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These personalities have

FRANCISCO CHAVEZ VS, RAUL GONZALES IN HIS CAPACITY AS THE admitted that the taped conversations are products of illegal wiretapping
SECRETARY OF THE DEPARTMENT OF JUSTICE; AND NATIONAL operations.
TELECOMMUNICATIONS COMMISSION
Considering that these taped conversations have not been duly
FEB 15, 2008A. Precis authenticated nor could it be said at this time that the tapes contain an
accurate or truthful representation of what was recorded therein, it is the
In this jurisdiction, it is established that freedom of the press is crucial and so position of the [NTC] that the continuous airing or broadcast of the said
inextricably woven into the right to free speech and free expression, that any taped conversations by radio and television stations is a continuing
attempt to restrict it must be met with an examination so critical that only a violation of the Anti-Wiretapping Law and the conditions of the Provisional
danger that is clear and present would be allowed to curtail it. Authority and/or Certificate of Authority issued to these radio and television
Indeed, we have not wavered in the duty to uphold this cherished stations. It has been subsequently established that the said tapes are false
freedom. We have struck down laws and issuances meant to curtail this right, and/or fraudulent after a prosecution or appropriate investigation, the
as in Adiong v. COMELEC,[1] Burgos v. Chief of Staff,[2] Social Weather Stations concerned radio and television companies are hereby warned that their
v. COMELEC,[3] and Bayan v. Executive Secretary Ermita.[4] When on its face, it broadcast/airing of such false information and/or willful
is clear that a governmental act is nothing more than a naked means to prevent misrepresentation shall be just cause for the suspension, revocation
the free exercise of speech, it must be nullified. and/or cancellation of the licenses or authorizations issued to the
said companies.
B. The Facts
In addition to the above, the [NTC] reiterates the pertinent NTC circulars
1. The case originates from events that occurred a year after the 2004 on program standards to be observed by radio and television
national and local elections. On June 5, 2005, Press Secretary stations. NTC Memorandum Circular 111-12-85 explicitly states, among
Ignacio Bunye told reporters that the opposition was planning to others, that all radio broadcasting and television stations shall, during any
destabilize the administration by releasing an audiotape of a mobile broadcast or telecast, cut off from the air the speech, play, act or scene or
phone conversation allegedly between the President of the other matters being broadcast or telecast the tendency thereof is to
Philippines, Gloria Macapagal Arroyo, and a high-ranking official of disseminate false information or such other willful misrepresentation, or to
the Commission on Elections (COMELEC). The conversation was propose and/or incite treason, rebellion or sedition. The foregoing directive
audiotaped allegedly through wire-tapping.[5] Later, in had been reiterated by NTC Memorandum Circular No. 22-89, which, in
a Malacaang press briefing, Secretary Bunye produced two versions addition thereto, prohibited radio, broadcasting and television stations from
of the tape, one supposedly the complete version, and the other, a using their stations to broadcast or telecast any speech, language or
spliced, doctored or altered version, which would suggest that the scene disseminating false information or willful misrepresentation, or
President had instructed the COMELEC official to manipulate the inciting, encouraging or assisting in subversive or treasonable acts.
election results in the Presidents favor. [6] It seems that Secretary
Bunye admitted that the voice was that of President Arroyo, but The [NTC] will not hesitate, after observing the requirements of due
subsequently made a retraction. [7] process, to apply with full force the provisions of said Circulars and
their accompanying sanctions on erring radio and television stations
2. On June 7, 2005, former counsel of deposed President Joseph and their owners/operators.
Estrada, Atty. Alan Paguia, subsequently released an alleged
authentic tape recording of the wiretap. Included in the tapes were 6. On June 14, 2005, NTC held a dialogue with the Board of Directors
purported conversations of the President, the First Gentleman Jose of the Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC
Miguel Arroyo, COMELEC Commissioner Garcillano, and the late allegedly assured the KBP that the press release did not violate the
Senator Barbers.[8] constitutional freedom of speech, of expression, and of the press,
and the right to information. Accordingly, NTC and KBP issued
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary a Joint Press Statement which states, among others, that: [12]
Raul Gonzales warned reporters that those who had copies of the
compact disc (CD) and those broadcasting or publishing its contents NTC respects and will not hinder freedom of the press and the
could be held liable under the Anti-Wiretapping Act. These persons right to information on matters of public concern. KBP & its
included Secretary Bunye and Atty. Paguia. He also stated that members have always been committed to the exercise of press
persons possessing or airing said tapes were committing a freedom with high sense of responsibility and discerning
continuing offense, subject to arrest by anybody who had personal judgment of fairness and honesty.
knowledge if the crime was committed or was being committed in
their presence.[9] NTC did not issue any MC [Memorandum Circular] or Order
constituting a restraint of press freedom or censorship. The
4. On June 9, 2005, in another press briefing, Secretary Gonzales NTC further denies and does not intend to limit or restrict
ordered the National Bureau of Investigation (NBI) to go after media the interview of members of the opposition or free
organizations found to have caused the spread, the playing and the expression of views.
printing of the contents of a tape of an alleged wiretapped
conversation involving the President about fixing votes in the 2004 What is being asked by NTC is that the exercise of press
national elections. Gonzales said that he was going to start freedom [be] done responsibly.
with Inq7.net, a joint venture between the Philippine Daily Inquirer
and GMA7 television network, because by the very nature of the KBP has program standards that KBP members will observe in
Internet medium, it was able to disseminate the contents of the tape the treatment of news and public affairs programs. These
more widely.He then expressed his intention of inviting the editors include verification of sources, non-airing of materials that
and managers of Inq7.net and GMA7 to a probe, and supposedly would constitute inciting to sedition and/or rebellion.
declared, I [have] asked the NBI to conduct a tactical interrogation of
all concerned. [10] The KBP Codes also require that no false
5. On June 11, 2005, the NTC issued this press release: [11] statement or willful misrepresentation is
NTC GIVES FAIR WARNING TO RADIO AND made in the treatment of news or
TELEVISION OWNERS/OPERATORS TO commentaries.
OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM The supposed wiretapped tapes should be treated
STANDARDS with sensitivity and handled responsibly
giving due consideration to the process being
xxx xxx xxx undertaken to verify and validate the
authenticity and actual content of the same.
Taking into consideration the countrys unusual situation, and in order not
to unnecessarily aggravate the same, the NTC warns all radio stations
and television network owners/operators that the conditions of the C. The Petition
authorization and permits issued to them by Government like the
Provisional Authority and/or Certificate of Authority explicitly provides that Petitioner Chavez filed a petition under Rule 65 of the Rules of Court
said companies shall not use [their] stations for the broadcasting or against respondents Secretary Gonzales and the NTC, praying for the issuance
telecasting of false information or willful misrepresentation. Relative of the writs of certiorari and prohibition, as extraordinary legal remedies, to
thereto, it has come to the attention of the [NTC] that certain personalities annul void proceedings, and to prevent the unlawful, unconstitutional and
are in possession of alleged taped conversations which they claim involve oppressive exercise of authority by the respondents.[13]
the President of the Philippines and a Commissioner of the COMELEC
regarding supposed violation of election laws. Alleging that the acts of respondents are violations of the freedom on
expression and of the press, and the right of the people to information on
matters of public concern,[14] petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of In the Philippines, the primacy and high esteem accorded freedom of
respondents committed or made since June 6, 2005 until expression is a fundamental postulate of our constitutional system. [28] This right
the present that curtail the publics rights to freedom of was elevated to constitutional status in the 1935, the 1973 and the 1987
expression and of the press, and to information on Constitutions, reflecting our own lesson of history, both political and legal, that
matters of public concern specifically in relation to freedom of speech is an indispensable condition for nearly every other form of
information regarding the controversial taped conversion freedom.[29] Moreover, our history shows that the struggle to protect the
of President Arroyo and for prohibition of the further freedom of speech, expression and the press was, at bottom, the struggle for
commission of such acts, and making of such issuances, the indispensable preconditions for the exercise of other freedoms.[30] For it is
and orders by respondents. [15] only when the people have unbridled access to information and the press that
they will be capable of rendering enlightened judgments. In the oft-quoted
Respondents[16] denied that the acts transgress the Constitution, and words of Thomas Jefferson, we cannot both be free and ignorant.
questioned petitioners legal standing to file the petition. Among the arguments
they raised as to the validity of the fair warning issued by respondent NTC, is E.1. ABSTRACTION OF FREE SPEECH
that broadcast media enjoy lesser constitutional guarantees compared to print
media, and the warning was issued pursuant to the NTCs mandate to regulate Surrounding the freedom of speech clause are various concepts that
the telecommunications industry. [17] It was also stressed that most of the we have adopted as part and parcel of our own Bill of Rights provision on this
[television] and radio stations continue, even to this date, to air the tapes, but of basic freedom.[31] What is embraced under this provision was discussed
late within the parameters agreed upon between the NTC and KBP. [18] exhaustively by the Court in Gonzales v. Commission on Elections, [32] in which
it was held:
D. THE PROCEDURAL THRESHOLD: LEGAL STANDING
At the very least, free speech and free press may be
To be sure, the circumstances of this case make the constitutional identified with the liberty to discuss publicly and
challenge peculiar. Petitioner, who is not a member of the broadcast media, truthfully any matter of public interest without
prays that we strike down the acts and statements made by respondents as censorship and punishment. There is to be no previous
violations of the right to free speech, free expression and a free press. For restraint on the communication of views or subsequent
another, the recipients of the press statements have not come forwardneither liability whether in libel suits, prosecution for sedition,
intervening nor joining petitioner in this action. Indeed, as a group, they issued a or action for damages, or contempt proceedings unless
joint statement with respondent NTC that does not complain about restraints on there be a clear and present danger of substantive evil
freedom of the press. that Congress has a right to prevent. [33]

It would seem, then, that petitioner has not met the requisite legal Gonzales further explained that the vital need of a constitutional
standing, having failed to allege such a personal stake in the outcome of the democracy for freedom of expression is undeniable, whether as a means of
controversy as to assure that concrete adverseness which sharpens the assuring individual self-fulfillment; of attaining the truth; of assuring participation
presentation of issues upon which the Court so largely depends for illumination by the people in social, including political, decision-making; and of maintaining
of difficult constitutional questions. [19] the balance between stability and change.[34] As early as the 1920s, the trend
as reflected in Philippine and American decisions was to recognize the broadest
But as early as half a century ago, we have already held that where serious scope and assure the widest latitude for this constitutional guarantee. The trend
constitutional questions are involved, the transcendental importance to the represents a profound commitment to the principle that debate on public issue
public of these cases demands that they be settled promptly and definitely, should be uninhibited, robust, and wide-open. [35]
brushing aside if we must, technicalities of procedure. [20] Subsequently, this
Court has repeatedly and consistently refused to wield procedural barriers as Freedom of speech and of the press means something more than
impediments to its addressing and resolving serious legal questions that greatly the right to approve existing political beliefs or economic arrangements, to lend
impact on public interest,[21] in keeping with the Court's duty under the 1987 support to official measures, and to take refuge in the existing climate of opinion
Constitution to determine whether or not other branches of government have on any matter of public consequence.[36] When atrophied, the right becomes
kept themselves within the limits of the Constitution and the laws and that they meaningless.[37] The right belongs as well -- if not more to those who question,
have not abused the discretion given to them. who do not conform, who differ.[38] The ideas that may be expressed under this
freedom are confined not only to those that are conventional or acceptable to
Thus, in line with the liberal policy of this Court on locus standi when a case the majority. To be truly meaningful, freedom of speech and of the pressshould
involves an issue of overarching significance to our society, [22] we therefore allow and even encourage the articulation of the unorthodox view, though it be
brush aside technicalities of procedure and take cognizance of this hostile to or derided by others; or though such view induces a condition of
petition,[23] seeing as it involves a challenge to the most exalted of all the civil unrest, creates dissatisfaction with conditions as they are, or even stirs people
rights, the freedom of expression. The petition raises other issues like the to anger.[39] To paraphrase Justice Holmes, it is freedom for the thought that we
extent of the right to information of the public. It is fundamental, however, hate, no less than for the thought that agrees with us. [40]
that we need not address all issues but only the most decisive one which
in the case at bar is whether the acts of the respondents abridge freedom The scope of freedom of expression is so broad that it extends protection to
of speech and of the press. nearly all forms of communication. It protects speech, print and assembly
regarding secular as well as political causes, and is not confined to any
But aside from the primordial issue of determining whether free particular field of human interest. The protection covers myriad matters of public
speech and freedom of the press have been infringed, the case at bar also interest or concern embracing all issues, about which information is needed or
gives this Court the opportunity: (1) to distill the essence of freedom of appropriate, so as to enable members of society to cope with the exigencies of
speech and of the press now beclouded by the vagaries of motherhood their period. The constitutional protection assures the broadest possible
statements; (2) to clarify the types of speeches and their differing exercise of free speech and free press for religious, political, economic,
restraints allowed by law; (3) to discuss the core concepts of prior scientific, news, or informational ends, inasmuch as the Constitution's basic
restraint, content-neutral and content-based regulations and their guarantee of freedom to advocate ideas is not confined to the expression of
constitutional standard of review; (4) to examine the historical difference ideas that are conventional or shared by a majority.
in the treatment of restraints between print and broadcast media and
stress the standard of review governing both; and (5) to call attention to The constitutional protection is not limited to the exposition of ideas.
the ongoing blurring of the lines of distinction between print and The protection afforded free speech extends to speech or publications that are
broadcast media. entertaining as well as instructive or informative.Specifically, in Eastern
Broadcasting Corporation (DYRE) v. Dans,[41] this Court stated that all forms of
E. RE-EXAMINING THE LAW ON FREEDOM OF SPEECH, media, whether print or broadcast, are entitled to the broad protection of the
OF EXPRESSION AND OF THE PRESS clause on freedom of speech and of expression.

No law shall be passed abridging the freedom of speech, While all forms of communication are entitled to the broad protection
of expression, or of the press, or the right of the people of freedom of expression clause, the freedom of film, television and radio
peaceably to assemble and petition the government for broadcasting is somewhat lesser in scope than the freedom accorded to
redress of grievances.[24] newspapers and other print media, as will be subsequently discussed.

Freedom of expression has gained recognition as a fundamental E.2. DIFFERENTIATION: THE LIMITS & RESTRAINTS OF FREE SPEECH
principle of every democratic government, and given a preferred right that From the language of the specific constitutional provision, it would appear that
stands on a higher level than substantive economic freedom or other the right to free speech and a free press is not susceptible of any limitation. But
liberties. The cognate rights codified by Article III, Section 4 of the Constitution, the realities of life in a complex society preclude a literal interpretation of the
copied almost verbatim from the First Amendment of the U.S. Bill of provision prohibiting the passage of a law that would abridge such freedom. For
Rights,[25] were considered the necessary consequence of republican freedom of expression is not an absolute, [42] nor is it an unbridled license that
institutions and the complement of free speech.[26] This preferred status of free gives immunity for every possible use of language and prevents the punishment
speech has also been codified at the international level, its recognition now of those who abuse this freedom.
enshrined in international law as a customary norm that binds all nations.[27]
Thus, all speech are not treated the same. Some types of speech may be issuance actually constituted prior restraint. Rather, the determinations were
subjected to some regulation by the State under its pervasive police power, in always about whether the restraint was justified by the Constitution.
order that it may not be injurious to the equal right of others or those of the
community or society.[43] The difference in treatment is expected because the Be that as it may, the determination in every case of whether there is an
relevant interests of one type of speech, e.g., political speech, may vary from impermissible restraint on the freedom of speech has always been based on
those of another, e.g., obscene speech. Distinctions have therefore been made the circumstances of each case, including the nature of the restraint. And in its
in the treatment, analysis, and evaluation of the permissible scope of application in our jurisdiction, the parameters of this principle have been
restrictions on various categories of speech. [44] We have ruled, for example, etched on a case-to-case basis, always tested by scrutinizing the
that in our jurisdiction slander or libel, lewd and obscene speech, as well as governmental issuance or act against the circumstances in which they
fighting words are not entitled to constitutional protection and may be operate, and then determining the appropriate test with which to evaluate.
penalized.[45]
Moreover, the techniques of reviewing alleged restrictions on speech Prior restraint refers to official governmental restrictions on the press or other
(overbreadth, vagueness, and so on) have been applied differently to each forms of expression in advance of actual publication or
category, either consciously or unconsciously. [46] A study of free speech dissemination.[56] Freedom from prior restraint is largely freedom from
jurisprudencewhether here or abroadwill reveal that courts have developed government censorship of publications, whatever the form of censorship, and
different tests as to specific types or categories of speech in regardless of whether it is wielded by the executive, legislative or judicial branch
concrete situations; i.e., subversive speech; obscene speech; the speech of the of the government. Thus, it precludes governmental acts that required approval
broadcast media and of the traditional print media; libelous speech; speech of a proposal to publish; licensing or permits as prerequisites to publication
affecting associational rights; speech before hostile audiences; symbolic including the payment of license taxes for the privilege to publish; and even
speech; speech that affects the right to a fair trial; and speech associated with injunctions against publication. Even the closure of the business and printing
rights of assembly and petition. [47] offices of certain newspapers, resulting in the discontinuation of their printing
and publication, are deemed as previous restraint or censorship.[57] Any law or
Generally, restraints on freedom of speech and expression are official that requires some form of permission to be had before publication can
evaluated by either or a combination of three tests, i.e., (a) the dangerous be made, commits an infringement of the constitutional right, and remedy can
tendency doctrine which permits limitations on speech once a rational be had at the courts.
connection has been established between the speech restrained and the
danger contemplated; [48] (b) the balancing of interests tests, used as a Given that deeply ensconced in our fundamental law is the hostility against all
standard when courts need to balance conflicting social values and individual prior restraints on speech, and any act that restrains speech is presumed
interests, and requires a conscious and detailed consideration of the interplay of invalid,[58] and any act that restrains speech is hobbled by the presumption of
interests observable in a given situation of type of situation; [49] and (c) the clear invalidity and should be greeted with furrowed brows, [59] it is important to stress
and present danger rule which rests on the premise that speech may be not all prior restraints on speech are invalid. Certain previous restraints may
restrained because there is substantial danger that the speech will likely lead to be permitted by the Constitution, but determined only upon a careful
an evil the government has a right to prevent. This rule requires that the evil evaluation of the challenged act as against the appropriate test by which it
consequences sought to be prevented must be substantive, extremely serious should be measured against.
and the degree of imminence extremely high. [50]
Hence, it is not enough to determine whether the challenged act constitutes
As articulated in our jurisprudence, we have applied either some form of restraint on freedom of speech. A distinction has to be made
the dangerous tendency doctrine or clear and present danger test to whether the restraint is (1) a content-neutral regulation,i.e., merely concerned
resolve free speech challenges. More recently, we have concluded that we with the incidents of the speech, or one that merely controls the time, place or
have generally adhered to the clear and present danger test. [51] manner, and under well defined standards;[60] or (2) a content-based restraint
or censorship, i.e., the restriction is based on the subject matter of the utterance
E.3. IN FOCUS: FREEDOM OF THE PRESS or speech. [61] The cast of the restriction determines the test by which the
challenged act is assayed with.
Much has been written on the philosophical basis of press freedom
as part of the larger right of free discussion and expression. Its practical When the speech restraints take the form of a content-neutral regulation, only
importance, though, is more easily grasped. It is the chief source of information a substantial governmental interest is required for its validity.[62] Because
on current affairs. It is the most pervasive and perhaps most powerful vehicle of regulations of this type are not designed to suppress any particular message,
opinion on public questions. It is the instrument by which citizens keep their they are not subject to the strictest form of judicial scrutiny but an intermediate
government informed of their needs, their aspirations and their grievances. It is approachsomewhere between the mere rationality that is required of any other
the sharpest weapon in the fight to keep government responsible and efficient. law and the compelling interest standard applied to content-based
Without a vigilant press, the mistakes of every administration would go restrictions.[63] The test is called intermediate because the Court will not
uncorrected and its abuses unexposed. As Justice Malcolm wrote in United merely rubberstamp the validity of a law but also require that the restrictions be
States v. Bustos:[52] narrowly-tailored to promote an important or significant governmental interest
that is unrelated to the suppression of expression. The intermediate approach
The interest of society and the maintenance of good has been formulated in this manner:
government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public A governmental regulation is sufficiently justified if it is
men is a scalpel in the case of free speech. The sharp within the constitutional power of the Government, if it
incision of its probe relieves the abscesses of furthers an important or substantial governmental
officialdom. Men in public life may suffer under a interest; if the governmental interest is unrelated to the
hostile and unjust accusation; the wound can be suppression of free expression; and if the incident
assuaged with the balm of clear conscience. restriction on alleged [freedom of speech & expression]
is no greater than is essential to the furtherance of that
Its contribution to the public weal makes freedom of the press deserving of interest. [64]
extra protection. Indeed, the press benefits from certain ancillary rights. The
productions of writers are classified as intellectual and proprietary. Persons who On the other hand, a governmental action that restricts freedom of speech or of
interfere or defeat the freedom to write for the press or to maintain a periodical the press based on content is given the strictest scrutiny in light of its
publication are liable for damages, be they private individuals or public officials. inherent and invasive impact. Only when the challenged act has overcome
the clear and present danger rule will it pass constitutional muster,[65] with the
E.4. ANATOMY OF RESTRICTIONS: PRIOR RESTRAINT, CONTENT- government having the burden of overcoming the presumed unconstitutionality.
NEUTRAL AND CONTENT-BASED REGULATIONS
Unless the government can overthrow this presumption, the content-
based restraint will be struck down.[66]
Philippine jurisprudence, even as early as the period under the 1935 With respect to content-based restrictions, the government must also show the
Constitution, has recognized four aspects of freedom of the press. These are type of harm the speech sought to be restrained would bring about
(1) freedom from prior restraint; (2) freedom from punishment subsequent to especially the gravity and the imminence of the threatened harm otherwise the
publication; [53] (3) freedom of access to information; [54] and (4) freedom of prior restraint will be invalid. Prior restraint on speech based on its content
circulation.[55] cannot be justified by hypothetical fears, but only by showing a substantive and
imminent evil that has taken the life of a reality already on ground.[67] As
Considering that petitioner has argued that respondents press statement formulated, the question in every case is whether the words used are used in
constitutes a form of impermissible prior restraint, a closer scrutiny of this such circumstances and are of such a nature as
principle is in order, as well as its sub-specie of content-based (as distinguished to create a clear and present danger thatthey will bring about the substantive
from content-neutral) regulations. evils that Congress has a right to prevent. It is a question of proximity and
degree.[68]
At this point, it should be noted that respondents in this case deny
that their acts constitute prior restraints. This presents a unique tinge to the The regulation which restricts the speech content must also serve an important
present challenge, considering that the cases in our jurisdiction involving prior or substantial government interest, which is unrelated to the suppression of free
restrictions on speech never had any issue of whether the governmental act or expression. [69]
(3) All forms of media, whether print or broadcast, are entitled to the broad
Also, the incidental restriction on speech must be no greater than what is protection of the freedom of speech and expression clause. The test for
essential to the furtherance of that interest. [70] A restriction that is so broad that limitations on freedom of expression continues to be the clear and
it encompasses more than what is required to satisfy the governmental interest present danger rule, that words are used in such circumstances and are of
will be invalidated. [71] The regulation, therefore, must be reasonable and such a nature as to create a clear and present danger that they will bring
narrowly drawn to fit the regulatory purpose, with the least restrictive means about the substantive evils that the lawmaker has a right to prevent, In
undertaken. [72] his Constitution of the Philippines (2nd Edition, pp. 569-570) Chief Justice
Enrique M. Fernando cites at least nine of our decisions which apply the
Thus, when the prior restraint partakes of a content-neutral regulation, it is test. More recently, the clear and present danger test was applied in J.B.L.
subjected to an intermediate review. A content-based Reyes in behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and
regulation,[73] however, bears a heavy presumption of invalidity and is present danger test, however, does not lend itself to a simplistic and all
measured against the clear and present danger rule. The latter will pass embracing interpretation applicable to all utterances in all forums.
constitutional muster only if justified by a compelling reason, and the restrictions
imposed are neither overbroad nor vague. [74] Broadcasting has to be licensed. Airwave frequencies have to be allocated
among qualified users. A broadcast corporation cannot simply appropriate a
Applying the foregoing, it is clear that the challenged acts in the case at bar certain frequency without regard for government regulation or for the rights
need to be subjected to the clear and present danger rule, as they of others.
are content-based restrictions. The acts of respondents focused solely on but
one objecta specific content fixed as these were on the alleged taped All forms of communication are entitled to the broad protection of the
conversations between the President and a COMELEC official. Undoubtedly freedom of expression clause. Necessarily, however, the freedom of
these did not merely provide regulations as to the time, place or manner of the television and radio broadcasting is somewhat lesser in scope than the
dissemination of speech or expression. freedom accorded to newspaper and print media.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
The American Court in Federal Communications Commission v. Pacifica
Finally, comes respondents argument that the challenged act is valid Foundation (438 U.S. 726), confronted with a patently offensive and
on the ground that broadcast media enjoys free speech rights that are lesser in indecent regular radio program, explained why radio broadcasting, more
scope to that of print media. We next explore and test the validity of this than other forms of communications, receives the most limited protection
argument, insofar as it has been invoked to validate a content-based restriction from the free expression clause. First, broadcast media have established a
on broadcast media. uniquely pervasive presence in the lives of all citizens, Material presented
over the airwaves confronts the citizen, not only in public, but in the privacy
The regimes presently in place for each type of media differ of his home. Second, broadcasting is uniquely accessible to children.
from one other. Contrasted with the regime in respect of books, newspapers, Bookstores and motion picture theaters may be prohibited from making
magazines and traditional printed matter, broadcasting, film and video have certain material available to children, but the same selectivity cannot be
been subjected to regulatory schemes. done in radio or television, where the listener or viewer is constantly tuning
in and out.
The dichotomy between print and broadcast media traces its origins
in the United States. There, broadcast radio and television have been held to Similar considerations apply in the area of national security.
have limited First Amendment protection,[75] and U.S. Courts
have excluded broadcast media from the application of the strict scrutiny The broadcast media have also established a uniquely pervasive presence
standard that they would otherwise apply to content-based in the lives of all Filipinos. Newspapers and current books are found only in
restrictions.[76] According to U.S. Courts, the three major reasonswhy metropolitan areas and in the poblaciones of municipalities accessible to fast
broadcast media stands apart from print media are: (a) the scarcity of the and regular transportation. Even here, there are low income masses who
frequencies by which the medium operates [i.e., airwaves are physically limited find the cost of books, newspapers, and magazines beyond their humble
while print medium may be limitless]; [77] (b) its pervasiveness as a medium; and means. Basic needs like food and shelter perforce enjoy high priorities.
(c) its unique accessibility to children.[78] Because cases involving broadcast
media need not follow precisely the same approach that [U.S. courts] have On the other hand, the transistor radio is found everywhere. The television
applied to other media, nor go so far as to demand that such regulations serve set is also becoming universal. Their message may be simultaneously
compelling government interests,[79] they are decided on whether the received by a national or regional audience of listeners including the
governmental restriction is narrowly tailored to further a substantial indifferent or unwilling who happen to be within reach of a blaring radio or
governmental interest,[80] or the intermediate test. television set. The materials broadcast over the airwaves reach every
person of every age, persons of varying susceptibilities to persuasion,
persons of different I.Q.s and mental capabilities, persons whose reactions
As pointed out by respondents, Philippine jurisprudence has also
to inflammatory or offensive speech would be difficult to monitor or predict.
echoed a differentiation in treatment between broadcast and print
media. Nevertheless, a review of Philippine case law on broadcast media The impact of the vibrant speech is forceful and immediate. Unlike readers
will show thatas we have deviated with the American conception of the of the printed work, the radio audience has lesser opportunity to cogitate
Bill of Rights[81] we likewise did not adopt en masse the U.S. conception analyze, and reject the utterance.
of free speech as it relates to broadcast media, particularly as to which test
(5) The clear and present danger test, therefore, must take the particular
would govern content-based prior restraints.
circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the industry
Our cases show two distinct features of this dichotomy. First, the
itself calls for thoughtful, intelligent and sophisticated handling.
difference in treatment, in the main, is in the regulatory scheme applied to
broadcast media that is not imposed on traditional print media, and narrowly The government has a right to be protected against broadcasts which incite
confined to unprotected speech (e.g., obscenity, pornography, seditious and the listeners to violently overthrow it. Radio and television may not be used
inciting speech), or is based on a compelling government interest that also has to organize a rebellion or to signal the start of widespread uprising. At the
constitutional protection, such as national security or the electoral process. same time, the people have a right to be informed. Radio and television
would have little reason for existence if broadcasts are limited to bland,
Second, regardless of the regulatory schemes that broadcast media obsequious, or pleasantly entertaining utterances. Since they are the most
is subjected to, the Court has consistently held that the clear and present convenient and popular means of disseminating varying views on public
danger test applies to content-based restrictions on media, without making a issues, they also deserve special protection.
distinction as to traditional print or broadcast media.
(6) The freedom to comment on public affairs is essential to the vitality of a
The distinction between broadcast and traditional print media was representative democracy. In the 1918 case of United States v. Bustos (37
first enunciated in Eastern Broadcasting Corporation (DYRE) v. Phil. 731) this Court was already stressing that.
Dans,[82] wherein it was held that [a]ll forms of media, whether print or
broadcast, are entitled to the broad protection of the freedom of speech and The interest of society and the maintenance of good government demand a
expression clause. The test for limitations on freedom of expression continues full discussion of public affairs. Complete liberty to comment on the conduct
to be the clear and present danger rule[83] of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
Dans was a case filed to compel the reopening of a radio station which under a hostile and an unjust accusation; the wound can be assuaged with
had been summarily closed on grounds of national security. Although the issue the balm of a clear conscience. A public officer must not be too thin-skinned
had become moot and academic because the owners were no longer interested with reference to comment upon his official acts. Only thus can the
to reopen, the Court still proceeded to do an analysis of the case and made intelligence and dignity of the individual be exalted.
formulations to serve as guidelines for all inferior courts and bodies exercising
quasi-judicial functions. Particularly, the Court made a detailed exposition as to (7) Broadcast stations deserve the special protection given to all forms of
what needs be considered in cases involving broadcast media. Thus:[84] media by the due process and freedom of expression clauses of the
Constitution. [Citations omitted]
xxx xxx xxx
It is interesting to note that the Court in Dans adopted the arguments found in similarities, [96] and the rationales used to support broadcast regulation apply
U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity, equally to the Internet.[97] Thus, it has been argued that courts, legislative
pervasiveness and accessibility to children), but only after categorically bodies and the government agencies regulating media must agree to regulate
declaring that the test for limitations on freedom of expression continues both, regulate neither or develop a new regulatory framework and rationale to
to be the clear and present danger rule, for all forms of media, whether justify the differential treatment. [98]
print or broadcast. Indeed, a close reading of the above-quoted provisions
would show that the differentiation that the Court in Dans referred to was F. The Case At Bar
narrowly restricted to what is otherwise deemed as unprotected speech (e.g.,
obscenity, national security, seditious and inciting speech), or to validate a Having settled the applicable standard to content-based restrictions on
licensing or regulatory scheme necessary to allocate the limited broadcast broadcast media, let us go to its application to the case at bar. To
frequencies, which is absent in print media. Thus, when this Court declared recapitulate, a governmental action that restricts freedom of speech
in Dans that the freedom given to broadcast media was somewhat lesser in or of the press based on content is given the strictest
scope than the freedom accorded to newspaper and print media, it was not as scrutiny, with the government having the burden of overcoming the
to what test should be applied, but the context by which requirements of presumed unconstitutionality by the clear and present danger rule. This rule
licensing, allocation of airwaves, and application of norms to unprotected applies equally to all kinds of media, including broadcast media.
speech. [85]
In the same year that the Dans case was decided, it was reiterated in Gonzales This outlines the procedural map to follow in cases like the one at bar as it
v. Katigbak,[86] that the test to determine free expression challenges was the spells out the following: (a) the test; (b) the presumption; (c) the burden of proof;
clear and present danger, again without distinguishing the (d) the party to discharge the burden; and (e) the quantum of evidence
media.[87] Katigbak, strictly speaking, does not treat of broadcast media but necessary. On the basis of the records of the case at bar, respondents who
motion pictures. Although the issue involved obscenity standards as applied to have the burden to show that these acts do not abridge freedom of speech and
movies,[88] the Court concluded its decision with the following obiter dictum that of the press failed to hurdle the clear and present danger test. It appears that
a less liberal approach would be used to resolve obscenity issues in television the great evil which government wants to prevent is the airing of a tape
as opposed to motion pictures: recording in alleged violation of the anti-wiretapping law. The records of the
All that remains to be said is that the ruling is to be case at bar, however, are confused and confusing, and respondents evidence
limited to the concept of obscenity applicable to motion falls short of satisfying the clear and present danger test. Firstly, the various
pictures. It is the consensus of this Court that where statements of the Press Secretary obfuscate the identity of the voices in the
television is concerned, a less liberal approach calls for tape recording. Secondly, the integrity of the taped conversation is also
observance. This is so because unlike motion pictures suspect. The Press Secretary showed to the public two versions, one supposed
where the patrons have to pay their way, television to be a complete version and the other, an altered version. Thirdly, the
reaches every home where there is a set. Children evidence of the respondents on the whos and the hows of the wiretapping act is
then will likely be among the avid viewers of the ambivalent, especially considering the tapes different versions. The identity of
programs therein shown..It cannot be denied though the wire-tappers, the manner of its commission and other related and relevant
that the State as parens patriae is called upon to proofs are some of the invisibles of this case. Fourthly, given all these
manifest an attitude of caring for the welfare of the unsettled facets of the tape, it is even arguable whether its airing would violate
young. the anti-wiretapping law.

More recently, in resolving a case involving the conduct of exit polls and We rule that not every violation of a law will justify straitjacketing the
dissemination of the results by a broadcast company, we reiterated that the exercise of freedom of speech and of the press. Our laws are of different
clear and present danger rule is the test we unquestionably adhere to issues kinds and doubtless, some of them provide norms of conduct which even if
that involve freedoms of speech and of the press.[89] violated have only an adverse effect on a persons private comfort but does not
endanger national security. There are laws of great significance but their
This is not to suggest, however, that the clear and present danger rule has violation, by itself and without more, cannot support suppression of free
been applied to all cases that involve the broadcast media. The rule applies speech and free press. In fine, violation of law is just a factor, a vital one to
to all media, including broadcast, but only when the challenged act is a content- be sure, which should be weighed in adjudging whether to restrain freedom of
based regulation that infringes on free speech, expression and the speech and of the press. The totality of the injurious effects of the violation to
press. Indeed, in Osmena v. COMELEC,[90] which also involved broadcast private and public interest must be calibrated in light of the preferred status
media, the Court refused to apply the clear and present danger rule to a accorded by the Constitution and by related international covenants protecting
COMELEC regulation of time and manner of advertising of political freedom of speech and of the press. In calling for a careful and calibrated
advertisements because the challenged restriction was content-neutral.[91] And measurement of the circumference of all these factors to determine compliance
in a case involving due process and equal protection issues, the Court with the clear and present danger test, the Court should not be
in Telecommunications and Broadcast Attorneys of the Philippines v. misinterpreted as devaluing violations of law. By all
COMELEC[92] treated a restriction imposed on a broadcast media as a means, violations of law should be vigorously prosecuted by the
reasonable condition for the grant of the medias franchise, without going into State for they breed their own evil consequence. But to repeat, the need to
which test would apply. prevent their violation cannot per se trump the exercise of
That broadcast media is subject to a regulatory regime absent in print media is free speech and free press, a preferred right whose breach can
observed also in other jurisdictions, where the statutory regimes in place over lead to greater evils. For this failure of the respondents alone to offer proof to
broadcast media include elements of licensing, regulation by administrative satisfy the clear and present danger test, the Court has no option but to uphold
bodies, and censorship. As explained by a British author: the exercise of free speech and free press. There is no showing that the feared
violation of the anti-wiretapping law clearly endangers the national security of
the State.
The reasons behind treating broadcast and films differently from the print media differ
in a number of respects, but have a common historical basis. The stricter system of This is not all the faultline in the stance of the respondents. We slide to the
controls seems to have been adopted in answer to the view that owing to issue of whether the mere press statements of the Secretary of Justice and of
their particular impact on audiences, films, videos and broadcasting require a system the NTC in question constitute a form of content-based prior restraint that has
of prior restraints, whereas it is now accepted that books and other printed media do transgressed the Constitution. In resolving this issue, we hold
not. These media are viewed as beneficial to the public in a number of respects, but that it is not decisive that the press statements made by respondents were
are also seen as possible sources of harm.[93] not reduced in or followed up with formal orders or circulars. It is
sufficient that the press statements were made by respondents while in
Parenthetically, these justifications are now the subject of debate. Historically, the exercise of their official functions. Undoubtedly, respondent Gonzales
the scarcity of frequencies was thought to provide a rationale. However, cable made his statements as Secretary of Justice, while the NTC issued its
and satellite television have enormously increased the number of actual and statement as the regulatory body of media. Any act done, such as a speech
potential channels. Digital technology will further increase the number of uttered, for and on behalf of the government in an official capacity is
channels available. But still, the argument persists that broadcasting is the most covered by the rule on prior restraint. The concept of an act does not limit
influential means of communication, since it comes into the home, and so much itself to acts already converted to a formal order or official
time is spent watching television. Since it has a unique impact on people and circular. Otherwise, the non formalization of an act into an official order or
affects children in a way that the print media normally does not, that regulation circular will result in the easy circumvention of the prohibition on prior
is said to be necessary in order to preserve pluralism. It has been argued restraint. The press statements at bar are acts that should be struck down as
further that a significant main threat to free expressionin terms of they constitute impermissible forms of prior restraints on the right to free speech
diversitycomes not from government, but from private corporate and press.
bodies. These developments show a need for a reexamination of the traditional
notions of the scope and extent of broadcast media regulation. [94] There is enough evidence of chilling effect of the complained acts
on record. The warnings given to media came from no less the NTC, a
The emergence of digital technology -- which has led to the convergence of regulatory agency that can cancel the Certificate of Authority of the radio and
broadcasting, telecommunications and the computer industry -- has likewise led broadcast media. They also came from the Secretary of Justice, the alter ego of
to the question of whether the regulatory model for broadcasting will continue to the Executive, who wields the awesome power to prosecute those perceived to
be appropriate in the converged environment.[95] Internet, for example, remains be violating the laws of the land.After the warnings, the KBP inexplicably
largely unregulated, yet the Internet and the broadcast media share joined the NTC in issuing an ambivalent Joint Press Statement. After the
warnings, petitioner Chavez was left alone to fight this battle for freedom of THE INTERIOR AND LOCAL GOVERNMENT, THE NATIONAL BUREAU OF
speech and of the press. This silence on the sidelines on the part of some INVESTIGATION, THE PHILIPPINE NATIONAL POLICE, AND THE
media practitioners is too deafening to be the subject of misinterpretation. INFORMATION AND COMMUNICATIONS TECHNOLOGY OFFICE-
DEPARTMENT OF SCIENCE AND TECHNOLOGY, Respondents.
The constitutional imperative for us to strike down unconstitutional acts should
always be exercised with care and in light of the distinct facts of each case. For
there are no hard and fast rules when it comes to slippery constitutional x-----------------------x
questions, and the limits and construct of relative freedoms are never set in
stone. Issues revolving on their construct must be decided on a case to case G.R. No. 203391
basis, always based on the peculiar shapes and shadows of each case. But in
cases where the challenged acts are patent invasions of a constitutionally
protected right, we should be swift in striking them down as nullities per se. A HON. RAYMOND V. PALATINO, HON. ANTONIO TINIO, VENCER MARI
blow too soon struck for freedom is preferred than a blow too late. CRISOSTOMO OF ANAKBAYAN, MA. KATHERINE ELONA OF THE
PHILIPPINE COLLEGIAN, ISABELLE THERESE BAGUISI OF THE
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and NATIONAL UNION OF STUDENTS OF THE PHILIPPINES, ET
prohibition are hereby issued, nullifying the official statements made by AL., Petitioners,
respondents on June 8, and 11, 2005 warning the media on airing the alleged vs.
wiretapped conversation between the President and other personalities, for PAQUITO N. OCHOA, JR., in his capacity as Executive Secretary and alter-
constituting unconstitutional prior restraint on the exercise of freedom of speech ego of President Benigno Simeon Aquino III, LEILA DE LIMA in her
and of the press SO ORDERED. capacity as Secretary of Justice, Respondents.

