling in Fulbright that "[n]egotiations between two countries to draft a treaty represent a recognized, may be invoked under different procedural settings. That this principle holds true
true example of a deliberative process" was left standing, since the CIEL court explicitly stated that it did particularly with respect to diplomatic negotiations may be inferred from PMPF v. Manglapus itself,
not reach the question of deliberative process. where the Court held that it is the President alone who negotiates treaties, and not even the Senate or
the House of Representatives, unless asked, may intrude upon that process.
Going back to the present case, the Court recognizes that the information sought by petitioners includes
documents produced and communicated by a party external to the Philippine government, namely, the Clearly, the privilege for diplomatic negotiations may be invoked not only against citizens demands for
Japanese representatives in the JPEPA negotiations, and to that extent this case is closer to the factual information, but also in the context of legislative investigations.
circumstances of CIEL than those of Fulbright.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of diplomatic
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the principle articulated in negotiations cannot be considered irrelevant in resolving the present case, the contextual differences
Fulbright that the public policy underlying the deliberative process privilege requires that diplomatic between the two cases notwithstanding.
negotiations should also be accorded privileged status, even if the documents subject of the present case
cannot be described as purely internal in character. As third and last point raised against the application of PMPF v. Manglapus in this case, petitioners
proffer that "the socio-political and historical contexts of the two cases are worlds apart." They claim
It need not be stressed that in CIEL, the court ordered the disclosure of information based on its finding that the constitutional traditions and concepts prevailing at the time PMPF v. Manglapus came about,
that the first requirement of FOIA Exemption 5 that the documents be inter-agency was not met. In particularly the school of thought that the requirements of foreign policy and the ideals of transparency
determining whether the government may validly refuse disclosure of the exchanges between the U.S. were incompatible with each other or the "incompatibility hypothesis," while valid when international
and Chile, it necessarily had to deal with this requirement, it being laid down by a statute binding on relations were still governed by power, politics and wars, are no longer so in this age of international
them. cooperation.42

In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any statutory requirement Without delving into petitioners assertions respecting the "incompatibility hypothesis," the Court notes
similar to FOIA Exemption 5 in particular. Hence, Philippine courts, when assessing a claim of privilege for that the ruling in PMPF v. Manglapus is grounded more on the nature of treaty negotiations as such than
diplomatic negotiations, are more free to focus directly on the issue of whether the privilege being on a particular socio-political school of thought. If petitioners are suggesting that the nature of treaty
claimed is indeed supported by public policy, without having to consider as the CIEL court did if these negotiations have so changed that "[a]n ill-timed speech by one of the parties or a frank declaration of
negotiations fulfill a formal requirement of being "inter-agency." Important though that requirement the concession which are exacted or offered on both sides" no longer "lead[s] to widespread propaganda
may be in the context of domestic negotiations, it need not be accorded the same significance when to block the negotiations," or that parties in treaty negotiations no longer expect their communications
dealing with international negotiations. to be governed by historic confidentiality, the burden is on them to substantiate the same. This
petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process Similarly, Senate Select Committee v. Nixon,51 which involved a claim of the presidential
communications privilege against the subpoena duces tecum of a Senate committee, spoke of the need
Petitioners admit that "diplomatic negotiations on the JPEPA are entitled to a reasonable amount of to balance such claim with the duty of Congress to perform its legislative functions.
confidentiality so as not to jeopardize the diplomatic process." They argue, however, that the same is
privileged "only at certain stages of the negotiating process, after which such information must The staged decisional structure established in Nixon v. Sirica was designed to ensure that the President
necessarily be revealed to the public."43 They add that the duty to disclose this information was vested and those upon whom he directly relies in the performance of his duties could continue to work under a
in the government when the negotiations moved from the formulation and exploratory stage to the general assurance that their deliberations would remain confidential. So long as the presumption that
firming up of definite propositions or official recommendations, citing Chavez v. PCGG44 and Chavez v. the public interest favors confidentiality can be defeated only by a strong showing of need by another
PEA.45 institution of government- a showing that the responsibilities of that institution cannot responsibly be
fulfilled without access to records of the President's deliberations- we believed in Nixon v. Sirica, and
The following statement in Chavez v. PEA, however, suffices to show that the doctrine in both that case continue to believe, that the effective functioning of the presidential office will not be impaired. x x x
and Chavez v. PCGG with regard to the duty to disclose "definite propositions of the government" does
not apply to diplomatic negotiations: x x x xThe sufficiency of the Committee's showing of need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the performance of its legislative functions. x x x
We rule, therefore, that the constitutional right to information includes official information on on-going (Emphasis and underscoring supplied)
negotiations before a final contract. The information, however, must constitute definite propositions by
the government and should not cover recognized exceptions like privileged information, military and In re Sealed Case52 involved a claim of the deliberative process and presidential communications
diplomatic secrets and similar matters affecting national security and public order. x x x46 (Emphasis and privileges against a subpoena duces tecum of a grand jury. On the claim of deliberative process privilege,
underscoring supplied) the court stated:

It follows from this ruling that even definite propositions of the government may not be disclosed if they The deliberative process privilege is a qualified privilege and can be overcome by a sufficient showing of
fall under "recognized exceptions." The privilege for diplomatic negotiations is clearly among the need. This need determination is to be made flexibly on a case-by-case, ad hoc basis. "[E]ach time [the
recognized exceptions, for the footnote to the immediately quoted ruling cites PMPF v. Manglapus itself deliberative process privilege] is asserted the district court must undertake a fresh balancing of the
as an authority. competing interests," taking into account factors such as "the relevance of the evidence," "the
availability of other evidence," "the seriousness of the litigation," "the role of the government," and the
Whether there is sufficient public interest to overcome the claim of privilege "possibility of future timidity by government employees. x x x (Emphasis, italics and underscoring
supplied)
It being established that diplomatic negotiations enjoy a presumptive privilege against disclosure, even
against the demands of members of Congress for information, the Court shall now determine whether Petitioners have failed to present the strong and "sufficient showing of need" referred to in the
petitioners have shown the existence of a public interest sufficient to overcome the privilege in this immediately cited cases. The arguments they proffer to establish their entitlement to the subject
instance. documents fall short of this standard.

To clarify, there are at least two kinds of public interest that must be taken into account. One is the Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA negotiation
presumed public interest in favor of keeping the subject information confidential, which is the reason for process effectively results in the bargaining away of their economic and property rights without their
the privilege in the first place, and the other is the public interest in favor of disclosure, the existence of knowledge and participation, in violation of the due process clause of the Constitution. They claim,
which must be shown by the party asking for information. 47 moreover, that it is essential for the people to have access to the initial offers exchanged during the
negotiations since only through such disclosure can their constitutional right to effectively participate in
The criteria to be employed in determining whether there is a sufficient public interest in favor of decision-making be brought to life in the context of international trade agreements.
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 Sealed Case.50 Whether it can accurately be said that the Filipino people were not involved in the JPEPA negotiations is
a question of fact which this Court need not resolve. Suffice it to state that respondents had presented
U.S. v. Nixon, which involved a claim of the presidential communications privilege against the subpoena documents purporting to show that public consultations were conducted on the JPEPA. Parenthetically,
duces tecum of a district court in a criminal case, emphasized the need to balance such claim of privilege petitioners consider these "alleged consultations" as "woefully selective and inadequate."53
against the constitutional duty of courts to ensure a fair administration of criminal justice.
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine and Japanese
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial representatives have not been disclosed to the public, the Court shall pass upon the issue of whether
would cut deeply into the guarantee of due process of law and gravely impair the basic function of the access to the documents bearing on them is, as petitioners claim, essential to their right to participate in
courts. A Presidents acknowledged need for confidentiality in the communications of his office is decision-making.
general in nature, whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal case in the The case for petitioners has, of course, been immensely weakened by the disclosure of the full text of
administration of justice. Without access to specific facts a criminal prosecution may be totally the JPEPA to the public since September 11, 2006, even as it is still being deliberated upon by the Senate
frustrated. The Presidents broad interest in confidentiality of communications will not be vitiated by and, therefore, not yet binding on the Philippines. Were the Senate to concur with the validity of the
disclosure of a limited number of conversations preliminarily shown to have some bearing on the JPEPA at this moment, there has already been, in the words of PMPF v. Manglapus, "ample opportunity
pending criminal cases. (Emphasis, italics and underscoring supplied) for discussion before [the treaty] is approved."
The text of the JPEPA having been published, petitioners have failed to convince this Court that they will In our system of government, the President, being the head of state, is regarded as the sole organ and
not be able to meaningfully exercise their right to participate in decision-making unless the initial offers authority in external relations and is the country's sole representative with foreign nations. As the chief
are also published. architect of foreign policy, the President acts as the country's mouthpiece with respect to international
affairs. Hence, the President is vested with the authority to deal with foreign states and governments,
It is of public knowledge that various non-government sectors and private citizens have already publicly extend or withhold recognition, maintain diplomatic relations, enter into treaties, and otherwise transact
expressed their views on the JPEPA, their comments not being limited to general observations thereon the business of foreign relations. In the realm of treaty-making, the President has the sole authority to
but on its specific provisions. Numerous articles and statements critical of the JPEPA have been posted negotiate with other states.
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 in decision-making. Nonetheless, while the President has the sole authority to negotiate and enter into treaties, the
Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of
Petitioner-members of the House of Representatives additionally anchor their claim to have a right to the Senate for the validity of the treaty entered into by him. x x x (Emphasis and underscoring supplied)
the subject documents on the basis of Congress inherent power to regulate commerce, be it domestic
or international. They allege that Congress cannot meaningfully exercise the power to regulate While the power then to fix tariff rates and other taxes clearly belongs to Congress, and is exercised by
international trade agreements such as the JPEPA without being given copies of the initial offers the President only by delegation of that body, it has long been recognized that the power to enter into
exchanged during the negotiations thereof. In the same vein, they argue that the President cannot treaties is vested directly and exclusively in the President, subject only to the concurrence of at least
exclude Congress from the JPEPA negotiations since whatever power and authority the President has to two-thirds of all the Members of the Senate for the validity of the treaty. In this light, the authority of
negotiate international trade agreements is derived only by delegation of Congress, pursuant to Article the President to enter into trade agreements with foreign nations provided under P.D. 146458 may be
VI, Section 28(2) of the Constitution and Sections 401 and 402 of Presidential Decree No. 1464.55 interpreted as an acknowledgment of a power already inherent in its office. It may not be used as basis
to hold the President or its representatives accountable to Congress for the conduct of treaty
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate treaties and negotiations.
international agreements, but the power to fix tariff rates, import and export quotas, and other taxes.
Thus it provides: This is not to say, of course, that the Presidents power to enter into treaties is unlimited but for the
requirement of Senate concurrence, since the President must still ensure that all treaties will
(2) The Congress may, by law, authorize the President to fix within specified limits, and subject to such substantively conform to all the relevant provisions of the Constitution.
limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the national development program It follows from the above discussion that Congress, while possessing vast legislative powers, may not
of the Government. interfere in the field of treaty negotiations. While Article VII, Section 21 provides for Senate concurrence,
such pertains only to the validity of the treaty under consideration, not to the conduct of negotiations
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of Article VII the attendant to its conclusion. Moreover, it is not even Congress as a whole that has been given the
article on the Executive Department which states: authority to concur as a means of checking the treaty-making power of the President, but only the
Senate.
No treaty or international agreement shall be valid and effective unless concurred in by at least two-
thirds of all the Members of the Senate. Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-members of the
House of Representatives fail to present a "sufficient showing of need" that the information sought is
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the President, being the critical to the performance of the functions of Congress, functions that do not include treaty-negotiation.
sole organ of the nation in its external relations, was echoed in BAYAN v. Executive Secretary56 where
the Court held: Respondents alleged failure to timely claim executive privilege

By constitutional fiat and by the intrinsic nature of his office, the President, as head of State, is the sole On respondents invocation of executive privilege, petitioners find the same defective, not having been
organ and authority in the external affairs of the country. In many ways, the President is the chief done seasonably as it was raised only in their Comment to the present petition and not during the House
architect of the nation's foreign policy; his "dominance in the field of foreign relations is (then) Committee hearings.
conceded." Wielding vast powers and influence, his conduct in the external affairs of the nation, as
Jefferson describes, is "executive altogether." That respondents invoked the privilege for the first time only in their Comment to the present petition
does not mean that the claim of privilege should not be credited. Petitioners position presupposes that
As regards the power to enter into treaties or international agreements, the Constitution vests the same an assertion of the privilege should have been made during the House Committee investigations, failing
in the President, subject only to the concurrence of at least two thirds vote of all the members of the which respondents are deemed to have waived it.
Senate. In this light, the negotiation of the VFA and the subsequent ratification of the agreement are
exclusive acts which pertain solely to the President, in the lawful exercise of his vast executive and When the House Committee and petitioner-Congressman Aguja requested respondents for copies of the
diplomatic powers granted him no less than by the fundamental law itself. Into the field of negotiation documents subject of this case, respondents replied that the negotiations were still on-going and that
the Senate cannot intrude, and Congress itself is powerless to invade it. x x x (Italics in the original; the draft of the JPEPA would be released once the text thereof is settled and complete. There was no
emphasis and underscoring supplied) intimation that the requested copies are confidential in nature by reason of public policy. The response
may not thus be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes as
The same doctrine was reiterated even more recently in Pimentel v. Executive Secretary57 where the claims of privilege only those which are accompanied by precise and certain reasons for preserving the
Court ruled: confidentiality of the information being sought.
Respondents failure to claim the privilege during the House Committee hearings may not, however, be The dissent opines that petitioner-members of the House of Representatives, by asking for the subject
construed as a waiver thereof by the Executive branch. As the immediately preceding paragraph JPEPA documents, are not seeking to directly participate in the negotiations of the JPEPA, hence, they
indicates, what respondents received from the House Committee and petitioner-Congressman Aguja cannot be prevented from gaining access to these documents.
were mere requests for information. And as priorly stated, the House Committee itself refrained from
pursuing its earlier resolution to issue a subpoena duces tecum on account of then Speaker Jose de On the other hand, We hold that this is one occasion where the following ruling in Agan v. PIATCO63
Venecias alleged request to Committee Chairperson Congressman Teves to hold the same in abeyance. and in other cases both before and since should be applied:

While it is a salutary and noble practice for Congress to refrain from issuing subpoenas to executive This Court has long and consistently adhered to the legal maxim that those that cannot be done directly
officials out of respect for their office until resort to it becomes necessary, the fact remains that such cannot be done indirectly. To declare the PIATCO contracts valid despite the clear statutory prohibition
requests are not a compulsory process. Being mere requests, they do not strictly call for an assertion of against a direct government guarantee would not only make a mockery of what the BOT Law seeks to
executive privilege. prevent -- which is to expose the government to the risk of incurring a monetary obligation resulting
from a contract of loan between the project proponent and its lenders and to which the Government is
The privilege is an exemption to Congress power of inquiry.59 So long as Congress itself finds no cause not a party to -- but would also render the BOT Law useless for what it seeks to achieve - to make use of
to enforce such power, there is no strict necessity to assert the privilege. In this light, respondents the resources of the private sector in the "financing, operation and maintenance of infrastructure and
failure to invoke the privilege during the House Committee investigations did not amount to a waiver development projects" which are necessary for national growth and development but which the
thereof. government, unfortunately, could ill-afford to finance at this point in time.64

The Court observes, however, that the claim of privilege appearing in respondents Comment to this Similarly, while herein petitioners-members of the House of Representatives may not have been aiming
petition fails to satisfy in full the requirement laid down in Senate v. Ermita that the claim should be to participate in the negotiations directly, opening the JPEPA negotiations to their scrutiny even to the
invoked by the President or through the Executive Secretary "by order of the President."60 Respondents point of giving them access to the offers exchanged between the Japanese and Philippine delegations
claim of privilege is being sustained, however, its flaw notwithstanding, because of circumstances would have made a mockery of what the Constitution sought to prevent and rendered it useless for what
peculiar to the case. it sought to achieve when it vested the power of direct negotiation solely with the President.