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

G.R. No. 203335 February 11, 2014 G.R. No. 203407

JOSE JESUS M. DISINI, JR., ROWENA S. DISINI, LIANNE IVY P. MEDINA, BAGONG ALYANSANG MAKABAYAN SECRETARY GENERAL RENATO
JANETTE TORAL and ERNESTO SONIDO, JR., Petitioners, M. REYES, JR., National Artist BIENVENIDO L. LUMBERA, Chairperson of
vs. Concerned Artists of the Philippines, ELMER C. LABOG, Chairperson of
THE SECRETARY OF JUSTICE, THE SECRETARY OF THE DEPARTMENT Kilusang Mayo Uno, CRISTINA E. PALABAY, Secretary General of
OF THE INTERIOR AND LOCAL GOVERNMENT, THE EXECUTIVE Karapatan, FERDINAND R. GAITE, Chairperson of COURAGE, JOEL B.
DIRECTOR OF THE INFORMATION AND COMMUNICATIONS MAGLUNSOD, Vice President of Anakpawis Party-List, LANA R. LINABAN,
TECHNOLOGY OFFICE, THE CHIEF OF THE PHILIPPINE NATIONAL Secretary General Gabriela Women's Party, ADOLFO ARES P.
POLICE and THE DIRECTOR OF THE NATIONAL BUREAU OF GUTIERREZ, and JULIUS GARCIA MATIBAG, Petitioners,
INVESTIGATION, Respondents. vs.
BENIGNO SIMEON C. AQUINO III, President of the Republic of the
Philippines, PAQUITO N. OCHOA, JR., Executive Secretary, SENATE OF
x-----------------------x THE PHILIPPINES, represented by SENATE PRESIDENT JUAN PONCE
ENRILE, HOUSE OF REPRESENTATIVES, represented by SPEAKER
G.R. No. 203299 FELICIANO BELMONTE, JR., LEILA DE LIMA, Secretary of the Department
of Justice, LOUIS NAPOLEON C. CASAMBRE, Executive Director of the
Information and Communications Technology Office, NONNATUS
LOUIS "BAROK" C. BIRAOGO, Petitioner, CAESAR R. ROJAS, Director of the National Bureau of Investigation,
vs. D/GEN. NICANOR A. BARTOLOME, Chief of the Philippine National Police,
NATIONAL BUREAU OF INVESTIGATION and PHILIPPINE NATIONAL MANUEL A. ROXAS II, Secretary of the Department of the Interior and
POLICE, Respondents. Local Government, Respondents.

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

G.R. No. 203306 G.R. No. 203440

ALAB NG MAMAMAHAYAG (ALAM), HUKUMAN NG MAMAMAYAN MELENCIO S. STA. MARIA, SEDFREY M. CANDELARIA, AMPARITA STA.
MOVEMENT, INC., JERRY S. YAP, BERTENI "TOTO" CAUSING, HERNANI MARIA, RAY PAOLO J. SANTIAGO, GILBERT V. SEMBRANO, and RYAN
Q. CUARE, PERCY LAPID, TRACY CABRERA, RONALDO E. RENTA, JEREMIAH D. QUAN (all of the Ateneo Human Rights Center),Petitioners,
CIRILO P. SABARRE, JR., DERVIN CASTRO, ET AL., Petitioners, vs.
vs. HONORABLE PAQUITO OCHOA in his capacity as Executive Secretary,
OFFICE OF THE PRESIDENT, represented by President Benigno Simeon HONORABLE LEILA DE LIMA in her capacity as Secretary of Justice,
Aquino III, SENATE OF THE PHILIPPINES, and HOUSE OF HONORABLE MANUEL ROXAS in his capacity as Secretary of the
REPRESENTATIVES, Respondents. Department of Interior and Local Government, The CHIEF of the Philippine
National Police, The DIRECTOR of the National Bureau of Investigation (all
of the Executive Department of Government), Respondents.
x-----------------------x

x-----------------------x
G.R. No. 203359

G.R. No. 203453


SENATOR TEOFISTO DL GUINGONA III, Petitioner,
vs.
EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE NATIONAL UNION OF JOURNALISTS OF THE PHILIPPINES (NUJP),
SECRETARY OF THE DEPARTMENT OF INTERIOR AND LOCAL PHILIPPINE PRESS INSTITUTE (PPI), CENTER FOR MEDIA FREEDOM
GOVERNMENT, THE CHIEF OF THE PHILIPPINE NATIONAL POLICE, and AND RESPONSIBILITY, ROWENA CARRANZA PARAAN, MELINDA
DIRECTOR OF THE NATIONAL BUREAU OF QUINTOS-DE JESUS, JOSEPH ALWYN ALBURO, ARIEL SEBELLINO AND
INVESTIGATION, Respondents. THE PETITIONERS IN THE e-PETITION http://www.nujp.org/no-to-
ra10175/, Petitioners,
vs.
x-----------------------x THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
G.R. No. 203378 SECRETARY OF BUDGET AND MANAGEMENT, THE DIRECTOR
GENERAL OF THE PHILIPPINE NATIONAL POLICE, THE DIRECTOR OF
THE NATIONAL BUREAU OF INVESTIGATION, THE CYBERCRIME
ALEXANDER ADONIS, ELLEN TORDESILLAS, MA. GISELA ORDENES- INVESTIGATION AND COORDINATING CENTER, AND ALL AGENCIES
CASCOLAN, H. HARRY L. ROQUE, JR., ROMEL R. BAGARES, and AND INSTRUMENTALITIES OF GOVERNMENT AND ALL PERSONS
GILBERT T. ANDRES, Petitioners, ACTING UNDER THEIR INSTRUCTIONS, ORDERS, DIRECTION IN
vs. RELATION TO THE IMPLEMENTATION OF REPUBLIC ACT NO.
THE EXECUTIVE SECRETARY, THE DEPARTMENT OF BUDGET AND 10175, Respondents.
MANAGEMENT, THE DEPARTMENT OF JUSTICE, THE DEPARTMENT OF
x-----------------------x G.R. No. 203518

G.R. No. 203454 PHILIPPINE INTERNET FREEDOM ALLIANCE, composed of DAKILA-


PHILIPPINE COLLECTIVE FOR MODERN HEROISM, represented by Leni
Velasco, PARTIDO LAKAS NG MASA, represented by Cesar S. Melencio,
PAUL CORNELIUS T. CASTILLO & RYAN D. ANDRES, Petitioners, FRANCIS EUSTON R. ACERO, MARLON ANTHONY ROMASANTA
vs. TONSON, TEODORO A. CASIO, NOEMI LARDIZABAL-DADO, IMELDA
THE HON. SECRETARY OF JUSTICE THE HON. SECRETARY OF ORALES, JAMES MATTHEW B. MIRAFLOR, JUAN G.M. RAGRAGIO,
INTERIOR AND LOCAL GOVERNMENT,Respondents. MARIA FATIMA A. VILLENA, MEDARDO M. MANRIQUE, JR., LAUREN
DADO, MARCO VITTORIA TOBIAS SUMAYAO, IRENE CHIA, ERASTUS
x-----------------------x NOEL T. DELIZO, CRISTINA SARAH E. OSORIO, ROMEO FACTOLERIN,
NAOMI L. TUPAS, KENNETH KENG, ANA ALEXANDRA C.
CASTRO, Petitioners,
G.R. No. 203469 vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF JUSTICE, THE
SECRETARY OF INTERIOR AND LOCAL GOVERNMENT, THE
ANTHONY IAN M. CRUZ; MARCELO R. LANDICHO; BENJAMIN NOEL A.
SECRETARY OF SCIENCE AND TECHNOLOGY, THE EXECUTIVE
ESPINA; MARCK RONALD C. RIMORIN; JULIUS D. ROCAS; OLIVER
DIRECTOR OF THE INFORMATION TECHNOLOGY OFFICE, THE
RICHARD V. ROBILLO; AARON ERICK A. LOZADA; GERARD ADRIAN P.
DIRECTOR OF THE NATIONAL BUREAU OF INVESTIGATION, THE CHIEF,
MAGNAYE; JOSE REGINALD A. RAMOS; MA. ROSARIO T. JUAN;
PHILIPPINE NATIONAL POLICE, THE HEAD OF THE DOJ OFFICE OF
BRENDALYN P. RAMIREZ; MAUREEN A. HERMITANIO; KRISTINE JOY S.
CYBERCRIME, and THE OTHER MEMBERS OF THE CYBERCRIME
REMENTILLA; MARICEL O. GRAY; JULIUS IVAN F. CABIGON; BENRALPH
INVESTIGATION AND COORDINATING CENTER, Respondents.
S. YU; CEBU BLOGGERS SOCIETY, INC. PRESIDENT RUBEN B. LICERA,
JR; and PINOY EXPAT/OFW BLOG AWARDS, INC. COORDINATOR
PEDRO E. RAHON; Petitioners, DECISION
vs.
HIS EXCELLENCY BENIGNO S. AQUINO III, in his capacity as President of
the Republic of the Philippines; SENATE OF THE PHILIPPINES, ABAD, J.:
represented by HON. JUAN PONCE ENRILE, in his capacity as Senate
President; HOUSE OF REPRESENTATIVES, represented by FELICIANO R. These consolidated petitions seek to declare several provisions of Republic Act
BELMONTE, JR., in his capacity as Speaker of the House of (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional and void.
Representatives; HON. PAQUITO N. OCHOA, JR., in his capacity as
Executive Secretary; HON. LEILA M. DE LIMA, in her capacity as Secretary
of Justice; HON. LOUIS NAPOLEON C. CASAMBRE, in his capacity as The Facts and the Case
Executive Director, Information and Communications Technology Office;
HON. NONNATUS CAESAR R. ROJAS, in his capacity as Director, National
Bureau of Investigation; and P/DGEN. NICANOR A. BARTOLOME, in his The cybercrime law aims to regulate access to and use of the cyberspace.
capacity as Chief, Philippine National Police, Respondents. Using his laptop or computer, a person can connect to the internet, a system
that links him to other computers and enable him, among other things, to:

x-----------------------x
1. Access virtual libraries and encyclopedias for all kinds of
information that he needs for research, study, amusement,
G.R. No. 203501 upliftment, or pure curiosity;

PHILIPPINE BAR ASSOCIATION, INC., Petitioner, 2. Post billboard-like notices or messages, including pictures and
vs. videos, for the general public or for special audiences like
HIS EXCELLENCY BENIGNO S. AQUINO III, in his official capacity as associates, classmates, or friends and read postings from them;
President of the Republic of the Philippines; HON. PAQUITO N. OCHOA,
JR., in his official capacity as Executive Secretary; HON. LEILA M. DE
LIMA, in her official capacity as Secretary of Justice; LOUIS NAPOLEON 3. Advertise and promote goods or services and make purchases
C. CASAMBRE, in his official capacity as Executive Director, Information and payments;
and Communications Technology Office; NONNATUS CAESAR R. ROJAS,
in his official capacity as Director of the National Bureau of Investigation; 4. Inquire and do business with institutional entities like government
and DIRECTOR GENERAL NICANOR A. BARTOLOME, in his official agencies, banks, stock exchanges, trade houses, credit card
capacity as Chief of the Philippine National Police,Respondents. companies, public utilities, hospitals, and schools; and

x-----------------------x 5. Communicate in writing or by voice with any person through his e-


mail address or telephone.
G.R. No. 203509
This is cyberspace, a system that accommodates millions and billions of
BAYAN MUNA REPRESENTATIVE NERI J. COLMENARES, Petitioner, simultaneous and ongoing individual accesses to and uses of the internet. The
vs. cyberspace is a boon to the need of the current generation for greater
THE EXECUTIVE SECRETARY PAQUITO OCHOA, JR., Respondent. information and facility of communication. But all is not well with the system
since it could not filter out a number of persons of ill will who would want to use
cyberspace technology for mischiefs and crimes. One of them can, for instance,
x-----------------------x avail himself of the system to unjustly ruin the reputation of another or bully the
latter by posting defamatory statements against him that people can read.
G.R. No. 203515
And because linking with the internet opens up a user to communications from
others, the ill-motivated can use the cyberspace for committing theft by hacking
NATIONAL PRESS CLUB OF THE PHILIPPINES, INC. represented by into or surreptitiously accessing his bank account or credit card or defrauding
BENNY D. ANTIPORDA in his capacity as President and in his personal him through false representations. The wicked can use the cyberspace, too, for
capacity, Petitioner, illicit trafficking in sex or for exposing to pornography guileless children who
vs. have access to the internet. For this reason, the government has a legitimate
OFFICE OF THE PRESIDENT, PRES. BENIGNO SIMEON AQUINO III, right to regulate the use of cyberspace and contain and punish wrongdoings.
DEPARTMENT OF JUSTICE, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, PHILIPPINE NATIONAL POLICE, NATIONAL BUREAU OF
INVESTIGATION, DEPARTMENT OF BUDGET AND MANAGEMENT AND Notably, there are also those who would want, like vandals, to wreak or cause
ALL OTHER GOVERNMENT INSTRUMENTALITIES WHO HAVE HANDS IN havoc to the computer systems and networks of indispensable or highly useful
THE PASSAGE AND/OR IMPLEMENTATION OF REPUBLIC ACT institutions as well as to the laptop or computer programs and memories of
10175, Respondents. innocent individuals. They accomplish this by sending electronic viruses or
virtual dynamites that destroy those computer systems, networks, programs,
and memories. The government certainly has the duty and the right to prevent
x-----------------------x these tomfooleries from happening and punish their perpetrators, hence the
Cybercrime Prevention Act.
But petitioners claim that the means adopted by the cybercrime law for Section 4(a)(1) provides:
regulating undesirable cyberspace activities violate certain of their constitutional
rights. The government of course asserts that the law merely seeks to
reasonably put order into cyberspace activities, punish wrongdoings, and Section 4. Cybercrime Offenses. The following acts constitute the offense of
prevent hurtful attacks on the system. cybercrime punishable under this Act:

Pending hearing and adjudication of the issues presented in these cases, on (a) Offenses against the confidentiality, integrity and availability of computer
February 5, 2013 the Court extended the original 120-day temporary restraining data and systems:
order (TRO) that it earlier issued on October 9, 2012, enjoining respondent
government agencies from implementing the cybercrime law until further orders. (1) Illegal Access. The access to the whole or any part of a computer system
without right.
The Issues Presented
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny standard
Petitioners challenge the constitutionality of the following provisions of the required of laws that interfere with the fundamental rights of the people and
cybercrime law that regard certain acts as crimes and impose penalties for their should thus be struck down.
commission as well as provisions that would enable the government to track
down and penalize violators. These provisions are: The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws that
a. Section 4(a)(1) on Illegal Access; tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect
b. Section 4(a)(3) on Data Interference; class is presumed unconstitutional. The burden is on the government to prove
that the classification is necessary to achieve a compelling state interest and
that it is the least restrictive means to protect such interest.2 Later, the strict
c. Section 4(a)(6) on Cyber-squatting; scrutiny standard was used to assess the validity of laws dealing with the
regulation of speech, gender, or race as well as other fundamental rights, as
d. Section 4(b)(3) on Identity Theft; expansion from its earlier applications to equal protection.3

e. Section 4(c)(1) on Cybersex; In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for the
application of the strict scrutiny standard since no fundamental freedom, like
speech, is involved in punishing what is essentially a condemnable act
f. Section 4(c)(2) on Child Pornography; accessing the computer system of another without right. It is a universally
condemned conduct.4
g. Section 4(c)(3) on Unsolicited Commercial Communications;
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
h. Section 4(c)(4) on Libel;
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target systems security and report back to the
i. Section 5 on Aiding or Abetting and Attempt in the Commission of owners the vulnerabilities they found in it and give instructions for how these
Cybercrimes; can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5
j. Section 6 on the Penalty of One Degree Higher;
Besides, a clients engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and the
k. Section 7 on the Prosecution under both the Revised Penal Code systems to be tested. This is referred to as the "get out of jail free card."6Since
(RPC) and R.A. 10175; the ethical hacker does his job with prior permission from the client, such
permission would insulate him from the coverage of Section 4(a)(1).
l. Section 8 on Penalties;
Section 4(a)(3) of the Cybercrime Law
m. Section 12 on Real-Time Collection of Traffic Data;
Section 4(a)(3) provides:
n. Section 13 on Preservation of Computer Data;
Section 4. Cybercrime Offenses. The following acts constitute the offense of
o. Section 14 on Disclosure of Computer Data; cybercrime punishable under this Act:

p. Section 15 on Search, Seizure and Examination of Computer (a) Offenses against the confidentiality, integrity and availability of computer
Data; data and systems:

q. Section 17 on Destruction of Computer Data; xxxx

r. Section 19 on Restricting or Blocking Access to Computer Data; (3) Data Interference. The intentional or reckless alteration, damaging,
deletion or deterioration of computer data, electronic document, or electronic
data message, without right, including the introduction or transmission of
s. Section 20 on Obstruction of Justice; viruses.

t. Section 24 on Cybercrime Investigation and Coordinating Center Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it
(CICC); and seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
u. Section 26(a) on CICCs Powers and Functions.

Under the overbreadth doctrine, a proper governmental purpose,


Some petitioners also raise the constitutionality of related Articles 353, 354, constitutionally subject to state regulation, may not be achieved by means that
361, and 362 of the RPC on the crime of libel. unnecessarily sweep its subject broadly, thereby invading the area of protected
freedoms.7 But Section 4(a)(3) does not encroach on these freedoms at all. It
The Rulings of the Court simply punishes what essentially is a form of vandalism,8 the act of willfully
destroying without right the things that belong to others, in this case their
computer data, electronic document, or electronic data message. Such act has
Section 4(a)(1) no connection to guaranteed freedoms. There is no freedom to destroy other
peoples computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
effect, an in terrorem effect9 or the fear of possible prosecution that hangs on process and to privacy and correspondence, and transgresses the freedom of
the heads of citizens who are minded to step beyond the boundaries of what is the press.
proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.10 Here, the chilling effect that results in The right to privacy, or the right to be let alone, was institutionalized in the 1987
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it Constitution as a facet of the right protected by the guarantee against
seeks to punish and creates no tendency to intimidate the free exercise of ones unreasonable searches and seizures.13 But the Court acknowledged its
constitutional rights. existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to privacy
exists independently of its identification with liberty; it is in itself fully deserving
of constitutional protection.
Besides, the overbreadth challenge places on petitioners the heavy burden of
proving that under no set of circumstances will Section 4(a)(3) be
valid.11 Petitioner has failed to discharge this burden. Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the relevance
Section 4(a)(6) of the Cybercrime Law of these zones to the right to privacy:

Section 4(a)(6) provides: Zones of privacy are recognized and protected in our laws. Within these zones,
any form of intrusion is impermissible unless excused by law and in accordance
with customary legal process. The meticulous regard we accord to these zones
Section 4. Cybercrime Offenses. The following acts constitute the offense of arises not only from our conviction that the right to privacy is a "constitutional
cybercrime punishable under this Act: right" and "the right most valued by civilized men," but also from our adherence
to the Universal Declaration of Human Rights which mandates that, "no one
(a) Offenses against the confidentiality, integrity and availability of computer shall be subjected to arbitrary interference with his privacy" and "everyone has
data and systems: the right to the protection of the law against such interference or attacks."

xxxx Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches16 and seizures, which is the basis of the right to
be let alone, and (b) the right to privacy of communication and
(6) Cyber-squatting. The acquisition of domain name over the internet in bad correspondence.17 In assessing the challenge that the State has impermissibly
faith to profit, mislead, destroy the reputation, and deprive others from intruded into these zones of privacy, a court must determine whether a person
registering the same, if such a domain name is: has exhibited a reasonable expectation of privacy and, if so, whether that
expectation has been violated by unreasonable government intrusion.18
(i) Similar, identical, or confusingly similar to an existing trademark
registered with the appropriate government agency at the time of the The usual identifying information regarding a person includes his name, his
domain name registration; citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The law
punishes those who acquire or use such identifying information without right,
(ii) Identical or in any way similar with the name of a person other
implicitly to cause damage. Petitioners simply fail to show how government
than the registrant, in case of a personal name; and
effort to curb computer-related identity theft violates the right to privacy and
correspondence as well as the right to due process of law.
(iii) Acquired without right or with intellectual property interests in it.
Also, the charge of invalidity of this section based on the overbreadth doctrine
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal will not hold water since the specific conducts proscribed do not intrude into
protection clause12 in that, not being narrowly tailored, it will cause a user using guaranteed freedoms like speech. Clearly, what this section regulates are
his real name to suffer the same fate as those who use aliases or take the specific actions: the acquisition, use, misuse or deletion of personal identifying
name of another in satire, parody, or any other literary device. For example, data of another. There is no fundamental right to acquire anothers personal
supposing there exists a well known billionaire-philanthropist named "Julio data.
Gandolfo," the law would punish for cyber-squatting both the person who
registers such name because he claims it to be his pseudo-name and another
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press in
who registers the name because it happens to be his real name. Petitioners
that journalists would be hindered from accessing the unrestricted user account
claim that, considering the substantial distinction between the two, the law
of a person in the news to secure information about him that could be
should recognize the difference.
published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be intended
But there is no real difference whether he uses "Julio Gandolfo" which happens for an illegitimate purpose. Moreover, acquiring and disseminating information
to be his real name or use it as a pseudo-name for it is the evil purpose for made public by the user himself cannot be regarded as a form of theft.
which he uses the name that the law condemns. The law is reasonable in
penalizing him for acquiring the domain name in bad faith to profit, mislead,
The Court has defined intent to gain as an internal act which can be established
destroy reputation, or deprive others who are not ill-motivated of the rightful
through the overt acts of the offender, and it may be presumed from the furtive
opportunity of registering the same. The challenge to the constitutionality of
taking of useful property pertaining to another, unless special circumstances
Section 4(a)(6) on ground of denial of equal protection is baseless.
reveal a different intent on the part of the perpetrator.20 As such, the press,
whether in quest of news reporting or social investigation, has nothing to fear
Section 4(b)(3) of the Cybercrime Law since a special circumstance is present to negate intent to gain which is
required by this Section.
Section 4(b)(3) provides:
Section 4(c)(1) of the Cybercrime Law
Section 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act: Section 4(c)(1) provides:

xxxx Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
b) Computer-related Offenses:
xxxx
xxxx
(c) Content-related Offenses:
(3) Computer-related Identity Theft. The intentional acquisition, use, misuse,
transfer, possession, alteration, or deletion of identifying information belonging (1) Cybersex. The willful engagement, maintenance, control, or operation,
to another, whether natural or juridical, without right: Provided: that if no directly or indirectly, of any lascivious exhibition of sexual organs or sexual
damage has yet been caused, the penalty imposable shall be one (1) degree activity, with the aid of a computer system, for favor or consideration.
lower.
Petitioners claim that the above violates the freedom of expression clause of Petitioners point out that the provision of ACPA that makes it unlawful for any
the Constitution.21 They express fear that private communications of sexual person to "produce, direct, manufacture or create any form of child
character between husband and wife or consenting adults, which are not pornography"33 clearly relates to the prosecution of persons who aid and abet
regarded as crimes under the penal code, would now be regarded as crimes the core offenses that ACPA seeks to punish.34 Petitioners are wary that a
when done "for favor" in cyberspace. In common usage, the term "favor" person who merely doodles on paper and imagines a sexual abuse of a 16-
includes "gracious kindness," "a special privilege or right granted or conceded," year-old is not criminally liable for producing child pornography but one who
or "a token of love (as a ribbon) usually worn conspicuously."22 This meaning formulates the idea on his laptop would be. Further, if the author bounces off his
given to the term "favor" embraces socially tolerated trysts. The law as written ideas on Twitter, anyone who replies to the tweet could be considered aiding
would invite law enforcement agencies into the bedrooms of married couples or and abetting a cybercrime.
consenting individuals.
The question of aiding and abetting the offense by simply commenting on it will
But the deliberations of the Bicameral Committee of Congress on this section of be discussed elsewhere below. For now the Court must hold that the
the Cybercrime Prevention Act give a proper perspective on the issue. These constitutionality of Section 4(c)(2) is not successfully challenged.
deliberations show a lack of intent to penalize a "private showing x x x between
and among two private persons x x x although that may be a form of obscenity
to some."23 The understanding of those who drew up the cybercrime law is that Section 4(c)(3) of the Cybercrime Law
the element of "engaging in a business" is necessary to constitute the illegal
cybersex.24 The Act actually seeks to punish cyber prostitution, white slave Section 4(c)(3) provides:
trade, and pornography for favor and consideration. This includes interactive
prostitution and pornography, i.e., by webcam.25
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of
cybercrime punishable under this Act:
The subject of Section 4(c)(1)lascivious exhibition of sexual organs or sexual
activityis not novel. Article 201 of the RPC punishes "obscene publications
and exhibitions and indecent shows." The Anti-Trafficking in Persons Act of xxxx
2003 penalizes those who "maintain or hire a person to engage in prostitution or
pornography."26 The law defines prostitution as any act, transaction, scheme, or
(c) Content-related Offenses:
design involving the use of a person by another, for sexual intercourse or
lascivious conduct in exchange for money, profit, or any other consideration.27
xxxx
The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for (3) Unsolicited Commercial Communications. The transmission of commercial
violence, lust, or pornography.29 The Court weighed the property rights of electronic communication with the use of computer system which seeks to
individuals against the public welfare. Private property, if containing advertise, sell, or offer for sale products and services are prohibited unless:
pornographic materials, may be forfeited and destroyed. Likewise, engaging in
sexual acts privately through internet connection, perceived by some as a right,
has to be balanced with the mandate of the State to eradicate white slavery and (i) There is prior affirmative consent from the recipient; or
the exploitation of women.
(ii) The primary intent of the communication is for service and/or
In any event, consenting adults are protected by the wealth of jurisprudence administrative announcements from the sender to its existing users,
delineating the bounds of obscenity.30The Court will not declare Section 4(c)(1) subscribers or customers; or
unconstitutional where it stands a construction that makes it apply only to
persons engaged in the business of maintaining, controlling, or operating, (iii) The following conditions are present:
directly or indirectly, the lascivious exhibition of sexual organs or sexual activity
with the aid of a computer system as Congress has intended.
(aa) The commercial electronic communication contains a
simple, valid, and reliable way for the recipient to reject
Section 4(c)(2) of the Cybercrime Law receipt of further commercial electronic messages (opt-
out) from the same source;
Section 4(c)(2) provides:
(bb) The commercial electronic communication does not
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of purposely disguise the source of the electronic message;
cybercrime punishable under this Act: and

xxxx (cc) The commercial electronic communication does not


purposely include misleading information in any part of the
message in order to induce the recipients to read the
(c) Content-related Offenses: message.

xxxx The above penalizes the transmission of unsolicited commercial


communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the same
(2) Child Pornography. The unlawful or prohibited acts defined and
sentence or comment was said to be making a "spam." The term referred to a
punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of
Monty Pythons Flying Circus scene in which actors would keep saying "Spam,
2009, committed through a computer system: Provided, That the penalty to be
Spam, Spam, and Spam" when reading options from a menu.35
imposed shall be (1) one degree higher than that provided for in Republic Act
No. 9775.
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that wastes
It seems that the above merely expands the scope of the Anti-Child
the storage and network capacities of internet service providers, reduces the
Pornography Act of 200931 (ACPA) to cover identical activities in cyberspace. In
efficiency of commerce and technology, and interferes with the owners
theory, nothing prevents the government from invoking the ACPA when
peaceful enjoyment of his property. Transmitting spams amounts to trespass to
prosecuting persons who commit child pornography using a computer system.
ones privacy since the person sending out spams enters the recipients domain
Actually, ACPAs definition of child pornography already embraces the use of
without prior permission. The OSG contends that commercial speech enjoys
"electronic, mechanical, digital, optical, magnetic or any other means." Notably,
less protection in law.
no one has questioned this ACPA provision.

But, firstly, the government presents no basis for holding that unsolicited
Of course, the law makes the penalty higher by one degree when the crime is
electronic ads reduce the "efficiency of computers." Secondly, people, before
committed in cyberspace. But no one can complain since the intensity or
the arrival of the age of computers, have already been receiving such
duration of penalty is a legislative prerogative and there is rational basis for
unsolicited ads by mail. These have never been outlawed as nuisance since
such higher penalty.32 The potential for uncontrolled proliferation of a particular
people might have interest in such ads. What matters is that the recipient has
piece of child pornography when uploaded in the cyberspace is incalculable.
the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right to There is "actual malice" or malice in fact41 when the offender makes the
read his emails, even unsolicited commercial ads addressed to him. defamatory statement with the knowledge that it is false or with reckless
Commercial speech is a separate category of speech which is not accorded the disregard of whether it was false or not.42 The reckless disregard standard used
same level of protection as that given to other constitutionally guaranteed forms here requires a high degree of awareness of probable falsity. There must be
of expression but is nonetheless entitled to protection.36 The State cannot rob sufficient evidence to permit the conclusion that the accused in fact entertained
him of this right without violating the constitutionally guaranteed freedom of serious doubts as to the truth of the statement he published. Gross or even
expression. Unsolicited advertisements are legitimate forms of expression. extreme negligence is not sufficient to establish actual malice.43

Articles 353, 354, and 355 of the Penal Code The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
Section 4(c)(4) of the Cyber Crime Law available where the offended party is a public official or a public figure, as in the
cases of Vasquez (a barangay official) and Borjal (the Executive Director, First
Petitioners dispute the constitutionality of both the penal code provisions on National Conference on Land Transportation). Since the penal code and
libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on cyberlibel. implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to convict
the author of a defamatory statement where the offended party is a public
The RPC provisions on libel read: figure. Societys interest and the maintenance of good government demand a
full discussion of public affairs.44
Art. 353. Definition of libel. A libel is public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission, condition, Parenthetically, the Court cannot accept the proposition that its ruling in Fermin
status, or circumstance tending to cause the dishonor, discredit, or contempt of disregarded the higher standard of actual malice or malice in fact when it found
a natural or juridical person, or to blacken the memory of one who is dead. Cristinelli Fermin guilty of committing libel against complainants who were
public figures. Actually, the Court found the presence of malice in fact in that
case. Thus:
Art. 354. Requirement for publicity. Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and justifiable
motive for making it is shown, except in the following cases: It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there was no malice on her
1. A private communication made by any person to another in the
part. Verily, not only was there malice in law, the article being malicious in itself,
performance of any legal, moral or social duty; and
but there was also malice in fact, as there was motive to talk ill against
complainants during the electoral campaign. (Emphasis ours)
2. A fair and true report, made in good faith, without any comments
or remarks, of any judicial, legislative or other official proceedings
Indeed, the Court took into account the relatively wide leeway given to
which are not of confidential nature, or of any statement, report or
utterances against public figures in the above case, cinema and television
speech delivered in said proceedings, or of any other act performed
personalities, when it modified the penalty of imprisonment to just a fine of
by public officers in the exercise of their functions.
6,000.00.

Art. 355. Libel means by writings or similar means. A libel committed by


But, where the offended party is a private individual, the prosecution need not
means of writing, printing, lithography, engraving, radio, phonograph, painting,
prove the presence of malice. The law explicitly presumes its existence (malice
theatrical exhibition, cinematographic exhibition, or any similar means, shall be
in law) from the defamatory character of the assailed statement.45 For his
punished by prision correccional in its minimum and medium periods or a fine
defense, the accused must show that he has a justifiable reason for the
ranging from 200 to 6,000 pesos, or both, in addition to the civil action which
defamatory statement even if it was in fact true.46
may be brought by the offended party.

Petitioners peddle the view that both the penal code and the Cybercrime
The libel provision of the cybercrime law, on the other hand, merely
Prevention Act violate the countrys obligations under the International
incorporates to form part of it the provisions of the RPC on libel. Thus Section
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis v.
4(c)(4) reads:
Republic of the Philippines,47 the United Nations Human Rights Committee
(UNHRC) cited its General Comment 34 to the effect that penal defamation
Sec. 4. Cybercrime Offenses. The following acts constitute the offense of laws should include the defense of truth.
cybercrime punishable under this Act:
But General Comment 34 does not say that the truth of the defamatory
xxxx statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and for
(c) Content-related Offenses: justifiable ends. Thus:

xxxx Art. 361. Proof of the truth. In every criminal prosecution for libel, the truth
may be given in evidence to the court and if it appears that the matter charged
(4) Libel. The unlawful or prohibited acts of libel as defined in Article 355 of as libelous is true, and, moreover, that it was published with good motives and
the Revised Penal Code, as amended, committed through a computer system for justifiable ends, the defendants shall be acquitted.
or any other similar means which may be devised in the future.
Proof of the truth of an imputation of an act or omission not constituting a crime
Petitioners lament that libel provisions of the penal code37 and, in effect, the shall not be admitted, unless the imputation shall have been made against
libel provisions of the cybercrime law carry with them the requirement of Government employees with respect to facts related to the discharge of their
"presumed malice" even when the latest jurisprudence already replaces it with official duties.
the higher standard of "actual malice" as a basis for conviction.38 Petitioners
argue that inferring "presumed malice" from the accuseds defamatory In such cases if the defendant proves the truth of the imputation made by him,
statement by virtue of Article 354 of the penal code infringes on his he shall be acquitted.
constitutionally guaranteed freedom of expression.

Besides, the UNHRC did not actually enjoin the Philippines, as petitioners urge,
Petitioners would go further. They contend that the laws on libel should be to decriminalize libel. It simply suggested that defamation laws be crafted with
stricken down as unconstitutional for otherwise good jurisprudence requiring care to ensure that they do not stifle freedom of expression.48Indeed, the
"actual malice" could easily be overturned as the Court has done in Fermin v. ICCPR states that although everyone should enjoy freedom of expression, its
People39 even where the offended parties happened to be public figures. exercise carries with it special duties and responsibilities. Free speech is not
absolute. It is subject to certain restrictions, as may be necessary and as may
The elements of libel are: (a) the allegation of a discreditable act or condition be provided by law.49
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40 The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect private
individuals from defamation. Indeed, cyberlibel is actually not a new crime since
Article 353, in relation to Article 355 of the penal code, already punishes it. In such as "This is great!" When a Facebook user "Shares" a posting, the original
effect, Section 4(c)(4) above merely affirms that online defamation constitutes "posting" will appear on his own Facebook profile, consequently making it
"similar means" for committing libel. visible to his down-line Facebook Friends.