The assertion of executive privilege by the Executive Secretary, who is one of the respondents herein, What the U.S. Constitution sought to prevent and aimed to achieve in defining the treaty-making power
without him adding the phrase "by order of the President," shall be considered as partially complying of the President, which our Constitution similarly defines, may be gathered from Hamiltons explanation
with the requirement laid down in Senate v. Ermita. The requirement that the phrase "by order of the of why the U.S. Constitution excludes the House of Representatives from the treaty-making process:
President" should accompany the Executive Secretarys claim of privilege is a new rule laid down for the x x x The fluctuating, and taking its future increase into account, the multitudinous composition of that
first time in Senate v. Ermita, which was not yet final and executory at the time respondents filed their body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust.
Comment to the petition.61 A strict application of this requirement would thus be unwarranted in this Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the
case. same views; a nice and uniform sensibility to national character, decision, secrecy and dispatch; are
incompatible with a body so variable and so numerous. The very complication of the business by
Response to the Dissenting Opinion of the Chief Justice introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid
objection. The greater frequency of the calls upon the house of representatives, and the greater length
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect our peoples right of time which it would often be necessary to keep them together when convened, to obtain their
to information against any abuse of executive privilege. It is a zeal that We fully share. sanction in the progressive stages of a treaty, would be source of so great inconvenience and expense, as
alone ought to condemn the project.65
The Court, however, in its endeavor to guard against the abuse of executive privilege, should be careful These considerations a fortiori apply in this jurisdiction, since the Philippine Constitution, unlike that of
not to veer towards the opposite extreme, to the point that it would strike down as invalid even a the U.S., does not even grant the Senate the power to advise the Executive in the making of treaties, but
legitimate exercise thereof. only vests in that body the power to concur in the validity of the treaty after negotiations have been
concluded.66 Much less, therefore, should it be inferred that the House of Representatives has this
We respond only to the salient arguments of the Dissenting Opinion which have not yet been sufficiently power.
addressed above. Since allowing petitioner-members of the House of Representatives access to the subject JPEPA
documents would set a precedent for future negotiations, leading to the contravention of the public
1. After its historical discussion on the allocation of power over international trade agreements in the interests articulated above which the Constitution sought to protect, the subject documents should not
United States, the dissent concludes that "it will be turning somersaults with history to contend that the be disclosed.
President is the sole organ for external relations" in that jurisdiction. With regard to this opinion, We
make only the following observations: 2. The dissent also asserts that respondents can no longer claim the diplomatic secrets privilege over the
There is, at least, a core meaning of the phrase "sole organ of the nation in its external relations" which subject JPEPA documents now that negotiations have been concluded, since their reasons for
is not being disputed, namely, that the power to directly negotiate treaties and international agreements nondisclosure cited in the June 23, 2005 letter of Sec. Ermita, and later in their Comment, necessarily
is vested by our Constitution only in the Executive. Thus, the dissent states that "Congress has the power apply only for as long as the negotiations were still pending;
to regulate commerce with foreign nations but does not have the power to negotiate international
agreements directly."62 In their Comment, respondents contend that "the negotiations of the representatives of the Philippines
What is disputed is how this principle applies to the case at bar. 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 opinions are accorded strict confidentiality." That
respondents liken the documents involved in the JPEPA negotiations to judicial deliberations and
working drafts of opinions evinces, by itself, that they were claiming confidentiality not only until, but Department of Justice,69 citing In re Sealed Case,70 "the issue of whether a President must personally
even after, the conclusion of the negotiations. invoke 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 privilege, lodged by the head of the
Judicial deliberations do not lose their confidential character once a decision has been promulgated by department which has control over the matter, after actual personal consideration by that officer."
the courts. The same holds true with respect to working drafts of opinions, which are comparable to
intra-agency recommendations. Such intra-agency recommendations are privileged even after the The rule was thus laid down by this Court, not in adherence to any established precedent, but with the
position under consideration by the agency has developed into a definite proposition, hence, the rule in aim of preventing the abuse of the privilege in light of its highly exceptional nature. The Courts
this jurisdiction that agencies have the duty to disclose only definite propositions, and not the inter- recognition that the Executive Secretary also bears the power to invoke the privilege, provided he does
agency and intra-agency communications during the stage when common assertions are still being so "by order of the President," is meant to avoid laying down too rigid a rule, the Court being aware that
formulated.67 it was laying down a new restriction on executive privilege. It is with the same spirit that the Court
should not be overly strict with applying the same rule in this peculiar instance, where the claim of
3. The dissent claims that petitioner-members of the House of Representatives have sufficiently shown executive privilege occurred before the judgment in Senate v. Ermita became final.
their need for the same documents to overcome the privilege. Again, We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its earlier intention 5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent implies that the
to subpoena the documents. This strongly undermines the assertion that access to the same documents Court therein erred in citing US v. Curtiss Wright72 and the book entitled The New American
by the House Committee is critical to the performance of its legislative functions. If the documents were Government and Its Work73 since these authorities, so the dissent claims, may not be used to calibrate
indeed critical, the House Committee should have, at the very least, issued a subpoena duces tecum or, the importance of the right to information in the Philippine setting.
like what the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather than The dissent argues that since Curtiss-Wright referred to a conflict between the executive and legislative
leaving it to the discretion of individual Congressmen whether to pursue an action or not. Such acts branches of government, the factual setting thereof was different from that of PMPF v. Manglapus which
would have served as strong indicia that Congress itself finds the subject information to be critical to its involved a collision between governmental power over the conduct of foreign affairs and the citizens
legislative functions. right to information.

Further, given that respondents have claimed executive privilege, petitioner-members of the House of That the Court could freely cite Curtiss-Wright a case that upholds the secrecy of diplomatic
Representatives should have, at least, shown how its lack of access to the Philippine and Japanese offers negotiations against congressional demands for information in the course of laying down a ruling on
would hinder the intelligent crafting of legislation. Mere assertion that the JPEPA covers a subject matter the public right to information only serves to underscore the principle mentioned earlier that the
over which Congress has the power to legislate would not suffice. As Senate Select Committee v. privileged character accorded to diplomatic negotiations does not ipso facto lose all force and effect
Nixon68 held, the showing required to overcome the presumption favoring confidentiality turns, not simply because the same privilege is now being claimed under different circumstances.
only on the nature and appropriateness of the function in the performance of which the material was
sought, but also the degree to which the material was necessary to its fulfillment. This petitioners failed PMPF v. Manglapus indeed involved a demand for information from private citizens and not an
to do. executive-legislative conflict, but so did Chavez v. PEA74 which held that "the [publics] right to
information . . . does not extend to matters recognized as privileged information under the separation of
Furthermore, from the time the final text of the JPEPA including its annexes and attachments was powers." What counts as privileged information in an executive-legislative conflict is thus also recognized
published, petitioner-members of the House of Representatives have been free to use it for any as such in cases involving the publics right to information.
legislative purpose they may see fit. Since such publication, petitioners need, if any, specifically for the
Philippine and Japanese offers leading to the final version of the JPEPA, has become even less apparent. Chavez v. PCGG75 also involved the publics right to information, yet the Court recognized as a valid
limitation to that right the same privileged information based on separation of powers closed-door
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA documents, the dissent Cabinet meetings, executive sessions of either house of Congress, and the internal deliberations of the
contends that the Executive has failed to show how disclosing them after the conclusion of negotiations Supreme Court.
would impair the performance of its functions. The contention, with due respect, misplaces the onus
probandi. While, in keeping with the general presumption of transparency, the burden is initially on the These cases show that the Court has always regarded claims of privilege, whether in the context of an
Executive to provide precise and certain reasons for upholding its claim of privilege, once the Executive is executive-legislative conflict or a citizens demand for information, as closely intertwined, such that the
able to show that the documents being sought are covered by a recognized privilege, the burden shifts principles applicable to one are also applicable to the other.
to the party seeking information to overcome the privilege by a strong showing of need.
The reason is obvious. If the validity of claims of privilege were to be assessed by entirely different
When it was thus established that the JPEPA documents are covered by the privilege for diplomatic criteria in each context, this may give rise to the absurd result where Congress would be denied access to
negotiations pursuant to PMPF v. Manglapus, the presumption arose that their disclosure would impair a particular information because of a claim of executive privilege, but the general public would have
the performance of executive functions. It was then incumbent on petitioner- requesting parties to show access to the same information, the claim of privilege notwithstanding.
that they have a strong need for the information sufficient to overcome the privilege. They have not,
however. Absurdity would be the ultimate result if, for instance, the Court adopts the "clear and present danger"
test for the assessment of claims of privilege against citizens demands for information. If executive
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming the privilege "by information, when demanded by a citizen, is privileged only when there is a clear and present danger of
order of the President," the same may not be strictly applied to the privilege claim subject of this case. a substantive evil that the State has a right to prevent, it would be very difficult for the Executive to
When the Court in Senate v. Ermita limited the power of invoking the privilege to the President alone, it establish the validity of its claim in each instance. In contrast, if the demand comes from Congress, the
was laying down a new rule for which there is no counterpart even in the United States from which the Executive merely has to show that the information is covered by a recognized privilege in order to shift
concept of executive privilege was adopted. As held in the 2004 case of Judicial Watch, Inc. v. the burden on Congress to present a strong showing of need. This would lead to a situation where it
would be more difficult for Congress to access executive information than it would be for private same by merely asserting that the information being demanded is a matter of public concern, without
citizens. any further showing required? Certainly not, for that would render the doctrine of executive privilege of
no force and effect whatsoever as a limitation on the right to information, because then the sole test in
We maintain then that when the Executive has already shown that an information is covered by such controversies would be whether an information is a matter of public concern.
executive privilege, the party demanding the information must present a "strong showing of need,"
whether that party is Congress or a private citizen. 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 risk of betraying the trust reposed in it
The rule that the same "showing of need" test applies in both these contexts, however, should not be by the Japanese representatives, indeed, by the Japanese government itself. How would the Philippine
construed as a denial of the importance of analyzing the context in which an executive privilege government then explain itself when that happens? Surely, it cannot bear to say that it just had to
controversy may happen to be placed. Rather, it affirms it, for it means that the specific need being release the information because certain persons simply wanted to know it "because it interests them."
shown by the party seeking information in every particular instance is highly significant in determining
whether to uphold a claim of privilege. This "need" is, precisely, part of the context in light of which Thus, the Court holds that, in determining whether an information is covered by the right to information,
every claim of privilege should be assessed. 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,
Since, as demonstrated above, there are common principles that should be applied to executive privilege and it has established that the information is indeed covered by the same, then the party demanding it,
controversies across different contexts, the Court in PMPF v. Manglapus did not err when it cited the if it is to overcome the privilege, must show that that the information is vital, not simply for the
Curtiss-Wright case. satisfaction of its curiosity, but for its ability to effectively and reasonably participate in social, political,
and economic decision-making.79
The claim that the book cited in PMPF v. Manglapus entitled The New American Government and Its
Work could not have taken into account the expanded statutory right to information in the FOIA 7. The dissent maintains that "[t]he treaty has thus entered the ultimate stage where the people can
assumes that the observations in that book in support of the confidentiality of treaty negotiations would exercise their right to participate in the discussion whether the Senate should concur in its ratification or
be different had it been written after the FOIA. Such assumption is, with due respect, at best, not." (Emphasis supplied) It adds that this right "will be diluted unless the people can have access to the
speculative. subject JPEPA documents". What, to the dissent, is a dilution of the right to participate in decision-
making is, to Us, simply a recognition of the qualified nature of the publics right to information. It is
As to the claim in the dissent that "[i]t is more doubtful if the same book be used to calibrate the beyond dispute that the right to information is not absolute and that the doctrine of executive privilege
importance of the right of access to information in the Philippine setting considering its elevation as a is a recognized limitation on that right.
constitutional right," we submit that the elevation of such right as a constitutional right did not set it free Moreover, contrary to the submission that the right to participate in decision-making would be diluted,
from the legitimate restrictions of executive privilege which is itself constitutionally-based.76 Hence, the We reiterate that our people have been exercising their right to participate in the discussion on the issue
comments in that book which were cited in PMPF v. Manglapus remain valid doctrine. of the JPEPA, and they have been able to articulate their different opinions without need of access to the
JPEPA negotiation documents.
6. The dissent further asserts that the Court has never used "need" as a test to uphold or allow inroads Thus, we hold that the balance in this case tilts in favor of executive privilege.
into rights guaranteed under the Constitution. With due respect, we assert otherwise. The Court has
done so before, albeit without using the term "need." 8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select Committee case, and In
re Sealed Case, are similarly applicable to the present controversy, the dissent cites the caveat in the
In executive privilege controversies, the requirement that parties present a "sufficient showing of need" Nixon case that the U.S. Court was there addressing only the Presidents assertion of privilege in the
only means, in substance, that they should show a public interest in favor of disclosure sufficient in context of a criminal trial, not a civil litigation nor a congressional demand for information. What this
degree to overcome the claim of privilege.77 Verily, the Court in such cases engages in a balancing of caveat means, however, is only that courts must be careful not to hastily apply the ruling therein to
interests. Such a balancing of interests is certainly not new in constitutional adjudication involving other contexts. It does not, however, absolutely mean that the principles applied in that case may never
fundamental rights. Secretary of Justice v. Lantion,78 which was cited in the dissent, applied just such a be applied in such contexts.
test. Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of executive privilege in
contexts other than a criminal trial, as in the case of Nixon v. Administrator of General Services80
Given that the dissent has clarified that it does not seek to apply the "clear and present danger" test to which involved former President Nixons invocation of executive privilege to challenge the
the present controversy, but the balancing test, there seems to be no substantial dispute between the constitutionality of the "Presidential Recordings and Materials Preservation Act"81 and the above-
position laid down in this ponencia and that reflected in the dissent as to what test to apply. It would mentioned In re Sealed Case which involved a claim of privilege against a subpoena duces tecum issued
appear that the only disagreement is on the results of applying that test in this instance. in a grand jury investigation.