But the Courts acquiescence goes only insofar as the cybercrime law penalizes Twitter, on the other hand, is an internet social networking and microblogging
the author of the libelous statement or article. Cyberlibel brings with it certain service that enables its users to send and read short text-based messages of
intricacies, unheard of when the penal code provisions on libel were enacted. up to 140 characters. These are known as "Tweets." Microblogging is the
The culture associated with internet media is distinct from that of print. practice of posting small pieces of digital contentwhich could be in the form of
text, pictures, links, short videos, or other mediaon the internet. Instead of
friends, a Twitter user has "Followers," those who subscribe to this particular
The internet is characterized as encouraging a freewheeling, anything-goes users posts, enabling them to read the same, and "Following," those whom this
writing style.50 In a sense, they are a world apart in terms of quickness of the particular user is subscribed to, enabling him to read their posts. Like
readers reaction to defamatory statements posted in cyberspace, facilitated by Facebook, a Twitter user can make his tweets available only to his Followers, or
one-click reply options offered by the networking site as well as by the speed to the general public. If a post is available to the public, any Twitter user can
with which such reactions are disseminated down the line to other internet "Retweet" a given posting. Retweeting is just reposting or republishing another
users. Whether these reactions to defamatory statement posted on the internet persons tweet without the need of copying and pasting it.
constitute aiding and abetting libel, acts that Section 5 of the cybercrime law
punishes, is another matter that the Court will deal with next in relation to
Section 5 of the law. In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet caf that may
Section 5 of the Cybercrime Law have provided the computer used for posting the blog; e) the person who
makes a favorable comment on the blog; and f) the person who posts a link to
Section 5 provides: the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her
blog so she subscribes to Sun Broadband (Internet Service Provider).
Sec. 5. Other Offenses. The following acts shall also constitute an offense:

One day, Maria posts on her internet account the statement that a certain
(a) Aiding or Abetting in the Commission of Cybercrime. Any married public official has an illicit affair with a movie star. Linda, one of Marias
person who willfully abets or aids in the commission of any of the friends who sees this post, comments online, "Yes, this is so true! They are so
offenses enumerated in this Act shall be held liable. immoral." Marias original post is then multiplied by her friends and the latters
friends, and down the line to friends of friends almost ad infinitum. Nena, who is
a stranger to both Maria and Linda, comes across this blog, finds it interesting
(b) Attempt in the Commission of Cybercrime. Any person who
and so shares the link to this apparently defamatory blog on her Twitter
willfully attempts to commit any of the offenses enumerated in this
account. Nenas "Followers" then "Retweet" the link to that blog site.
Act shall be held liable.

Pamela, a Twitter user, stumbles upon a random persons "Retweet" of Nenas


Petitioners assail the constitutionality of Section 5 that renders criminally liable
original tweet and posts this on her Facebook account. Immediately, Pamelas
any person who willfully abets or aids in the commission or attempts to commit
Facebook Friends start Liking and making Comments on the assailed posting.
any of the offenses enumerated as cybercrimes. It suffers from overbreadth,
A lot of them even press the Share button, resulting in the further spread of the
creating a chilling and deterrent effect on protected expression.
original posting into tens, hundreds, thousands, and greater postings.

The Solicitor General contends, however, that the current body of jurisprudence
The question is: are online postings such as "Liking" an openly defamatory
and laws on aiding and abetting sufficiently protects the freedom of expression
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
of "netizens," the multitude that avail themselves of the services of the internet.
"aiding or abetting?" In libel in the physical world, if Nestor places on the office
He points out that existing laws and jurisprudence sufficiently delineate the
bulletin board a small poster that says, "Armand is a thief!," he could certainly
meaning of "aiding or abetting" a crime as to protect the innocent. The Solicitor
be charged with libel. If Roger, seeing the poster, writes on it, "I like this!," that
General argues that plain, ordinary, and common usage is at times sufficient to
could not be libel since he did not author the poster. If Arthur, passing by and
guide law enforcement agencies in enforcing the law.51 The legislature is not
noticing the poster, writes on it, "Correct!," would that be libel? No, for he merely
required to define every single word contained in the laws they craft.
expresses agreement with the statement on the poster. He still is not its author.
Besides, it is not clear if aiding or abetting libel in the physical world is a crime.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a
But suppose Nestor posts the blog, "Armand is a thief!" on a social networking
forest,52 smuggling merchandise into the country,53 or interfering in the peaceful
site. Would a reader and his Friends or Followers, availing themselves of any of
picketing of laborers,54 his action is essentially physical and so is susceptible to
the "Like," "Comment," and "Share" reactions, be guilty of aiding or abetting
easy assessment as criminal in character. These forms of aiding or abetting
libel? And, in the complex world of cyberspace expressions of thoughts, when
lend themselves to the tests of common sense and human experience.
will one be liable for aiding or abetting cybercrimes? Where is the venue of the
crime?
But, when it comes to certain cybercrimes, the waters are muddier and the line
of sight is somewhat blurred. The idea of "aiding or abetting" wrongdoings
Except for the original author of the assailed statement, the rest (those who
online threatens the heretofore popular and unchallenged dogmas of
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
cyberspace use.
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the inherent
According to the 2011 Southeast Asia Digital Consumer Report, 33% of impossibility of joining hundreds or thousands of responding "Friends" or
Filipinos have accessed the internet within a year, translating to about 31 million "Followers" in the criminal charge to be filed in court, who will make a choice as
users.55 Based on a recent survey, the Philippines ranks 6th in the top 10 most to who should go to jail for the outbreak of the challenged posting?
engaged countries for social networking.56 Social networking sites build social
relations among people who, for example, share interests, activities,
The old parameters for enforcing the traditional form of libel would be a square
backgrounds, or real-life connections.57
peg in a round hole when applied to cyberspace libel. Unless the legislature
crafts a cyber libel law that takes into account its unique circumstances and
Two of the most popular of these sites are Facebook and Twitter. As of late culture, such law will tend to create a chilling effect on the millions that use this
2012, 1.2 billion people with shared interests use Facebook to get in new medium of communication in violation of their constitutionally-guaranteed
touch.58 Users register at this site, create a personal profile or an open book of right to freedom of expression.
who they are, add other users as friends, and exchange messages, including
automatic notifications when they update their profile.59 A user can post a
The United States Supreme Court faced the same issue in Reno v. American
statement, a photo, or a video on Facebook, which can be made visible to
Civil Liberties Union,61 a case involving the constitutionality of the
anyone, depending on the users privacy settings.
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
If the post is made available to the public, meaning to everyone and not only to
his friends, anyone on Facebook can react to the posting, clicking any of
"obscene or indecent" communications to any recipient under 18 years of age;
several buttons of preferences on the programs screen such as "Like,"
and (2) the knowing use of an interactive computer service to send to a specific
"Comment," or "Share." "Like" signifies that the reader likes the posting while
person or persons under 18 years of age or to display in a manner available to
"Comment" enables him to post online his feelings or views about the same,
a person under 18 years of age communications that, in context, depict or
describe, in terms "patently offensive" as measured by contemporary constitutionally-protected freedom of expression of the great masses that use it.
community standards, sexual or excretory activities or organs. In this case, the particularly complex web of interaction on social media
websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Those who challenged the Act claim that the law violated the First
Amendments guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled: Who is to decide when to prosecute persons who boost the visibility of a posting
on the internet by liking it? Netizens are not given "fair notice" or warning as to
what is criminal conduct and what is lawful conduct. When a case is filed, how
The vagueness of the Communications Decency Act of 1996 (CDA), 47 will the court ascertain whether or not one netizens comment aided and
U.S.C.S. 223, is a matter of special concern for two reasons. First, the CDA is abetted a cybercrime while another comment did not?
a content-based regulation of speech. The vagueness of such a regulation
raises special U.S. Const. amend. I concerns because of its obvious chilling
effect on free speech. Second, the CDA is a criminal statute. In addition to the Of course, if the "Comment" does not merely react to the original posting but
opprobrium and stigma of a criminal conviction, the CDA threatens violators creates an altogether new defamatory story against Armand like "He beats his
with penalties including up to two years in prison for each act of violation. The wife and children," then that should be considered an original posting published
severity of criminal sanctions may well cause speakers to remain silent rather on the internet. Both the penal code and the cybercrime law clearly punish
than communicate even arguably unlawful words, ideas, and images. As a authors of defamatory publications. Make no mistake, libel destroys reputations
practical matter, this increased deterrent effect, coupled with the risk of that society values. Allowed to cascade in the internet, it will destroy
discriminatory enforcement of vague regulations, poses greater U.S. Const. relationships and, under certain circumstances, will generate enmity and
amend. I concerns than those implicated by certain civil regulations. tension between social or economic groups, races, or religions, exacerbating
existing tension in their relationships.
xxxx
In regard to the crime that targets child pornography, when "Google procures,
stores, and indexes child pornography and facilitates the completion of
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. 223, presents transactions involving the dissemination of child pornography," does this make
a great threat of censoring speech that, in fact, falls outside the statute's scope. Google and its users aiders and abettors in the commission of child
Given the vague contours of the coverage of the statute, it unquestionably pornography crimes?68 Byars highlights a feature in the American law on child
silences some speakers whose messages would be entitled to constitutional pornography that the Cybercrimes law lacksthe exemption of a provider or
protection. That danger provides further reason for insisting that the statute not notably a plain user of interactive computer service from civil liability for child
be overly broad. The CDAs burden on protected speech cannot be justified if it pornography as follows:
could be avoided by a more carefully drafted statute. (Emphasis ours)

No provider or user of an interactive computer service shall be treated as the


Libel in the cyberspace can of course stain a persons image with just one click publisher or speaker of any information provided by another information content
of the mouse. Scurrilous statements can spread and travel fast across the globe provider and cannot be held civilly liable for any action voluntarily taken in good
like bad news. Moreover, cyberlibel often goes hand in hand with cyberbullying faith to restrict access to or availability of material that the provider or user
that oppresses the victim, his relatives, and friends, evoking from mild to considers to be obscene...whether or not such material is constitutionally
disastrous reactions. Still, a governmental purpose, which seeks to regulate the protected.69
use of this cyberspace communication technology to protect a persons
reputation and peace of mind, cannot adopt means that will unnecessarily and
broadly sweep, invading the area of protected freedoms.62 When a person replies to a Tweet containing child pornography, he effectively
republishes it whether wittingly or unwittingly. Does this make him a willing
accomplice to the distribution of child pornography? When a user downloads
If such means are adopted, self-inhibition borne of fear of what sinister the Facebook mobile application, the user may give consent to Facebook to
predicaments await internet users will suppress otherwise robust discussion of access his contact details. In this way, certain information is forwarded to third
public issues. Democracy will be threatened and with it, all liberties. Penal laws parties and unsolicited commercial communication could be disseminated on
should provide reasonably clear guidelines for law enforcement officials and the basis of this information.70 As the source of this information, is the user
triers of facts to prevent arbitrary and discriminatory enforcement.63 The terms aiding the distribution of this communication? The legislature needs to address
"aiding or abetting" constitute broad sweep that generates chilling effect on this clearly to relieve users of annoying fear of possible criminal prosecution.
those who express themselves through cyberspace posts, comments, and other
messages.64 Hence, Section 5 of the cybercrime law that punishes "aiding or
abetting" libel on the cyberspace is a nullity. Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness
raises apprehension on the part of internet users because of its obvious chilling
effect on the freedom of expression, especially since the crime of aiding or
When a penal statute encroaches upon the freedom of speech, a facial abetting ensnares all the actors in the cyberspace front in a fuzzy way. What is
challenge grounded on the void-for-vagueness doctrine is acceptable. The more, as the petitioners point out, formal crimes such as libel are not
inapplicability of the doctrine must be carefully delineated. As Justice Antonio T. punishable unless consummated.71 In the absence of legislation tracing the
Carpio explained in his dissent in Romualdez v. Commission on interaction of netizens and their level of responsibility such as in other countries,
Elections,65 "we must view these statements of the Court on the inapplicability Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)(3) on Unsolicited
of the overbreadth and vagueness doctrines to penal statutes as appropriate Commercial Communications, and Section 4(c)(2) on Child Pornography,
only insofar as these doctrines are used to mount facial challenges to penal cannot stand scrutiny.
statutes not involving free speech."

But the crime of aiding or abetting the commission of cybercrimes under


In an "as applied" challenge, the petitioner who claims a violation of his Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access,
constitutional right can raise any constitutional ground absence of due Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
process, lack of fair notice, lack of ascertainable standards, overbreadth, or Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of Devices,
vagueness. Here, one can challenge the constitutionality of a statute only if he Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-related
asserts a violation of his own rights. It prohibits one from assailing the Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3) on
constitutionality of the statute based solely on the violation of the rights of third Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None of
persons not before the court. This rule is also known as the prohibition against these offenses borders on the exercise of the freedom of expression.
third-party standing.66

The crime of willfully attempting to commit any of these offenses is for the same
But this rule admits of exceptions. A petitioner may for instance mount a "facial" reason not objectionable. A hacker may for instance have done all that is
challenge to the constitutionality of a statute even if he claims no violation of his necessary to illegally access another partys computer system but the security
own rights under the assailed statute where it involves free speech on grounds employed by the systems lawful owner could frustrate his effort. Another
of overbreadth or vagueness of the statute. hacker may have gained access to usernames and passwords of others but fail
to use these because the system supervisor is alerted.72 If Section 5 that
The rationale for this exception is to counter the "chilling effect" on protected punishes any person who willfully attempts to commit this specific offense is not
speech that comes from statutes violating free speech. A person who does not upheld, the owner of the username and password could not file a complaint
know whether his speech constitutes a crime under an overbroad or vague law against him for attempted hacking. But this is not right. The hacker should not
may simply restrain himself from speaking in order to avoid being charged of a be freed from liability simply because of the vigilance of a lawful owner or his
crime. The overbroad or vague law thus chills him into silence.67 supervisor.

As already stated, the cyberspace is an incomparable, pervasive medium of Petitioners of course claim that Section 5 lacks positive limits and could cover
communication. It is inevitable that any government threat of punishment the innocent.73 While this may be true with respect to cybercrimes that tend to
regarding certain uses of the medium creates a chilling effect on the sneak past the area of free expression, any attempt to commit the other acts
specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3), Section 4(a)(4), If punishable acts in Section 4(a) are committed against critical infrastructure,
Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)(2), Section the penalty of reclusion temporal or a fine of at least Five hundred thousand
4(b)(3), and Section 4(c)(1) as well as the actors aiding and abetting the pesos (Ph500,000.00) up to maximum amount commensurate to the damage
commission of such acts can be identified with some reasonable certainty incurred or both, shall be imposed.
through adroit tracking of their works. Absent concrete proof of the same, the
innocent will of course be spared.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a fine
Section 6 of the Cybercrime Law of at least Two hundred thousand pesos (Ph200,000.00) but not exceeding
One million pesos (Ph1,000,000.00) or both.
Section 6 provides:
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(2) of this Act shall be punished with the penalties as enumerated in
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:" Provided,
amended, and special laws, if committed by, through and with the use of That the penalty to be imposed shall be one (1) degree higher than that
information and communications technologies shall be covered by the relevant provided for in Republic Act No. 9775, if committed through a computer system.
provisions of this Act: Provided, That the penalty to be imposed shall be one (1)
degree higher than that provided for by the Revised Penal Code, as amended,
and special laws, as the case may be. Any person found guilty of any of the punishable acts enumerated in Section
4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at
least Fifty thousand pesos (Ph50,000.00) but not exceeding Two hundred fifty
Section 6 merely makes commission of existing crimes through the internet a thousand pesos (Ph250,000.00) or both.
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of information
and communications technology and similar crimes committed using other Any person found guilty of any of the punishable acts enumerated in Section 5
means. In using the technology in question, the offender often evades shall be punished with imprisonment one (1) degree lower than that of the
identification and is able to reach far more victims or cause greater harm. The prescribed penalty for the offense or a fine of at least One hundred thousand
distinction, therefore, creates a basis for higher penalties for cybercrimes. pesos (Ph100,000.00) but not exceeding Five hundred thousand pesos
(Ph500,000.00) or both.
Section 7 of the Cybercrime Law
Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer Data
Section 7 provides: and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical
Sec. 7. Liability under Other Laws. A prosecution under this Act shall be infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on
without prejudice to any liability for violation of any provision of the Revised Unsolicited Commercial Communications; and Section 5 on Aiding or Abetting,
Penal Code, as amended, or special laws. and Attempt in the Commission of Cybercrime.

The Solicitor General points out that Section 7 merely expresses the settled The matter of fixing penalties for the commission of crimes is as a rule a
doctrine that a single set of acts may be prosecuted and penalized legislative prerogative. Here the legislature prescribed a measure of severe
simultaneously under two laws, a special law and the Revised Penal Code. penalties for what it regards as deleterious cybercrimes. They appear
When two different laws define two crimes, prior jeopardy as to one does not proportionate to the evil sought to be punished. The power to determine
bar prosecution of the other although both offenses arise from the same fact, if penalties for offenses is not diluted or improperly wielded simply because at
each crime involves some important act which is not an essential element of the some prior time the act or omission was but an element of another offense or
other.74 With the exception of the crimes of online libel and online child might just have been connected with another crime.77 Judges and magistrates
pornography, the Court would rather leave the determination of the correct can only interpret and apply them and have no authority to modify or revise their
application of Section 7 to actual cases. range as determined by the legislative department.

Online libel is different. There should be no question that if the published The courts should not encroach on this prerogative of the lawmaking body.78
material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two Section 12 of the Cybercrime Law
offenses, one a violation of Article 353 of the Revised Penal Code and the other
a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Indeed, the OSG itself Section 12 provides:
claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging the offender Sec. 12. Real-Time Collection of Traffic Data. Law enforcement authorities,
under both laws would be a blatant violation of the proscription against double with due cause, shall be authorized to collect or record by technical or
jeopardy.76 electronic means traffic data in real-time associated with specified
communications transmitted by means of a computer system.

The same is true with child pornography committed online. Section 4(c)(2)
merely expands the ACPAs scope so as to include identical activities in Traffic data refer only to the communications origin, destination, route, time,
cyberspace. As previously discussed, ACPAs definition of child pornography in date, size, duration, or type of underlying service, but not content, nor identities.
fact already covers the use of "electronic, mechanical, digital, optical, magnetic
or any other means." Thus, charging the offender under both Section 4(c)(2) All other data to be collected or seized or disclosed will require a court warrant.
and ACPA would likewise be tantamount to a violation of the constitutional
prohibition against double jeopardy.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
Section 8 of the Cybercrime Law

The court warrant required under this section shall only be issued or granted
Section 8 provides: upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there are
Sec. 8. Penalties. Any person found guilty of any of the punishable acts reasonable grounds to believe that any of the crimes enumerated hereinabove
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with has been committed, or is being committed, or is about to be committed; (2)
imprisonment of prision mayor or a fine of at least Two hundred thousand pesos that there are reasonable grounds to believe that evidence that will be obtained
(Ph200,000.00) up to a maximum amount commensurate to the damage is essential to the conviction of any person for, or to the solution of, or to the
incurred or both. prevention of, any such crimes; and (3) that there are no other means readily
available for obtaining such evidence.

Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five Petitioners assail the grant to law enforcement agencies of the power to collect
hundred thousand pesos (Ph500,000.00) or both. or record traffic data in real time as tending to curtail civil liberties or provide
opportunities for official abuse. They claim that data showing where digital
messages come from, what kind they are, and where they are destined need
not be incriminating to their senders or recipients before they are to be
protected. Petitioners invoke the right of every individual to privacy and to be latter, a third person, the traffic data needed for connecting him to the recipient
protected from government snooping into the messages or information that they ICT user. For example, an ICT user who writes a text message intended for
send to one another. another ICT user must furnish his service provider with his cellphone number
and the cellphone number of his recipient, accompanying the message sent. It
is this information that creates the traffic data. Transmitting communications is
The first question is whether or not Section 12 has a proper governmental akin to putting a letter in an envelope properly addressed, sealing it closed, and
purpose since a law may require the disclosure of matters normally considered sending it through the postal service. Those who post letters have no
private but then only upon showing that such requirement has a rational relation expectations that no one will read the information appearing outside the
to the purpose of the law,79 that there is a compelling State interest behind the envelope.
law, and that the provision itself is narrowly drawn.80 In assessing regulations
affecting privacy rights, courts should balance the legitimate concerns of the
State against constitutional guarantees.81 Computer datamessages of all kindstravel across the internet in packets
and in a way that may be likened to parcels of letters or things that are sent
through the posts. When data is sent from any one source, the content is
Undoubtedly, the State has a compelling interest in enacting the cybercrime law broken up into packets and around each of these packets is a wrapper or
for there is a need to put order to the tremendous activities in cyberspace for header. This header contains the traffic data: information that tells computers
public good.82 To do this, it is within the realm of reason that the government where the packet originated, what kind of data is in the packet (SMS, voice call,
should be able to monitor traffic data to enhance its ability to combat all sorts of video, internet chat messages, email, online browsing data, etc.), where the
cybercrimes. packet is going, and how the packet fits together with other packets.93 The
difference is that traffic data sent through the internet at times across the ocean
Chapter IV of the cybercrime law, of which the collection or recording of traffic do not disclose the actual names and addresses (residential or office) of the
data is a part, aims to provide law enforcement authorities with the power they sender and the recipient, only their coded internet protocol (IP) addresses. The
need for spotting, preventing, and investigating crimes committed in packets travel from one computer system to another where their contents are
cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice Sereno pieced back together.
points out, the Budapest Convention on Cybercrimes requires signatory
countries to adopt legislative measures to empower state authorities to collect Section 12 does not permit law enforcement authorities to look into the contents
or record "traffic data, in real time, associated with specified of the messages and uncover the identities of the sender and the recipient.
communications."83 And this is precisely what Section 12 does. It empowers law
enforcement agencies in this country to collect or record such data.
For example, when one calls to speak to another through his cellphone, the
service providers communications system will put his voice message into
But is not evidence of yesterdays traffic data, like the scene of the crime after it packets and send them to the other persons cellphone where they are refitted
has been committed, adequate for fighting cybercrimes and, therefore, real-time together and heard. The latters spoken reply is sent to the caller in the same
data is superfluous for that purpose? Evidently, it is not. Those who commit the way. To be connected by the service provider, the sender reveals his cellphone
crimes of accessing a computer system without right,84 transmitting number to the service provider when he puts his call through. He also reveals
viruses,85 lasciviously exhibiting sexual organs or sexual activity for favor or the cellphone number to the person he calls. The other ways of communicating
consideration;86 and producing child pornography87 could easily evade detection electronically follow the same basic pattern.
and prosecution by simply moving the physical location of their computers or
laptops from day to day. In this digital age, the wicked can commit cybercrimes
from virtually anywhere: from internet cafs, from kindred places that provide In Smith v. Maryland,94 cited by the Solicitor General, the United States
free internet services, and from unregistered mobile internet connectors. Supreme Court reasoned that telephone users in the 70s must realize that they
Criminals using cellphones under pre-paid arrangements and with unregistered necessarily convey phone numbers to the telephone company in order to
SIM cards do not have listed addresses and can neither be located nor complete a call. That Court ruled that even if there is an expectation that phone
identified. There are many ways the cyber criminals can quickly erase their numbers one dials should remain private, such expectation is not one that
tracks. Those who peddle child pornography could use relays of computers to society is prepared to recognize as reasonable.
mislead law enforcement authorities regarding their places of operations.
Evidently, it is only real-time traffic data collection or recording and a
subsequent recourse to court-issued search and seizure warrant that can In much the same way, ICT users must know that they cannot communicate or
succeed in ferreting them out. exchange data with one another over cyberspace except through some service
providers to whom they must submit certain traffic data that are needed for a
successful cyberspace communication. The conveyance of this data takes them
Petitioners of course point out that the provisions of Section 12 are too broad out of the private sphere, making the expectation to privacy in regard to them
and do not provide ample safeguards against crossing legal boundaries and an expectation that society is not prepared to recognize as reasonable.
invading the peoples right to privacy. The concern is understandable. Indeed,
the Court recognizes in Morfe v. Mutuc88 that certain constitutional guarantees
work together to create zones of privacy wherein governmental powers may not The Court, however, agrees with Justices Carpio and Brion that when
intrude, and that there exists an independent constitutional right of privacy. seemingly random bits of traffic data are gathered in bulk, pooled together, and
Such right to be left alone has been regarded as the beginning of all analyzed, they reveal patterns of activities which can then be used to create
freedoms.89 profiles of the persons under surveillance. With enough traffic data, analysts
may be able to determine a persons close associations, religious views,
political affiliations, even sexual preferences. Such information is likely beyond
But that right is not unqualified. In Whalen v. Roe,90 the United States Supreme what the public may expect to be disclosed, and clearly falls within matters
Court classified privacy into two categories: decisional privacy and informational protected by the right to privacy. But has the procedure that Section 12 of the
privacy. Decisional privacy involves the right to independence in making certain law provides been drawn narrowly enough to protect individual rights?
important decisions, while informational privacy refers to the interest in avoiding
disclosure of personal matters. It is the latter rightthe right to informational
privacythat those who oppose government collection or recording of traffic Section 12 empowers law enforcement authorities, "with due cause," to collect
data in real-time seek to protect. or record by technical or electronic means traffic data in real-time. Petitioners
point out that the phrase "due cause" has no precedent in law or jurisprudence
and that whether there is due cause or not is left to the discretion of the police.
Informational privacy has two aspects: the right not to have private information Replying to this, the Solicitor General asserts that Congress is not required to
disclosed, and the right to live freely without surveillance and intrusion.91 In define the meaning of every word it uses in drafting the law.
determining whether or not a matter is entitled to the right to privacy, this Court
has laid down a two-fold test. The first is a subjective test, where one claiming
the right must have an actual or legitimate expectation of privacy over a certain Indeed, courts are able to save vague provisions of law through statutory
matter. The second is an objective test, where his or her expectation of privacy construction. But the cybercrime law, dealing with a novel situation, fails to hint
must be one society is prepared to accept as objectively reasonable.92 at the meaning it intends for the phrase "due cause." The Solicitor General
suggests that "due cause" should mean "just reason or motive" and "adherence
to a lawful procedure." But the Court cannot draw this meaning since Section 12
Since the validity of the cybercrime law is being challenged, not in relation to its does not even bother to relate the collection of data to the probable commission
application to a particular person or group, petitioners challenge to Section 12 of a particular crime. It just says, "with due cause," thus justifying a general
applies to all information and communications technology (ICT) users, meaning gathering of data. It is akin to the use of a general search warrant that the
the large segment of the population who use all sorts of electronic devices to Constitution prohibits.
communicate with one another. Consequently, the expectation of privacy is to
be measured from the general publics point of view. Without reasonable
expectation of privacy, the right to it would have no basis in fact. Due cause is also not descriptive of the purpose for which data collection will be
used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
As the Solicitor General points out, an ordinary ICT user who courses his identified suspect? Can the data be used to prevent cybercrimes from
communication through a service provider, must of necessity disclose to the happening?
The authority that Section 12 gives law enforcement agencies is too sweeping and subscriber information relating to communication services for at least six
and lacks restraint. While it says that traffic data collection should not disclose months from the date of the transaction and those relating to content data for at
identities or content data, such restraint is but an illusion. Admittedly, nothing least six months from receipt of the order for their preservation.
can prevent law enforcement agencies holding these data in their hands from
looking into the identity of their sender or receiver and what the data contains.
This will unnecessarily expose the citizenry to leaked information or, worse, to Actually, the user ought to have kept a copy of that data when it crossed his
extortion from certain bad elements in these agencies. computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.

Section 12, of course, limits the collection of traffic data to those "associated
with specified communications." But this supposed limitation is no limitation at At any rate, as the Solicitor General correctly points out, the data that service
all since, evidently, it is the law enforcement agencies that would specify the providers preserve on orders of law enforcement authorities are not made
target communications. The power is virtually limitless, enabling law inaccessible to users by reason of the issuance of such orders. The process of
enforcement authorities to engage in "fishing expedition," choosing whatever preserving data will not unduly hamper the normal transmission or use of the
specified communication they want. This evidently threatens the right of same.
individuals to privacy.
Section 14 of the Cybercrime Law
The Solicitor General points out that Section 12 needs to authorize collection of
traffic data "in real time" because it is not possible to get a court warrant that Section 14 provides:
would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officers determination of
probable cause that a crime has been committed, that there is no opportunity Sec. 14. Disclosure of Computer Data. Law enforcement authorities, upon
for getting a warrant, and that unless the search is immediately carried out, the securing a court warrant, shall issue an order requiring any person or service
thing to be searched stands to be removed. These preconditions are not provider to disclose or submit subscribers information, traffic data or relevant
provided in Section 12. data in his/its possession or control within seventy-two (72) hours from receipt
of the order in relation to a valid complaint officially docketed and assigned for
investigation and the disclosure is necessary and relevant for the purpose of
The Solicitor General is honest enough to admit that Section 12 provides investigation.
minimal protection to internet users and that the procedure envisioned by the
law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of The process envisioned in Section 14 is being likened to the issuance of a
Section 12 is of course not enough. The grant of the power to track cyberspace subpoena. Petitioners objection is that the issuance of subpoenas is a judicial
communications in real time and determine their sources and destinations must function. But it is well-settled that the power to issue subpoenas is not
be narrowly drawn to preclude abuses.95 exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98

Petitioners also ask that the Court strike down Section 12 for being violative of
the void-for-vagueness doctrine and the overbreadth doctrine. These doctrines Besides, what Section 14 envisions is merely the enforcement of a duly issued
however, have been consistently held by this Court to apply only to free speech court warrant, a function usually lodged in the hands of law enforcers to enable
cases. But Section 12 on its own neither regulates nor punishes any type of them to carry out their executive functions. The prescribed procedure for
speech. Therefore, such analysis is unnecessary. disclosure would not constitute an unlawful search or seizure nor would it
violate the privacy of communications and correspondence. Disclosure can be
made only after judicial intervention.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance in
ways that have previously been impractical or even impossible. "All the forces Section 15 of the Cybercrime Law
of a technological age x x x operate to narrow the area of privacy and facilitate
intrusions into it. In modern terms, the capacity to maintain and support this
Section 15 provides:
enclave of private life marks the difference between a democratic and a
totalitarian society."96 The Court must ensure that laws seeking to take
advantage of these technologies be written with specificity and definiteness as Sec. 15. Search, Seizure and Examination of Computer Data. Where a
to ensure respect for the rights that the Constitution guarantees. search and seizure warrant is properly issued, the law enforcement authorities
shall likewise have the following powers and duties.
Section 13 of the Cybercrime Law
Within the time period specified in the warrant, to conduct interception, as
defined in this Act, and:
Section 13 provides:

(a) To secure a computer system or a computer data storage


Sec. 13. Preservation of Computer Data. The integrity of traffic data and
medium;
subscriber information relating to communication services provided by a service
provider shall be preserved for a minimum period of six (6) months from the
date of the transaction. Content data shall be similarly preserved for six (6) (b) To make and retain a copy of those computer data secured;
months from the date of receipt of the order from law enforcement authorities
requiring its preservation.
(c) To maintain the integrity of the relevant stored computer data;

Law enforcement authorities may order a one-time extension for another six (6)
months: Provided, That once computer data preserved, transmitted or stored by (d) To conduct forensic analysis or examination of the computer data
a service provider is used as evidence in a case, the mere furnishing to such storage medium; and
service provider of the transmittal document to the Office of the Prosecutor shall
be deemed a notification to preserve the computer data until the termination of (e) To render inaccessible or remove those computer data in the
the case. accessed computer or computer and communications network.

The service provider ordered to preserve computer data shall keep confidential Pursuant thereof, the law enforcement authorities may order any person who
the order and its compliance. has knowledge about the functioning of the computer system and the measures
to protect and preserve the computer data therein to provide, as is reasonable,
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue the necessary information, to enable the undertaking of the search, seizure and
deprivation of the right to property. They liken the data preservation order that examination.
law enforcement authorities are to issue as a form of garnishment of personal
property in civil forfeiture proceedings. Such order prevents internet users from Law enforcement authorities may request for an extension of time to complete
accessing and disposing of traffic data that essentially belong to them. the examination of the computer data storage medium and to make a return
thereon but in no case for a period longer than thirty (30) days from date of
No doubt, the contents of materials sent or received through the internet belong approval by the court.
to their authors or recipients and are to be considered private communications.
But it is not clear that a service provider has an obligation to indefinitely keep a Petitioners challenge Section 15 on the assumption that it will supplant
copy of the same as they pass its system for the benefit of users. By virtue of established search and seizure procedures. On its face, however, Section 15
Section 13, however, the law now requires service providers to keep traffic data
merely enumerates the duties of law enforcement authorities that would ensure provision. It does not take into consideration any of the three tests mentioned
the proper collection, preservation, and use of computer system or data that above.
have been seized by virtue of a court warrant. The exercise of these duties do
not pose any threat on the rights of the person from whom they were taken.
Section 15 does not appear to supersede existing search and seizure rules but The Court is therefore compelled to strike down Section 19 for being violative of
merely supplements them. the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.

Section 17 of the Cybercrime Law


Section 20 of the Cybercrime Law

Section 17 provides:
Section 20 provides:

Sec. 17. Destruction of Computer Data. Upon expiration of the periods as


provided in Sections 13 and 15, service providers and law enforcement Sec. 20. Noncompliance. Failure to comply with the provisions of Chapter IV
authorities, as the case may be, shall immediately and completely destroy the hereof specifically the orders from law enforcement authorities shall be
computer data subject of a preservation and examination. punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every noncompliance with an
Section 17 would have the computer data, previous subject of preservation or order issued by law enforcement authorities.
examination, destroyed or deleted upon the lapse of the prescribed period. The
Solicitor General justifies this as necessary to clear up the service providers
storage systems and prevent overload. It would also ensure that investigations Petitioners challenge Section 20, alleging that it is a bill of attainder. The
are quickly concluded. argument is that the mere failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-compliance would be reasonable or
valid.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the users right against deprivation of
property without due process of law. But, as already stated, it is unclear that the But since the non-compliance would be punished as a violation of Presidential
user has a demandable right to require the service provider to have that copy of Decree (P.D.) 1829,102 Section 20 necessarily incorporates elements of the
the data saved indefinitely for him in its storage system. If he wanted them offense which are defined therein. If Congress had intended for Section 20 to
preserved, he should have saved them in his computer when he generated the constitute an offense in and of itself, it would not have had to make reference to
data or received it. He could also request the service provider for a copy before any other statue or provision.
it is deleted.
P.D. 1829 states:
Section 19 of the Cybercrime Law
Section 1. The penalty of prision correccional in its maximum period, or a fine
Section 19 empowers the Department of Justice to restrict or block access to ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any person
computer data: who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
Sec. 19. Restricting or Blocking Access to Computer Data. When a computer
data is prima facie found to be in violation of the provisions of this Act, the DOJ
shall issue an order to restrict or block access to such computer data. x x x.

Petitioners contest Section 19 in that it stifles freedom of expression and Thus, the act of non-compliance, for it to be punishable, must still be done
violates the right against unreasonable searches and seizures. The Solicitor "knowingly or willfully." There must still be a judicial determination of guilt,
General concedes that this provision may be unconstitutional. But since laws during which, as the Solicitor General assumes, defense and justifications for
enjoy a presumption of constitutionality, the Court must satisfy itself that Section non-compliance may be raised. Thus, Section 20 is valid insofar as it applies to
19 indeed violates the freedom and right mentioned. the provisions of Chapter IV which are not struck down by the Court.