The dissent, nonetheless, maintains that "it suffices that information is of public concern for it to be Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the other cases
covered by the right, regardless of the publics need for the information," and that the same would hold already mentioned, We are merely affirming what the Chief Justice stated in his Dissenting Opinion in
true even "if they simply want to know it because it interests them." As has been stated earlier, Neri v. Senate Committee on Accountability82 a case involving an executive-legislative conflict over
however, there is no dispute that the information subject of this case is a matter of public concern. The executive privilege. That dissenting opinion stated that, while Nixon was not concerned with the balance
Court has earlier concluded that it is a matter of public concern, not on the basis of any specific need between the Presidents generalized interest in confidentiality and congressional demands for
shown by petitioners, but from the very nature of the JPEPA as an international trade agreement. information, "[n]onetheless the [U.S.] Court laid down principles and procedures that can serve as torch
lights to illumine us on the scope and use of Presidential communication privilege in the case at bar."83
However, when the Executive has as in this case invoked the privilege, and it has been established While the Court was divided in Neri, this opinion of the Chief Justice was not among the points of
that the subject information is indeed covered by the privilege being claimed, can a party overcome the
disagreement, and We similarly hold now that the Nixon case is a useful guide in the proper resolution of In separate resolutions both dated April 24, 2007, the Court en banc required the public and private
the present controversy, notwithstanding the difference in context. respondents to file their respective comments on the petitions within a non-extendible period of five (5)
Verily, while the Court should guard against the abuse of executive privilege, it should also give full days from notice. Apart from respondent Comelec, seven (7) private respondents3 in G.R. No. 177271
recognition to the validity of the privilege whenever it is claimed within the proper bounds of executive and one party-list group4 mentioned in G.R. No. 177314 submitted their separate comments. In the
power, as in this case. Otherwise, the Court would undermine its own credibility, for it would be main, the separate comments of the private respondents focused on the untenability and prematurity of
perceived as no longer aiming to strike a balance, but seeking merely to water down executive privilege the plea of petitioners BA-RA 7941 and UP-LR to nullify their accreditation as party-list groups and thus
to the point of irrelevance. disqualify them and their respective nominees from participating in the May 14, 2007 party-list elections.

Conclusion The facts:


To recapitulate, petitioners demand to be furnished with a copy of the full text of the JPEPA has become On January 12, 2007, the Comelec issued Resolution No. 7804 prescribing rules and regulations to govern
moot and academic, it having been made accessible to the public since September 11, 2006. As for their the filing of manifestation of intent to participate and submission of names of nominees under the party-
demand for copies of the Philippine and Japanese offers submitted during the JPEPA negotiations, the list system of representation in connection with the May 14, 2007 elections. Pursuant thereto, a number
same must be denied, respondents claim of executive privilege being valid. of organized groups filed the necessary manifestations. Among these and ostensibly subsequently
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v. Manglapus on accredited by the Comelec to participate in the 2007 elections - are 14 party-list groups, namely: (1)
September 13, 1988, been recognized as privileged in this jurisdiction and the reasons proffered by BABAE KA; (2) ANG KASANGGA; (3) AKBAY PINOY; (4) AKSA; (5) KAKUSA; (6) AHON PINOY; (7) OFW
petitioners against the application of the ruling therein to the present case have not persuaded the PARTY; (8) BIYAHENG PINOY; (9) ANAD; (10) AANGAT ANG KABUHAYAN; (11) AGBIAG; (12) BANAT; (13)
Court. Moreover, petitioners both private citizens and members of the House of Representatives BANTAY LIPAD; (14) AGING PINOY. Petitioners BA-RA 7941 and UP-LR presented a longer, albeit an
have failed to present a "sufficient showing of need" to overcome the claim of privilege in this case. overlapping, list.
That the privilege was asserted for the first time in respondents Comment to the present petition, and
not during the hearings of the House Special Committee on Globalization, is of no moment, since it Subsequent events saw BA-RA 7941 and UP-LR filing with the Comelec an Urgent Petition to Disqualify,
cannot be interpreted as a waiver of the privilege on the part of the Executive branch. thereunder seeking to disqualify the nominees of certain party-list organizations. Both petitioners
For reasons already explained, this Decision shall not be interpreted as departing from the ruling in appear not to have the names of the nominees sought to be disqualified since they still asked for a copy
Senate v. Ermita that executive privilege should be invoked by the President or through the Executive of the list of nominees. Docketed in the Comelec as SPA Case No 07-026, this urgent petition has yet to
Secretary "by order of the President." be resolved.
WHEREFORE, the petition is DISMISSED. SO ORDERED.
G.R. No. 177314 May 4, 2007 ( NOTE: Conso case w/G.R. No. 177271 May 4, 2007) Meanwhile, reacting to the emerging public perception that the individuals behind the aforementioned
REP. LORETTA ANN P. ROSALES, KILOSBAYAN FOUNDATION, BANTAY KATARUNGAN FOUNDATION, 14 party-list groups do not, as they should, actually represent the poor and marginalized sectors,
Petitioners, vs. petitioner Rosales, in G.R. No. 177314, addressed a letter5 dated March 29, 2007 to Director Alioden
THE COMMISSION ON ELECTIONS, Respondent. Dalaig of the Comelecs Law Department requesting a list of that groups nominees. Another letter6 of
D E C I S I O N: GARCIA, J.: the same tenor dated March 31, 2007 followed, this time petitioner Rosales impressing upon Atty. Dalaig
the particular urgency of the subject request.
Before the Court are these two consolidated petitions for certiorari and mandamus to nullify and set
aside certain issuances of the Commission on Elections (Comelec) respecting party-list groups which have Neither the Comelec Proper nor its Law Department officially responded to petitioner Rosales requests.
manifested their intention to participate in the party-list elections on May 14, 2007. The April 13, 2007 issue of the Manila Bulletin, however, carried the front-page banner headline
"COMELEC WONT BARE PARTY-LIST NOMINEES",7 with the following sub-heading: "Abalos says party-
In the first petition, docketed as G.R. No. 177271, petitioners Bantay Republic Act (BA-RA 7941, for short) list polls not personality oriented."
and the Urban Poor for Legal Reforms (UP-LR, for short) assail the various Comelec resolutions
accrediting private respondents Biyaheng Pinoy et al., to participate in the forthcoming party-list On April 16, 2007, Atty. Emilio Capulong, Jr. and ex-Senator Jovito R. Salonga, in their own behalves and
elections on May 14, 2007 without simultaneously determining whether or not their respective as counsels of petitioner Rosales, forwarded a letter8 to the Comelec formally requesting action and
nominees possess the requisite qualifications defined in Republic Act (R.A.) No. 7941, or the "Party-List definitive decision on Rosales earlier plea for information regarding the names of several party-list
System Act" and belong to the marginalized and underrepresented sector each seeks to represent. In the nominees. Invoking their constitutionally-guaranteed right to information, Messrs. Capulong and Salonga
second, docketed as G.R. No. 177314, petitioners Loreta Ann P. Rosales, Kilosbayan Foundation and at the same time drew attention to the banner headline adverted to earlier, with a request for the
Bantay Katarungan Foundation impugn Comelec Resolution 07-0724 dated April 3, 2007 effectively Comelec, "collectively or individually, to issue a formal clarification, either confirming or denying the
denying their request for the release or disclosure of the names of the nominees of the fourteen (14) banner headline and the alleged statement of Chairman Benjamin Abalos, Sr. xxx" Evidently
accredited participating party-list groups mentioned in petitioner Rosales previous letter-request. unbeknownst then to Ms. Rosales, et 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
While both petitions commonly seek to compel the Comelec to disclose or publish the names of the petitioner Rosales basic disclosure request. In its relevant part, Resolution 07-0724 reads as follows:
nominees of the various party-list groups named in the petitions,1 the petitioners in G.R. No. 177271
have the following additional prayers: 1) that the 33 private respondents named therein be "declare[d] RESOLVED, moreover, that the Commission will disclose/publicize the names of party-list nominees in
as unqualified to participate in the party-list elections as sectoral organizations, parties or coalition for connection with the May 14, 2007 Elections only after 3:00 p.m. on election day.
failure to comply with the guidelines prescribed by the [Court] in [Ang Bagong Bayani v. Comelec2]" and,
2) correspondingly, that the Comelec be enjoined from allowing respondent groups from participating in Let the Law Department implement this resolution and reply to all letters addressed to the Commission
the May 2007 elections. inquiring on the party-list nominees. (Emphasis added.)
According to petitioner Rosales, she was able to obtain a copy of the April 3, 2007 Resolution only on 1. Whether respondent Comelec, by refusing to reveal the names of the nominees of the various party-
April 21, 2007. She would later state the observation that the last part of the "Order empowering the list groups, has violated the right to information and free access to documents as guaranteed by the
Law Department to implement this resolution and reply to all letters inquiring on the party-list Constitution; and
nominees is apparently a fool-proof bureaucratic way to distort and mangle the truth and give the 2. Whether respondent Comelec is mandated by the Constitution to disclose to the public the names of
impression that the antedated Resolution of April 3, 2007 is the final answer to the two formal said nominees.
requests of Petitioners".10
While the Comelec did not explicitly say so, it based its refusal to disclose the names of the nominees of
The herein consolidated petitions are cast against the foregoing factual setting, albeit petitioners BA-RA subject party-list groups on Section 7 of R.A. 7941. This provision, while commanding the publication and
7941 and UP-LR appear not to be aware, when they filed their petition on April 18, 2007, of the April 3, the posting in polling places of a certified list of party-list system participating groups, nonetheless tells
2007 Comelec Resolution 07-0724. the Comelec not to show or include the names of the party-list nominees in said certified list. Thus:

To start off, petitioners BA-RA 7941 and UP-LR would have the Court cancel the accreditation accorded SEC. 7. Certified List of Registered Parties.- The COMELEC shall, not later than sixty (60) days before
by the Comelec to the respondent party-list groups named in their petition on the ground that these election, prepare a certified list of national, regional, or sectoral parties, organizations or coalitions which
groups and their respective nominees do not appear to be qualified. In the words of petitioners BA-RA have applied or who have manifested their desire to participate under the party-list system and
7941 and UP-LR, Comelec - distribute copies thereof to all precincts for posting in the polling places on election day. The names of
the party-list nominees shall not be shown on the certified list. (Emphasis added.)
xxx committed grave abuse of discretion when it granted the assailed accreditations even without
simultaneously determining whether the nominees of herein private respondents are qualified or not, or And doubtless part of Comelecs reason for keeping the names of the party list nominees away from the
whether or not the nominees are likewise belonging to the marginalized and underrepresented sector public is deducible from the following excerpts of the news report appearing in the adverted April 13,
they claim to represent in Congress, in accordance with No. 7 of the eight-point guidelines prescribed by 2007 issue of the Manila Bulletin:
the Honorable Supreme in the Ang Bagong Bayani11 case which states that, "not only the candidate
party or organization must represent marginalized and underrepresented sectors; so also must its The Commission on Elections (COMELEC) firmed up yesterday its decision not to release the names of
nominees." In the case of private respondents, public respondent Comelec granted accreditations nominees of sectoral parties, organizations, or coalitions accredited to participate in the party-list
without the required simultaneous determination of the qualification of the nominees as part of the election which will be held simultaneously with the May 14 mid-term polls.
accreditation process of the party-list organization itself. (Words in bracket added; italization in the
original)12 COMELEC Chairman Benjamin S. Abalos, Sr. said he and [the other five COMELEC] Commissioners ---
believe that the party list elections must not be personality oriented.
The Court is unable to grant the desired plea of petitioners BA-RA 7941 and UP-LR for cancellation of
accreditation on the grounds thus advanced in their petition. For, such course of action would entail Abalos said under [R.A.] 7941 , the people are to vote for sectoral parties, organizations, or coalitions,
going over and evaluating the qualities of the sectoral groups or parties in question, particularly whether not for their nominees.
or not they indeed represent marginalized/underrepresented groups. The exercise would require the
Court to make a factual determination, a matter which is outside the office of judicial review by way of He said there is nothing in R.A. 7941 that requires the Comelec to disclose the names of nominees. xxx
special civil action for certiorari. In certiorari proceedings, the Court is not called upon to decide factual (Words in brackets and emphasis added)
issues and the case must be decided on the undisputed facts on record.13 The sole function of a writ of
certiorari is to address issues of want of jurisdiction or grave abuse of discretion and does not include a Insofar as the disclosure issue is concerned, the petitions are impressed with merit.
review of the tribunals evaluation of the evidence.14 Assayed against the non-disclosure stance of the Comelec and the given rationale therefor is the right to
information enshrined in the self-executory15 Section 7, Article III of the Constitution, viz:
Not lost on the Court of course is the pendency before the Comelec of SPA Case No. 07-026 in which Sec.7. The right of the people to information on matters of public concern shall be recognized. Access to
petitioners BA-RA 7941 and UP-LR themselves seek to disqualify the nominees of the respondent party- official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
list groups named in their petition. well to government research data used as basis for policy development, shall be afforded the citizen,
subject to such limitations as may be provided by law.
Petitioners BA-RA 7941s and UP-LRs posture that the Comelec committed grave abuse of discretion
when it granted the assailed accreditations without simultaneously determining the qualifications of Complementing and going hand in hand with the right to information is another constitutional provision
their nominees is without basis. Nowhere in R.A. No. 7941 is there a requirement that the qualification enunciating the policy of full disclosure and transparency in Government. We refer to Section 28, Article
of a party-list nominee be determined simultaneously with the accreditation of an organization. And as II of the Constitution reading:
aptly pointed out by private respondent Babae Para sa Kaunlaran (Babae Ka), Section 4 of R.A. No. 7941 Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of
requires a petition for registration of a party-list organization to be filed with the Comelec "not later than full public disclosure of all its transactions involving public interest.
ninety (90) days before the election" whereas the succeeding Section 8 requires the submission "not
later than forty-five (45) days before the election" of the list of names whence party-list representatives The right to information is a public right where the real parties in interest are the public, or the citizens
shall be chosen. to be precise. And for every right of the people recognized as fundamental lies a corresponding duty on
the part of those who govern to respect and protect that right. This is the essence of the Bill of Rights in
Now to the other but core issues of the case. The petition in G.R. No. 177314 formulates and captures a constitutional regime.16 Without a governments acceptance of the limitations upon it by the
the main issues tendered by the petitioners in these consolidated cases and they may be summarized as Constitution in order to uphold individual liberties, without an acknowledgment on its part of those
follows: duties exacted by the rights pertaining to the citizens, the Bill of Rights becomes a sophistry.
By weight of jurisprudence, any citizen can challenge any attempt to obstruct the exercise of his right to veritably advocated in the assailed resolution of the Comelec. The Court, since the 1914 case of Gardiner
information and may seek its enforcement by mandamus.17 And since every citizen by the simple fact of v. Romulo,21 has consistently made it clear that it frowns upon any interpretation of the law or rules
his citizenship possesses the right to be informed, objections on ground of locus standi are ordinarily that would hinder in any way the free and intelligent casting of the votes in an election.22 So it must be
unavailing.18 here for still other reasons articulated earlier.