Computer data99 may refer to entire programs or lines of code, including Sections 24 and 26(a) of the Cybercrime Law
malware, as well as files that contain texts, images, audio, or video recordings.
Without having to go into a lengthy discussion of property rights in the digital Sections 24 and 26(a) provide:
space, it is indisputable that computer data, produced or created by their writers
or authors may constitute personal property. Consequently, they are protected
from unreasonable searches and seizures, whether while stored in their Sec. 24. Cybercrime Investigation and Coordinating Center. There is hereby
personal computers or in the service providers systems. created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President, for
Section 2, Article III of the 1987 Constitution provides that the right to be secure policy coordination among concerned agencies and for the formulation and
in ones papers and effects against unreasonable searches and seizures of enforcement of the national cybersecurity plan.
whatever nature and for any purpose shall be inviolable. Further, it states that
no search warrant shall issue except upon probable cause to be determined
personally by the judge. Here, the Government, in effect, seizes and places the Sec. 26. Powers and Functions. The CICC shall have the following powers
computer data under its control and disposition without a warrant. The and functions:
Department of Justice order cannot substitute for judicial search warrant.
(a) To formulate a national cybersecurity plan and extend immediate assistance
The content of the computer data can also constitute speech. In such a case, of real time commission of cybercrime offenses through a computer emergency
Section 19 operates as a restriction on the freedom of expression over response team (CERT); x x x.
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal. But
Petitioners mainly contend that Congress invalidly delegated its power when it
for an executive officer to seize content alleged to be unprotected without any
gave the Cybercrime Investigation and Coordinating Center (CICC) the power
judicial warrant, it is not enough for him to be of the opinion that such content
to formulate a national cybersecurity plan without any sufficient standards or
violates some law, for to do so would make him judge, jury, and executioner all
parameters for it to follow.
rolled into one.100

In order to determine whether there is undue delegation of legislative power, the


Not only does Section 19 preclude any judicial intervention, but it also
Court has adopted two tests: the completeness test and the sufficient standard
disregards jurisprudential guidelines established to determine the validity of
test. Under the first test, the law must be complete in all its terms and conditions
restrictions on speech. Restraints on free speech are generally evaluated on
when it leaves the legislature such that when it reaches the delegate, the only
one of or a combination of three tests: the dangerous tendency doctrine, the
thing he will have to do is to enforce it.1avvphi1 The second test mandates
balancing of interest test, and the clear and present danger rule.101 Section 19,
adequate guidelines or limitations in the law to determine the boundaries of the
however, merely requires that the data to be blocked be found prima facie in
delegates authority and prevent the delegation from running riot.103
violation of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any penal
Here, the cybercrime law is complete in itself when it directed the CICC to n. Section 24 that establishes a Cybercrime Investigation and Coordinating
formulate and implement a national cybersecurity plan. Also, contrary to the Center (CICC);
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
o. Section 26(a) that defines the CICCs Powers and Functions; and

Cybersecurity refers to the collection of tools, policies, risk management


approaches, actions, training, best practices, assurance and technologies that p. Articles 353, 354, 361, and 362 of the Revised Penal Code that
can be used to protect cyber environment and organization and users penalizes libel.
assets.104 This definition serves as the parameters within which CICC should
work in formulating the cybersecurity plan. Further, the Court DECLARES:

Further, the formulation of the cybersecurity plan is consistent with the policy of 1. Section 4(c)(4) that penalizes online libel as VALID and
the law to "prevent and combat such [cyber] offenses by facilitating their CONSTITUTIONAL with respect to the original author of the post;
detection, investigation, and prosecution at both the domestic and international but VOID and UNCONSTITUTIONAL with respect to others who
levels, and by providing arrangements for fast and reliable international simply receive the post and react to it; and
cooperation."105 This policy is clearly adopted in the interest of law and order,
which has been considered as sufficient standard.106 Hence, Sections 24 and
26(a) are likewise valid. 2. Section 5 that penalizes aiding or abetting and attempt in the
commission of cybercrimes as VA L I D and CONSTITUTIONAL only
in relation to Section 4(a)(1) on Illegal Access, Section 4(a)(2) on
WHEREFORE, the Court DECLARES: Illegal Interception, Section 4(a)(3) on Data Interference, Section
4(a)(4) on System
1. VOID for being UNCONSTITUTIONAL:
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
unsolicited commercial communications; Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft,
and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with
respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
b. Section 12 that authorizes the collection or recording of traffic data in Commercial Communications, and 4(c)(4) on online Libel.1wphi1
real-time; and
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the correct
c. Section 19 of the same Act that authorizes the Department of Justice to application of Section 7 that authorizes prosecution of the offender under both
restrict or block access to suspected Computer Data. the Revised Penal Code and Republic Act 10175 to actual cases, WITH THE
EXCEPTION of the crimes of:
2. VALID and CONSTITUTIONAL:
1. Online libel as to which, charging the offender under both Section
4(c)(4) of Republic Act 10175 and Article 353 of the Revised Penal
a. Section 4(a)(1) that penalizes accessing a computer system without Code constitutes a violation of the proscription against double
right; jeopardy; as well as

b. Section 4(a)(3) that penalizes data interference, including transmission of 2. Child pornography committed online as to which, charging the
viruses; offender under both Section 4(c)(2) of Republic Act 10175 and
Republic Act 9775 or the Anti-Child Pornography Act of 2009 also
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name constitutes a violation of the same proscription, and, in respect to
over the internet in bad faith to the prejudice of others; these, is VOID and UNCONSTITUTIONAL. SO ORDERED.

d. Section 4(b)(3) that penalizes identity theft or the use or misuse of [G.R. No. 132231. March 31, 1998]
identifying information belonging to another;
EMILIO M. R. OSMEA and PABLO P. GARCIA, petitioners, vs. THE
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of COMMISSION ON ELECTIONS, respondent.
sexual organs or sexual activity for favor or consideration;
This is a petition for prohibition, seeking a reexamination of the validity of
11(b) of R.A. No. 6646, the Electoral Reforms Law of 1987, which prohibits
f. Section 4(c)(2) that penalizes the production of child pornography; mass media from selling or giving free of charge print space or air time for
campaign or other political purposes, except to the Commission on
Elections.[1] Petitioners are candidates for public office in the forthcoming
g. Section 6 that imposes penalties one degree higher when crimes defined elections. Petitioner Emilio M. R. Osmea is candidate for President of the
under the Revised Penal Code are committed with the use of information Philippines, while petitioner Pablo P. Garcia is governor of Cebu Province,
and communications technologies; seeking reelection. They contend that events after the ruling in National Press
Club v. Commission on Elections[2] have called into question the validity of the
h. Section 8 that prescribes the penalties for cybercrimes; very premises of that [decision].[3]

i. Section 13 that permits law enforcement authorities to require service


providers to preserve traffic data and subscriber information as well as There Is No Case or Controversy to Decide,
specified content data for six months; Only an Academic Discussion to Hold
NPC v. COMELEC upheld the validity of 11(b) of
R.A. No. 6646 against claims that it abridged freedom of speech and of the
j. Section 14 that authorizes the disclosure of computer data under a court- press.[4] In urging a reexamination of that ruling, petitioners claim that
issued warrant; experience in the last five years since the decision in that case has shown the
undesirable effects of the law because the ban on political advertising has not
only failed to level the playing field, [but] actually worked to the grave
k. Section 15 that authorizes the search, disadvantage of the poor candidate[s][5] by depriving them of a medium which
seizure, and examination of computer data they can afford to pay for while their more affluent rivals can always resort to
under a court-issued warrant; other means of reaching voters like airplanes, boats, rallies, parades, and
handbills.
l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding periods;
No empirical data have been presented by petitioners to back up their
m. Section 20 that penalizes obstruction of justice in relation to cybercrime claim, however. Argumentation is made at the theoretical and not the practical
investigations; level. Unable to show the experience and subsequent events which they claim
invalidate the major premise of our prior decision, petitioners now say there is
no need for empirical data to determine whether the political ad ban offends the
Constitution or not.[6] Instead they make arguments from which it is clear that requiring the COMELEC to have a COMELEC space in newspapers,
their disagreement is with the opinion of the Court on the constitutionality of magazines, and periodicals and prohibiting candidates to advertise outside
11(b) of R.A. No. 6646 and that what they seek is a reargument on the same such space, unless the names of all the other candidates in the district in which
issue already decided in that case. What is more, some of the arguments were the candidate is running are mentioned with equal prominence. The validity of
already considered and rejected in the NPC case.[7] the law was challenged in Badoy, Jr. v. COMELEC.[11] The voting was equally
divided (5-5), however, with the result that the validity of the law was deemed
Indeed, petitioners do not complain of any harm suffered as a result of upheld.
the operation of the law. They do not complain that they have in any way been
disadvantaged as a result of the ban on media advertising. Their contention There is a difference in kind and in severity between restrictions such as
that, contrary to the holding in NPC, 11(b) works to the disadvantage of those imposed by the election law provisions in question in this case and those
candidates who do not have enough resources to wage a campaign outside of found to be unconstitutional in the cases cited by both petitioners and the
mass media can hardly apply to them. Their financial ability to sustain a long Solicitor General, who has taken the side of petitioners. In Adiong v.
drawn-out campaign, using means other than the mass media to communicate COMELEC[12] the Court struck down a regulation of the COMELEC which
with voters, cannot be doubted. If at all, it is candidates like intervenor Roger prohibited the use of campaign decals and stickers on mobile units,allowing
Panotes, who is running for mayor of Daet, Camarines Norte, who can complain their location only in the COMELEC common poster area or billboard, at the
against 11(b) of R.A. No. 6646. But Panotes is for the law which, he says, has campaign headquarters of the candidate or his political party, or at his
to some extent, reduced the advantages of moneyed politicians and parties residence. The Court found the restriction so broad that it encompasses even
over their rivals who are similarly situated as ROGER PANOTES. He claims the citizens private property, which in this case is a privately-owned car.[13] Nor
that the elimination of this substantial advantage is one reason why ROGER was there a substantial governmental interest justifying the restriction.
PANOTES and others similarly situated have dared to seek an elective position
this coming elections.[8] [T]he constitutional objective to give a rich candidate and a poor
candidate equal opportunity to inform the electorate as regards
What petitioners seek is not the adjudication of a case but simply the their candidacies, mandated by Article II, Section 26 and Article
holding of an academic exercise. And since a majority of the present Court is XIII, Section 1 in relation to Article IX(c) Section 4 of the
unpersuaded that its decision in NPC is founded in error, it will suffice for Constitution, is not impaired by posting decals and stickers on cars
present purposes simply to reaffirm the ruling in that case. Stare decisis et non and other private vehicles. Compared to the paramount interest of
quieta movere. This is what makes the present case different from the the State in guaranteeing freedom of expression, any financial
overruling decisions[9] invoked by petitioners. considerations behind the regulation are of marginal
significance.[14]
Nevertheless, we have undertaken to revisit the decision in NPC v.
COMELEC in order to clarify our own understanding of its reach and set forth a Mutuc v. COMELEC[15] is of a piece with Adiong. An order of the
theory of freedom of speech. COMELEC prohibiting the playing of taped campaign jingles through sound
systems mounted on mobile units was held to be an invalid prior restraint
No Ad Ban, Only a Substitution of without any apparent governmental interest to promote, as the restriction did
COMELEC Space and COMELEC not simply regulate time, place or manner but imposed an absolute ban on the
Time for the Advertising Page and use of the jingles. The prohibition was actually content-based and was for that
Commercials in Mass Media reason bad as a prior restraint on speech, as inhibiting as prohibiting the
The term political ad ban, when used to describe 11(b) candidate himself to use the loudspeaker. So is a ban against newspaper
of R.A. No. 6646, is misleading, for even as 11(b) prohibits the sale or donation columnists expressing opinion on an issue in a plebiscite a content restriction
of print space and air time to political candidates, it mandates the COMELEC to which, unless justified by compelling reason, is unconstitutional.[16]
procure and itself allocate to the candidates space and time in the media. There
is no suppression of political ads but only a regulation of the time and manner of Here, on the other hand, there is no total ban on political ads, much less
advertising. restriction on the content of the speech. Given the fact that print space and air
time can be controlled or dominated by rich candidates to the disadvantage of
poor candidates, there is a substantial or legitimate governmental interest
Thus, 11(b) states: justifying exercise of the regulatory power of the COMELEC under Art. IX-C, 4
of the Constitution, which provides:
Prohibited Forms of Election Propaganda. In addition to the forms
of election propaganda prohibited in Section 85 of Batas The commission may, during the election period, supervise or
Pambansa Blg. 881, it shall be unlawful: regulate the enjoyment or utilization of all franchises or permits for
the operation of transportation and other public utilities, media of
.... communication or information, all grants, special privileges, or
concessions granted by the Government or any subdivision,
(b) for any newspapers, radio broadcasting or television station, or agency, or instrumentality thereof, including any government-
other mass media, or any person making use of the mass media to owned or controlled corporation or its subsidiary. Such supervision
sell or to give free of charge print space or air time for campaign or or regulation shall aim to ensure equal opportunity, time, and
other political purposes except to the Commission as provided space, and the right to reply, including reasonable, equal rates
under Section 90 and 92 of Batas Pambansa Blg. 881. Any mass therefor, for public information campaigns and forums among
media columnist, commentator, announcer or personality who is a candidates in connection with the objective of holding free, orderly,
candidate for any elective public office shall take a leave of honest, peaceful, and credible elections.
absence from his work as such during the campaign period.
The provisions in question involve no suppression of political ads. They
On the other hand, the Omnibus Election Code provisions referred to in only prohibit the sale or donation of print space and air time to candidates but
11(b) read: require the COMELEC instead to procure space and time in the mass media for
allocation, free of charge, to the candidates. In effect, during the election period,
SEC. 90. Comelec space. - The Commission shall procure space in the COMELEC takes over the advertising page of newspapers or the
at least one newspaper of general circulation in every province or commercial time of radio and TV stations and allocates these to the candidates.
city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in Nor can the validity of the COMELEC take-over for such temporary
said province or city, which shall be known as Comelec Space period be doubted.[17] In Pruneyard Shopping Center v. Robbins,[18] it was held
wherein candidates can announce their candidacy. Said space that a court order compelling a private shopping center to permit use of a corner
shall be allocated, free of charge, equally and impartially by the of its courtyard for the purpose of distributing pamphlets or soliciting signatures
Commission among all candidates within the area in which the for a petition opposing a UN resolution was valid. The order neither
newspaper is circulated. (Sec. 45, 1978 EC). unreasonably impaired the value or use of private property nor violated the
owners right not to be compelled to express support for any viewpoint since it
SEC. 92. Comelec time. - The Commission shall procure radio and can always disavow any connection with the message.
television time to be known as Comelec Time which shall be
allocated equally and impartially among the candidates within the On the other hand, the validity of regulations of time, place and manner,
area of coverage of all radio and television stations. For this under well-defined standards, is well-nigh beyond question.[19] What is involved
purpose, the franchise of all radio broadcasting and television here is simply regulation of this nature. Instead of leaving candidates to
stations are hereby amended so as to provide radio or television advertise freely in the mass media, the law provides for allocation, by the
time, free of charge, during the period of the campaign. (Sec. 46, COMELEC, of print space and air time to give all candidates equal time and
1978 EC) space for the purpose of ensuring free, orderly, honest, peaceful, and credible
elections.
The laws concern is not with the message or content of the ad but with
ensuring media equality between candidates with deep pockets, as Justice In Gonzales v. COMELEC,[20] the Court sustained the validity of a
Feliciano called them in his opinion of the Court in NPC, and those with less provision of R.A. No. 4880 which in part reads:
resources.[10] The law is part of a package of electoral reforms adopted in
1987. Actually, similar effort was made in 1970 to equalize the opportunity of SEC. 50-B. Limitation upon the period of Election Campaign or
candidates to advertise themselves and their programs of government by Partisan Political Activity. - It is unlawful for any person whether or
not a voter or candidate, or for any group, or association of speaks of is equality of opportunity. In support of this claim, petitioners quote
persons, whether or not a political party or political committee, to the following from the opinion of the Court written by Justice Feliciano:
engage in an election campaign or partisan political activity except
during the period of one hundred twenty days immediately
preceding an election involving a public office voted for at large and
The objective which animates Section 11(b) is the equalizing, as far
ninety days immediately preceding an election for any other
as practicable, the situations of rich and poor candidates by
elective public office.
preventing the former from enjoying the undue advantage offered
The term Candidate refers to any person aspiring for or seeking an by huge campaign war chests.[24]
elective public office, regardless of whether or not said person has
The Court meant equalizing media access, as the following sentences
already filed his certificate of candidacy or has been nominated by
which were omitted clearly show:
any political party as its candidate.
Section 11(b) prohibits the sale or donation of print space and air
The term Election Campaign or Partisan Political Activity refers to
time for campaign or other political purposes except to the
acts designed to have a candidate elected or not or promote the
Commission on Elections (Comelec). Upon the other hand,
candidacy of a person or persons to a public office which shall
Sections 90 and 92 of the Omnibus Election Code require the
include:
Comelec to procure Comelec space in newspapers of general
(a) Forming Organizations, Associations, Clubs, circulation in every province or city and Comelec time on radio and
Committees or other groups of persons for the purpose television stations. Further, the Comelec is statutorily commanded
of soliciting votes and/or undertaking any campaign or to allocate Comelec space and Comelec time on a free of charge,
propaganda for or against a party or candidate; equal and impartial basis among all candidates within the area
served by the newspaper or radio and television station involved.[25]
(b) Holding political conventions, caucuses,
conferences, meetings, rallies, parades, or other similar On the other hand, the dissent of Justice Romero in the present case, in
assemblies, for the purpose of soliciting votes and/or batting for an uninhibited market place of ideas, quotes the following
undertaking any campaign or propaganda for or against from Buckley v. Valeo:
a candidate or party; . . .
[T]he concept that the government may restrict the speech of some
In Valmonte v. COMELEC,[21] on the other hand, the Court upheld the elements in our society in order to enhance the relative voice of the
validity of a COMELEC resolution prohibiting members of citizen groups or others is wholly foreign to the First Amendment which was
associations from entering any polling place except to vote. Indeed, 261(k) of designed to secure the widest possible dissemination of
the Omnibus Election Code makes it unlawful for anyone to solicit votes in the information from diverse and antagonistic sources and to assure
polling place and within a radius of 30 meters thereof. unfettered interchange of ideas for the bringing about of political
and social changes desired by the people.[26]
These decisions come down to this: the State can prohibit
campaigning outside a certain period as well as campaigning within a certain But do we really believe in that? That statement was made to justify
place. For unlimited expenditure for political advertising in the mass media striking down a limit on campaign expenditure on the theory that money is
skews the political process and subverts democratic self-government. What is speech. Do those who endorse the view that government may not restrict the
bad is if the law prohibits campaigning by certain candidates because of the speech of some in order to enhance the relative voice of others also think that
views expressed in the ad. Content regulation cannot be done in the absence of the campaign expenditure limitation found in our election laws[27] is
any compelling reason. unconstitutional? How about the principle of one person, one vote,[28]is this not
based on the political equality of voters? Voting after all is speech. We speak of
it as the voice of the people - even of God. The notion that the government may
restrict the speech of some in order to enhance the relative voice of others may
be foreign to the American Constitution. It is not to the Philippine Constitution,
Law Narrowly Drawn to Fit
being in fact an animating principle of that document.
Regulatory Purpose
The main purpose of 11(b) is regulatory. Any restriction on
speech is only incidental, and it is no more than is necessary to achieve its Indeed, Art. IX-C, 4 is not the only provision in the Constitution mandating
purpose of promoting equality of opportunity in the use of mass media for political equality. Art. XIII, 1 requires Congress to give the highest priority to the
political advertising. The restriction on speech, as pointed out in NPC, is limited enactment of measures designed to reduce political inequalities, while Art. II, 26
both as to time and as to scope. declares as a fundamental principle of our government equal access to
opportunities for public service. Access to public office will be denied to poor
candidates if they cannot even have access to mass media in order to reach the
electorate. What fortress principle trumps or overrides these provisions for
Petitioners and the dissenters make little of this on the ground that the political equality?
regulation, which they call a ban, would be useless any other time than the
election period. Petitioners state: [I]n testing the reasonableness of a ban on Unless the idealism and hopes which fired the imagination of those who
mountain-skiing, one cannot conclude that it is limited because it is enforced framed the Constitution now appear dim to us, how can the electoral reforms
only during the winter season.[22] What makes the regulation reasonable is adopted by them to implement the Constitution, of which 11(b) of R.A. No.
precisely that it applies only to the election period. Its enforcement outside the 6646, in relation to 90 and 92 are part, be considered infringements on freedom
period would make it unreasonable. More importantly, it should be noted that a of speech? That the framers contemplated regulation of political propaganda
ban on mountain skiing would be passive in nature. It is like the statutory cap on similar to 11(b) is clear from the following portion of the sponsorship speech of
campaign expenditures, but is so unlike the real nature of 11(b), as already Commissioner Vicente B. Foz:
explained.
MR. FOZ. . . . Regarding the regulation by the Commission of the
Petitioners likewise deny that 11(b) is limited in scope, as they make enjoyment or utilization of franchises or permits for the operation of
another quaint argument: transportation and other public utilities, media of communication or
information, all grants, special privileges or concessions granted by
A candidate may court media to report and comment on his person the Government, there is a provision that during the election
and his programs, and media in the exercise of their discretion just period, the Commission may regulate, among other things, the
might. It does not, however, follow that a candidates freedom of rates, reasonable free space, and time allotments for public
expression is thereby enhanced, or less abridged. If Pedro is not information campaigns and forums among candidates for the
allowed to speak, but Juan may speak of what Pedro wishes to purpose of ensuring free, orderly, honest and peaceful
say, the curtailment of Pedros freedom of expression cannot be elections. This has to do with the media of communication or
said to be any less limited, just because Juan has the freedom to information.[29]
speak.[23]

The premise of this argument is that 11(b) imposes a ban on media


political advertising. What petitioners seem to miss is that the prohibition
On the Claim that the Reforms
against paid or sponsored political advertising is only half of the regulatory
Have Been Ineffectual
framework, the other half being the mandate of the COMELEC to procure print
space and air time so that these can be allocated free of charge to the
candidates.
Reform of the Marketplace of Ideas,
Petitioners contend that 11(b) is not a reasonable means for achieving
the purpose for which it was enacted. They claim that instead of levelling the
playing field as far as the use of mass media for political campaign is
Not Permissible?
Petitioners argue that the reasoning of NPC is flawed, concerned, 11(b) has abolished it. They further claim that 11(b) does not
because it rests on a misconception that Art. IX-C, 4 mandates the absolute prevent rich candidates from using their superior resources to the disadvantage
equality of all candidates regardless of financial status, when what this provision of poor candidates.
All this is of course mere allegation. As stated in the beginning, what or substantial governmental interest; if the governmental interest is
petitioners claim to be the nations experience with the law is merely unrelated to the suppression of free expression; and if the incident
argumentation against its validity. The claim will not bear analysis, restriction on alleged First Amendment freedoms is no greater than
however.Assuming that rich candidates can spend for parades, rallies, is essential to the furtherance of that interest. (Id., at 377, 20 L Ed
motorcades, airplanes and the like in order to campaign while poor candidates 2d 672, 88 S Ct 1673. (City Council v. Taxpayers For Vincent, 466
can only afford political ads, the gap between the two will not necessarily be US 789, 80 L Ed 2d 772, 104 S Ct 2118[1984])[35]
reduced by allowing unlimited mass media advertising because rich candidates
can spend for other propaganda in addition to mass media This test was actually formulated in United States v. OBrien.[36] It is an
advertising. Moreover, it is not true that 11(b) has abolished the playing appropriate test for restrictions on speech which, like 11(b), are content-
field. What it has done, as already stated, is merely to regulate its use through neutral. Unlike content-based restrictions, they are not imposed because of the
COMELEC-sponsored advertising in place of advertisements paid for by content of the speech. For this reason, content-neutral restrictions are tests
candidates or donated by their supporters. demanding standards. For example, a rule such as that involved in Sanidad v.
COMELEC,[37] prohibiting columnists, commentators, and announcers from
It is finally argued that COMELEC Space and COMELEC Time are campaigning either for or against an issue in a plebiscite must have a
ineffectual. It is claimed that people hardly read or watch or listen to compelling reason to support it, or it will not pass muster under strict
them. Again, this is a factual assertion without any empirical basis to support scrutiny. These restrictions, it will be seen, are censorial and therefore they
it.What is more, it is an assertion concerning the adequacy or necessity of the bear a heavy presumption of constitutional invalidity. In addition, they will be
law which should be addressed to Congress. Well-settled is the rule that the tested for possible overbreadth and vagueness.
choice of remedies for an admitted social malady requiring government action
belongs to Congress. The remedy prescribed by it, unless clearly shown to be It is apparent that these doctrines have no application to content-neutral
repugnant to fundamental law, must be respected.[30] As shown in this case, regulations which, like 11(b), are not concerned with the content of the
11(b) of R.A. 6646 is a permissible restriction on the freedom of speech, of speech. These regulations need only a substantial governmental interest to
expression and of the press. support them.[38] A deferential standard of review will suffice to test their validity.

Dissenting, Justice Panganiban argues that advertising is the most Justice Panganibans dissent invokes the clear-and-present-danger test
effective means of reaching voters. He adverts to a manifestation of the and argues that media ads do not partake of the real substantive evil that the
COMELEC lawyer that the Commission is not procuring [Comelec Space] by state has a right to prevent and that justifies the curtailment of the peoples
virtue of the effects of the decision of this Honorable Court in the case of cardinal right to choose their means of expression and of access to information.
Philippine Press Institute (PPI) vs. Comelec, 244 SCRA 272.[31] The clear-and-present-danger test is not, however, a sovereign remedy for all
free speech problems. As has been pointed out by a thoughtful student of
To be sure, this Court did not hold in PPI v. COMELEC that it should not constitutional law, it was originally formulated for the criminal law and only later
procure newspaper space for allocation to candidates. What it ruled is that the appropriated for free speech cases. For the criminal law is necessarily
COMELEC cannot procure print space without paying just concerned with the line at which innocent preparation ends and a guilty
compensation. Whether by its manifestation the COMELEC meant it is not conspiracy or attempt begins.[39] Clearly, it is inappropriate as a test for
going to buy print space or only that it will not require newspapers to donate determining the constitutional validity of laws which, like 11(b) of R.A. No. 6646,
free of charge print space is not clear from the manifestation. It is to be are not concerned with the content of political ads but only with their
presumed that the COMELEC, in accordance with its mandate under 11(b) of incidents. To apply the clear-and-present-danger test to such regulatory
R.A. No. 6646 and 90 of the Omnibus Election Code, will procure print space measures would be like using a sledgehammer to drive a nail when a regular
for allocation to candidates, paying just compensation to newspapers providing hammer is all that is needed.
print space.
The reason for this difference in the level of justification for the restriction
In any event, the validity of a law cannot be made to depend on the of speech is that content-based restrictions distort public debate, have improper
faithful compliance of those charged with its enforcement but by appropriate motivation, and are usually imposed because of fear of how people will react to
constitutional provisions. There is a remedy for such lapse if it should a particular speech. No such reasons underlie content-neutral regulations, like
happen. In addition, there is the COMELEC Time during which candidates may regulations of time, place and manner of holding public assemblies under B.P.
advertise themselves. Resolution No. 2983-A of the COMELEC provides: Blg. 880, the Public Assembly Act of 1985. Applying the OBrien test in this
case, we find that 11(b) of R.A. No. 6646 is a valid exercise of the power of the
SEC. 2. Grant of Comelec Time. Every radio broadcasting and State to regulate media of communication or information for the purpose of
television station operating under franchise shall grant the ensuring equal opportunity, time and space for political campaigns; that the
Commission, upon payment of just compensation, at least thirty regulation is unrelated to the suppression of speech; that any restriction on
(30) minutes of prime time daily, to be known as Comelec Time, freedom of expression is only incidental and no more than is necessary to
effective February 10, 1998 for candidates for President, Vice- achieve the purpose of promoting equality.
President and Senators, and effective March 27, 1998, for
candidates for local elective offices, until May 9, 1998.(Emphasis ________________
added)
The Court is just as profoundly aware as anyone else that discussion of
public issues and debate on the qualifications of candidates in an election are
essential to the proper functioning of the government established by our
Failure of Legislative Remedy Bespeaks Constitution. But it is precisely with this awareness that we think democratic
of More than Congressional Inaction efforts at reform should be seen for what they are: genuine efforts to enhance
the political process rather than infringements on freedom of expression. The
statutory provision involved in this case is part of the reform measures adopted
in 1987 in the aftermath of EDSA. A reform-minded Congress passed bills
The fact is that efforts have been made to secure the amendment or which were consolidated into what is now R.A No. 6646 with near
even repeal of 11(b) of R.A. No. 6646. No less than five bills[32] were filed in the unanimity. The House of Representatives, of which petitioner Pablo P. Garcia
Senate in the last session of Congress for this purpose, but they all failed of was a distinguished member, voted 96 to 1 (Rep. Eduardo Pilapil) in favor,
passage. Petitioners claim it was because Congress adjourned without acting while the Senate approved it 19-0. [40]
on them. But that is just the point. Congress obviously did not see it fit to act on
the bills before it adjourned. In his recent book, The Irony of Free Speech, Owen Fiss speaks of a
truth that is full of irony and contradiction: that the state can be both an enemy
We thus have a situation in which an act of Congress was found by this and a friend of speech; that it can do terrible things to undermine democracy
Court to be valid so that those opposed to the statute resorted to the legislative but some wonderful things to enhance it as well.[41] We hold R.A. No. 6646,
department. The latter reconsidered the question but after doing so apparently 11(b) to be such a democracy-enhancing measure. For Holmess marketplace
found no reason for amending the statute and therefore did not pass any of the of ideas can prove to be nothing but a romantic illusion if the electoral process
bills filed to amend or repeal the statute. Must this Court now grant what is badly skewed, if not corrupted, by the unbridled use of money for campaign
Congress denied to them? The legislative silence here certainly bespeaks of propaganda. The petition is DISMISSED.SO ORDERED.
more than inaction.

[G.R. No. 147571. May 5, 2001]


Test for Content-Neutral Restrictions[33]
SOCIAL WEATHER STATIONS, INCORPORATED and
KAMAHALAN PUBLISHING CORPORATION, doing business as
MANILA STANDARD, petitioners, vs. COMMISSION ON
In Adiong v. COMELEC[34] this Court quoted the following from the ELECTIONS, respondent.
decision of the U.S. Supreme Court in a case sustaining a Los Angeles City
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock,
ordinance which prohibited the posting of campaign signs on public property:
non-profit social research institution conducting surveys in various fields,
A government regulation is sufficiently justified if it is within the including economics, politics, demography, and social development, and
constitutional power of the Government, if it furthers an important thereafter processing, analyzing, and publicly reporting the results thereof. On
the other hand, petitioner Kamahalan Publishing Corporation publishes the presumption of invalidity attaches to a measure like 5.4. For as we have pointed
Manila Standard, a newspaper of general circulation, which features out in sustaining the ban on media political advertisements, the grant of power
newsworthy items of information including election surveys. to the COMELEC under Art. IX-C, 4 is limited to ensuring equal opportunity,
time, space, and the right to reply as well as uniform and reasonable rates of
Petitioners brought this action for prohibition to enjoin the Commission on charges for the use of such media facilities for public information campaigns
Elections from enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which and forums among candidates.[4] This Court stated:
provides:

The technical effect of Article IX (C) (4) of the Constitution may be seen to be
Surveys affecting national candidates shall not be published fifteen (15) days that no presumption of invalidity arises in respect of exercises of supervisory or
before an election and surveys affecting local candidates shall not be published regulatory authority on the part of the Comelec for the purpose of securing
seven (7) days before an election. equal opportunity among candidates for political office, although such
supervision or regulation may result in some limitation of the rights of free
speech and free press.[5]
The term election surveys is defined in 5.1 of the law as follows:

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of


Election surveys refer to the measurement of opinions and perceptions of the
clear and present danger for determining the validity of 5.4. Indeed, as has
voters as regards a candidates popularity, qualifications, platforms or a matter
been pointed out in Osmea v. COMELEC,[6] this test was originally formulated
of public discussion in relation to the election, including voters preference for
for the criminal law and only later appropriated for free speech cases. Hence,
candidates or publicly discussed issues during the campaign period (hereafter
while it may be useful for determining the validity of laws dealing with inciting to
referred to as Survey).
sedition or incendiary speech, it may not be adequate for such regulations as
the one in question. For such a test is concerned with questions of the gravity
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the and imminence of the danger as basis for curtailing free speech, which is not
COMELEC enjoins the case of 5.4 and similar regulations.

Instead, MR. JUSTICE KAPUNAN purports to engage in a form of


Surveys affecting national candidates shall not be published fifteen (15) days balancing by weighing and balancing the circumstances to determine whether
before an election and surveys affecting local candidates shall not be published public interest [in free, orderly, honest, peaceful and credible elections] is
seven (7) days before an election. served by the regulation of the free enjoyment of the rights (page 7). After
canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure
on voters, the creation of bandwagon effect to favor candidates, misinformation,
Petitioner SWS states that it wishes to conduct an election survey
the junking of weak and losing candidates by their parties, and the form of
throughout the period of the elections both at the national and local levels and
election cheating called dagdag-bawas and invoking the States power to
release to the media the results of such survey as well as publish them directly.
supervise media of information during the election period (pages 11-16), the
Petitioner Kamahalan Publishing Corporation, on the other hand, states that it
dissenting opinion simply concludes:
intends to publish election survey results up to the last day of the elections on
May 14, 2001.
Viewed in the light of the legitimate and significant objectives of Section 5.4, it
Petitioners argue that the restriction on the publication of election survey may be seen that its limiting impact on the rights of free speech and of the
results constitutes a prior restraint on the exercise of freedom of speech without press is not unduly repressive or unreasonable. Indeed, it is a mere restriction,
any clear and present danger to justify such restraint. They claim that SWS and not an absolute prohibition, on the publication of election surveys. It is limited in
other pollsters conducted and published the results of surveys prior to the 1992, duration; it applies only during the period when the voters are presumably
1995, and 1998 elections up to as close as two days before the election day contemplating whom they should elect and when they are most susceptible to
without causing confusion among the voters and that there is neither empirical such unwarranted persuasion. These surveys may be published thereafter.
nor historical evidence to support the conclusion that there is an immediate and (Pages 17-18)
inevitable danger to the voting process posed by election surveys. They point
out that no similar restriction is imposed on politicians from explaining their
opinion or on newspapers or broadcast media from writing and publishing The dissent does not, however, show why, on balance, these
articles concerning political issues up to the day of the election. Consequently, considerations should outweigh the value of freedom of expression. Instead,
they contend that there is no reason for ordinary voters to be denied access to reliance is placed on Art. IX-C, 4. As already stated, the purpose of Art. IX-C, 4
the results of election surveys which are relatively objective. is to ensure equal opportunity, time, and space and the right of reply, including
reasonable, equal rates therefor for public information campaigns and forums
Respondent Commission on Elections justifies the restrictions in 5.4 of among candidates. Hence the validity of the ban on media advertising. It is
R.A. No. 9006 as necessary to prevent the manipulation and corruption of the noteworthy that R.A. No. 9006, 14 has lifted the ban and now allows candidates
electoral process by unscrupulous and erroneous surveys just before the to advertise their candidacies in print and broadcast media. Indeed, to sustain
election. It contends that (1) the prohibition on the publication of election survey the ban on the publication of survey results would sanction the censorship of all
results during the period proscribed by law bears a rational connection to the speaking by candidates in an election on the ground that the usual bombasts
objective of the law, i.e., the prevention of the debasement of the electoral and hyperbolic claims made during the campaigns can confuse voters and thus
process resulting frommanipulated surveys, bandwagon effect, and absence of debase the electoral process.
reply; (2) it is narrowly tailored to meet the evils sought to be prevented; and (3)
the impairment of freedom of expression is minimal, the restriction being limited In sum, the dissent has engaged only in a balancing at the margin. This
both in duration, i.e., the last 15 days before the national election and the last 7 form of ad hoc balancing predictably results in sustaining the challenged
days before a local election, and in scope as it does not prohibit election survey legislation and leaves freedom of speech, expression, and the press with little
results but only require timeliness. Respondent claims that in National Press protection. For anyone who can bring a plausible justification forward can easily
Club v. COMELEC,[1] a total ban on political advertisements, with candidates show a rational connection between the statute and a legitimate governmental
being merely allocated broadcast time during the so-called COMELEC space or purpose. In contrast, the balancing of interest undertaken by then Justice
COMELEC hour, was upheld by this Court. In contrast, according to Castro in Gonzales v.COMELEC,[7] from which the dissent in this case takes its
respondent, it states that the prohibition in 5.4 of R.A. No. 9006 is much more cue, was a strong one resulting in his conclusion that 50-B of R.A. No. 4880,
limited. which limited the period of election campaign and partisan political activity, was
an unconstitutional abridgment of freedom of expression.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006
constitutes an unconstitutional abridgment of freedom of speech, expression, Nor can the ban on election surveys be justified on the ground that there
and the press. are other countries 78, according to the Solicitor General, while the dissent cites
28 which similarly impose restrictions on the publication of election surveys. At
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, best this survey is inconclusive. It is noteworthy that in the United States no
and the press by prohibiting the publication of election survey results affecting restriction on the publication of election survey results exists. It cannot be
candidates within the prescribed periods of fifteen (15) days immediately argued that this is because the United States is a mature democracy. Neither
preceding a national election and seven (7) days before a local election. are there laws imposing an embargo on survey results, even for a limited
Because of the preferred status of the constitutional rights of speech, period, in other countries. As pointed out by petitioners, the United Kingdom,
expression, and the press, such a measure is vitiated by a weighty presumption Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, Malta,
of invalidity.[2] Indeed, any system of prior restraints of expression comes to this Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are
Court bearing a heavy presumption against its constitutional validity. . . . The no older nor more mature than the Philippines in political development, do not
Government thus carries a heavy burden of showing justification for the restrict the publication of election survey results.
enforcement of such restraint.[3] There is thus a reversal of the normal
presumption of validity that inheres in every legislation. What test should then be employed to determine the constitutional
validity of 5.4? The United States Supreme Court, through Chief Justice
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, Warren, held in United States v. OBrien:
which gives the COMELEC supervisory power to regulate the enjoyment or
utilization of franchise for the operation of media of communication, no
[A] government regulation is sufficiently justified [1] if it is within the than speech because of apprehension that such speech creates the danger of
constitutional power of the Government; [2] if it furthers an important or such evils. Thus, under the Administrative Code of 1987,[17] the COMELEC is
substantial governmental interest; [3] if the governmental interest is given the power:
unrelated to the suppression of free expression; and [4] if the incidental
restriction on alleged First Amendment freedoms [of speech, expression
and press] is no greater than is essential to the furtherance of that To stop any illegal activity, or confiscate, tear down, and stop any unlawful,
interest.[8] libelous, misleading or false election propaganda, after due notice and hearing.