Like all constitutional guarantees, however, the right to information and its companion right of access to In all, we agree with the petitioners that respondent Comelec has a constitutional duty to disclose and
official records are not absolute. As articulated in Legaspi, supra, the peoples right to know is limited to release the names of the nominees of the party-list groups named in the herein petitions.
"matters of public concern" and is further subject to such limitation as may be provided by law. Similarly,
the policy of full disclosure is confined to transactions involving "public interest" and is subject to WHEREFORE, the petition in G.R. No. 177271 is partly DENIED insofar as it seeks to nullify the
reasonable conditions prescribed by law. Too, there is also the need of preserving a measure of accreditation of the respondents named therein. However, insofar as it seeks to compel the Comelec to
confidentiality on some matters, such as military, trade, banking and diplomatic secrets or those disclose or publish the names of the nominees of party-list groups, sectors or organizations accredited to
affecting national security.19 participate in the May 14, 2007 elections, the same petition and the petition in G.R. No. 177314 are
GRANTED. Accordingly, the Comelec is hereby ORDERED to immediately disclose and release the names
The terms "public concerns" and "public interest" have eluded precise definition. But both terms of the nominees of the party-list groups, sectors or organizations accredited to participate in the May 14,
embrace, to borrow from Legaspi, a broad spectrum of subjects which the public may want to know, 2007 party-list elections. The Comelec is further DIRECTED to submit to the Court its compliance
either because these directly affect their lives, or simply because such matters naturally whet the herewith within five (5) days from notice hereof.
interest of an ordinary citizen. At the end of the day, it is for the courts to determine, on a case to case This Decision is declared immediately executory upon its receipt by the Comelec. No pronouncement as
basis, whether or not at issue is of interest or importance to the public. to cost. SO ORDERED.
A.M. No. RTJ-05-1910 April 15, 2005
If, as in Legaspi, it was the legitimate concern of a citizen to know if certain persons employed as ALFREDO HILADO, LOPEZ SUGAR CORPORATION and FIRST FARMERS HOLDING CORPORATION,
sanitarians of a health department of a city are civil service eligibles, surely the identity of candidates for Complainants, vs.JUDGE AMOR A. REYES, Regional Trial Court of Manila, Branch 21, Respondent.
a lofty elective public office should be a matter of highest public concern and interest. D E C I S I O N: CALLEJO, SR., J.:

As may be noted, no national security or like concerns is involved in the disclosure of the names of the The instant administrative matter arose when Alfredo Hilado, Lopez Sugar Corporation and First Farmers
nominees of the party-list groups in question. Doubtless, the Comelec committed grave abuse of Holding Corporation filed a verified Complaint1 dated November 17, 2003 charging Judge Amor A. Reyes,
discretion in refusing the legitimate demands of the petitioners for a list of the nominees of the party-list Regional Trial Court (RTC) of Manila, Branch 21, with gross ignorance of the law, gross inefficiency,
groups subject of their respective petitions. Mandamus, therefore, lies. dereliction of duty, serious misconduct, partiality and violation of the Code of Judicial Conduct relative to
Special Proceedings No. 00-97505 for issuance of letters of administration entitled "Intestate Estate of
The last sentence of Section 7 of R.A. 7941 reading: "[T]he names of the party-list nominees shall not be Roberto S. Benedicto."
shown on the certified list" is certainly not a justifying card for the Comelec to deny the requested
disclosure. To us, the prohibition imposed on the Comelec under said Section 7 is limited in scope and Complainant Alfredo Hilado is the plaintiff in Civil Case No. 95-9137 entitled "Manuel Lacson, et al. v.
duration, meaning, that it extends only to the certified list which the same provision requires to be Roberto Benedicto, et al.," filed before the RTC of Bacolod City, Branch 44, while complainants Lopez
posted in the polling places on election day. To stretch the coverage of the prohibition to the absolute is Sugar Corporation and First Farmers Holding Corporation are the lead plaintiffs/intervenors in Civil Case
to read into the law something that is not intended. As it were, there is absolutely nothing in R.A. No. No. 11178 pending before the RTC of Bacolod City, Branch 41. Upon the death of Roberto Benedicto in
7941 that prohibits the Comelec from disclosing or even publishing through mediums other than the May 2000, he was substituted by his estate in the aforementioned civil cases.
"Certified List" the names of the party-list nominees. The Comelec obviously misread the limited non-
disclosure aspect of the provision as an absolute bar to public disclosure before the May 2007 elections. Special Proceedings No. 00-97505 was raffled to the sala of the respondent Judge. She, thereafter,
The interpretation thus given by the Comelec virtually tacks an unconstitutional dimension on the last appointed Julita Campos Benedicto as the administratrix of the estate in an Order2 dated August 2,
sentence of Section 7 of R.A. No. 7941. 2000, and letters of administration were, thereafter, issued in favor of the latter. According to the
complainants, the appointed administratrix acknowledged their claims against the estate of the
The Comelecs reasoning that a party-list election is not an election of personalities is valid to a point. It deceased as major liabilities thereof in an Inventory3 dated January 18, 2001. The complainants further
cannot be taken, however, to justify its assailed non-disclosure stance which comes, as it were, with a alleged, thus:
weighty presumption of invalidity, impinging, 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 5. Shortly prior to September 2001, Complainants uncovered serious lapses in the observance and
nominees, who, in appropriate cases, would eventually sit in the House of Representatives. enforcement by Respondent Judge of the mandatory prescriptions of the Rules governing the
administration of the estate and in collation and preservation of its assets.
The Court is very much aware of newspaper reports detailing the purported reasons behind the 6. Among others, Petitioners discovered that while the Respondent Administratrix had been issued
Comelecs disinclination to release the names of party-list nominees. It is to be stressed, however, that Letters of Administration as early as August 2, 2000 and had been granted by the Respondent Court, in
the Court is in the business of dispensing justice on the basis of hard facts and applicable statutory and an Order dated April 24, 2001, [a] final extended period until May 31, 2001 for the submission of "a
decisional laws. And lest it be overlooked, the Court always assumes, at the first instance, the completed and updated inventory and appraisal report," what had been submitted was still an
presumptive validity and regularity of official acts of government officials and offices. unverified, incomplete and unappraised inventory dated January 18, 2001. Worse, in submitting the
practically worthless inventory, Respondent Administratrix declined to vouch for the accuracy of the
It has been repeatedly said in various contexts that the people have the right to elect their same,
representatives on the basis of an informed judgment. Hence the need for voters to be informed about
matters that have a bearing on their choice. The ideal cannot be achieved in a system of blind voting, as
7. Likewise, it was discovered by Complainants that despite the lapse of over a year since the issuance 97505. They, likewise, prayed that the said proceedings be forwarded to the Executive Judge of the RTC
of her letters of administration, the Administratrix had failed to render an annual account of her of Manila for re-raffle to another sala.
administration as mandatorily required by Section 8 of Rule 85.4
The complainants further alleged that the respondent Judge had, likewise, approved the sale of For her part, the respondent Judge explained that prior to her Order dated January 2, 2002, the
substantial and valuable assets of the estate without serving notice to them and other persons complainants, through counsel, filed a motion with a prayer that an order be issued requiring the Branch
interested, in violation of Section 7, Rule 89 of the Rules of Court. Despite this, the respondent Judge Clerk of Court to furnish them (complainants) with copies of all processes and orders, and to require the
failed to issue any order directing the administratrix to comply with the rules. The records of the administratrix to serve them copies of all pleadings in the proceedings. In her Order dated January 2,
intestate estate proceedings furthermore revealed a deliberate design to prejudice and preclude the 2002, the respondent Judge declared that under the Rules, the complainants were without personality to
opportune participation of the complainants. Thus: participate in the intestate proceedings, thus, cannot intervene therein, much less be furnished with
copies of orders, pleadings and processes relative thereto. The complainants filed a motion for
9.1 Under Section 2 of Rule 79, the application for letters of administration is required to state, reconsideration, which she denied on March 12, 2002. The respondent Judge pointed out that her ruling
among others, "the names, ages and residences of the heirs, and the names and residences of the was elevated to the Court of Appeals (CA) via a petition for certiorari.
creditors, of the decedent" "so far as known to the petitioner." However, although the Petition for
Letters of Administration filed by the Administratrix acknowledged the existence of liabilities, and the On the complainants' contention that she failed in her responsibility towards the appointed
List of Liabilities submitted with her inventory named the Complainants together with the Bureau of administratrix of the estate, the respondent Judge explained that the latter had already filed an initial
Internal Revenue as the major creditors of the estate, Administratrix did not name and list Complainants inventory less than a year after the issuance of the letters of administration and that the administratrix
as creditors of the decedent in her Petition. In fact, no creditor was named at all. was still in the process of preparing the supplemental inventory. Nonetheless, the respondent Judge
9.2 Pursuant to Section 5 of the same Rule 79, letters of administration may be validly issued only issued an Order dated October 16, 2003 directing the administratrix to submit an updated inventory
after it is "first shown that notice has been given as required" by Section 3 of the same rule, that is to within thirty (30) days from receipt of the said Order. The administratrix filed a motion for extension as
say, notice "to the known heirs and creditors of the decedent and to any other persons believed to have she had been continuously working on the preparation of the inventory of the estate and the delay was
an interest in the estate," given not only via publication but also by mail "addressed [to them] at their due to the difficulties of verifying the decedents' stock investments. The motion for extension filed by
places of residence, and deposited at least twenty (20) days before the hearing" or by "personal service the administratrix was granted by the court on November 26, 2003.
at least ten (10) days before the days of hearing "
The respondent Judge contended that the complaint was baseless, malicious and was intended to harass
Admittedly, no notice of whatever kind was served on Complainants. her, and was filed in retaliation for her unfavorable rulings against the complainants. She further
9.3 Significantly, the Purchase and Sale Agreement disposing of the assets of Traders Royal Bank, contended that she resolved the motions filed by the complainants according to her own judgment and
which the Respondent Judge approved without notice to Complainants, explicitly, categorically and understanding of the law and the attendant circumstances. The respondent Judge, therefore, prayed for
discriminatorily excluded, from the liabilities to be assumed by the Bank of Commerce as Purchaser, the dismissal of the case for lack of merit.
Petitioners' claims in the pending Bacolod suits against TRB and the estate, claims which had previously
been acknowledged in the [Administratrix's] Inventory as major liabilities of the estate.5 The complainants filed a Supplemental Complaint on February 6, 2004 contending that the respondent
Judge had not yet required the administratrix of the estate to submit an inventory and annual account
In light of these discoveries, the complainants, through counsel, filed a Manifestation/Motion Ex despite the lapse of time under the rules. They also claimed that they were again denied participation in
Abudanti Cautela6 dated September 24, 2001 identifying themselves as among the major creditors in the the proceedings of the settlement of the estate, and access to the court records which are considered
inventory prepared by the appointed administratrix, and prayed that the Branch Clerk of Court be public. They prayed for the inhibition of the respondent Judge in trying Sp. Proc. No. 00-97505.
required to furnish the petitioners, through their counsel, copies of all the processes and orders issued
by the court, and to require the administratrix to serve copies of all the proceedings to their counsel. In the comment of the respondent Judge to the supplemental complaint, she maintained that the
Pending the resolution of this motion, the complainants also filed urgent pleadings bringing to the complainants were not considered parties-in-interest since their claims remain contingent on the
attention of the respondent Judge her procedural lapses.7 However, the respondent Judge issued an outcome of the cases still pending in the RTC of Bacolod City. The respondent Judge also pointed out
Order8 dated January 2, 2002 refusing to recognize the complainants as interested parties entitled to that the appeal of the complainants to her court order, declaring the latter as not parties-in-interest in
participate and intervene in the proceedings. This compelled the complainants to file a motion for the settlement of the estate of the decedent, was still pending consideration by the appellate court.
reconsideration of the said order, which was, likewise, denied by the respondent Judge. Thus:

According to the complainants, the respondent Judge failed to consider the fact that no less than the a) The law does not give blanket authority to any person to have access to official records and to
appointed administratrix recognized their claims as major liabilities of the estate. They further claimed documents and papers pertaining to official acts. As worded, only matters of public concern may a
that the respondent Judge's action only shows that there was a deliberate design to preclude their person [be] accorded access. In the present case, complainants' interest is more of personal than of
participation in the intestate proceedings. The complainants further alleged that a probate judge, such public concern. The ruling of the Supreme Court in the case of Valentin L. Legaspi v. Civil Service
as the respondent, should know the "elementary doctrines" regarding the settlement of estates, failing Commission (G.R. No. 72119, May 29, 1987) is the case in point.
which he may be held guilty of ignorance of the law. The complainants averred that it is a well settled "But the constitutional guarantee to information on matters of public concern is not absolute. It does
judicial policy to favor the liberal participation of all parties having an interest, however minimal, in the not open every door to any and all information. Under the Constitution, access to official records,
proper settlement of the estate of the deceased. Hence, the respondent Judge's failure to apply and papers, etc., 'are subject to limitations as may be provided by law' (Art. III, Sec. 7, second sentence). xxx
observe the elementary doctrines bearing on the settlement of estate which are presumed to be known in every case, the availability of access to a particular public record must be circumscribed by the nature
to a probate court reflects inexcusable ignorance of the law. of the information sought, i.e., (a) being of public concern or one that involves public interest, and (b)
not being exempted by law from the operation of the constitutional guarantee. The threshold question
Aside from praying that the appropriate disciplinary sanction to be meted on the respondent Judge, the is, therefore, whether or not the information sought is of public interest or public concern."
complainants also prayed that the respondent Judge be disqualified from further trying Sp. Proc. No. 00-
b) Although complainants assert that they have the right to information based on the cases cited in the In the [administratrix's] motion for extension of time, she stated that the Inventory was complete except
Supplemental Complaint, it is further clarified by this respondent that the position taken by them is for the valuation of some shares of stock and to obtain the same, full auditing of the entire corporation
utterly different because the parties involved in the cited cases are complainants themselves while in the complete with the actual field verification of recorded cases was needed. The same appears to be
case at hand, they are not considered parties-in-interest, their claim being contingent as their case is still meritorious considering the vast estate of the deceased.
pending with the RTC, Branch 44, Bacolod; 9
When the administratrix did not submit the updated inventory after the deadline on May 31, 2001,
The complainants filed a Second Supplemental Complaint on April 30, 2004, reiterating the charges respondent Judge on October 16, 2003, directed the administratrix to file the updated inventory. For
against the respondent Judge. They also filed a motion to withdraw their previous prayer for inhibition. which reason, administratrix filed another two (2) motions for extension of time to file the same.

In a Resolution dated August 11, 2004, the Court resolved to refer the matter to Court of Appeals
Associate Justice Remedios A. Salazar-Fernando for investigation, report and recommendation.
The delay in the submission of the inventory was aptly explained by the motions for extension of time
In her Final Report and Recommendation dated November 8, 2004, the Investigating Justice found that filed by the administratrix.
based on the records, the respondent Judge was not remiss in her duties relative to Sp. Proc. No. 00-
97505, thus: 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 faulted for the [administratrix's] delay.
On August 2, 2000, respondent Judge appointed Julita Campos Benedicto as administratrix of the estate However, only the heirs or beneficiaries of the estate may move for the removal of the administratrix on
of the deceased Roberto S. Benedicto [Records, Vol. I, p. 13]. Upon filing of the bond in the amount of the grounds provided for in Rule 82.
five million (P5,000,000) pesos, [letters] of administration [were] issued in favor of the administratrix and
[a] notice dated August 23, 2000 to file money claims against the decedent was ordered published. Likewise, the failure to render an account is a ground for the removal of the administratrix by the proper
parties.
Under Section 1, Rule 83 of the Revised Rules of Court, the administratrix should return/file with the
court a true inventory and appraisal of all the real and personal estate of the deceased which came to The mandatory character of the requirement of an account or accounting one (1) year from the time of
her possession or knowledge. receiving letters testamentary or of administration admits of exception, i.e., when the Court, otherwise,
directs.
On December 12, 2000, the administratrix filed a motion for extension of time to file an Inventory on the
ground that she was in the process of gathering documents and data necessary for the preparation of an In this case, the one-year mandatory period within which to render an accounting should be reckoned
inventory which were made difficult because of the very personalized way the deceased had been from December 16, 2003. Hence, accounting of the estate is not yet due.10
recording his assets and conducting his business affairs.
However, the Investigating Justice opined that the respondent Judge arbitrarily denied the complainants
On December 13, 2000, the motion for extension of item was granted. access to the case records of Sp. Proc. No. 00-97505 by refusing requests for photocopying of the same,
and made the following conclusion and recommendation:
On January 12, 2001, the administratrix filed another extension of fifteen (15) days from January 15,
2001 within which to file an inventory which could not be finalized due to lack of necessary data such as This Investigator concludes that respondent Judge is not guilty of inaction or failure to require
the probable value of some specific assets. The motion was granted by respondent Judge. observance of the Rules by the Administratrix.