This is so far the most influential test for distinguishing content-based This is surely a less restrictive means than the prohibition contained in
from content-neutral regulations and is said to have become canonical in the 5.4. Pursuant to this power of the COMELEC, it can confiscate bogus survey
review of such laws.[9] It is noteworthy that the OBrien test has been applied by results calculated to mislead voters. Candidates can have their own surveys
this Court in at least two cases.[10] conducted. No right of reply can be invoked by others. No principle of equality is
involved. It is a free market to which each candidate brings his ideas. As for the
Under this test, even if a law furthers an important or substantial purpose of the law to prevent bandwagon effects, it is doubtful whether the
governmental interest, it should be invalidated if such governmental interest is Government can deal with this natural-enough tendency of some voters. Some
not unrelated to the suppression of free expression. Moreover, even if the voters want to be identified with the winners. Some are susceptible to the herd
purpose is unrelated to the suppression of free speech, the law should mentality. Can these be legitimately prohibited by suppressing the publication of
nevertheless be invalidated if the restriction on freedom of expression is greater survey results which are a form of expression? It has been held that [mere]
than is necessary to achieve the governmental purpose in question. legislative preferences or beliefs respecting matters of public convenience may
well support regulation directed at other personal activities, but be insufficient to
Our inquiry should accordingly focus on these two considerations as justify such as diminishes the exercise of rights so vital to the maintenance of
applied to 5.4. democratic institutions.[18]

First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the To summarize then, we hold that 5.4 is invalid because (1) it imposes a
causal connection of expression to the asserted governmental interest makes prior restraint on the freedom of expression, (2) it is a direct and total
such interest not unrelated to the suppression of free expression. By prohibiting suppression of a category of expression even though such suppression is only
the publication of election survey results because of the possibility that such for a limited period, and (3) the governmental interest sought to be promoted
publication might undermine the integrity of the election, 5.4 actually can be achieved by means other than the suppression of freedom of
suppresses a whole class of expression, while allowing the expression of expression.
opinion concerning the same subject matter by newspaper columnists, radio
and TV commentators, armchair theorists, and other opinion makers. In effect, On the other hand, the COMELEC contends that under Art. IX-A, 7 of the
5.4 shows a bias for a particular subject matter, if not viewpoint, by preferring Constitution, its decisions, orders, or resolutions may be reviewed by this Court
personal opinion to statistical results. The constitutional guarantee of freedom only by certiorari. The flaws in this argument is that it assumes that its
of expression means that the government has no power to restrict expression Resolution 3636, dated March 1, 2001 is a decision, order, or resolution within
because of its message, its ideas, its subject matter, or its content. [11] The the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC maintains that
inhibition of speech should be upheld only if the expression falls within one of Resolution 3636 was rendered by the Commission. However, the Resolution
the few unprotected categories dealt with in Chaplinsky v. New does not purport to adjudicate the right of any party. It is not an exercise by the
Hampshire,[12] thus: COMELEC of its adjudicatory power to settle the claims of parties. To the
contrary, Resolution 3636 clearly states that it is promulgated to implement the
provisions of R.A. No. 9006.Hence, there is no basis for the COMELECs claim
There are certain well-defined and narrowly limited classes of speech, the that this petition for prohibition is inappropriate. Prohibition has been found
prevention and punishment of which have never been thought to raise any appropriate for testing the constitutionality of various election laws, rules, and
Constitutional problem. These include the lewd and obscene, the profane, the regulations.[19]
libelous, and the insulting or fighting words those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. [S]uch WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A.
utterances are no essential part of any exposition of ideas, and are of such No. 9006 and 24(h) of COMELEC Resolution 3636, dated March 1, 2001, are
slight social value as a step to truth that any benefit that may be derived from declared unconstitutional. SO ORDERED.
them is clearly outweighed by the social interest in order and morality.
G.R. No. 205357, September 02, 2014
Nor is there justification for the prior restraint which 5.4 lays on protected
speech. In Near v. Minnesota,[13] it was held:
GMA NETWORK, INC., Petitioner, v. COMMISSION ON ELECTIONS,
RESPONDENT. SENATOR ALAN PETER COMPAERO S.
[The] protection even as to previous restraint is not absolutely unlimited. But the CAYETANO, Petitioner-Intervenor.
limitation has been recognized only in exceptional cases. . . . No one would
question but that a government might prevent actual obstruction to its recruiting G.R. NO. 205374
service or the publication of the sailing dates of transports or the number and
location of troops. On similar grounds, the primary requirements of decency
may be enforced against obscene publications. The security of the community ABC DEVELOPMENT CORPORATION, Petitioner, v. COMMISSION ON
life may be protected against incitements to acts of violence and the overthrow ELECTIONS, Respondent.
by force of orderly government . . . .
G.R. NO. 205592

Thus, contrary to the claim of the Solicitor General, the prohibition


imposed by 5.4 cannot be justified on the ground that it is only for a limited MANILA BROADCASTING COMPANY, INC. AND NEWSOUNDS
period and is only incidental. The prohibition may be for a limited time, but the BROADCASTING NETWORK, INC., Petitioner, v. COMMISSION ON
curtailment of the right of expression is direct, absolute, and substantial. It ELECTIONS, Respondent.
constitutes a total suppression of a category of speech and is not made less so
because it is only for a period of fifteen (15) days immediately before a national G.R. NO. 205852
election and seven (7) days immediately before a local election.
KAPISANAN NG MGA BRODKASTER NG PILIPINAS (KBP) AND ABS-CBN
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this CORPORATION, Petitioners, v. COMMISSION ON ELECTIONS, Respondent.
Court found to be valid in National Press Club v. COMELEC[14] and Osmea
v. COMELEC.[15] For the ban imposed by R.A. No. 6646, 11(b) is not only G.R. NO. 206360
authorized by a specific constitutional provision,[16] but it also provided an
alternative so that, as this Court pointed out in Osmea, there was actually no
ban but only a substitution of media advertisements by the COMELEC space RADIO MINDANAO NETWORK, INC., Petitioner, v. COMMISSION ON
and COMELEC hour. ELECTIONS, Respondent.

Second. Even if the governmental interest sought to be promoted is


unrelated to the suppression of speech and the resulting restriction of free The clash of rights demands a delicate balancing of interests approach which
expression is only incidental, 5.4 nonetheless fails to meet criterion [4] of is a fundamental postulate of constitutional law.1
the OBrien test, namely, that the restriction be not greater than is necessary to
further the governmental interest. As already stated, 5.4 aims at the prevention Once again the Court is asked to draw a carefully drawn balance in the
of last-minute pressure on voters, the creation of bandwagon effect, junking of incessant conflicts between rights and regulations, liberties and limitations, and
weak or losing candidates, and resort to the form of election cheating called competing demands of the different segments of society. Here, we are
dagdag-bawas. Praiseworthy as these aims of the regulation might be, they confronted with the need to strike a workable and viable equilibrium between a
cannot be attained at the sacrifice of the fundamental right of expression, when constitutional mandate to maintain free, orderly, honest, peaceful and credible
such aim can be more narrowly pursued by punishing unlawful acts, rather
elections, together with the aim of ensuring equal opportunity, time and space, b) Section 9 (a),9 which provides for an aggregate total airtime
and the right to reply, including reasonable, equal rates therefor, for public instead of the previous per station airtime for political campaigns or
information campaigns and forums among candidates,2 on one hand, and the advertisements, and also required prior COMELEC approval for candidates'
imperatives of a republican and democratic state,3 together with its guaranteed television and radio guestings and appearances; and
rights of suffrage,4freedom of speech and of the press,5 and the peoples right
to information,6 on the other. c) Section 14,10 which provides for a candidate's right to reply.

In a nutshell, the present petitions may be seen as in search of the answer to In addition, petitioner ABC also questions Section 1 (4)11 thereof, which defines
the question how does the Charter of a republican and democratic State the term political advertisement or election propaganda, while petitioner
achieve a viable and acceptable balance between liberty, without which, GMA further assails Section 35,12 which states that any violation of said Rules
government becomes an unbearable tyrant, and authority, without which, shall constitute an election offense.
society becomes an intolerable and dangerous arrangement?
On March 15, 2013, Senator Alan Peter S. Cayetano (Petitioner-Intervenor)
Assailed in these petitions are certain regulations promulgated by the filed a Motion for Leave to Intervene and to File and Admit the Petition-in-
Commission on Elections (COMELEC) relative to the conduct of the 2013 Intervention, which was granted by the Court per its Resolution dated March 19,
national and local elections dealing with political advertisements. Specifically, 2013. Petitioner-Intervenor also assails Section 9 (a) of the Resolution changing
the petitions question the constitutionality of the limitations placed on aggregate the interpretation of candidates' and political parties' airtime limitation for
airtime allowed to candidates and political parties, as well as the requirements political campaigns or advertisements from a per station basis, to a total
incident thereto, such as the need to report the same, and the sanctions aggregate basis.
imposed for violations.
Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier
The five (5) petitions before the Court put in issue the alleged unconstitutionality Resolution, are unconstitutional and issued without jurisdiction or with grave
of Section 9 (a) of COMELEC Resolution No. 9615 (Resolution) limiting the abuse of discretion amounting to lack or excess of jurisdiction, for the reasons
broadcast and radio advertisements of candidates and political parties for set forth hereunder.
national election positions to an aggregate total of one hundred twenty (120)
minutes and one hundred eighty (180) minutes, respectively. They contend that Petitioners posit that Section 9 (a) of the assailed Resolution provides for a very
such restrictive regulation on allowable broadcast time violates freedom of the restrictive aggregate airtime limit and a vague meaning for a proper
press, impairs the peoples right to suffrage as well as their right to information computation of aggregate total airtime, and violates the equal protection
relative to the exercise of their right to choose who to elect during the guarantee, thereby defeating the intent and purpose of R.A. No. 9006.
forthcoming elections.
Petitioners contend that Section 9 (a), which imposes a notice requirement, is
The heart of the controversy revolves upon the proper interpretation of the vague and infringes on the constitutionally protected freedom of speech, of the
limitation on the number of minutes that candidates may use for television and press and of expression, and on the right of people to be informed on matters of
radio advertisements, as provided in Section 6 of Republic Act No. 9006 (R.A. public concern
No. 9006), otherwise known as the Fair Election Act. Pertinent portions of said
provision state, thus:ChanRoblesVirtualawlibrary Also, Section 9 (a) is a cruel and oppressive regulation as it imposes an
unreasonable and almost impossible burden on broadcast mass media of
Sec. 6. Equal Access to Media Time and Space. - All registered parties and monitoring a candidate's or political party's aggregate airtime, otherwise, it may
bona fide candidates shall have equal access to media time and space. The incur administrative and criminal liability.
following guidelines may be amplified on by the COMELEC:
x x x x Further, petitioners claim that Section 7 (d) is null and void for unlawfully
criminalizing acts not prohibited and penalized as criminal offenses by R.A. No.
6.2 (a) Each bona fide candidate or registered political party for a nationally 9006.
elective office shall be entitled to not more than one hundred twenty (120)
minutes of television advertisement and one hundred eighty (180) minutes of Section 14 of Resolution No. 9615, providing for a candidate's or political party's
radio advertisement whether by purchase or donation. right to reply, is likewise assailed to be unconstitutional for being an improper
exercise of the COMELEC's regulatory powers; for constituting prior restraint
b. Each bona fide candidate or registered political party for a locally elective and infringing petitioners' freedom of expression, speech and the press; and for
office shall be entitled to not more than sixty (60) minutes of television being violative of the equal protection guarantee.
advertisement and ninety (90) minutes of radio advertisement whether by
purchase or donation. In addition to the foregoing, petitioner GMA further argues that the Resolution
was promulgated without public consultations, in violation of petitioners' right to
For this purpose, the COMELEC shall require any broadcast station or entity to due process. Petitioner ABC also avers that the Resolution's definition of the
submit to the COMELEC a copy of its broadcast logs and certificates of terms political advertisement and election propaganda suffers from
performance for the review and verification of the frequency, date, time and overbreadth, thereby producing a chilling effect, constituting prior restraint.
duration of advertisements broadcast for any candidate or political party.
On the other hand, respondent posits in its Comment and Opposition13 dated
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC March 8, 2013, that the petition should be denied based on the following
issued Resolutions implementing and interpreting Section 6 of R.A. No. 9006, reasons:ChanRoblesVirtualawlibrary
regarding airtime limitations, to mean that a candidate is entitled to the
aforestated number of minutes per station.7 For the May 2013 elections, Respondent contends that the remedies of certiorari and prohibition are not
however, respondent COMELEC promulgated Resolution No. 9615 dated available to petitioners, because the writ of certiorari is only available against
January 15, 2013, changing the interpretation of said candidates' and political the COMELEC's adjudicatory or quasi-judicial powers, while the writ of
parties' airtime limitation for political campaigns or advertisements from a per prohibition only lies against the exercise of judicial, quasi-judicial or ministerial
station basis, to a total aggregate basis. functions. Said writs do not lie against the COMELECs administrative or rule-
making powers.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC Development Corporation
(ABC), GMA Network, Incorporated (GMA), Manila Broadcasting Company, Inc. Respondent likewise alleges that petitioners do not have locus standi, as the
(MBC), Newsounds Broadcasting Network, Inc. (NBN), and Radio Mindanao constitutional rights and freedoms they enumerate are not personal to them,
Network, Inc. (RMN) are owners/operators of radio and television networks in rather, they belong to candidates, political parties and the Filipino electorate in
the Philippines, while petitioner Kapisanan ng mga Brodkaster ng Pilipinas general, as the limitations are imposed on candidates, not on media outlets. It
(KBP) is the national organization of broadcasting companies in the Philippines argues that petitioners' alleged risk of exposure to criminal liability is insufficient
representing operators of radio and television stations and said stations to give them legal standing as said fear of injury is highly speculative and
themselves. They sent their respective letters to the COMELEC questioning contingent on a future act.
the provisions of the aforementioned Resolution, thus, the COMELEC held
public hearings. Thereafter, on February 1, 2013, respondent issued Respondent then parries petitioners' attack on the alleged infirmities of the
Resolution No. 9631 amending provisions of Resolution No. Resolution's provisions.
9615. Nevertheless, petitioners still found the provisions objectionable and
oppressive, hence, the present petitions. Respondent maintains that the per candidate rule or total aggregate airtime limit
is in accordance with R.A. No. 9006 as this would truly give life to the
All of the petitioners assail the following provisions of the constitutional objective to equalize access to media during elections. It sees
Resolution:ChanRoblesVirtualawlibrary this as a more effective way of levelling the playing field between
candidates/political parties with enormous resources and those without
a) Section 7 (d),8 which provides for a penalty of suspension or revocation of an much. Moreover, the Comelecs issuance of the assailed Resolution is
offender's franchise or permit, imposes criminal liability against broadcasting pursuant to Section 4, Article IX (C) of the Constitution which vests on the
entities and their officers in the event they sell airtime in excess of the size, Comelec the power to supervise and regulate, during election periods,
duration, or frequency authorized in the new rules; transportation and other public utilities, as well as mass media, to
wit:ChanRoblesVirtualawlibrary
Sec. 4. The Commission may, during the election period, supervise or regulate conducted a meeting with representatives of the KBP and various media outfits
the enjoyment or utilization of all franchises or permits for the operation of on December 26, 2012, almost a month before the issuance of Resolution No.
transportation and other public utilities, media of communication or information, 9615.
all grants, special privileges, or concessions granted by the Government or any
subdivision, agency, or instrumentality thereof, including any government- On April 2, 2013, petitioner GMA filed its Reply,14 where it advanced the
owned or controlled corporation or its subsidiary. Such supervision or following counter-arguments:ChanRoblesVirtualawlibrary
regulation shall aim to ensure equal opportunity, and equal rates therefor, for
public information campaigns and forums among candidates in connection with According to GMA, a petition for certiorari is the proper remedy to question the
the objective of holding free, orderly, honest, peaceful, and credible elections. herein assailed Resolutions, which should be considered as a decision, order
or ruling of the Commission as mentioned in Section 1, Rule 37 of the
This being the case, then the Resolutions cannot be said to have been issued COMELEC Rules of Procedure which provides:ChanRoblesVirtualawlibrary
with grave abuse of discretion amounting to lack of jurisdiction.
Section 1. Petition for Certiorari; and Time to File. - Unless otherwise provided
Next, respondent claims that the provisions are not vague because the assailed by law, or by any specific provisions in these Rules, any decision, order or
Resolutions have given clear and adequate mechanisms to protect broadcast ruling of the Commission may be brought to the Supreme Court on certiorari by
stations from potential liability arising from a candidate's or party's violation of the aggrieved party within thirty (30) days from its promulgation.
airtime limits by putting in the proviso that the station may require buyer to
warrant under oath that such purchase [of airtime] is not in excess of size, GMA further stressed that this case involves national interest, and the urgency
duration or frequency authorized by law or these rules. Furthermore, words of the matter justifies its resort to the remedy of a petition for certiorari.
should be understood in the sense that they have in common usage, and
should be given their ordinary meaning. Thus, in the provision for the right to Therefore, GMA disagrees with the COMELEC's position that the proper
reply, charges against candidates or parties must be understood in the remedy is a petition for declaratory relief because such action only asks the
ordinary sense, referring to accusations or criticisms. court to make a proper interpretation of the rights of parties under a statute or
regulation. Such a petition does not nullify the assailed statute or regulation, or
Respondent also sees no prior restraint in the provisions requiring notice to the grant injunctive relief, which petitioners are praying for in their petition. Thus,
Comelec for appearances or guestings of candidates in bona fide news GMA maintains that a petition for certiorari is the proper remedy.
broadcasts. It points out that the fact that notice may be given 24 hours after
first broadcast only proves that the mechanism is for monitoring purposes only, GMA further denies that it is making a collateral attack on the Fair Election Act,
not for censorship. Further, respondent argues, that for there to be prior as it is not attacking said law. GMA points out that it has stated in its petition
restraint, official governmental restrictions on the press or other forms of that the law in fact allows the sale or donation of airtime for political
expression must be done in advance of actual publication or advertisements and does not impose criminal liability against radio and
dissemination. Moreover, petitioners are only required to inform the Comelec of television stations. What it is assailing is the COMELEC's erroneous
candidates'/parties' guestings, but there is no regulation as to the content of the interpretation of the law's provisions by declaring such sale and/or donation of
news or the expressions in news interviews or news airtime unlawful, which is contrary to the purpose of the Fair Election Act.
documentaries. Respondent then emphasized that the Supreme Court has
held that freedom of speech and the press may be limited in light of the duty of GMA then claims that it has legal standing to bring the present suit
the Comelec to ensure equal access to opportunities for public service. because:ChanRoblesVirtualawlibrary
With regard to the right to reply provision, respondent also does not consider it
as restrictive of the airing of bona fide news broadcasts. More importantly, it x x x First, it has personally suffered a threatened injury in the form of risk of
stressed, the right to reply is enshrined in the Constitution, and the assailed criminal liability because of the alleged unconstitutional and unlawful conduct of
Resolutions provide that said right can only be had after going through respondent COMELEC in expanding what was provided for in R.A. No.
administrative due process. The provision was also merely lifted from Section 9006. Second, the injury is traceable to the challenged action of respondent
10 of R.A. No. 9006, hence, petitioner ABC is actually attacking the COMELEC, that is, the issuance of the assailed Resolutions. Third, the injury is
constitutionality of R.A. No. 9006, which cannot be done through a collateral likely to be redressed by the remedy sought in petitioner GMA's Petition, among
attack. others, for the Honorable Court to nullify the challenged pertinent provisions of
the assailed Resolutions.15cralawred
Next, respondent counters that there is no merit to ABC's claim that the
Resolutions' definition of political advertisement or election propaganda On substantive issues, GMA first argues that the questioned Resolutions are
suffers from overbreadth, as the extent or scope of what falls under said terms contrary to the objective and purpose of the Fair Election Act. It points out that
is clearly stated in Section 1 (4) of Resolution No. 9615. the Fair Election Act even repealed the political ad ban found in the earlier law,
R.A. No. 6646. The Fair Election Act also speaks of equal opportunity and
It is also respondent's view that the nationwide aggregate total airtime does not equal access, but said law never mentioned equalizing the economic station
violate the equal protection clause, because it does not make any substantial of the rich and the poor, as a declared policy. Furthermore, in its opinion, the
distinctions between national and regional and/or local broadcast stations, and supposed correlation between candidates' expenditures for TV ads and actually
even without the aggregate total airtime rule, candidates and parties are likely winning the elections, is a mere illusion, as there are other various factors
to be more inclined to advertise in national broadcast stations. responsible for a candidate's winning the election. GMA then cites portions of
the deliberations of the Bicameral Conference Committee on the bills that led to
Respondent likewise sees no merit in petitioners' claim that the Resolutions the enactment of the Fair Election Act, and alleges that this shows the
amount to taking of private property without just compensation. Respondent legislative intent that airtime allocation should be on a per station basis. Thus,
emphasizes that radio and television broadcasting companies do not own the GMA claims it was arbitrary and a grave abuse of discretion for the COMELEC
airwaves and frequencies through which they transmit broadcast signals; they to issue the present Resolutions imposing airtime limitations on an aggregate
are merely given the temporary privilege to use the same. Since they are total basis.
merely enjoying a privilege, the same may be reasonably burdened with some
form of public service, in this case, to provide candidates with the opportunity to It is likewise insisted by GMA that the assailed Resolutions impose an
reply to charges aired against them. unconstitutional burden on them, because their failure to strictly monitor the
duration of total airtime that each candidate has purchased even from other
Lastly, respondent contends that the public consultation requirement does not stations would expose their officials to criminal liability and risk losing the
apply to constitutional commissions such as the Comelec, pursuant to Section station's good reputation and goodwill, as well as its franchise. It argues that
1, Chapter I, Book VII of the Administrative Code of 1987. Indeed, Section 9, the wordings of the Resolutions belie the COMELEC's claim that petitioners
Chapter II, Book VII of said Code provides, thus:ChanRoblesVirtualawlibrary would only incur liability if they knowingly sell airtime beyond the limits
imposed by the Resolutions, because the element of knowledge is clearly
absent from the provisions thereof. This makes the provisions have the nature
Section 9. Public Participation. - (1) If not otherwise required by law, an agency of malum prohibitum.
shall, as far as practicable, publish or circulate notices of proposed rules and
afford interested parties the opportunity to submit their views prior to the Next, GMA also says that the application of the aggregate airtime limit
adoption of any rule. constitutes prior restraint and is unconstitutional, opining that [t]he reviewing
power of respondent COMELEC and its sole judgment of a news event as a
However, Section 1, Chapter 1, Book VII of said Code clearly political advertisement are so pervasive under the assailed Resolutions, and
provides:ChanRoblesVirtualawlibrary provoke the distastes or chilling effect of prior restraint16 as even a legitimate
exercise of a constitutional right might expose it to legal sanction. Thus, the
Section 1. Scope. - This Book shall be applicable to all agencies as defined in governmental interest of leveling the playing field between rich and poor
the next succeeding section, except the Congress, the Judiciary, the candidates cannot justify the restriction on the freedoms of expression, speech
Constitutional Commissions, military establishments in all matters relating and of the press.
exclusively to Armed Forces personnel, the Board of Pardons and Parole, and
state universities and colleges. On the issue of lack of prior public participation, GMA cites Section 82 of the
Omnibus Election Code, pertinent portions of which provide,
Nevertheless, even if public participation is not required, respondent still thus:ChanRoblesVirtualawlibrary
Section 82. Lawful election propaganda. - Lawful election propaganda shall KBP have no locus standi to file the present petition.
include:
xxxx Respondent posits that contrary to the contention of petitioners, the legislative
history of R.A. No. 9006 conclusively shows that congress intended the airtime
All other forms of election propaganda not prohibited by this Code as the limits to be computed on a per candidate and not on a per station basis. In
Commission may authorize after due notice to all interested parties and hearing addition, the legal duty of monitoring lies with the COMELEC. Broadcast
where all the interested parties were given an equal opportunity to be heard: stations are merely required to submit certain documents to aid the COMELEC
Provided, That the Commission's authorization shall be published in two in ensuring that candidates are not sold airtime in excess of the allowed limits.
newspapers of general circulation throughout the nation for at least twice within
one week after the authorization has been granted. Also, as discussed in the earlier Comment, the prior notice requirement is a
mechanism designed to inform the COMELEC of the appearances or guesting
There having been no prior public consultation held, GMA contends that the of candidates in bona fide news broadcasts. It is for monitoring purposes only,
COMELEC is guilty of depriving petitioners of its right to due process of law. not censorship. It does not control the subject matter of news broadcasts in
anyway. Neither does it prevent media outlets from covering candidates in
GMA then concludes that it is also entitled to a temporary restraining order, news interviews, news events, and news documentaries, nor prevent the
because the implementation of the Resolutions in question will cause grave and candidates from appearing thereon.
irreparable damage to it by disrupting and emasculating its mandate to provide
television and radio services to the public, and by exposing it to the risk of As for the right to reply, respondent insists that the right to reply provision
incurring criminal and administrative liability by requiring it to perform the cannot be considered a prior restraint on the freedoms of expression, speech
impossible task of surveillance and monitoring, or the broadcasts of other radio and the press, as it does not in any way restrict the airing of bona fide new
and television stations. broadcasts. Media entities are free to report any news event, even if it should
turn out to be unfavourable to a candidate or party. The assailed Resolutions
Thereafter, on April 4, 2013, the COMELEC, through the Office of the Solicitor merely give the candidate or party the right to reply to such charges published
General (OSG), filed a Supplemental Comment and Opposition17 where it or aired against them in news broadcasts.
further expounded on the legislative intent behind the Fair Election Act, also
quoting portions of the deliberations of the Bicameral Conference Committee, Moreover, respondent contends that the imposition of the penalty of suspension
allegedly adopting the Senate Bill version setting the computation of airtime and revocation of franchise or permit for the sale or donation of airtime beyond
limits on a per candidate, not per station, basis. Thus, as enacted into law, the the allowable limits is sanctioned by the Omnibus Election Code.
wordings of Section 6 of the Fair Election Act shows that the airtime limit is
imposed on a per candidate basis, rather than on a per station Meanwhile, RMN filed its Petition on April 8, 2013. On June 4, 2013, the Court
basis. Furthermore, the COMELEC states that petitioner-intervenor Senator issued a Resolution25consolidating the case with the rest of the petitions and
Cayetano is wrong in arguing that there should be empirical data to support the requiring respondent to comment thereon.
need to change the computation of airtime limits from a per station basis to a
per candidate basis, because nothing in law obligates the COMELEC to support On October 10, 2013, respondent filed its Third Supplemental Comment and
its Resolutions with empirical data, as said airtime limit was a policy decision Opposition.26 Therein, respondent stated that the petition filed by RMN repeats
dictated by the legislature itself, which had the necessary empirical and other the issues that were raised in the previous petitions. Respondent, likewise,
data upon which to base said policy decision. reiterated its arguments that certiorari in not the proper remedy to question the
assailed resolutions and that RMN has no locus standi to file the present
The COMELEC then points out that Section 2 (7),18 Article IX (C) of the petition. Respondent maintains that the arguments raised by RMN, like those
Constitution empowers it to recommend to Congress effective measures to raised by the other petitioners are without merit and that RMN is not entitled to
minimize election spending and in furtherance of such constitutional power, the the injunctive relief sought.
COMELEC issued the questioned Resolutions, in faithful implementation of the
legislative intent and objectives of the Fair Election Act. The petition is partly meritorious.

The COMELEC also dismisses Senator Cayetano's fears that unauthorized or At the outset, although the subject of the present petitions are Resolutions
inadvertent inclusion of his name, initial, image, brand, logo, insignia and/or promulgated by the COMELEC relative to the conduct of the 2013 national and
symbol in tandem advertisements will be charged against his airtime limits by local elections, nevertheless the issues raised by the petitioners have not been
pointing out that what will be counted against a candidate's airtime and rendered moot and academic by the conclusion of the 2013
expenditures are those advertisements that have been paid for or donated to elections. Considering that the matters elevated to the Court for resolution are
them to which the candidate has given consent. susceptible to repetition in the conduct of future electoral exercises, these
issues will be resolved in the present action.
With regard to the attack that the total aggregate airtime limit constitutes prior
restraint or undue abridgement of the freedom of speech and expression, the PROCEDURAL ASPECTS
COMELEC counters that the Resolutions enjoy constitutional and
congressional imprimatur. It is the Constitution itself that imposes the restriction Matters of procedure and technicalities normally take a backseat when issues
on the freedoms of speech and expression, during election period, to promote of substantial and transcendental importance are presented before the Court.
an important and significant governmental interest, which is to equalize, as far So the Court does again in this particular case.
as practicable, the situation of rich and poor candidates by preventing the
former from enjoying the undue advantage offered by huge campaign 'war
chests.'19cralawred Proper Remedy

Lastly, the COMELEC also emphasizes that there is no impairment of the Respondent claims that certiorari and prohibition are not the proper remedies
people's right to information on matters of public concern, because in this case, that petitioners have taken to question the assailed Resolutions of the Comelec.
the COMELEC is not withholding access to any public record. Technically, respondent may have a point. However, considering the very
important and pivotal issues raised, and the limited time, such technicality
On April 16, 2013, this Court issued a Temporary Restraining Order20 (TRO) in should not deter the Court from having to make the final and definitive
view of the urgency involved and to prevent irreparable injury that may be pronouncement that everyone else depends for enlightenment and guidance.
caused to the petitioners if respondent COMELEC is not enjoined from [T]his Court has in the past seen fit to step in and resolve petitions despite their
implementing Resolution No. 9615. being the subject of an improper remedy, in view of the public importance of the
issues raised therein.27cralawred
On April 19, 2013 respondent filed an Urgent Motion to Lift Temporary
Restraining Order and Motion for Early Resolution of the Consolidated It has been in the past, we do so again.
Petitions.21cralawred
Locus Standi
On May 8, 2013, petitioners ABS-CBN and the KBP filed its
Opposition/Comment22 to the said Motion. Not long after, ABC followed suit Every time a constitutional issue is brought before the Court, the issue of locus
and filed its own Opposition to the Motion23 filed by the respondent. standi is raised to question the personality of the parties invoking the Courts
jurisdiction. The Court has routinely made reference to a liberalized stance
In the interim, respondent filed a Second Supplemental Comment and when it comes to petitions raising issues of transcendental importance to the
Opposition24 dated April 8, 2013. country. Invariably, after some discussions, the Court would eventually grant
standing.28cralawred
In the Second Supplemental Comment and Opposition, respondent delved on
points which were not previously discussed in its earlier Comment and In this particular case, respondent also questions the standing of the petitioners.
Supplemental Comment, particularly those raised in the petition filed by We rule for the petitioners. For petitioner-intervenor Senator Cayetano, he
petitioner ABS-CBN and KBP. undoubtedly has standing since he is a candidate whose ability to reach out to
the electorate is impacted by the assailed Resolutions.
Respondent maintains that certiorari in not the proper remedy to question the
Constitutionality of the assailed Resolutions and that petitioners ABS-CBN and For the broadcast companies, they similarly have the standing in view of the
direct injury they may suffer relative to their ability to carry out their tasks of television advertisement and one-hundred eighty (180) minutes for radio
disseminating information because of the burdens imposed on them. advertisement. For the 2004 elections, the respondent COMELEC promulgated
Nevertheless, even in regard to the broadcast companies invoking the injury Resolution No. 652033 implementing the airtime limits by applying said limitation
that may be caused to their customers or the public those who buy on a per stationbasis.34 Such manner of determining airtime limits was likewise
advertisements and the people who rely on their broadcasts what the Court adopted for the 2007 elections, through Resolution No. 7767.35 In the 2010
said in White Light Corporation v. City of Manila29 may dispose of the question. elections, under Resolution No. 8758,36 the same was again adopted. But for
In that case, there was an issue as to whether owners of establishments the 2013 elections, the COMELEC, through Resolution No. 9615, as amended
offering wash-up rates may have the requisite standing on behalf of their by Resolution No. 9631, chose to aggregate the total broadcast time among
patrons equal protection claims relative to an ordinance of the City of Manila the different broadcast media, thus:ChanRoblesVirtualawlibrary
which prohibited short-time or wash-up accommodation in motels and similar
establishments. The Court essentially condensed the issue in this manner: Section 9. Requirements and/or Limitations on the Use of Election Propaganda
[T]he crux of the matter is whether or not these establishments have the through Mass Media. All parties and bona fide candidates shall have equal
requisite standing to plead for protection of their patrons equal protection access to media time and space for their election propaganda during the
rights.30 The Court then went on to hold:ChanRoblesVirtualawlibrary campaign period subject to the following requirements and/or
limitations:ChanRoblesVirtualawlibrary
Standing or locus standi is the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support a. Broadcast Election Propaganda
that partys participation in the case. More importantly, the doctrine of standing
is built on the principle of separation of powers, sparing as it does unnecessary The duration of an air time that a candidate, or party may use for their
interference or invalidation by the judicial branch of the actions rendered by its broadcast advertisements or election propaganda shall be, as follows:
co-equal branches of government. For Not more than an aggregate total of one hundred
Candidates/Registered (120) minutes of television advertising, whether
The requirement of standing is a core component of the judicial system derived Political parties for a appearing on national, regional, or local, free or cable
directly from the Constitution. The constitutional component of standing doctrine National Elective television, and one hundred eighty (180) minutes of
incorporates concepts which concededly are not susceptible of precise Position radio advertising, whether airing on national,
definition. In this jurisdiction, the extancy of a direct and personal interest regional, or local radio, whether by purchase or
presents the most obvious cause, as well as the standard test for a petitioners donation
standing. In a similar vein, the United States Supreme Court reviewed and For Not more than an aggregate total of sixty (60)
elaborated on the meaning of the three constitutional standing requirements of Candidates/Registered minutes of television advertising, whether appearing
injury, causation, and redressability in Allen v. Wright. Political parties for a Localon national, regional, or local, free or cable television,
Elective Position and ninety (90) minutes of radio advertising, whether
Nonetheless, the general rules on standing admit of several exceptions such as airing on national, regional, or local radio, whether by
the overbreadth doctrine, taxpayer suits, third party standing and, especially in purchase or donation.
the Philippines, the doctrine of transcendental importance.
In cases where two or more candidates or parties whose names, initials,
For this particular set of facts, the concept of third party standing as an images, brands, logos, insignias, color motifs, symbols, or forms of graphical
exception and the overbreadth doctrine are appropriate. x x x representations are displayed, exhibited, used, or mentioned together in the
broadcast election propaganda or advertisements, the length of time during
xxxx which they appear or are being mentioned or promoted will be counted against
the airtime limits allotted for the said candidates or parties and the cost of the
American jurisprudence is replete with examples where parties-in-interest were said advertisement will likewise be considered as their expenditures, regardless
allowed standing to advocate or invoke the fundamental due process or equal of whoever paid for the advertisements or to whom the said advertisements
protection claims of other persons or classes of persons injured by state action. were donated.
xxx
Corollarily, petitioner-intervenor, Senator Cayetano, alleges:
xxxx
6.15. The change in the implementation of Section 6 of R.A. 9006 was
Assuming arguendo that petitioners do not have a relationship with their patrons undertaken by respondent Comelec without consultation with the candidates for
for the former to assert the rights of the latter, the overbreadth doctrine comes the 2013 elections, affected parties such as media organizations, as well as the
into play. In overbreadth analysis, challengers to government action are in general public. Worse, said change was put into effect without explaining the
effect permitted to raise the rights of third parties. Generally applied to statutes basis therefor and without showing any data in support of such change.
infringing on the freedom of speech, the overbreadth doctrine applies when a Respondent Comelec merely maintained that such action is meant to level the
statute needlessly restrains even constitutionally guaranteed rights. In this playing field between the moneyed candidates and those who dont have
case, the petitioners claim that the Ordinance makes a sweeping intrusion into enough resources, without particularizing the empirical data upon which such a
the right to liberty of their clients. We can see that based on the allegations in sweeping statement was based. This was evident in the public hearing held on
the petition, the Ordinance suffers from overbreadth. 31 January 2013 where petitioner GMA, thru counsel, explained that no
empirical data on the excesses or abuses of broadcast media were brought to
We thus recognize that the petitioners have a right to assert the constitutional the attention of the public by respondent Comelec, or even stated in the
rights of their clients to patronize their establishments for a wash-rate time Comelec Resolution No. 9615. Thus
frame.31
xxxx
If in regard to commercial undertakings, the owners may have the right to assert
a constitutional right of their clients, with more reason should establishments Chairman Brillantes
which publish and broadcast have the standing to assert the constitutional So if we can regulate and amplify, we may amplify meaning we can expand if
freedom of speech of candidates and of the right to information of the public, we want to. But the authority of the Commission is if we do not want to amplify
not to speak of their own freedom of the press. So, we uphold the standing of and we think that the 120 or 180 is okay we cannot be compelled to amplify. We
petitioners on that basis. think that 120 or 180 is okay, is enough.

SUBSTANTIVE ASPECTS Atty. Lucila


But with due respect Your Honor, I think the basis of the resolution is found in
Aggregate Time Limits the law and the law has been enterpreted (sic) before in 2010 to be 120 per
station, so why the change, your Honor?
COMELEC Resolution No. 9615 introduced a radical departure from the
previous COMELEC resolutions relative to the airtime limitations on political Chairman Brillantes
advertisements. This essentially consists in computing the airtime on No, the change is not there, the right to amplify is with the Commission on
an aggregate basis involving all the media of broadcast communications Elections. Nobody can encroach in our right to amplify. Now, if in 2010 the
compared to the past where it was done on a per station basis. Thus, it Commission felt that per station or per network is the rule then that is the
becomes immediately obvious that there was effected a drastic reduction of the prerogative of the Commission then they could amplify it to expand it. If the
allowable minutes within which candidates and political parties would be able to current Commission feels that 120 is enough for the particular medium like TV
campaign through the air. The question is accordingly whether this is within the and 180 for radio, that is our prerogative. How can you encroach and what is
power of the Comelec to do or not. The Court holds that it is not within the unconstitutional about it?
power of the Comelec to do so. Atty. Lucila
We are not questioning the authority of the Honorable Commission to regulate
a. Past elections and airtime limits Your Honor, we are just raising our concern on the manner of regulation
because as it is right now, there is a changing mode or sentiments of the
The authority of the COMELEC to impose airtime limits directly flows from the Commission and the public has the right to know, was there rampant
Fair Election Act (R.A. No. 9006 [2001])32 one hundred (120) minutes of overspending on political ads in 2010, we were not informed Your Honor. Was
there abuse of the media in 2010, we were not informed Your Honor. So we
would like to know what is the basis of the sudden change in this is not free to simply change the rules especially if it has consistently interpreted
limitation, Your Honor. . And law must have a consistent interpretation that a legal provision in a particular manner in the past. If ever it has to change the
[is]our position, Your Honor. rules, the same must be properly explained with sufficient basis.
Chairman Brillantes
But my initial interpretation, this is personal to this representation counsel, is Based on the transcripts of the hearing conducted by the COMELEC after it had
that if the Constitution allows us to regulate and then it gives us the prerogative already promulgated the Resolution, the respondent did not fully explain or
to amplify then the prerogative to amplify you should leave this to the discretion justify the change in computing the airtime allowed candidates and political
of the Commission. Which means if previous Commissions felt that expanding it parties, except to make reference to the need to level the playing field. If the
should be part of our authority that was a valid exercise if we reduce it to what per station basis was deemed enough to comply with that objective in the
is provided for by law which is 120-180 per medium, TV, radio, that is also past, why should it now be suddenly inadequate? And, the short answer to that
within the law and that is still within our prerogative as provided for by the from the respondent, in a manner which smacks of overbearing exercise of
Constitution. If you say we have to expose the candidates to the public then I discretion, is that it is within the discretion of the COMELEC. As quoted in the
think the reaction should come, the negative reaction should come from the transcript, the right to amplify is with the COMELEC. Nobody can encroach in
candidates not from the media, unless you have some interest to protect our right to amplify. Now, if in 2010 the Commission felt that per station or per
directly. Is there any interest on the part of the media to expand it? network is the rule then that is the prerogative of the Commission then they
Atty. Lucila could amplify it to expand it. If the current Commission feels that 120 is enough
Well, our interest Your Honor is to participate in this election Your Honor and for the particular medium like TV and 180 for radio, that is our prerogative. How
we have been constantly (sic) as the resolution says and even in the part can you encroach and what is unconstitutional about it?41cralawred
involved because you will be getting some affirmative action time coming from
the media itself and Comelec time coming from the media itself. So we could There is something basically wrong with that manner of explaining changes in
like to be both involved in the whole process of the exercise of the freedom of administrative rules. For one, it does not really provide a good basis for change.
suffrage Your Honor. For another, those affected by such rules must be given a better explanation
why the previous rules are no longer good enough. As the Court has said in one
Chairman Brillantes case:ChanRoblesVirtualawlibrary
Yes, but the very essence of the Constitutional provision as well as the
provision of 9006 is actually to level the playing field. That should be the While stability in the law, particularly in the business field, is desirable, there is
paramount consideration. If we allow everybody to make use of all their time no demand that the NTC slavishly follow precedent. However, we think it
and all radio time and TV time then there will be practically unlimited use of the essential, for the sake of clarity and intellectual honesty, that if an administrative
mass media.... agency decides inconsistently with previous action, that it explain thoroughly
why a different result is warranted, or if need be, why the previous standards
Atty. Lucila should no longer apply or should be overturned. Such explanation is warranted
Was there in 2010 Your Honor, was there any data to support that there was an in order to sufficiently establish a decision as having rational basis. Any
unlimited and abuse of a (sic) political ads in the mass media that became the inconsistent decision lacking thorough, ratiocination in support may be struck
basis of this change in interpretation Your Honor? We would like to know about down as being arbitrary. And any decision with absolutely nothing to support it
it Your Honor. is a nullity.42
Chairman Brillantes
What do you think there was no abuse in 2010? What the COMELEC came up with does not measure up to that level of
Atty. Lucila requirement and accountability which elevates administrative rules to the level
As far as the network is concern, there was none Your Honor. of respectability and acceptability. Those governed by administrative
Chairman Brillantes regulations are entitled to a reasonable and rational basis for any changes in
There was none...... those rules by which they are supposed to live by, especially if there is a radical
Atty. Lucila departure from the previous ones.
Im sorry, Your Honor...
The COMELEC went beyond the
Chairman Brillantes authority granted it by the law in
Yes, there was no abuse, okay, but there was some advantage given to those adopting aggregate basis in the
who took... who had the more moneyed candidates took advantage of it. determination of allowable airtime
Atty. Lucila The law, which is the basis of the regulation subject of these petitions,
But that is the fact in life, Your Honor there are poor candidates, there are rich pertinently provides:ChanRoblesVirtualawlibrary
candidates. No amount of law or regulation can even level the playing filed
(sic) as far as the economic station in life of the candidates are concern (sic)
our Honor.38 6.2. (a) Each bona fide candidate or registered political party for a nationally
elective office shall be entitled to not more than one hundred twenty (120)
Given the foregoing observations about what happened during the hearing, minutes of television advertisement and one hundred eighty (180) minutes of
Petitioner-Intervenor went on to allege that:ChanRoblesVirtualawlibrary radio advertisement whether by purchase or donation.

(b) Each bona fide candidate or registered political party for a locally elective
6.16. Without any empirical data upon which to base the regulatory measures in office shall be entitled to not more than sixty (60) minutes of television
Section 9 (a), respondent Comelec arbitrarily changed the rule from per advertisement and ninety (90) minutes of radio advertisement whether by
station basis to aggregate airtime basis. Indeed, no credence should be purchase or donation; x x x
given to the cliched explanation of respondent Comelec (i.e. leveling the playing
field) in its published statements which in itself is a mere reiteration of the The law, on its face, does not justify a conclusion that the maximum allowable
rationale for the enactment of the political ad ban of Republic Act No. 6646, and airtime should be based on the totality of possible broadcast in all television or
which has likewise been foisted when said political ad ban was lifted by R.A. radio stations. Senator Cayetano has called our attention to the legislative intent
9006.39 relative to the airtime allowed that it should be on a per station
basis.43cralawred
From the foregoing, it does appear that the Comelec did not have any other
basis for coming up with a new manner of determining allowable time limits This is further buttressed by the fact that the Fair Election Act (R.A. No. 9006)
except its own idea as to what should be the maximum number of minutes actually repealed the previous provision, Section 11(b) of Republic Act No.
based on its exercise of discretion as to how to level the playing field. The same 6646,44 which prohibited direct political advertisements the so-called political
could be encapsulized in the remark of the Comelec Chairman that if the ad ban. If under the previous law, no candidate was allowed to directly buy or
Constitution allows us to regulate and then it gives us the prerogative to procure on his own his broadcast or print campaign advertisements, and that he
amplify then the prerogative to amplify you should leave this to the discretion must get it through the COMELEC Time or COMELEC Space, R.A. No. 9006
of the Commission.40cralawred relieved him or her from that restriction and allowed him or her to broadcast
time or print space subject to the limitations set out in the law. Congress, in
The Court could not agree with what appears as a nonchalant exercise of enacting R.A. No. 9006, felt that the previous law was not an effective and
discretion, as expounded anon. efficient way of giving voice to the people. Noting the debilitating effects of the
previous law on the right of suffrage and Philippine democracy, Congress
COMELEC is duty bound to come up decided to repeal such rule by enacting the Fair Election Act.
with reasonable basis for changing the
interpretation and implementation of In regard to the enactment of the new law, taken in the context of the restrictive
the airtime limits nature of the previous law, the sponsorship speech of Senator Raul Roco is
enlightening:ChanRoblesVirtualawlibrary
There is no question that the COMELEC is the office constitutionally and
statutorily authorized to enforce election laws but it cannot exercise its powers
without limitations or reasonable basis. It could not simply adopt measures or The bill seeks to repeal Section 85 of the Omnibus Election Code and Sections
regulations just because it feels that it is the right thing to do, in so far as it 10 and 11 of RA 6646. In view of the importance of their appeal in connection
might be concerned. It does have discretion, but such discretion is something with the thrusts of the bill, I hereby quote these sections in
that must be exercised within the bounds and intent of the law. The COMELEC full:ChanRoblesVirtualawlibrary
electoral exercise may be given a chance to fully explain and expound on their
SEC. 85. Prohibited forms of election propaganda. It shall be candidacies and platforms of governance, and for the electorate to be given a
unlawful:ChanRoblesVirtualawlibrary chance to know better the personalities behind the candidates. In this regard,
the media is also given a very important part in that undertaking of providing the
(a) To print, publish, post or distribute any poster, pamphlet, circular, handbill, means by which the political exercise becomes an interactive process. All of
or printed matter urging voters to vote for or against any candidate unless they these would be undermined and frustrated with the kind of regulation that the
hear the names and addresses of the printed and payor as required in Section respondent came up with.
84 hereof;
The respondent gave its own understanding of the import of the legislative
(b) To erect, put up, make use of, attach, float or display any billboard, deliberations on the adoption of R.A. No. 9006 as
tinplate-poster, balloons and the like, of whatever size, shape, form or kind, follows:ChanRoblesVirtualawlibrary
advertising for or against any candidate or political party;
The legislative history of R.A. 9006 clearly shows that Congress intended to
(c) To purchase, manufacture, request, distribute or accept electoral impose the per candidate or political party aggregate total airtime limits on
propaganda gadgets, such as pens, lighters, fans of whatever nature, political advertisements and election propaganda. This is evidenced by the
flashlights, athletic goods or materials, wallets, shirts, hats, bandannas, dropping of the per day per station language embodied in both versions of the
matches, cigarettes and the like, except that campaign supporters House of Representatives and Senate bills in favour of the each candidate
accompanying a candidate shall be allowed to wear hats and/or shirts or T- and not more than limitations now found in Section 6 of R.A. 9006.
shirts advertising a candidate;
The pertinent portions of House Bill No. 9000 and Senate Bill No. 1742 read as
(d) To show or display publicly any advertisement or propaganda for or follows:ChanRoblesVirtualawlibrary
against any candidate by means of cinematography, audio-visual units or other
screen projections except telecasts which may be allowed as hereinafter
provided; and House Bill No. 9000:

(e) For any radio broadcasting or television station to sell or give free of SEC. 4. Section 86 of the same Batas is hereby amended to read as follows:
charge airtime for campaign and other political purposes except as authorized Sec. 86. Regulation of Election Propaganda Through Mass Media.
in this Code under the rules and regulations promulgated by the Commission
pursuant thereto; xxx xxx xxx

Any prohibited election propaganda gadget or advertisement shall be stopped, A) The total airtime available to the candidate and political party, whether
confiscated or torn down by the representative of the Commission upon specific by purchase or by donation, shall be limited to five (5) minutes per day in each
authority of the Commission. television, cable television and radio stations during the applicable
campaign period.
SEC. 10. Common Poster Areas. The Commission shall designate common Senate Bill No. 1742:
poster areas in strategic public places such as markets, barangay centers and
the like wherein candidates can post, display or exhibit election propaganda to SEC. 5. Equal Access to Media Space and Time. All registered parties and
announce or further their candidacy. bona fide candidates shall have equal access to media space and time. The
following guidelines may be amplified by the COMELEC.
Whenever feasible common billboards may be installed by the Commission
and/or non-partisan private or civic organizations which the Commission may
authorize whenever available, after due notice and hearing, in strategic areas xxx xxx xxx
where it may readily be seen or read, with the heaviest pedestrian and/or
2. The total airtime available for each registered party and bona fide
vehicular traffic in the city or municipality.
candidate whether by purchase or donation shall not exceed a total of one (1)
minute per day per television or radio station. (Emphasis supplied.)
The space in such common poster areas or billboards shall be allocated free of
charge, if feasible, equitably and impartially among the candidates in the
province, city or municipality. As Section 6 of R.A. 9006 is presently worded, it can be clearly seen that the
legislature intended the aggregate airtime limits to be computed on per
SEC. 11. Prohibited Forms of Election Propaganda. In addition to the forms candidate or party basis. Otherwise, if the legislature intended the computation
of election propaganda prohibited under Section 85 of Batas Pambansa Blg. to be on per station basis, it could have left the original per day per station
formulation.46
881, it shall be unlawful: (a) to draw, paint, inscribe, write, post, display or
publicly exhibit any election propaganda in any place, whether private or public,
except in common poster areas and/or billboards provided in the immediately The Court does not agree. It cannot bring itself to read the changes in the bill as
preceding section, at the candidates own residence, or at the campaign disclosing an intent that the COMELEC wants this Court to put on the final
headquarters of the candidate or political party: Provided, That such posters or language of the law. If anything, the change in language meant that the
election propaganda shall in no case exceed two (2) feet by three (3) feet in computation must not be based on a per day basis for each television or radio
area; Provided, further, That at the site of and on the occasion of a public station. The same could not therefore lend itself to an understanding that the
meeting or rally, streamers, not more than two (2) feet and not exceeding three total allowable time is to be done on an aggregate basis for all television or
radio stations.
(3) feet by eight (8) each may be displayed five (5) days before the date of the
meeting or rally, and shall be removed within twenty-four (24) hours after said
meeting or rally; and Clearly, the respondent in this instance went beyond its legal mandate when it
provided for rules beyond what was contemplated by the law it is supposed to
(b) For any newspapers, radio broadcasting or television station, or other implement. As we held in Lokin, Jr. v. Commission on Elections:47cralawred
mass media, or any person making use of the mass media to sell or give for
free of charge print space or air time for campaign or other political purposes The COMELEC, despite its role as the implementing arm of the Government in
except to the Commission as provided under Section 90 and 92 of Batas the enforcement and administration of all laws and regulations relative to the
Pambansa Blg. 881. Any mass media columnist, commentator, announcer or conduct of an election, has neither the authority nor the license to expand,
personality who is a candidate for any elective public office shall take a leave of extend, or add anything to the law it seeks to implement thereby. The IRRs the
absence from his work as such during the campaign. COMELEC issued for that purpose should always be in accord with the law to
be implemented, and should not override, supplant, or modify the law. It is basic
The repeal of the provision on the Common Poster Area implements the strong that the IRRs should remain consistent with the law they intend to carry out.
recommendations of the Commission on Elections during the hearings. It also
seeks to apply the doctrine enunciated by the Supreme Court in the case of Blo Indeed, administrative IRRs adopted by a particular department of the
Umpar Adiong vs. Commission on Elections, 207 SCRA 712, 31 March Government under legislative authority must be in harmony with the provisions
1992. Here a unanimous Supreme Court ruled: The COMELECs prohibition of the law, and should be for the sole purpose of carrying the laws general
on the posting of decals and stickers on mobile places whether public or provisions into effect. The law itself cannot be expanded by such IRRs,
private except [in] designated areas provided for by the COMELEC itself is null because an administrative agency cannot amend an act of Congress.48
and void on constitutional grounds.
In the case of Lokin, Jr., the COMELECs explanation that the Resolution then
For the foregoing reasons, we commend to our colleagues the early passage of in question did not add anything but merely reworded and rephrased the
Senate Bill No. 1742. In so doing, we move one step towards further ensuring statutory provision did not persuade the Court. With more reason here since the
free, orderly, honest, peaceful and credible elections as mandated by the COMELEC not only reworded or rephrased the statutory provision it
Constitution.45 practically replaced it with its own idea of what the law should be, a matter that
certainly is not within its authority. As the Court said in Villegas v.
Given the foregoing background, it is therefore ineluctable to conclude that Subido:49cralawred
Congress intended to provide a more expansive and liberal means by which the
candidates, political parties, citizens and other stake holders in the periodic
One last word. Nothing is better settled in the law than that a public official will translate to barely three 30-second advertising spots in television on a daily
exercises power, not rights. The government itself is merely an agency through basis using the same assumptions above.
which the will of the state is expressed and enforced. Its officers therefore are
likewise agents entrusted with the responsibility of discharging its functions. As 5.11 Based on the data from the 2012 Nielsen TV audience measurement in
such there is no presumption that they are empowered to act. There must be a Mega Manila, the commercial advertisements in television are viewed by
delegation of such authority, either express or implied. In the absence of a valid only 39.2% of the average total day household audience if such advertisements
grant, they are devoid of power. What they do suffers from a fatal infirmity. That are placed with petitioner GMA, the leading television network nationwide and
principle cannot be sufficiently stressed. In the appropriate language of Chief in Mega Manila. In effect, under the restrictive aggregate airtime limits in the
Justice Hughes: It must be conceded that departmental zeal may not be New Rules, the three 30-second political advertisements of a candidate in
permitted to outrun the authority conferred by statute. Neither the high dignity petitioner GMA will only be communicated to barely 40% of the viewing
of the office nor the righteousness of the motive then is an acceptable audience, not even the voting population, but only in Mega Manila, which is
substitute. Otherwise the rule of law becomes a myth. Such an eventuality, we defined by AGB Nielsen Philippines to cover Metro Manila and certain urban
must take all pains to avoid.50 areas in the provinces of Bulacan, Cavite, Laguna, Rizal, Batangas and
Pampanga. Consequently, given the voting population distribution and the
So it was then. So does the rule still remains the same. drastically reduced supply of airtime as a result of the New Rules aggregate
airtime limits, a national candidate will be forced to use all of his airtime for
Section 9 (a) of COMELEC Resolution political advertisements in television only in urban areas such as Mega Manila
No. 9615 on airtime limits also goes as a political campaign tool to achieve maximum exposure.
against the constitutional guaranty of
freedom of expression, of speech 5.12 To be sure, the people outside of Mega Manila or other urban areas
and of the press deserve to be informed of the candidates in the national elections, and the said
The guaranty of freedom to speak is useless without the ability to communicate candidates also enjoy the right to be voted upon by these informed populace.53
and disseminate what is said. And where there is a need to reach a large
audience, the need to access the means and media for such dissemination The Court agrees. The assailed rule on aggregate-based airtime limits is
becomes critical. This is where the press and broadcast media come along. At unreasonable and arbitrary as it unduly restricts and constrains the ability of
the same time, the right to speak and to reach out would not be meaningful if it candidates and political parties to reach out and communicate with the people.
is just a token ability to be heard by a few. It must be coupled with substantially Here, the adverted reason for imposing the aggregate-based airtime limits
reasonable means by which the communicator and the audience could leveling the playing field does not constitute a compelling state interest which
effectively interact. Section 9 (a) of COMELEC Resolution No. 9615, with its would justify such a substantial restriction on the freedom of candidates and
adoption of the aggregate-based airtime limits unreasonably restricts the political parties to communicate their ideas, philosophies, platforms and
guaranteed freedom of speech and of the press. programs of government. And, this is specially so in the absence of a clear-cut
basis for the imposition of such a prohibitive measure. In this particular
Political speech is one of the most important expressions protected by the instance, what the COMELEC has done is analogous to letting a bird fly after
Fundamental Law. [F]reedom of speech, of expression, and of the press are at one has clipped its wings.
the core of civil liberties and have to be protected at all costs for the sake of
democracy.51 Accordingly, the same must remain unfettered unless otherwise It is also particularly unreasonable and whimsical to adopt the aggregate-based
justified by a compelling state interest. time limits on broadcast time when we consider that the Philippines is not only
composed of so many islands. There are also a lot of languages and dialects
In regard to limitations on political speech relative to other state interests, an spoken among the citizens across the country. Accordingly, for a national
American case observed:ChanRoblesVirtualawlibrary candidate to really reach out to as many of the electorates as possible, then it
might also be necessary that he conveys his message through his
A restriction on the amount of money a person or group can spend on political advertisements in languages and dialects that the people may more readily
communication during a campaign necessarily reduces the quantity of understand and relate to. To add all of these airtimes in different dialects would
expression by restricting the number of issues discussed, the depth of their greatly hamper the ability of such candidate to express himself a form of
exploration, and the size of the audience reached. This is because virtually suppression of his political speech.
every means of communicating ideas in todays mass society requires the
expenditure of money. The distribution of the humblest handbill or leaflet entails Respondent itself states that [t]elevision is arguably the most cost-effective
printing, paper, and circulation costs. Speeches and rallies generally medium of dissemination. Even a slight increase in television exposure can
necessitate hiring a hall and publicizing the event. The electorates increasing significantly boost a candidate's popularity, name recall and electability.54 If that
dependence on television, radio, and other mass media for news and be so, then drastically curtailing the ability of a candidate to effectively reach out
information has made these expensive modes of communication indispensable to the electorate would unjustifiably curtail his freedom to speak as a means of
instruments of effective political speech. connecting with the people.

The expenditure limitations contained in the Act represent substantial, rather Finally on this matter, it is pertinent to quote what Justice Black wrote in his
than merely theoretical restraints on the quantity and diversity of political concurring opinion in the landmark Pentagon Papers case: In the First
speech. The $1,000 ceiling on spending relative to a clearly identified Amendment, the Founding Fathers gave the free press the protection it must
candidate, 18 U.S.C. 608(e)(1) (1970 ed., Supp. IV), would appear to have to fulfill its essential role in our democracy. The press was to serve the
exclude all citizens and groups except candidates, political parties, and the governed, not the governors. The Government's power to censor the press was
institutional press from any significant use of the most effective modes of abolished so that the press would remain forever free to censure the
communication. Although the Acts limitations on expenditures by campaign Government. The press was protected so that it could bare the secrets of
organizations and political parties provide substantially greater room for government and inform the people. Only a free and unrestrained press can
discussion and debate, they would have required restrictions in the scope of a effectively expose deception in government.55cralawred
number of past congressional and Presidential campaigns and would operate to
constrain campaigning by candidates who raise sums in excess of the spending In the ultimate analysis, when the press is silenced, or otherwise muffled in its
ceiling.52 undertaking of acting as a sounding board, the people ultimately would be the
victims.
Section 9 (a) of COMELEC Resolution No. 9615 comes up with what is
challenged as being an unreasonable basis for determining the allowable air Section 9 (a) of Resolution 9615 is
time that candidates and political parties may avail of. Petitioner GMA came up violative of the peoples
with its analysis of the practical effects of such a right to suffrage
regulation:ChanRoblesVirtualawlibrary
Fundamental to the idea of a democratic and republican state is the right of the
people to determine their own destiny through the choice of leaders they may
5.8. Given the reduction of a candidates airtime minutes in the New Rules, have in government. Thus, the primordial importance of suffrage and the
petitioner GMA estimates that a national candidate will only have 120 minutes concomitant right of the people to be adequately informed for the intelligent
to utilize for his political advertisements in television during the whole campaign exercise of such birthright. It was said that:ChanRoblesVirtualawlibrary
period of 88 days, or will only have 81.81 seconds per day TV exposure
allotment. If he chooses to place his political advertisements in the 3 major TV
networks in equal allocation, he will only have 27.27 seconds of airtime per x x x As long as popular government is an end to be achieved and safeguarded,
network per day. This barely translates to 1 advertisement spot on a 30- suffrage, whatever may be the modality and form devised, must continue to be
second spot basis in television. the means by which the great reservoir of power must be emptied into the
receptacular agencies wrought by the people through their Constitution in the
5.9. With a 20-hour programming per day and considering the limits of a interest of good government and the common weal. Republicanism, in so far as
stations coverage, it will be difficult for 1 advertising spot to make a sensible it implies the adoption of a representative type of government, necessarily
and feasible communication to the public, or in political propaganda, to make points to the enfranchised citizen as a particle of popular sovereignty and as the
known [a candidates] qualifications and stand on public issues. ultimate source of the established authority. He has a voice in his Government
and whenever possible it is the solemn duty of the judiciary, when called upon
5.10 If a candidate loads all of his 81.81 seconds per day in one network, this to act in justifiable cases, to give it efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that ballots should be read and xxx xxx xxx
appreciated, if not with utmost, with reasonable, liberality. x x x56
(d) for any newspaper or publication, radio, television or cable television
It has also been said that [c]ompetition in ideas and governmental policies is at station, or other mass media, or any person making use of the mass
the core of our electoral process and of the First Amendment media to sell or to give free of charge print space or air time for campaign or
freedoms.57 Candidates and political parties need adequate breathing space election propaganda purposes to any candidate or party in excess of the
including the means to disseminate their ideas. This could not be reasonably size, duration or frequency authorized by law or these rules;
addressed by the very restrictive manner by which the respondent implemented
the time limits in regard to political advertisements in the broadcast media. xxx xxx xxx
Resolution No. 9615 needs (Emphasis supplied)
prior hearing before adoption
The COMELEC promulgated Resolution No. 9615 on January 15, 2013 then petitioner GMA submits that compliance with the New Rules in order to avoid
came up with a public hearing on January 31, 2013 to explain what it had done, administrative or criminal liability would be unfair, cruel and oppressive.
particularly on the aggregate-based air time limits. This circumstance also
renders the new regulation, particularly on the adoption of the aggregate- x x x x.
based airtime limit, questionable. It must not be overlooked that the new
Resolution introduced a radical change in the manner in which the rules on 5.43 In the present situation wherein airtime minutes shall be shared by all
airtime for political advertisements are to be reckoned. As such there is a need television and radio stations, broadcast mass media organizations would surely
for adequate and effective means by which they may be adopted, disseminated encounter insurmountable difficulties in monitoring the airtime minutes spent by
and implemented. In this regard, it is not enough that they be published or the numerous candidates for various elective positions, in real time.
explained after they have been adopted.
5.44 An inquiry with the National Telecommunications Commission (NTC) bears
While it is true that the COMELEC is an independent office and not a mere out that there are 372 television stations and 398 AM and 800 FM radio stations
administrative agency under the Executive Department, rules which apply to the nationwide as of June 2012. In addition, there are 1,113 cable TV providers
latter must also be deemed to similarly apply to the former, not as a matter of authorized by the NTC to operate within the country as of the said date.
administrative convenience but as a dictate of due process. And this assumes
greater significance considering the important and pivotal role that the 5.45 Given such numbers of broadcast entities and the necessity to monitor
COMELEC plays in the life of the nation. Thus, whatever might have been said political advertisements pursuant to the New Rules, petitioner GMA estimates
in Commissioner of Internal Revenue v. Court of Appeals,58 should also that monitoring television broadcasts of all authorized television station would
apply mutatis mutandis to the COMELEC when it comes to promulgating rules involve 7,440 manhours per day. To aggravate matters, since a candidate may
and regulations which adversely affect, or impose a heavy and substantial also spend his/her broadcasting minutes on cable TV,
burden on, the citizenry in a matter that implicates the very nature of additional 281,040 manhours per day would have to be spent in monitoring the
government we have adopted:ChanRoblesVirtualawlibrary various channels carried by cable TV throughout the Philippines. As far as
radio broadcasts (both AM and FM stations) are concerned,
It should be understandable that when an administrative rule is merely around 23,960 manhours per day would have to be devoted by petitioner GMA
interpretative in nature, its applicability needs nothing further than its bare to obtain an accurate and timely determination of a political candidates
issuance for it gives no real consequence more than what the law itself has remaining airtime minutes. During the campaign period, petitioner GMA would
already prescribed. When, upon the other hand, the administrative rule goes have to spend an estimated 27,494,720 manhours in monitoring the election
beyond merely providing for the means that can facilitate or render least campaign commercials of the different candidates in the country.
cumbersome the implementation of the law but substantially adds to or
increases the burden of those governed, it behooves the agency to accord at 5.46 In order to carry-out the obligations imposed by the New Rules, petitioner
least to those directly affected a chance to be heard, and thereafter to be duly GMA further estimates that it would need to engage and train 39,055 additional
informed, before that new issuance is given the force and effect of law. persons on an eight-hour shift, and assign them all over the country to perform
the required monitoring of radio, television and cable TV broadcasts. In
A reading of RMC 3793, particularly considering the circumstances under addition, it would likewise need to allot radio, television, recording equipment
which it has been issued, convinces us that the circular cannot be viewed and computers, as well as telecommunications equipment, for this surveillance
simply as a corrective measure (revoking in the process the previous holdings and monitoring exercise, thus imputing additional costs to the
of past Commissioners) or merely as construing Section 142(c)(1) of the NIRC, company. Attached herewith are the computations explaining how the afore-
as amended, but has, in fact and most importantly, been made in order to place said figures were derived and the conservative assumptions made by petitioner
Hope Luxury, Premium More and Champion within the classification GMA in reaching said figures, as Annex H.
of locally manufactured cigarettes bearing foreign brands and to thereby have
them covered by RA 7654. Specifically, the new law would have its amendatory 5.47 Needless to say, such time, manpower requirements, expense and effort
provisions applied to locally manufactured cigarettes which at the time of its would have to be replicated by each and every radio station to ensure that they
effectivity were not so classified as bearing foreign brands. x x x In so doing, the have properly monitored around 33 national and more than 40,000 local
BIR not simply interpreted the law; verily, it legislated under its quasi-legislative candidates airtime minutes and thus, prevent any risk of administrative and
authority. The due observance of the requirements of notice, of hearing, and of criminal liability.60
publication should not have been then ignored.59
The Court cannot agree with the contentions of GMA. The apprehensions of the
For failing to conduct prior hearing before coming up with Resolution No. 9615, petitioner appear more to be the result of a misappreciation of the real import of
said Resolution, specifically in regard to the new rule on aggregate airtime is the regulation rather than a real and present threat to its broadcast activities.
declared defective and ineffectual. The Court is more in agreement with the respondent when it explained
Resolution No. 9615 does not impose that:ChanRoblesVirtualawlibrary
an unreasonable burden on the
broadcast industry The legal duty of monitoring lies with the Comelec. Broadcast stations are
It is a basic postulate of due process, specifically in relation to its substantive merely required to submit certain documents to aid the Comelec in ensuring
component, that any governmental rule or regulation must be reasonable in its that candidates are not sold airtime in excess of the allowed limits. These
operations and its impositions. Any restrictions, as well as sanctions, must be documents include: (1) certified true copies of broadcast logs, certificates of
reasonably related to the purpose or objective of the government in a manner performance, and certificates of acceptance, or other analogous record on
that would not work unnecessary and unjustifiable burdens on the citizenry. specified dates (Section 9[d]3, Resolution No. 9615, in relation to Section 6.2,
Petitioner GMA assails certain requirements imposed on broadcast stations as R.A. 9006; and (2) copies of all contract for advertising, promoting or opposing
unreasonable. It explained:ChanRoblesVirtualawlibrary any political party or the candidacy of any person for public office within five (5)
days after its signing (Section 6.3, R.A. 9006).
5.40 Petitioner GMA currently operates and monitors 21 FM and AM radio
stations nationwide and 8 originating television stations (including its main *****
transmitter in Quezon City) which are authorized to dechain national programs
for airing and insertion of local content and advertisements. [T]here is absolutely no duty on the broadcast stations to do monitoring, much
less monitoring in real time. GMA grossly exaggerates when it claims that the
5.41 In light of the New Rules wherein a candidates airtime minutes are applied non-existent duty would require them to hire and train an astounding additional
on an aggregate basis and considering that said Rules declare it unlawful in 39,055 personnel working on eight-hour shifts all over the country.61
Section 7(d) thereof for a radio, television station or other mass media to sell or
give for free airtime to a candidate in excess of that allowed by law or by said The Court holds, accordingly, that, contrary to petitioners contention, the
New Rules:ChanRoblesVirtualawlibrary Reporting Requirement for the Comelecs monitoring is reasonable.

Section 7. Prohibited Forms of Election Propaganda During the campaign Further, it is apropos to note that, pursuant to Resolution No. 9631,62 the
period, it is unlawful:ChanRoblesVirtualawlibrary respondent revised the third paragraph of Section 9 (a). As revised, the
provision now reads:ChanRoblesVirtualawlibrary
Appearance or guesting by a candidate on any bona fide newscast, bona The COMELEC, through the RED, shall view the verified claim within forty-eight
fide news interview, bona fide news documentary, if the appearance of the (48) hours from receipt thereof, including supporting evidence, and if
candidate is incidental to the presentation of the subject or subjects covered by circumstances warrant, give notice to the media outlet involved for appropriate
the news documentary, or on-the-spot coverage of bona fide news events, action, which shall, within forty-eight (48) hours, submit its comment, answer or
including but not limited to events sanctioned by the Commission on Elections, response to the RED, explaining the action it has taken to address the
political conventions, and similar activities, shall not be deemed to be broadcast claim. The media outlet must likewise furnish a copy of the said comment,
election propaganda within the meaning of this provision. For purposes of answer or response to the claimant invoking the right to reply.
monitoring by the COMELEC and ensuring that parties and candidates
were afforded equal opportunities to promote their candidacy, the media Should the claimant insist that his/her right to reply was not addressed, he/she
entity shall give prior notice to the COMELEC, through the appropriate may file the appropriate petition and/or complaint before the Commission on
Regional Election Director (RED), or in the case of the National Capital Elections or its field offices, which shall be endorsed to the Clerk of Court.
Region (NCR), the Education and Information Department (EID). If such
prior notice is not feasible or practicable, the notice shall be sent within The attack on the validity of the right to reply provision is primarily anchored
twenty-four (24) hours from the first broadcast or publication. Nothing in on the alleged ground of prior restraint, specifically in so far as such a
the foregoing sentence shall be construed as relieving broadcasters, in requirement may have a chilling effect on speech or of the freedom of the
connection with the presentation of newscasts, news interviews, news press.
documentaries, and on-the-spot coverage of news events, from the obligation
imposed upon them under Sections 10 and 14 of these Rules. 63 Petitioner ABC states, inter alia:

Further, the petitioner in G.R. No. 205374 assails the constitutionality of such 5.145. A conscious and detailed consideration of the interplay of the relevant
monitoring requirement, contending, among others, that it constitutes prior interests the constitutional mandate granting candidates the right to reply and
restraint. The Court finds otherwise. Such a requirement is a reasonable means the inviolability of the constitutional freedom of expression, speech, and the
adopted by the COMELEC to ensure that parties and candidates are afforded press will show that the Right to Reply, as provided for in the Assailed
equal opportunities to promote their respective candidacies. Unlike the Resolution, is an impermissible restraint on these fundamental freedoms.
restrictive aggregate-based airtime limits, the directive to give prior notice is not
unduly burdensome and unreasonable, much less could it be characterized as 5.146. An evaluation of the factors set forth in Soriano (for the balancing of
prior restraint since there is no restriction on dissemination of information before interests test) with respect to the present controversy will show that the
broadcast. Constitution does not tilt the balance in favor of the Right to Reply provision in
the Assailed Resolution and the supposed governmental interest it attempts to
Additionally, it is relevant to point out that in the original Resolution No. 9615, further.65
the paragraph in issue was worded in this wise:ChanRoblesVirtualawlibrary
The Constitution itself provides as part of the means to ensure free, orderly,
Appearance or guesting by a candidate on any bona fide newscast, bona fide honest, fair and credible elections, a task addressed to the COMELEC to
news interview, bona fide news documentary, if the appearance of the provide for a right to reply.66 Given that express constitutional mandate, it could
candidate is incidental to the presentation of the subject or subjects covered by be seen that the Fundamental Law itself has weighed in on the balance to be
the news documentary, or on-the-spot coverage of bona fide news events, struck between the freedom of the press and the right to reply. Accordingly, one
including but not limited to events sanctioned by the Commission on Elections, is not merely to see the equation as purely between the press and the right to
political conventions, and similar activities, shall not be deemed to be broadcast reply. Instead, the constitutionally-mandated desiderata of free, orderly, honest,
election propaganda within the meaning of this provision. To determine peaceful, and credible elections would necessarily have to be factored in trying
whether the appearance or guesting in a program is bona fide, the to see where the balance lies between press and the demands of a right-to-
broadcast stations or entities must show that (1) prior approval of the reply.
Commission was secured; and (2) candidates and parties were afforded
equal opportunities to promote their candidacy. Nothing in the foregoing Moreover, as already discussed by the Court in Telecommunications and
sentence shall be construed as relieving broadcasters, in connection with the Broadcast Attorneys of the Philippines, Inc. v. Commission on
presentation of newscasts, news interviews, news documentaries, and on-the- Elections.67cralawred
spot coverage of news events, from the obligation imposed upon them under
Sections 10 and 14 of these Rules. 64 In truth, radio and television broadcasting companies, which are given
franchises, do not own the airwaves and frequencies through which they
Comparing the original with the revised paragraph, one could readily appreciate transmit broadcast signals and images. They are merely given the temporary
what the COMELEC had done to modify the requirement from prior approval privilege of using them. Since a franchise is a mere privilege, the exercise of the
to prior notice. While the former may be suggestive of a censorial tone, thus privilege may reasonably be burdened with the performance by the grantee of
inviting a charge of prior restraint, the latter is more in the nature of a content- some form of public service. x x x68
neutral regulation designed to assist the poll body to undertake its job of
ensuring fair elections without having to undertake any chore of approving or Relevant to this aspect are these passages from an American Supreme Court
disapproving certain expressions. decision with regard to broadcasting, right to reply requirements, and the
limitations on speech:ChanRoblesVirtualawlibrary
Also, the right to reply provision is reasonable
We have long recognized that each medium of expression presents special
In the same way that the Court finds the prior notice requirement as not First Amendment problems. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,
constitutionally infirm, it similarly concludes that the right to reply provision is 502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms of communication, it is
reasonable and consistent with the constitutional mandate. broadcasting that has received the most limited First Amendment
protection. Thus, although other speakers cannot be licensed except under
Section 14 of Resolution No. 9615, as revised by Resolution No. 9631, laws that carefully define and narrow official discretion, a broadcaster may be
provides:ChanRoblesVirtualawlibrary deprived of his license and his forum if the Commission decides that such an
action would serve the public interest, convenience, and necessity. Similarly,
SECTION 14. Right to Reply. All registered political parties, party-list groups although the First Amendment protects newspaper publishers from being
or coalitions and bona fide candidates shall have the right to reply to charges required to print the replies of those whom they criticize, Miami Herald
published or aired against them. The reply shall be given publicity by the Publishing Co. v. Tornillo, 418 U.S. 241, 41 L Ed 2d 730, 94 S Ct 2831, it
newspaper, television, and/or radio station which first printed or aired the affords no such protection to broadcasters; on the contrary, they must
charges with the same prominence or in the same page or section or in the give free time to the victims of their criticism. Red Lion Broadcasting Co. v.
same time slot as the first statement. FCC, 395 U.S. 367, 23 L Ed 2d 371, 89 S Ct 1794.