The Inventory was submitted on January 19, 2001, which placed the estate's value at P36,799,822.25. However, respondent Judge's refusal to give the complainants access to the case records of SP-97505 is
Accordingly, respondent Judge ordered the payment of additional filing fee based on the declared value arbitrary. The right to information on matters of public concern is a constitutional right. Access to
of the estate [Ibid, p. 58]. official records and to documents and papers pertaining to official acts, transactions, or decisions shall
be afforded the citizen, subject to such limitations as may be provided by law.
After finding that the initial inventory had no appraisal on March 26, 2001, respondent Judge directed
the administratrix to submit the completed and updated inventory and appraisal report. Additional WHEREFORE, PREMISES CONSIDERED, it is hereby recommended that respondent Judge be adjudged
bond was also ordered to be posted [Ibid, p. 60]. guilty of dereliction of duty and improper conduct bordering on oppression and accordingly be
CENSURED, REPRIMANDED and WARNED that a repetition of the same in the future will be dealt with
The administratrix asked for an extension of time or until May 31, 2001 to file an updated inventory more severely.11
[Ibid, p. 63]. The same was granted on April 24, 2001 [Ibid, p. 67].
The findings and recommendation of Justice Salazar-Fernando are well taken.
On the preceding facts alone, it could be gleaned that respondent Judge dutifully fulfilled her
responsibility in exacting from the administratrix the observance of her responsibilities. Please note that The Court holds that the respondent Judge erred in denying the complainants access to the court records
those were not the only actions taken by the respondent Judge. Records of the case show that of Sp. Proc. No. 00-97505. Admittedly, the complainants could not demand that they be furnished with
respondent Judge issued several Orders resolving other motions. the court's orders and the pleadings filed by the parties, in as much as the respondent Judge had already
ruled that they were not parties-in-interest. However, the Court finds that the respondent Judge should
Complainants fault respondent Judge for failing to order the administratrix to file a completed and not have prohibited the complainants from going over the records of the case and securing copies of
updated inventory even as late as the date of this Complaint. pertinent orders and pleadings.12
Courts in the United States have recognized the general right to inspect and copy public records and must be restricted by the nature of the information sought, i.e., (a) of public concern or one that involves
documents, including judicial records and documents.13 In our jurisdiction, the right is enshrined in public interest, and (b) not being exempted by law from the operation of the constitutional guarantee.
Section 7, Article III of the Constitution, which provides:
The privilege against disclosure is recognized with respect to state secrets bearing on military, diplomatic
Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access and similar matters. This privilege is based upon public interest of such paramount importance which
to official records, and to documents and papers pertaining to official acts, transactions or decisions, as transcends the individual interests of a private citizen, even though, as a consequence thereof, the
well as to government research data used as basis for policy development, shall be afforded the citizen, plaintiff cannot enforce his legal rights.
subject to such limitations as may be provided by law.
SP No. 97505 does not contain any military or diplomatic secret which will be disclosed by its production.
The reliance of the respondent Judge on the ruling of the Court in Legaspi v. Civil Service Commission,14 Neither is there any law or regulation which considers the case records as classified information.
to justify the denial of access to court records is misplaced. On the contrary, the following
pronouncement in the said case further bolsters the claim of the complainants: The right to information is subject to reasonable regulations and restrictions. However, while public
officers in custody or control of public records have the discretion to regulate the manner in which such
In determining whether or not a particular information is of public concern there is no rigid test which records may be inspected, examined or copied by interested persons, such discretion does not carry with
can be applied. "Public concern," like public interest, is a term that eludes exact definition. Both terms it the authority to prohibit such access, inspection, examination or copying.22
embrace a broad spectrum of subjects which the public may want to know, either because these directly
affect their lives, or simply because such matters naturally arouse the interest of an ordinary citizen. In The Court thus rules that for denying the complainants access to court records, the respondent Judge
the final analysis, it is for the courts to determine in a case by case basis whether the matter at issue is of must be reprimanded.
interest or importance, as it relates to or affects the public.15
The respondent Judge cannot be similarly chastised for ruling that the complainants were not parties-in-
The presumption that the public has a right to see and copy judicial records attaches to those documents interest in the subject case. It is settled that as a matter of policy, the acts of a judge in his judicial
which properly come before the court in the course of an adjudicatory proceeding and which are capacity are not subject to disciplinary action. He cannot be subjected to liability civil, criminal or
relevant to the adjudication.16 Hence, relevant documents which are submitted to, and accepted by, a administrative for any of his official acts, no matter how erroneous, as long as he acts in good faith.23
court of competent jurisdiction in the course of adjudicatory proceedings, become documents to which Only judicial errors tainted with fraud, dishonesty, gross ignorance, bad faith or deliberate intent to do
the presumption of public access applies.17 The policy reasons for granting public access to criminal an injustice will be administratively sanctioned.24 To hold, otherwise, would be to render judicial office
proceedings include the public's right to monitor the functioning of our courts, thereby ensuring quality, untenable, for no one called upon to try the facts or interpret the law in the process of administering
honesty and respect for our legal system. Such policy reasons apply to the grant of public access to civil justice can be infallible in his judgment.25 Indeed, an administrative complaint against a judge cannot be
cases as well.18 pursued simultaneously with the judicial remedies accorded to parties aggrieved by his erroneous order
or judgment. Administrative remedies are neither alternative nor cumulative to judicial review where
The importance of access to public records, court records more particularly, was explained in Lantaco, Sr. such review is available to the aggrieved parties and the same has not yet been resolved with finality.
v. Llamas,19 where the respondent Judge therein refused to furnish the complainants a copy of his For until there is a final declaration by the appellate court that the challenged order or judgment is
decision. According to the Court, the importance of this right to access to court records is predicated on manifestly erroneous, there will be no basis to conclude whether respondent judge is administratively
the right of the people to acquire information on matters of public concern in which the public has a liable.26
legitimate interest. It was further explained that while the public officers in custody of control of public
records have the discretion to regulate the manner in which such records may be inspected, examined or Thus, the remedy of the aggrieved party is not to file an administrative complaint against the judge, but
copied by interested persons, such discretion does not carry with it the authority to prohibit such access, to elevate the assailed decision or order to the higher court for review and correction,27 which in this
inspection, examination or copying. To drive home the point, the Court cited its pronouncement in case the complainants have already done. The Court notes that in a Decision dated February 27, 2004,
Baldoza v. Dimaano,20 to wit: the CA dismissed the 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 such dismissal to this
The incorporation of this right in the Constitution is a recognition of the fundamental role of free Court via a petition for review.
exchange of information in a democracy. There can be no realistic perception by the public of the
nation's problems, nor a meaningful democratic decision-making if they are denied access to information It must be stressed that an administrative complaint is not an appropriate remedy where judicial
of general interest. Information is needed to enable the members of society to cope with the exigencies recourse is still available, such as a motion for reconsideration, an appeal, or a petition for certiorari,
of the times. As has been aptly observed: "Maintaining the flow of such information depends on unless the assailed order or decision is tainted with fraud, malice, or dishonesty.28 The Court has to be
protection for both its acquisition and its dissemination since, if either process is interrupted, the flow shown acts or conduct of the judge clearly indicative of arbitrariness or prejudice before the latter can be
inevitably ceases." However, restrictions on access to certain records may be imposed by law. Thus, branded the stigma of being biased and partial. Good faith and absence of malice, corrupt motives or
access restrictions imposed to control civil insurrection have been permitted upon a showing of improper considerations, are sufficient defenses in which a judge charged with ignorance of the law can
immediate and impending danger that renders ordinary means of control inadequate to maintain find refuge.29 In this case, no bad faith can be attributed to the respondent Judge for relying on the
order.21 ruling of this Court in Lantaco v. Llamas,30 albeit erroneously.

We agree with the following ratiocination of the Investigating Justice: WHEREFORE, for denying the complainants access to court records, respondent Judge Amor A. Reyes is
However, the constitutional guarantee to information on matters of public concern is not absolute. hereby REPRIMANDED. She is sternly warned that a repetition of the same or similar act in the future
Under the Constitution, access to official records, papers, etc., are "subject to limitations as may be shall be dealt with more severely.
provided by law." Therefore, a law may exempt certain types of information from public scrutiny such as
matters on national security. Otherwise stated, the availability of access to a particular public record SO ORDERED.