Registered political parties, party-list groups or coalitions and bona The reasons for these distinctions are complex, but two have relevance to the
fide candidates may invoke the right to reply by submitting within a non- present case. First, the broadcast media have established a uniquely pervasive
extendible period of forty-eight hours from first broadcast or publication, a presence in the lives of all Americans. Patently offensive, indecent material
formal verified claim against the media outlet to the COMELEC, through the presented over the airwaves confronts the citizen not only in public, but also in
appropriate RED. The claim shall include a detailed enumeration of the the privacy of the home, where the individual's right to be left alone plainly
circumstances and occurrences which warrant the invocation of the right to outweighs the First Amendment rights of an intruder. Rowan v. Post Office
reply and must be accompanied by supporting evidence, such a copy of the Dept., 397 U.S. 728, 25 L Ed 2d 736, 90 S Ct 1484. Because the broadcast
publication or recording of the television or radio broadcast, as the case may audience is constantly tuning in and out, prior warnings cannot completely
be. If the supporting evidence is not yet available due to circumstances beyond protect the listener or viewer from unexpected program content. To say that one
the power of the claimant, the latter shall supplement his claim as soon as the may avoid further offense by turning off the radio when he hears indecent
supporting evidence becomes available, without delay on the part of the language is like saying that the remedy for an assault is to run away after the
claimant. The claimant must likewise furnish a copy of the verified claim and its first blow. One may hang up on an indecent phone call, but that option does not
attachments to the media outlet concerned prior to the filing of the claim with give the caller a constitutional immunity or avoid a harm that has already taken
the COMELEC. place.
Second, broadcasting is uniquely accessible to children, even those too young
Estrada, JV Angara, Juan Edgardo
to read. Although Cohen's written message might have been incomprehensible
to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary Honasan, Gregorio Casio, Teddy
in an instant. Other forms of offensive expression may be withheld from the
young without restricting the expression at its source. Bookstores and motion Magsaysay, Mitos Cayetano, Alan Peter
picture theaters, for example, may be prohibited from making indecent material
available to children. We held in Ginsberg v. New York, 390 U.S. 629, that the Pimentel, Koko Enrile, Jackie
government's interest in the well-being of its youth and in supporting parents'
claim to authority in their own household justified the regulation of otherwise Trillanes, Antonio Escudero, Francis
protected expression. The ease with which children may obtain access to
broadcast material, coupled with the concerns recognized in Ginsberg, amply Villar, Cynthia Hontiveros, Risa
justify special treatment of indecent broadcasting.69
Party List Buhay Legarda, Loren
Given the foregoing considerations, the traditional notions of preferring speech
Party List Ang Pamilya Party List Gabriela
and the press over so many other values of society do not readily lend itself to
this particular matter. Instead, additional weight should be accorded on the Party List Akbayan
constitutional directive to afford a right to reply. If there was no such mandate,
then the submissions of petitioners may more easily commend themselves for Party List Bayan Muna
this Courts acceptance. But as noted above, this is not the case. Their
arguments simplistically provide minimal importance to that constitutional Party List Anak Pawis
command to the point of marginalizing its importance in the equation.

In fine, when it comes to election and the exercise of freedom of speech, of During oral arguments, respondents conceded that the tarpaulin was neither
expression and of the press, the latter must be properly viewed in context as sponsored nor paid for by any candidate. Petitioners also conceded that the
being necessarily made to accommodate the imperatives of fairness by giving tarpaulin contains names ofcandidates for the 2013 elections, but not of
teeth and substance to the right to reply requirement. politicians who helped in the passage of the RH Law but were not candidates
for that election.
WHEREFORE, premises considered, the petitions are PARTIALLY GRANTED,
Section 9 (a) of Resolution No. 9615, as amended by Resolution No. 9631, is
declared UNCONSTITUTIONAL and, therefore, NULL and VOID. The On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as
constitutionality of the remaining provisions of Resolution No. 9615, as Election Officer of Bacolod City, issued a Notice to Remove Campaign
amended by Resolution No. 9631, is upheld and remain in full force and effect. Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra. The
election officer ordered the tarpaulins removal within three (3) days from receipt
In view of this Decision, the Temporary Restraining Order issued by the Court for being oversized. COMELEC Resolution No. 9615 provides for the size
on April 16, 2013 is hereby made PERMANENT. SO ORDERED. requirement of two feet (2) by three feet (3).9

G.R. No. 205728 January 21, 2015 On February 25, 2013, petitioners replied10 requesting, among others, that (1)
petitioner Bishop be given a definite ruling by COMELEC Law Department
regarding the tarpaulin; and (2) pending this opinion and the availment of legal
THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. remedies, the tarpaulin be allowed to remain.11
BISHOP VICENTE M. NAVARRA and THE BISHOP HIMSELF IN HIS
PERSONAL CAPACITY, Petitioners,
vs. On February 27, 2013, COMELEC Law Department issued a letter12 ordering
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF the immediate removal of the tarpaulin; otherwise, it will be constrained to file
BACOLOD CITY, ATTY. MAVIL V. MAJARUCON, Respondents. an election offense against petitioners. The letter of COMELEC Law
Department was silenton the remedies available to petitioners. The letter
provides as follows:
"The Philippines is a democratic and republican State. Sovereignty resides in
the people and all government authority emanates from them." Article II,
Section 1, Constitution Dear Bishop Navarra:

All governmental authority emanates from our people. No unreasonable It has reached this Office that our Election Officer for this City, Atty. Mavil
restrictions of the fundamental and preferred right to expression of the Majarucon, had already given you notice on February 22, 2013 as regards the
electorate during political contests no matter how seemingly benign will be election propaganda material posted on the church vicinity promoting for or
tolerated. against the candidates and party-list groups with the following names and
messages, particularly described as follows:

This case defines the extent that our people may shape the debates during
elections. It is significant and of first impression. We are asked to decide Material size : six feet (6) by ten feet (10)
whether the Commission on Elections (COMELEC) has the competence to limit
expressions made by the citizens who are not candidates during Description : FULL COLOR TARPAULIN
elections.

Image of : SEE ATTACHED PICTURES


Before us is a special civil action for certiorari and prohibition with application
for preliminary injunction and temporary restraining order1 under Rule 65 of the
Rules of Court seeking to nullify COMELECs Notice to Remove Campaign Message : CONSCIENCE VOTE (ANTI RH) TEAM
Materials2 dated February 22, 2013 and letter3 issued on February 27, 2013.
BUHAY; (PRO RH) TEAM PATAY
The facts are not disputed.
Location : POSTED ON THE CHURCH VICINITY
On February 21, 2013, petitioners posted two (2) tarpaulins within a private OF THE DIOCESE OF BACOLOD CITY
compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin
was approximately six feet (6') by ten feet (10') in size. They were posted on the
front walls of the cathedral within public view. The first tarpaulin contains the The three (3) day notice expired on February 25, 2013.
message "IBASURA RH Law" referring to the Reproductive Health Law of 2012
or Republic Act No. 10354. The second tarpaulin is the subject of the present Considering that the above-mentioned material is found to be in violation of
case.4 This tarpaulin contains the heading "Conscience Vote" and lists Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly on
candidates as either "(Anti-RH) Team Buhay" with a check mark, or "(Pro-RH) the size (even with the subsequent division of the said tarpaulin into two), as the
Team Patay" with an "X" mark.5 The electoral candidates were classified lawful size for election propaganda material is only two feet (2) by three feet
according to their vote on the adoption of Republic Act No. 10354, otherwise (3), please order/cause the immediate removal of said election propaganda
known as the RH Law.6Those who voted for the passing of the law were material, otherwise, we shall be constrained to file an election offense case
classified by petitioners as comprising "Team Patay," while those who voted against you.
against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY


We pray that the Catholic Church will be the first institution to help the B. WHETHER THIS FORM OF EXPRESSION MAY BE
Commission on Elections inensuring the conduct of peaceful, orderly, honest REGULATED[;]
and credible elections.
IV.
Thank you and God Bless!
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION
[signed] OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
ATTY. ESMERALDA AMORA-LADRA COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF
Director IV13 SEPARATION OF CHURCH AND STATE[;] [AND]

Concerned about the imminent threatof prosecution for their exercise of free V.
speech, petitioners initiated this case through this petition for certiorari and
prohibition with application for preliminary injunction and temporary restraining
order.14 They question respondents notice dated February 22, 2013 and letter WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
issued on February 27, 2013. They pray that: (1) the petition be given due TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
course; (2) a temporary restraining order (TRO) and/or a writ of preliminary SEPARATION OF CHURCH AND STATE.
injunction be issued restraining respondents from further proceeding in
enforcing their orders for the removal of the Team Patay tarpaulin; and (3) after I
notice and hearing, a decision be rendered declaring the questioned orders of PROCEDURAL ISSUES
respondents as unconstitutional and void, and permanently restraining
respondents from enforcing them or any other similar order.15
I.A

After due deliberation, this court, on March 5, 2013, issued a temporary


restraining order enjoining respondents from enforcing the assailed notice and This courts jurisdiction over COMELEC cases
letter, and set oral arguments on March 19, 2013.16
Respondents ask that this petition be dismissed on the ground that the notice
On March 13, 2013, respondents filed their comment17 arguing that (1) a and letter are not final orders, decisions, rulings, or judgments of the COMELEC
petition for certiorari and prohibition under Rule 65 of the Rules of Court filed En Banc issued in the exercise of its adjudicatory powers, reviewable via Rule
before this court is not the proper remedy to question the notice and letter of 64 of the Rules of Court.21
respondents; and (2) the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
of the Constitution. Hence, respondents claim that the issuances ordering its
applicable especially to raise objections relating to a grave abuse of discretion
removal for being oversized are valid and constitutional.18
resulting in the ouster of jurisdiction.22 As a special civil action, there must also
be a showing that there be no plain, speedy, and adequate remedy in the
During the hearing held on March 19, 2013, the parties were directed to file ordinary course of the law.
their respective memoranda within 10 days or by April 1, 2013, taking into
consideration the intervening holidays.19
Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final decisions,
The issues, which also served as guide for the oral arguments, are:20 rulings and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents claim that the
assailed notice and letter are reviewable only by COMELEC itself pursuant to
I. Article IX-C, Section 2(3) of the Constitution24 on COMELECs power to decide
all questions affecting elections.25 Respondents invoke the cases of Ambil, Jr. v.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v.
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC,29 and Cayetano v. COMELEC,30 to illustrate how
COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL judicialintervention is limited to final decisions, orders, rulings and judgments of
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT A the COMELEC En Banc.31
REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
These cases are not applicable.
A. WHETHER PETITIONERS VIOLATED THE
HIERARCHY OF COURTS DOCTRINE AND In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern
JURISPRUDENTIAL RULES GOVERNING APPEALS Samar filed the election protest.32 At issue was the validity of the promulgation
FROM COMELEC DECISIONS; of a COMELEC Division resolution.33 No motion for reconsideration was filed to
raise this issue before the COMELEC En Banc. This court declared that it did
B. ASSUMING ARGUENDO THAT THE not have jurisdiction and clarified:
AFOREMENTIONED ORDERS ARE NOT CONSIDERED
JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final
COMELEC, WHETHER THERE ARE EXCEPTIONAL orders, rulings and decisionsof the COMELEC rendered in the exercise of its
CIRCUMSTANCES WHICH WOULD ALLOW THIS adjudicatory or quasi-judicial powers." This decision must be a final decision or
COURT TO TAKE COGNIZANCE OF THE CASE[;] resolution of the Comelec en banc, not of a division, certainly not an
interlocutory order of a division.The Supreme Court has no power to review
II. viacertiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.35 (Emphasis in the original, citations omitted)

WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS


ARE "POLITICAL ADVERTISEMENT" OR "ELECTION PROPAGANDA" However, in the next case cited by respondents, Repol v. COMELEC, this court
CONSIDERING THAT PETITIONER IS NOT A POLITICAL CANDIDATE[;] provided exceptions to this general rule. Repolwas another election protest
case, involving the mayoralty elections in Pagsanghan, Samar.36 This time, the
case was brought to this court because the COMELEC First Division issued a
III. status quo ante order against the Regional Trial Court executing its decision
pending appeal.37 This courts ponencia discussed the general rule enunciated
in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION COMELEC Division.38However, consistent with ABS-CBN Broadcasting
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL Corporation v. COMELEC,39 it clarified the exception:
ADVERTISEMENT[;]

This Court, however, has ruled in the past that this procedural requirement [of
A. ASSUMING ARGUENDO THAT THE TARPAULINS filing a motion for reconsideration] may be glossed over to prevent miscarriage
ARE A FORM OF EXPRESSION, WHETHER THE of justice, when the issue involves the principle of social justice or the protection
COMELEC POSSESSES THE AUTHORITY TO of labor, when the decision or resolution sought to be set aside is a nullity, or
REGULATE THE SAME[;] when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC Nothing less than the electorates political speech will be affected by the
in electoral contests despite not being reviewed by the COMELEC En restrictions imposed by COMELEC. Political speech is motivated by the desire
Banc, if: to be heard and understood, to move people to action. It is concerned with the
sovereign right to change the contours of power whether through the election of
representatives in a republican government or the revision of the basic text of
1) It will prevent the miscarriage of justice; the Constitution. The zeal with which we protect this kind of speech does not
2) The issue involves a principle of social justice; depend on our evaluation of the cogency of the message. Neither do we assess
3) The issue involves the protection of labor; whether we should protect speech based on the motives of COMELEC. We
4) The decision or resolution sought tobe set aside is a nullity; or evaluate restrictions on freedom of expression from their effects. We protect
5) The need for relief is extremely urgent and certiorari is the only both speech and medium because the quality of this freedom in practice will
adequate and speedy remedy available. define the quality of deliberation in our democratic society.

Ultimately, this court took jurisdiction in Repoland decided that the status quo COMELECs notice and letter affect preferred speech. Respondents acts are
anteorder issued by the COMELEC Division was unconstitutional. capable of repetition. Under the conditions in which it was issued and in view of
the novelty of this case,it could result in a "chilling effect" that would affect other
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election citizens who want their voices heard on issues during the elections. Other
protest case involving candidates for the city council of Muntinlupa citizens who wish to express their views regarding the election and other related
City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari issues may choose not to, for fear of reprisal or sanction by the COMELEC.
against an interlocutory order of the COMELEC First Direct resort to this court is allowed to avoid such proscribed conditions. Rule
65 is also the procedural platform for raising grave abuse of discretion.

Division.42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case.43 Sorianoapplied the general Both parties point to constitutional provisions on jurisdiction. For petitioners, it
rule that only final orders should be questioned with this court. The ponencia for referred to this courts expanded exercise of certiorari as provided by the
this court, however, acknowledged the exceptions to the general rule in ABS- Constitution as follows:
CBN.44
Judicial power includes the duty of the courts of justice to settle actual
Blanco v. COMELEC, another case cited by respondents, was a disqualification controversies involving rights which are legally demandable and enforceable,
case of one of the mayoralty candidates of Meycauayan, Bulacan.45 The and to determine whether ornot there has been a grave abuse of discretion
COMELEC Second Division ruled that petitioner could not qualify for the 2007 amounting to lack or excess of jurisdiction on the part of any branch or
elections due to the findings in an administrative case that he engaged in vote instrumentality of the Government.56(Emphasis supplied)
buying in the 1995 elections.46No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took cognizance of this case On the other hand, respondents relied on its constitutional mandate to decide
applying one of the exceptions in ABS-CBN: The assailed resolution was a all questions affectingelections. Article IX-C, Section 2(3) of the Constitution,
nullity.47 provides:

Finally, respondents cited Cayetano v. COMELEC, a recent election protest Sec. 2. The Commission on Elections shall exercise the following powers and
case involving the mayoralty candidates of Taguig City.48 Petitioner assailed a functions:
resolution of the COMELEC denying her motion for reconsideration to dismiss
the election protest petition for lack of form and substance. 49 This court clarified
the general rule and refused to take cognizance of the review of the COMELEC ....
order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do appointment of election officials and inspectors, and registration of voters.
not operate as precedents to oust this court from taking jurisdiction over this
case. All these cases cited involve election protests or disqualification cases
filed by the losing candidate against the winning candidate. Respondents reliance on this provision is misplaced.

In the present case, petitioners are not candidates seeking for public office. We are not confronted here with the question of whether the COMELEC, in its
Their petition is filed to assert their fundamental right to expression. exercise of jurisdiction, gravely abused it. We are confronted with the question
as to whether the COMELEC had any jurisdiction at all with its acts threatening
imminent criminal action effectively abridging meaningful political speech.
Furthermore, all these cases cited by respondents pertained to COMELECs
exercise of its adjudicatory or quasi-judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory powers. When it issued the It is clear that the subject matter of the controversy is the effect of COMELECs
notice and letter, the COMELEC was allegedly enforcingelection laws. notice and letter on free speech. This does not fall under Article IX-C, Section
2(3) of the Constitution. The use of the word "affecting" in this provision cannot
be interpreted to mean that COMELEC has the exclusive power to decide any
I.B and allquestions that arise during elections. COMELECs constitutional
competencies during elections should not operate to divest this court of its own
jurisdiction.
Rule 65, grave abuse of discretion,

The more relevant provision for jurisdiction in this case is Article VIII, Section
and limitations on political speech 5(1) of the Constitution.This provision provides for this courts original
jurisdiction over petitions for certiorari and prohibition. This should be read
The main subject of thiscase is an alleged constitutional violation: the alongside the expanded jurisdiction of the court in Article VIII, Section 1 of the
infringement on speech and the "chilling effect" caused by respondent Constitution.
COMELECs notice and letter.
Certainly, a breach of the fundamental right of expression by COMELEC is
Petitioners allege that respondents committed grave abuse of discretion grave abuse of discretion. Thus, the constitutionality of the notice and letter
amounting to lack or excess of jurisdiction in issuing the notice51 dated February coming from COMELEC is within this courts power to review.
22,2013 and letter52 dated February 27, 2013 ordering the removal of the
tarpaulin.53 It is their position that these infringe on their fundamental right to During elections, we have the power and the duty to correct any grave abuse of
freedom of expression and violate the principle of separation of church and discretion or any act tainted with unconstitutionality on the part of any
state and, thus, are unconstitutional.54 government branch or instrumentality. This includes actions by the COMELEC.
Furthermore, it is this courts constitutional mandate to protect the people
The jurisdiction of this court over the subject matter is determined from the against governments infringement of their fundamental rights. This
allegations in the petition. Subject matter jurisdiction is defined as the authority constitutional mandate out weighs the jurisdiction vested with the COMELEC.
"to hear and determine cases of the general class to which the proceedings in
question belong and is conferred by the sovereign authority which organizes the It will, thus, be manifest injustice if the court does not take jurisdiction over this
court and defines its powers."55Definitely, the subject matter in this case is case.
different from the cases cited by respondents.
I.C instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.
Hierarchy of courts
In other words, the Supreme Courts role to interpret the Constitution and act in
order to protect constitutional rights when these become exigent should not be
This brings us to the issue of whether petitioners violated the doctrine of emasculated by the doctrine in respect of the hierarchy of courts. That has
hierarchy of courts in directly filing their petition before this court. never been the purpose of such doctrine.

Respondents contend that petitioners failure to file the proper suit with a lower Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has
court of concurrent jurisdiction is sufficient ground for the dismissal of their "full discretionary power to take cognizance and assume jurisdiction [over]
petition.57 They add that observation of the hierarchy of courts is compulsory, special civil actions for certiorari . . .filed directly with it for exceptionally
citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents claim that while compelling reasons69 or if warranted by the nature of the issues clearly and
there are exceptions to the general rule on hierarchy of courts, none of these specifically raised in the petition."70 As correctly pointed out by petitioners,71 we
are present in this case.59 have provided exceptions to this doctrine:

On the other hand, petitioners cite Fortich v. Corona60 on this courts First, a direct resort to this court is allowed when there are genuine issues of
discretionary power to take cognizance of a petition filed directly to it if constitutionality that must be addressed at the most immediate time. A direct
warranted by "compelling reasons, or [by] the nature and importance of the resort to this court includes availing of the remedies of certiorari and prohibition
issues raised. . . ."61 Petitioners submit that there are "exceptional and toassail the constitutionality of actions of both legislative and executive
compelling reasons to justify a direct resort [with] this Court."62 branches of the government.72

In Baez, Jr. v. Concepcion,63 we explained the necessity of the application of In this case, the assailed issuances of respondents prejudice not only
the hierarchy of courts: petitioners right to freedom of expression in the present case, but also of others
in future similar cases. The case before this court involves an active effort on
The Court must enjoin the observance of the policy on the hierarchy of courts, the part of the electorate to reform the political landscape. This has become a
and now affirms that the policy is not to be ignored without serious rare occasion when private citizens actively engage the public in political
consequences. The strictness of the policy is designed to shield the Court from discourse. To quote an eminent political theorist:
having to deal with causes that are also well within the competence of the lower
courts, and thus leave time to the Court to deal with the more fundamental and [T]he theory of freedom of expression involves more than a technique for
more essential tasks that the Constitution has assigned to it. The Court may act arriving at better social judgments through democratic procedures. It
on petitions for the extraordinary writs of certiorari, prohibition and mandamus comprehends a vision of society, a faith and a whole way of life. The theory
only when absolutely necessary or when serious and important reasons exist to grew out of an age that was awakened and invigorated by the idea of new
justify an exception to the policy.64 society in which man's mind was free, his fate determined by his own powers of
reason, and his prospects of creating a rational and enlightened civilization
In Baez, we also elaborated on the reasons why lower courts are allowed to virtually unlimited. It is put forward as a prescription for attaining a creative,
issue writs of certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65 progressive, exciting and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the alternative
The Supreme Court is a court of lastresort, and must so remain if it is to of a society that is tyrannical, conformist, irrational and stagnant.73
satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task of
dealing with causes in the first instance. Its original jurisdiction to issue the so- In a democracy, the citizens right tofreely participate in the exchange of ideas
called extraordinary writs should be exercised only where absolutely necessary in furtherance of political decision-making is recognized. It deserves the highest
or where serious and important reasons exist therefore. Hence, that jurisdiction protection the courts may provide, as public participation in nation-building isa
should generally be exercised relative to actions or proceedings before the fundamental principle in our Constitution. As such, their right to engage in free
Court of Appeals, or before constitutional or other tribunals, bodies or agencies expression of ideas must be given immediate protection by this court.
whose acts for some reason or another are not controllable by the Court of
Appeals. Where the issuance of an extraordinary writ is also within the A second exception is when the issuesinvolved are of transcendental
competence of the Court of Appeals or a Regional Trial Court, it is in either of importance.74 In these cases, the imminence and clarity of the threat to
these courts that the specific action for the writs procurement must be fundamental constitutional rights outweigh the necessity for prudence. The
presented. This is and should continue to be the policy in this regard, a policy doctrine relating to constitutional issues of transcendental importance prevents
that courts and lawyers must strictly observe.66 (Emphasis omitted) courts from the paralysis of procedural niceties when clearly faced with the
need for substantial protection.
The doctrine that requires respect for the hierarchy of courts was created by
this court to ensure that every level of the judiciary performs its designated roles In the case before this court, there is a clear threat to the paramount right of
in an effective and efficient manner. Trial courts do not only determine the facts freedom of speech and freedom of expression which warrants invocation of
from the evaluation of the evidence presented before them. They are likewise relief from this court. The principles laid down in this decision will likely influence
competent to determine issues of law which may include the validity of an the discourse of freedom of speech in the future, especially in the context of
ordinance, statute, or even an executive issuance in relation to the elections. The right to suffrage not only includes the right to vote for ones
Constitution.67 To effectively perform these functions, they are territorially chosen candidate, but also the right to vocalize that choice to the public in
organized into regions and then into branches. Their writs generally reach general, in the hope of influencing their votes. It may be said that in an election
within those territorial boundaries. Necessarily, they mostly perform the all- year, the right to vote necessarily includes the right to free speech and
important task of inferring the facts from the evidence as these are physically expression. The protection of these fundamental constitutional rights, therefore,
presented before them. In many instances, the facts occur within their territorial allows for the immediate resort to this court.
jurisdiction, which properly present the actual case that makes ripe a
determination of the constitutionality of such action. The consequences, of
course, would be national in scope. There are, however, some cases where Third, cases of first impression75 warrant a direct resort to this court. In cases of
resort to courts at their level would not be practical considering their decisions first impression, no jurisprudence yet exists that will guide the lower courts on
could still be appealed before the higher courts, such as the Court of Appeals. this matter. In Government of the United States v. Purganan,76 this court took
cognizance of the case as a matter of first impression that may guide the lower
courts:
The Court of Appeals is primarily designed as an appellate court that reviews
the determination of facts and law made by the trial courts. It is collegiate in
nature. This nature ensures more standpoints in the review of the actions of the In the interest of justice and to settle once and for all the important issue of bail
trial court. But the Court of Appeals also has original jurisdiction over most in extradition proceedings, we deem it best to take cognizance of the present
special civil actions. Unlike the trial courts, its writs can have a nationwide case. Such proceedings constitute a matter of first impression over which there
scope. It is competent to determine facts and, ideally, should act on is, as yet, no local jurisprudence to guide lower courts.77
constitutional issues thatmay not necessarily be novel unless there are factual
questions to determine.
This court finds that this is indeed a case of first impression involving as it does
the issue of whether the right of suffrage includes the right of freedom of
This court, on the other hand, leads the judiciary by breaking new ground or expression. This is a question which this court has yet to provide substantial
further reiterating in the light of new circumstances or in the light of some answers to, through jurisprudence. Thus, direct resort to this court is allowed.
confusions of bench or bar existing precedents. Rather than a court of first
Fourth, the constitutional issues raisedare better decided by this court. In Drilon true, a vantage point in hierarchy of constitutionally-enshrined rights but, like all
v. Lim,78 this court held that: fundamental rights, it is not without limitations.

. . . it will be prudent for such courts, if only out of a becoming modesty, to defer The case is not about a fight between the "rich" and the "poor" or between the
to the higher judgmentof this Court in the consideration of its validity, which is "powerful" and the "weak" in our society but it is to me a genuine attempt on the
better determined after a thorough deliberation by a collegiate body and with part of Congress and the Commission on Elections to ensure that all candidates
the concurrence of the majority of those who participated in its are given an equal chance to media coverage and thereby be equally perceived
discussion.79 (Citation omitted) as giving real life to the candidates right of free expression rather than being
viewed as an undue restriction of that freedom. The wisdom in the enactment of
the law, i.e., that which the legislature deems to be best in giving life to the
In this case, it is this court, with its constitutionally enshrined judicial power, that Constitutional mandate, is not for the Court to question; it is a matter that lies
can rule with finality on whether COMELEC committed grave abuse of beyond the normal prerogatives of the Court to pass upon.87
discretion or performed acts contrary to the Constitution through the assailed
issuances.
This separate opinion is cogent for the purpose it was said. But it is not in point
in this case.
Fifth, the time element presented in this case cannot be ignored. This case was
filed during the 2013 election period. Although the elections have already been
concluded, future cases may be filed that necessitate urgency in its resolution. The present petition does not involve a dispute between the rich and poor, or
Exigency in certain situations would qualify as an exception for direct resort to the powerful and weak, on their equal opportunities for media coverage of
this court. candidates and their right to freedom of expression. This case concerns the
right of petitioners, who are non-candidates, to post the tarpaulin in their private
property, asan exercise of their right of free expression. Despite the invocation
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a of the political question doctrine by respondents, this court is not proscribed
constitutional body. In Albano v. Arranz,80 cited by petitioners, this court held from deciding on the merits of this case.
that "[i]t is easy to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself the power to
disregard, suspend, or contradict any order of the Commission on Elections: In Taada v. Cuenco,88 this court previously elaborated on the concept of what
that constitutional body would be speedily reduced to impotence."81 constitutes a political question:

In this case, if petitioners sought to annul the actions of COMELEC through What is generally meant, when it is said that a question is political, and not
pursuing remedies with the lower courts, any ruling on their part would not have judicial, is that it is a matter which is to be exercised by the people in their
been binding for other citizens whom respondents may place in the same primary political capacity, or that it has been specifically delegated to some
situation. Besides, thiscourt affords great respect to the Constitution and the other department or particular officer of the government, withdiscretionary
powers and duties imposed upon COMELEC. Hence, a ruling by this court power to act.89 (Emphasis omitted)
would be in the best interest of respondents, in order that their actions may be
guided accordingly in the future.
It is not for this court to rehearse and re-enact political debates on what the text
of the law should be. In political forums, particularly the legislature, the creation
Seventh, petitioners rightly claim that they had no other plain, speedy, and of the textof the law is based on a general discussion of factual circumstances,
adequate remedy in the ordinary course of law that could free them from the broadly construed in order to allow for general application by the executive
injurious effects of respondents acts in violation of their right to freedom of branch. Thus, the creation of the law is not limited by particular and specific
expression. facts that affect the rights of certain individuals, per se.

In this case, the repercussions of the assailed issuances on this basic right Courts, on the other hand, rule on adversarial positions based on existing facts
constitute an exceptionally compelling reason to justify the direct resort to this established on a specific case-to-case basis, where parties affected by the legal
court. The lack of other sufficient remedies in the course of law alone is provision seek the courts understanding of the law.
sufficient ground to allow direct resort to this court.
The complementary nature of the political and judicial branches of government
Eighth, the petition includes questionsthat are "dictated by public welfare and is essential in order to ensure that the rights of the general public are upheld at
the advancement of public policy, or demanded by the broader interest of all times. In order to preserve this balance, branches of government must afford
justice, or the orders complained of were found to be patent nullities, or the due respectand deference for the duties and functions constitutionally
appeal was consideredas clearly an inappropriate remedy."82 In the past, delegated to the other. Courts cannot rush to invalidate a law or rule. Prudence
questions similar to these which this court ruled on immediately despite the dictates that we are careful not to veto political acts unless we can craft doctrine
doctrine of hierarchy of courts included citizens right to bear narrowly tailored to the circumstances of the case.
arms,83 government contracts involving modernization of voters registration
lists,84 and the status and existence of a public office.85
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court
This case also poses a question of similar, if not greater import. Hence, a direct through the expanded jurisdiction granted to this court through Article VIII,
action to this court is permitted. Section 1 of the Constitution.

It is not, however, necessary that all of these exceptions must occur at the A political question arises in constitutional issues relating to the powers or
same time to justify a direct resort to this court. While generally, the hierarchy of competence of different agencies and departments of the executive or those of
courts is respected, the present case falls under the recognized exceptions and, the legislature. The political question doctrine is used as a defense when the
as such, may be resolved by this court directly. petition asks this court to nullify certain acts that are exclusively within the
domain of their respective competencies, as provided by the Constitution or the
law. In such situation, presumptively, this court should act with deference. It will
I.D decline to void an act unless the exercise of that power was so capricious and
arbitrary so as to amount to grave abuse of discretion.
The concept of a political question
The concept of a political question, however, never precludes judicial review
Respondents argue further that the size limitation and its reasonableness is a when the act of a constitutional organ infringes upon a fundamental individual or
political question, hence not within the ambit of this courts power of review. collective right. Even assuming arguendo that the COMELEC did have the
They cite Justice Vitugs separate opinion in Osmea v. COMELEC86 to support discretion to choose the manner of regulation of the tarpaulin in question, it
their position: cannot do so by abridging the fundamental right to expression.

It might be worth mentioning that Section 26, Article II, of the Constitution also Marcos v. Manglapus90 limited the use of the political question doctrine:
states that the "State shall guarantee equal access to opportunities for public
service, and prohibit political dynasties as may be defined by law." I see neither When political questions are involved, the Constitution limits the determination
Article IX (C)(4) nor Section 26, Article II, of the Constitution to be all that to whether or not there has been a grave abuse of discretion amounting to lack
adversarial or irreconcilably inconsistent with the right of free expression. In any or excess of jurisdiction on the part of the official whose action is being
event, the latter, being one of general application, must yield to the specific questioned. If grave abuse is not established, the Court will not substitute its
demands of the Constitution. The freedom of expression concededly holds, it is judgment for that of the official concerned and decide a matter which by its
nature or by law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has political question doctrine neither interposes an obstacle to judicial
undergone an evolution since the timethat it had been first invoked in Marcos v. determination of the rival claims. The jurisdiction to delimit constitutional
Manglapus. Increasingly, this court has taken the historical and social context of boundaries has been given to this Court. It cannot abdicate that obligation
the case and the relevance of pronouncements of carefully and narrowly mandated by the 1987 Constitution, although said provision by no means does
tailored constitutional doctrines. This trend was followed in cases such as Daza away with the applicability of the principle in appropriate cases." (Emphasis and
v. Singson92 and Coseteng v. Mitra Jr.93 italics supplied)

Daza and Coseteng involved a question as to the application of Article VI, And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
Section 18 of the 1987 Constitution involving the removal of petitioners from the ruled:
Commission on Appointments. In times past, this would have involved a quint
essentially political question as it related to the dominance of political parties in
Congress. However, in these cases, this court exercised its power of judicial In the case now before us, the jurisdictional objection becomes even less
review noting that the requirement of interpreting the constitutional provision tenable and decisive. The reason is that, even if we were to assume that the
involved the legality and not the wisdom of a manner by which a constitutional issue presented before us was political in nature, we would still not be
duty or power was exercised. This approach was again reiterated in Defensor precluded from resolving it under the expanded jurisdiction conferred upon us
Santiago v. Guingona, Jr.94 that now covers, in proper cases, even the political question.x x x (Emphasis
and italics supplied.)

In Integrated Bar of the Philippines v. Zamora,95 this court declared again that
the possible existence ofa political question did not bar an examination of ....
whether the exercise of discretion was done with grave abuse of discretion. In
that case, this court ruled on the question of whether there was grave abuse of In our jurisdiction, the determination of whether an issue involves a truly political
discretion in the Presidents use of his power to call out the armed forces to and non-justiciable question lies in the answer to the question of whether there
prevent and suppress lawless violence. are constitutionally imposed limits on powers or functions conferred upon
political bodies. If there are, then our courts are duty-bound to examine whether
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a the branch or instrumentality of the government properly acted within such
former President resigned was not a political question even if the consequences limits.101 (Citations omitted)
would be to ascertain the political legitimacy of a successor President.
As stated in Francisco, a political question will not be considered justiciable if
Many constitutional cases arise from political crises. The actors in such crises there are no constitutionally imposed limits on powers or functions conferred
may use the resolution of constitutional issues as leverage. But the expanded upon political bodies. Hence, the existence of constitutionally imposed limits
jurisdiction of this court now mandates a duty for it to exercise its power of justifies subjecting the official actions of the body to the scrutiny and review of
judicial review expanding on principles that may avert catastrophe or resolve this court.
social conflict.
In this case, the Bill of Rights gives the utmost deference to the right to free
This courts understanding of the political question has not been static or speech. Any instance that this right may be abridged demands judicial scrutiny.
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held: It does not fall squarely into any doubt that a political question brings.

While it is true that courts cannot inquire into the manner in which the I.E
President's discretionary powers are exercised or into the wisdom for its
exercise, it is also a settled rule that when the issue involved concerns the Exhaustion of administrative remedies
validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our power
of judicial review. And such review does not constitute a modification or Respondents allege that petitioners violated the principle of exhaustion of
correction of the act of the President, nor does it constitute interference with the administrative remedies. Respondents insist that petitioners should have first
functions of the President.98 brought the matter to the COMELEC En Banc or any of its divisions.102

The concept of judicial power in relation to the concept of the political question Respondents point out that petitioners failed to comply with the requirement in
was discussed most extensively in Francisco v. HRET.99 In this case, the House Rule 65 that "there is no appeal, or any plain, speedy, and adequate remedy in
of Representatives arguedthat the question of the validity of the second the ordinary course of law."103 They add that the proper venue to assail the
impeachment complaint that was filed against former Chief Justice Hilario validity of the assailed issuances was in the course of an administrative hearing
Davide was a political question beyond the ambit of this court. Former Chief to be conducted by COMELEC.104 In the event that an election offense is filed
Justice Reynato Puno elaborated on this concept in his concurring and against petitioners for posting the tarpaulin, they claim that petitioners should
dissenting opinion: resort to the remedies prescribed in Rule 34 of the COMELEC Rules of
Procedure.105

To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of judicial The argument on exhaustion of administrative remedies is not proper in this
power as including "the duty of the courts of justice to settle actual case.
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
Despite the alleged non-exhaustion of administrative remedies, it is clear that
amounting to lack or excess of jurisdiction on the part of any branch or
the controversy is already ripe for adjudication. Ripeness is the "prerequisite
instrumentality of the Government." As well observed by retired Justice Isagani
that something had by then been accomplished or performed by either branch
Cruz, this expanded definition of judicial power considerably constricted the
[or in this case, organ of government] before a court may come into the
scope of political question. He opined that the language luminously suggests
picture."106
that this duty (and power) is available even against the executive and legislative
departments including the President and the Congress, in the exercise of their
discretionary powers.100 (Emphasis in the original, citations omitted) Petitioners exercise of their rightto speech, given the message and their
medium, had understandable relevance especially during the elections.
COMELECs letter threatening the filing of the election offense against
Francisco also provides the cases which show the evolution of the political
petitioners is already an actionable infringement of this right. The impending
question, as applied in the following cases:
threat of criminal litigation is enough to curtail petitioners speech.

In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene


In the context of this case, exhaustion of their administrative remedies as
Cortes, held: The present Constitution limits resort to the political question
COMELEC suggested in their pleadings prolongs the violation of their freedom
doctrine and broadens the scope of judicial inquiry into areas which the
of speech.
Court,under previous constitutions, would have normally left to the political
departments to decide. x x x
Political speech enjoys preferred protection within our constitutional order. In
Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla,
everthere is a hierarchy of protected expressions, political expression would
this Court declared:
occupy the highest rank, and among different kinds of political expression, the
subject of fair and honest elections would be at the top."108 Sovereignty resides
The "allocation of constitutional boundaries" is a task that this Court must in the people.109 Political speech is a direct exercise of the sovereignty. The
perform under the Constitution. Moreover, as held in a recent case, "(t)he
principle of exhaustion of administrative remedies yields in order to protect this Similar to the media, petitioners in the case at bar are neither franchise holders
fundamental right. nor candidates. II.A.2

Even assuming that the principle of exhaustion of administrative remedies is Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as
applicable, the current controversy is within the exceptions to the principle. In follows:122
Chua v. Ang,110 this court held:
Sec. 2. The Commission on Elections shall exercise the following powers and
On the other hand, prior exhaustion of administrative remedies may be functions:
dispensed with and judicial action may be validly resorted to immediately: (a)
when there is a violation of due process; (b) when the issue involved is purely a
legal question; (c) when the administrative action is patently illegal amounting to ....
lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when (7) Recommend to the Congress effective measures to minimize election
the respondent is a department secretary whose acts as analter ego of the spending, including limitation of places where propaganda materials shall be
President bear the implied and assumed approval of the latter; (g) when to posted, and to prevent and penalize all forms of election frauds, offenses,
require exhaustion of administrative remedies would be unreasonable; (h) when malpractices, and nuisance candidates. (Emphasis supplied) Based on the
it would amount to a nullification of a claim; (i) when the subject matter is a enumeration made on actsthat may be penalized, it will be inferred that this
private land in land case proceedings; (j) whenthe rule does not provide a plain, provision only affects candidates.
speedy and adequate remedy; or (k) when there are circumstances indicating
the urgency of judicial intervention."111 (Emphasis supplied, citation omitted)
Petitioners assail the "Notice to Remove Campaign Materials" issued by
COMELEC. This was followed bythe assailed letter regarding the "election
The circumstances emphasized are squarely applicable with the present case. propaganda material posted on the church vicinity promoting for or against the
First, petitioners allegethat the assailed issuances violated their right to freedom candidates and party-list groups. . . ."123
of expression and the principle of separation of church and state. This is a
purely legal question. Second, the circumstances of the present case indicate
the urgency of judicial intervention considering the issue then on the RH Law as Section 9 of the Fair Election Act124 on the posting of campaign materials only
well as the upcoming elections. Thus, to require the exhaustion of mentions "parties" and "candidates":
administrative remedies in this case would be unreasonable.
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political
Time and again, we have held that this court "has the power to relax or suspend parties and party-list groups to erect common poster areas for their candidates
the rules or to except a case from their operation when compelling reasons so in not more than ten (10) public places such as plazas, markets, barangay
warrant, or whenthe purpose of justice requires it, [and when] [w]hat constitutes centers and the like, wherein candidates can post, display or exhibit election
[as] good and sufficient cause that will merit suspension of the rules is propaganda: Provided, That the size ofthe poster areas shall not exceed twelve
discretionary upon the court".112Certainly, this case of first impression where (12) by sixteen (16) feet or its equivalent. Independent candidates with no
COMELEC has threatenedto prosecute private parties who seek to participate political parties may likewise be authorized to erect common poster areas in not
in the elections by calling attention to issues they want debated by the publicin more than ten (10) public places, the size of which shall not exceed four (4) by
the manner they feel would be effective is one of those cases. six (6) feet or its equivalent. Candidates may post any lawful propaganda
material in private places with the consent of the owner thereof, and in public
places or property which shall be allocated equitably and impartially among the
II candidates. (Emphasis supplied)
SUBSTANTIVE ISSUES

Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and


II.A regulations implementing the Fair Election Act, provides as follows:

COMELEC had no legal basis to regulate expressions made by private citizens SECTION 17. Posting of Campaign Materials. - Parties and candidates may
post any lawful campaign material in:
Respondents cite the Constitution, laws, and jurisprudence to support their
position that they had the power to regulate the tarpaulin.113 However, all of a. Authorized common poster areasin public places subject to the
these provisions pertain to candidates and political parties. Petitioners are not requirements and/or limitations set forth in the next following section;
candidates. Neither do theybelong to any political party. COMELEC does not and
have the authority to regulate the enjoyment of the preferred right to freedom of
expression exercised by a non-candidate in this case.
b. Private places provided it has the consent of the owner thereof.

II.A.1
The posting of campaign materials in public places outside of the designated
common poster areas and those enumerated under Section 7 (g) of these
First, respondents cite Article IX-C, Section 4 of the Constitution, which Rules and the like is prohibited. Persons posting the same shall be liable
provides: together with the candidates and other persons who caused the posting. It will
be presumed that the candidates and parties caused the posting of campaign
Section 4. The Commission may,during the election period, supervise or materials outside the common poster areas if they do not remove the same
regulate the enjoyment or utilization of all franchises or permits for the operation within three (3) days from notice which shall be issued by the Election Officer of
of transportation and other public utilities, media of communication or the city or municipality where the unlawful election propaganda are posted or
information, all grants, special privileges, or concessions granted by the displayed.
Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such Members of the PNP and other law enforcement agencies called upon by the
supervision or regulation shall aim to ensure equal opportunity, time, and Election Officeror other officials of the COMELEC shall apprehend the violators
space, and the right to reply, including reasonable, equal rates therefor, for caught in the act, and file the appropriate charges against them. (Emphasis
public information campaigns and forums among candidates in connection with supplied)
the objective of holding free, orderly, honest, peaceful, and credible
elections.114 (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their
issuances. The above provisions regulating the posting of campaign materials
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during only apply to candidates and political parties, and petitioners are neither of the
the plebiscite for the creation of the Cordillera Autonomous two.
116
Region. Columnist Pablito V. Sanidad questioned the provision prohibiting
journalists from covering plebiscite issues on the day before and on plebiscite
day.117 Sanidad argued that the prohibition was a violation of the "constitutional Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states
guarantees of the freedom of expression and of the press. . . ."118 We held that that these are "allowed for all registered political parties, national, regional,
the "evil sought to be prevented by this provision is the possibility that a sectoral parties or organizations participating under the party-list elections and
franchise holder may favor or give any undue advantage to a candidate in terms for all bona fide candidates seeking national and local elective positions subject
of advertising space or radio or television time."119 This court found that "[m]edia to the limitation on authorized expenses of candidates and political parties. . . ."
practitioners exercising their freedom of expression during plebiscite periods Section 6 of COMELEC Resolution No. 9615 provides for a similar wording.
are neither the franchise holders nor the candidates[,]"120 thus, their right to These provisions show that election propaganda refers to matter done by or on
expression during this period may not be regulated by COMELEC.121 behalf of and in coordination with candidates and political parties. Some level of
coordination with the candidates and political parties for whom the election In this case, the tarpaulin contains speech on a matter of public concern, that is,
propaganda are released would ensure that these candidates and political a statement of either appreciation or criticism on votes made in the passing of
parties maintain within the authorized expenses limitation. the RH law. Thus, petitioners invoke their right to freedom of expression.

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

Petitioners contend that the assailed notice and letter for the removal of the
National Press Club involved the prohibition on the sale and donation of space tarpaulin violate their fundamental right to freedom of expression.
and time for political advertisements, limiting political advertisements to
COMELEC-designated space and time. This case was brought by
representatives of mass media and two candidates for office in the 1992 On the other hand, respondents contend that the tarpaulin is an election
elections. They argued that the prohibition on the sale and donation of space propaganda subject to their regulation pursuant to their mandate under Article
and time for political advertisements is tantamount to censorship, which IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter ordering
necessarily infringes on the freedom of speech of the candidates.128 itsremoval for being oversized are valid and constitutional.131

This court upheld the constitutionality of the COMELEC prohibition in National II.B.1
Press Club. However, this case does not apply as most of the petitioners were
electoral candidates, unlike petitioners in the instant case. Moreover, the
Fundamental to the consideration of this issue is Article III, Section 4 of the
subject matter of National Press Club, Section 11(b) of Republic Act No.
Constitution:
6646,129 only refers to a particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano emphasized that the provision
did not infringe upon the right of reporters or broadcasters to air their Section 4. No law shall be passed abridging the freedom of speech, of
commentaries and opinions regarding the candidates, their qualifications, and expression, or of the press, or the right of the people peaceably to assemble
program for government. Compared to Sanidadwherein the columnists lost their and petition the government for redress of grievances.132
ability to give their commentary on the issues involving the plebiscite, National
Press Clubdoes not involve the same infringement.
No law. . .

In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice While it is true that the present petition assails not a law but an opinion by the
and letter. It was not merelya regulation on the campaigns of candidates vying COMELEC Law Department, this court has applied Article III, Section 4 of the
for public office. Thus, National Press Clubdoes not apply to this case. Constitution even to governmental acts.

Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119
Omnibus Election Code, defines an"election campaign" as follows: of the Revised Ordinances of 1927 of Manila for the public meeting and
assembly organized by petitioner Primicias.134 Section 1119 requires a Mayors
permit for the use of streets and public places for purposes such as athletic
.... games, sports, or celebration of national holidays.135 What was questioned was
not a law but the Mayors refusal to issue a permit for the holding of petitioners
public meeting.136 Nevertheless, this court recognized the constitutional right to
(b) The term "election campaign" or "partisan political activity" refers to an act
freedom of speech, to peaceful assembly and to petition for redress of
designed to promote the election or defeat of a particular candidate or
grievances, albeit not absolute,137 and the petition for mandamus to compel
candidates to a public office which shall include:
respondent Mayor to issue the permit was granted.138

(1) Forming organizations, associations, clubs, committees or other


In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En
groups of persons for the purpose of soliciting votes and/or
Banc Resolution No. 98-1419 where the COMELEC resolved to approve the
undertaking any campaign for or against a candidate;
issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this case
(2) Holding political caucuses, conferences, meetings, rallies, and, consequently, the assailed resolution was nullified and set aside.140
parades, or other similar assemblies, for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for or against
. . . shall be passed abridging. . .
a candidate;

All regulations will have an impact directly or indirectly on expression. The


(3) Making speeches, announcements or commentaries, or holding
prohibition against the abridgment of speech should not mean an absolute
interviews for or against the election of any candidate for public
prohibition against regulation. The primary and incidental burden on speech
office;
must be weighed against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of speech implicit in the
(4) Publishing or distributing campaign literature or materials kind of society framed by our Constitution.
designed to support or oppose the election of any candidate; or
. . . of expression. . .
(5) Directly or indirectly soliciting votes, pledges or support for or
against a candidate.
Our Constitution has also explicitly included the freedom of expression,
separate and in addition to the freedom of speech and of the press provided in
The foregoing enumerated acts ifperformed for the purpose of enhancing the the US Constitution. The word "expression" was added in the 1987 Constitution
chances of aspirants for nomination for candidacy to a public office by a political by Commissioner Brocka for having a wider scope:
party, aggroupment, or coalition of parties shall not be considered as election
campaign or partisan election activity. Public expressions or opinions or
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On
discussions of probable issues in a forthcoming electionor on attributes of or
Section 9, page 2, line 29, it says: "No law shall be passed abridging the
criticisms against probable candidates proposed to be nominated in a
freedom of speech." I would like to recommend to the Committee the change of
forthcoming political party convention shall not be construed as part of any
the word "speech" to EXPRESSION; or if not, add the words AND
election campaign or partisan political activity contemplated under this Article.
EXPRESSION after the word "speech," because it is more expansive, it has a
(Emphasis supplied)
wider scope, and it would refer to means of expression other than speech.

True, there is no mention whether election campaign is limited only to the


THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
candidates and political parties themselves. The focus of the definition is that
the act must be "designed to promote the election or defeat of a particular
candidate or candidates to a public office." FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you. II.B.3

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

FR. BERNAS: Yes. The form of expression is just as important as the information conveyed that it
forms part of the expression. The present case is in point.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence)
The Chair hears none; the amendment is approved. It is easy to discern why size matters.

FR. BERNAS: So, that provision will now read: "No law shall be passed First, it enhances efficiency in communication. A larger tarpaulin allows larger
abridging the freedom of speech, expression or of the press . . . ."141 Speech fonts which make it easier to view its messages from greater distances.
may be said to be inextricably linked to freedom itself as "[t]he right to think is Furthermore, a larger tarpaulin makes it easier for passengers inside moving
the beginning of freedom, and speech must be protected from the government vehicles to read its content. Compared with the pedestrians, the passengers
because speech is the beginning of thought."142 inside moving vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will catch their
attention and, thus, the greater the possibility that they will understand its
II.B.2 message.

Communication is an essential outcome of protected speech.143 Communication Second, the size of the tarpaulin may underscore the importance of the
exists when "(1) a speaker, seeking to signal others, uses conventional actions message to the reader. From an ordinary persons perspective, those who post
because he orshe reasonably believes that such actions will be taken by the their messages in larger fonts care more about their message than those who
audience in the manner intended; and (2) the audience so takes the carry their messages in smaller media. The perceived importance given by the
actions."144 "[I]n communicative action[,] the hearer may respond to the claims speakers, in this case petitioners, to their cause is also part of the message.
by . . . either accepting the speech acts claims or opposing them with criticism The effectivity of communication sometimes relies on the emphasis put by the
or requests for justification."145 speakers and onthe credibility of the speakers themselves. Certainly, larger
segments of the public may tend to be more convinced of the point made by
Speech is not limited to vocal communication. "[C]onduct is treated as a form of authoritative figures when they make the effort to emphasize their messages.
speech sometimes referred to as symbolic speech[,]"146 such that "when
speech and nonspeech elements are combined in the same course of Third, larger spaces allow for more messages. Larger spaces, therefore, may
conduct, the communicative element of the conduct may be sufficient to bring translate to more opportunities to amplify, explain, and argue points which the
into play the [right to freedom of expression]."147 speakers might want to communicate. Rather than simply placing the names
and images of political candidates and an expression of support, larger spaces
The right to freedom of expression, thus, applies to the entire continuum of can allow for brief but memorable presentations of the candidates platforms for
speech from utterances made to conduct enacted, and even to inaction itself as governance. Larger spaces allow for more precise inceptions of ideas, catalyze
a symbolic manner of communication. reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both
good governance and accountability in our government.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students
who were members of the religious sect Jehovahs Witnesses were to be
expelled from school for refusing to salute the flag, sing the national anthem, These points become more salient when it is the electorate, not the candidates
and recite the patriotic pledge.149 In his concurring opinion, Justice Cruz or the political parties, that speaks. Too often, the terms of public discussion
discussed how the salute is a symbolic manner of communication and a valid during elections are framed and kept hostage by brief and catchy but
form of expression.150 He adds that freedom of speech includes even the right meaningless sound bites extolling the character of the candidate. Worse,
to be silent: elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should in
fact encourage it. Between the candidates and the electorate, the latter have
Freedom of speech includes the right to be silent. Aptly has it been said that the the better incentive to demand discussion of the more important issues.
Bill of Rights that guarantees to the individual the liberty to utter what is in his Between the candidates and the electorate, the former have better incentives to
mind also guarantees to him the liberty not to utter what is not in his mind. The avoid difficult political standpoints and instead focus on appearances and empty
salute is a symbolic manner of communication that conveys its messageas promises.
clearly as the written or spoken word. As a valid form of expression, it cannot be
compelled any more than it can be prohibited in the face of valid religious
objections like those raised in this petition. To impose it on the petitioners is to Large tarpaulins, therefore, are not analogous to time and place.158 They are
deny them the right not to speak when their religion bids them to be silent. This fundamentally part of expression protected under Article III, Section 4 of the
coercion of conscience has no place in the free society. Constitution.

The democratic system provides for the accommodation of diverse ideas, II.B.4
including the unconventional and even the bizarre or eccentric. The will of the
majority prevails, but it cannot regiment thought by prescribing the recitation by There are several theories and schools of thought that strengthen the need to
rote of its opinions or proscribing the assertion of unorthodox or unpopular protect the basic right to freedom of expression.
views as inthis case. The conscientious objections of the petitioners, no less
than the impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the soul within First, this relates to the right ofthe people to participate in public affairs,
rebels.151 including the right to criticize government actions.

Even before freedom "of expression" was included in Article III, Section 4 of the Proponents of the political theory on "deliberative democracy" submit that
present Constitution,this court has applied its precedent version to expressions "substantial, open, [and] ethical dialogue isa critical, and indeed defining,
other than verbal utterances. feature of a good polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the participation of all who
will beaffected by the decision."160 It anchors on the principle that the
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to cornerstone of every democracy is that sovereignty resides in the people.161 To
the classification of the motion picture "Kapit sa Patalim" as "For Adults Only." ensure order in running the states affairs, sovereign powers were delegated
They contend that the classification "is without legal and factual basis and is and individuals would be elected or nominated in key government positions to
exercised as impermissible restraint of artistic expression."153 This court represent the people. On this note, the theory on deliberative democracy may
recognized that "[m]otion pictures are important both as a medium for the evolve to the right of the people to make government accountable. Necessarily,
communication of ideas and the expression of the artistic impulse."154 It adds this includes the right of the people to criticize acts made pursuant to
that "every writer,actor, or producer, no matter what medium of expression he governmental functions.
may use, should be freed from the censor."155 This court found that "[the
Boards] perception of what constitutes obscenity appears to be unduly
restrictive."156 However, the petition was dismissed solely on the ground that Speech that promotes dialogue on publicaffairs, or airs out grievances and
there were not enough votes for a ruling of grave abuse of discretion in the political discontent, should thus be protected and encouraged.
classification made by the Board.157
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, their views, petition their legislatures to [make or] change laws, . . . distribute
hope and imagination; that fear breeds repression; that repression breeds hate; literature alerting other citizens of their concerns[,]"184 and conduct peaceful
that hate menaces stable government; that the path of safety lies in the rallies and other similar acts.185 Free speech must, thus, be protected as a
opportunity to discuss freely supposed grievances and proposed remedies."162 peaceful means of achieving ones goal, considering the possibility that
repression of nonviolent dissent may spill over to violent means just to drive a
point.
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs."163 This court has, thus, adopted the principle that "debate on public II.B.5
issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164
Every citizens expression with political consequences enjoys a high degree of
protection. Respondents argue that the tarpaulinis election propaganda, being
Second, free speech should be encouraged under the concept of a market petitioners way of endorsing candidates who voted against the RH Law and
place of ideas. This theory was articulated by Justice Holmes in that "the rejecting those who voted for it.186 As such, it is subject to regulation by
ultimate good desired is better reached by [the] free trade in ideas:"165 COMELEC under its constitutional mandate.187 Election propaganda is defined
under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1.
Definitions . . .
When men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their own
conduct that the ultimate good desired is better reached by free trade in ideas - ....
that the best test of truth is the power of the thought to get itself accepted in the
competition of the market, and that truth is the only ground upon which their
wishes safely can be carried out.166 4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and
The way it works, the exposure to the ideas of others allows one to "consider, other symbol or graphic representation that is capable of being associated with
test, and develop their own conclusions."167 A free, open, and dynamic market a candidate or party, and is intended to draw the attention of the public or a
place of ideas is constantly shaping new ones. This promotes both stability and segment thereof to promote or oppose, directly or indirectly, the election of the
change where recurring points may crystallize and weak ones may develop. Of said candidate or candidates to a public office. In broadcast media, political
course, free speech is more than the right to approve existing political beliefs advertisements may take the form of spots, appearances on TV shows and
and economic arrangements as it includes, "[t]o paraphrase Justice Holmes, radio programs, live or taped announcements, teasers, and other forms of
[the] freedom for the thought that we hate, no less than for the thought that advertising messages or announcements used by commercial advertisers.
agrees with us."168 In fact, free speech may "best serve its high purpose when it Political advertising includes matters, not falling within the scope of personal
induces a condition of unrest, creates dissatisfaction with conditions as they opinion, that appear on any Internet website, including, but not limited to, social
are, or even stirs people to anger."169 It is in this context that we should guard networks, blogging sites, and micro-blogging sites, in return for consideration,
against any curtailment of the peoples right to participate in the free trade of or otherwise capable of pecuniary estimation.
ideas.
On the other hand, petitioners invoke their "constitutional right to communicate
Third, free speech involves self-expression that enhances human dignity. This their opinions, views and beliefs about issues and candidates."188 They argue
right is "a means of assuring individual self-fulfillment,"170 among others. In that the tarpaulin was their statement of approval and appreciation of the
Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills named public officials act of voting against the RH Law, and their criticism
Co., Inc,171 this court discussed as follows: toward those who voted in its favor.189It was "part of their advocacy campaign
against the RH Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and
The rights of free expression, free assembly and petition, are not only civil rights curtail[ed] [their] freedom of expression should be declared unconstitutional and
but also political rights essential to man's enjoyment of his life, to his happiness void."192
and to his full and complete fulfillment.Thru these freedoms the citizens can
participate not merely in the periodic establishment of the government through
their suffrage but also in the administration of public affairs as well as in the This court has held free speech and other intellectual freedoms as "highly
discipline of abusive public officers. The citizen is accorded these rights so that ranked in our scheme of constitutional values."193 These rights enjoy
he can appeal to the appropriate governmental officers or agencies for redress precedence and primacy.194 In Philippine Blooming Mills, this court discussed
and protection as well as for the imposition of the lawful sanctions on erring the preferred position occupied by freedom of expression:
public officers and employees.172 (Emphasis supplied)
Property and property rights can belost thru prescription; but human rights are
Fourth, expression is a marker for group identity. For one, "[v]oluntary imprescriptible. If human rights are extinguished by the passage of time, then
associations perform [an] important democratic role [in providing] forums for the the Bill of Rights is a useless attempt to limit the power of government and
development of civil skills, for deliberation, and for the formation of identity and ceases to be an efficacious shield against the tyranny of officials, of majorities,
community spirit[,] [and] are largely immune from [any] governmental ofthe influential and powerful, and of oligarchs - political, economic or
interference."173 They also "provide a buffer between individuals and the state - otherwise.
a free space for the development of individual personality, distinct group
identity, and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find those who have In the hierarchy of civil liberties, the rights of free expression and of assembly
similar and shared values and ideals, to join together and forward common occupy a preferred position as they are essential to the preservation and vitality
goals. of our civil and political institutions; and such priority "gives these liberties the
sanctity and the sanction not permitting dubious intrusions."195 (Citations
omitted)
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals
and minorities against majoritarian abuses perpetrated through [the] framework
[of democratic governance]."175 Federalist framers led by James Madison were This primordial right calls for utmost respect, more so "when what may be
concerned about two potentially vulnerable groups: "the citizenry at large - curtailed is the dissemination of information to make more meaningful the
majorities - who might be tyrannized or plundered by despotic federal equally vital right of suffrage."196 A similar idea appeared in our jurisprudence as
officials"176 and the minorities who may be oppressed by "dominant factions of early as 1969, which was Justice Barredos concurring and dissenting opinion in
the electorate [that] capture [the] government for their own selfish Gonzales v. COMELEC:197
ends[.]"177 According to Madison, "[i]t is of great importance in a republic not
only to guard the society against the oppression of its rulers, but to guard one I like to reiterate over and over, for it seems this is the fundamental point others
part of the society against the injustice of the other part."178 We should strive to miss, that genuine democracy thrives only where the power and right of the
ensure that free speech is protected especially in light of any potential people toelect the men to whom they would entrust the privilege to run the
oppression against those who find themselves in the fringes on public issues. affairs of the state exist. In the language of the declaration of principles of our
Constitution, "The Philippines is a republican state. Sovereignty resides in the
Lastly, free speech must be protected under the safety valve theory.179 This people and all government authority emanates from them" (Section 1, Article II).
provides that "nonviolent manifestations of dissent reduce the likelihood of Translating this declaration into actuality, the Philippines is a republic because
violence[.]"180 "[A] dam about to burst . . . resulting in the banking up of a and solely because the people in it can be governed only by officials whom they
menacing flood of sullen anger behind the walls of restriction"181 has been used themselves have placed in office by their votes. And in it is on this cornerstone
to describe the effect of repressing nonviolent outlets.182 In order to avoid this that I hold it tobe self-evident that when the freedoms of speech, press and
situation and prevent people from resorting to violence, there is a need for peaceful assembly and redress of grievances are being exercised in relation to
peaceful methods in making passionate dissent. This includes "free expression suffrage or asa means to enjoy the inalienable right of the qualified citizen to
and political participation"183 in that they can "vote for candidates who share vote, they are absolute and timeless. If our democracy and republicanism are to
be worthwhile, the conduct of public affairs by our officials must be allowed to
suffer incessant and unabating scrutiny, favorable or unfavorable, everyday and Legislative Department, the Judiciary, the Constitutional Commissions, and
at all times. Every holder of power in our government must be ready to undergo members of the Civil Service.
exposure any moment of the day or night, from January to December every
year, as it is only in this way that he can rightfully gain the confidence of the
people. I have no patience for those who would regard public dissection of the In any event, this case does not refer to speech in cyberspace, and its effects
establishment as an attribute to be indulged by the people only at certain and parameters should be deemed narrowly tailored only in relation to the facts
periods of time. I consider the freedoms of speech, press and peaceful and issues in this case. It also appears that such wording in COMELEC
assembly and redress of grievances, when exercised in the name of suffrage, Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the
as the very means by which the right itself to vote can only be properly law it implements.
enjoyed.It stands to reason therefore, that suffrage itself would be next to
useless if these liberties cannot be untrammelled [sic] whether as to degree or We should interpret in this manner because of the value of political speech.
time.198 (Emphasis supplied)

As early as 1918, in United States v. Bustos,205 this court recognized the need
Not all speech are treated the same. In Chavez v. Gonzales, this court for full discussion of public affairs. We acknowledged that free speech includes
discussed that some types of speech may be subject to regulation: the right to criticize the conduct of public men:

Some types of speech may be subjected to some regulation by the State under The interest of society and the maintenance of good government demand a full
its pervasive police power, in order that it may not be injurious to the equal right discussion of public affairs. Complete liberty to comment on the conduct of
of others or those of the community or society. The difference in treatment is public men is a scalpel in the case of free speech. The sharp incision of its
expected because the relevant interests of one type of speech, e.g., political probe relieves the abscesses of official dom. Men in public life may suffer under
speech, may vary from those of another, e.g., obscene speech. a hostile and an unjust accusation; the wound can be assuaged with the balm
Distinctionshave therefore been made in the treatment, analysis, and evaluation of a clear conscience. A public officer must not be too thin-skinned with
ofthe permissible scope of restrictions on various categories of speech. We reference to comment upon his official acts. Only thus can the intelligence and
have ruled, for example, that in our jurisdiction slander or libel, lewd and dignity of the individual be exalted.206
obscene speech, as well as "fighting words" are not entitled to constitutional
protection and may be penalized.199 (Citations omitted)
Subsequent jurisprudence developed the right to petition the government for
redress of grievances, allowing for criticism, save for some exceptions.207 In the
We distinguish between politicaland commercial speech. Political speech refers 1951 case of Espuelas v. People,208 this court noted every citizens privilege to
to speech "both intended and received as a contribution to public deliberation criticize his or her government, provided it is "specific and therefore
about some issue,"200 "foster[ing] informed and civicminded deliberation."201 On constructive, reasoned or tempered, and not a contemptuous condemnation of
the other hand, commercial speech has been defined as speech that does "no the entire government set-up."209
more than propose a commercial transaction."202 The expression resulting from
the content of the tarpaulin is, however, definitely political speech. In Justice
Brions dissenting opinion, he discussed that "[t]he content of the tarpaulin, as The 1927 case of People v. Titular210 involved an alleged violation of the
well as the timing of its posting, makes it subject of the regulations in RA 9006 Election Law provision "penaliz[ing] the anonymous criticism of a candidate by
and Comelec Resolution No. 9615."203 He adds that "[w]hile indeed the RH means of posters or circulars."211 This court explained that it is the posters
issue, by itself,is not an electoralmatter, the slant that the petitioners gave the anonymous character that is being penalized.212 The ponente adds that he
issue converted the non-election issue into a live election one hence, Team would "dislike very muchto see this decision made the vehicle for the
Buhay and Team Patay and the plea to support one and oppose the other."204 suppression of public opinion."213

While the tarpaulin may influence the success or failure of the named In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals
candidates and political parties, this does not necessarily mean it is election to vent their views. According to this court, "[i]ts value may lie in the fact that
propaganda. The tarpaulin was not paid for or posted "in return for there may be something worth hearing from the dissenter [and] [t]hat is to
consideration" by any candidate, political party, or party-list group. ensurea true ferment of ideas."215

The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or Allowing citizens to air grievances and speak constructive criticisms against
the rules and regulations implementing Republic Act No. 9006 as an aid to their government contributes to every societys goal for development. It puts
interpret the law insofar as the facts of this case requires, states: forward matters that may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also makes the government
accountable for acts that violate constitutionally protected rights.
4. The term "political advertisement" or "election propaganda" refers to any
matter broadcasted, published, printed, displayed or exhibited, in any medium,
which contain the name, image, logo, brand, insignia, color motif, initials, and In 1998, Osmea v. COMELEC found Section 11(b) of Republic Act No. 6646,
other symbol or graphic representation that is capable of being associated with which prohibits mass media from selling print space and air time for campaign
a candidate or party, and is intended to draw the attention of the public or a except to the COMELEC, to be a democracy-enhancing measure.216This court
segment thereof to promote or oppose, directly or indirectly, the election of the mentioned how "discussion of public issues and debate on the qualifications of
said candidate or candidates to a public office. In broadcast media, political candidates in an election are essential to the proper functioning of the
advertisements may take the form of spots, appearances on TV shows and government established by our Constitution."217
radio programs, live or taped announcements, teasers, and other forms of
advertising messages or announcements used by commercial advertisers.
As pointed out by petitioners, "speech serves one of its greatest public
Political advertising includes matters, not falling within the scope of personal
purposes in the context of elections when the free exercise thereof informs the
opinion, that appear on any Internet website, including, but not limited to, social
people what the issues are, and who are supporting what issues."218 At the
networks, blogging sites, and micro-blogging sites, in return for consideration,
heart of democracy is every advocates right to make known what the people
or otherwise capable of pecuniary estimation. (Emphasis supplied)
need to know,219 while the meaningful exercise of ones right of suffrage
includes the right of every voter to know what they need to know in order to
It is clear that this paragraph suggests that personal opinions are not included, make their choice.
while sponsored messages are covered.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 on public issues, and the freedom of expression especially in relation to
states: information that ensures the meaningful exercise of the right of suffrage:

SECTION 1. Definitions - As used in this Resolution: We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and public
1. The term "election campaign" or "partisan political activity" refers to an act officials. Too many restrictions will deny to people the robust, uninhibited, and
designed to promote the election or defeat of a particular candidate or wide open debate, the generating of interest essential if our elections will truly
candidates to a public office, and shall include any of the following: be free, clean and honest.

.... We have also ruled that the preferred freedom of expression calls all the more
for the utmost respect when what may be curtailed is the dissemination of
Personal opinions, views, and preferences for candidates, contained in blogs information to make more meaningful the equally vital right of
shall not be considered acts of election campaigning or partisan politicalactivity suffrage.221(Emphasis supplied, citations omitted)
unless expressed by government officials in the Executive Department, the
Speech with political consequences isat the core of the freedom of expression to grant the Mayor discretion only to determine the public places that may be
and must be protected by this court. used for the procession ormeeting, but not the power to refuse the issuance of
a permit for such procession or meeting.235 This court explained that free
speech and peaceful assembly are "not absolute for it may be so regulated that
Justice Brion pointed out that freedomof expression "is not the god of rights to it shall not beinjurious to the equal enjoyment of others having equal rights, nor
which all other rights and even government protection of state interest must injurious to the rights of the community or society."236
bow."222

The earlier case of Calalang v. Williams237 involved the National Traffic


The right to freedom of expression isindeed not absolute. Even some forms of Commission resolution that prohibited the passing of animal-drawn vehicles
protected speech are still subjectto some restrictions. The degree of restriction along certain roads at specific hours.238 This court similarly discussed police
may depend on whether the regulation is content-based or content- power in that the assailed rules carry outthe legislative policy that "aims to
neutral.223 Content-based regulations can either be based on the viewpoint of promote safe transit upon and avoid obstructions on national roads, in the
the speaker or the subject of the expression. interest and convenience of the public."239

II.B.6 As early as 1907, United States v. Apurado240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
Content-based regulation grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ."241 It is with this backdrop that
the state is justified in imposing restrictions on incidental matters as time, place,
COMELEC contends that the order for removal of the tarpaulin is a content- and manner of the speech.
neutral regulation. The order was made simply because petitioners failed to
comply with the maximum size limitation for lawful election propaganda. 224
In the landmark case of Reyes v. Bagatsing, this court summarized the steps
that permit applicants must follow which include informing the licensing
On the other hand, petitioners argue that the present size regulation is content- authority ahead of time as regards the date, public place, and time of the
based as it applies only to political speech and not to other forms of speech assembly.242 This would afford the public official time to inform applicants if
such as commercial speech.225 "[A]ssuming arguendo that the size restriction there would be valid objections, provided that the clear and present danger test
sought to be applied . . . is a mere time, place, and manner regulation, its still is the standard used for his decision and the applicants are given the
unconstitutional for lack of a clear and reasonable nexus with a constitutionally opportunity to be heard.243 This ruling was practically codified in Batas
sanctioned objective."226 Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.

The regulation may reasonably be considered as either content-neutral or Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
content-based.227 Regardless, the disposition of this case will be the same. content-neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court
Generally, compared with other forms of speech, the proposed speech is discussed how Batas Pambansa No. 880 does not prohibit assemblies but
content-based. simply regulates their time, place, and manner.245 In 2010, this court found in
Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by
As pointed out by petitioners, the interpretation of COMELEC contained in the
changing the venue from Mendiola Bridge to Plaza Miranda without first
questioned order applies only to posters and tarpaulins that may affect the
affording petitioners the opportunity to be heard.247
elections because they deliver opinions that shape both their choices. It does
not cover, for instance, commercial speech.
We reiterate that the regulation involved at bar is content-based. The tarpaulin
content is not easily divorced from the size of its medium.
Worse, COMELEC does not point to a definite view of what kind of expression
of non-candidates will be adjudged as "election paraphernalia." There are no
existing bright lines to categorize speech as election-related and those that are II.B.7
not. This is especially true when citizens will want to use their resources to be
able to raise public issues that should be tackled by the candidates as what has
happened in this case. COMELECs discretion to limit speech in this case is Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing
fundamentally unbridled. a size limit for tarpaulins are content-neutral regulations as these "restrict the
mannerby which speech is relayed but not the content of what is conveyed."248

Size limitations during elections hit ata core part of expression. The content of
the tarpaulin is not easily divorced from the size of its medium. If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such restraints
on freedom of speech.249 "When the speech restraints take the form of a
Content-based regulation bears a heavy presumption of invalidity, and this court content-neutral regulation, only a substantial governmental interest is required
has used the clear and present danger rule as measure.228 Thus, in Chavez v. for its validity,"250 and it is subject only to the intermediate approach.251
Gonzales:

This intermediate approach is based on the test that we have prescribed in


A content-based regulation, however, bears a heavy presumption of invalidity several cases.252 A content-neutral government regulation is sufficiently
and is measured against the clear and present danger rule. The latter will pass justified:
constitutional muster only if justified by a compelling reason, and the restrictions
imposedare neither overbroad nor vague.229 (Citations omitted)
[1] if it is within the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the governmental interest is
Under this rule, "the evil consequences sought to be prevented must be unrelated to the suppression of free expression; and [4] if the incident restriction
substantive, extremely serious and the degree of imminence extremely on alleged [freedom of speech & expression] is no greater than is essential to
high."230 "Only when the challenged act has overcome the clear and present the furtherance of that interest.253
danger rule will it pass constitutional muster, with the government having the
burden of overcoming the presumed unconstitutionality."231
On the first requisite, it is not within the constitutional powers of the COMELEC
to regulate the tarpaulin. As discussed earlier, this is protected speech by
Even with the clear and present danger test, respondents failed to justify the petitioners who are non-candidates. On the second requirement, not only must
regulation. There is no compelling and substantial state interest endangered by the governmental interest be important or substantial, it must also be
the posting of the tarpaulinas to justify curtailment of the right of freedom of compelling as to justify the restrictions made.
expression. There is no reason for the state to minimize the right of non-
candidate petitioners to post the tarpaulin in their private property. The size of
the tarpaulin does not affect anyone elses constitutional rights. Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
States mandate to protect and care for them, as parens patriae,254 constitute a
Content-based restraint or censorship refers to restrictions "based on the substantial and compelling government interest in regulating . . . utterances in
subject matter of the utterance or speech."232 In contrast, content-neutral TV broadcast."255
regulation includes controls merely on the incidents of the speech such as time,
place, or manner of the speech.233
Respondent invokes its constitutional mandate to ensure equal opportunity for
public information campaigns among candidates in connection with the holding
This court has attempted to define "content-neutral" restraints starting with the of a free, orderly, honest, peaceful, and credible election.256
1948 case of Primicias v. Fugoso.234The ordinance in this case was construed
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are III.A
necessary to ensure equality of public information campaigns among
candidates, as allowing posters with different sizes gives candidates and their
supporters the incentive to post larger posters[,] [and] [t]his places candidates The possibility of abuse
with more money and/or with deep-pocket supporters at an undue advantage
against candidates with more humble financial capabilities."257 Of course, candidates and political parties do solicit the help of private
individuals for the endorsement of their electoral campaigns.
First, Adiong v. COMELEC has held that this interest is "not as important as the
right of [a private citizen] to freely express his choice and exercise his right of On the one extreme, this can take illicit forms such as when endorsement
free speech."258 In any case, faced with both rights to freedom of speech and materials in the form of tarpaulins, posters, or media advertisements are made
equality, a prudent course would be to "try to resolve the tension in a way that ostensibly by "friends" but in reality are really paid for by the candidate or
protects the right of participation."259 political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
Second, the pertinent election lawsrelated to private property only require that
the private property owners consent be obtained when posting election However, as agreed by the parties during the oral arguments in this case, this is
propaganda in the property.260 This is consistent with the fundamental right not the situation that confronts us. In such cases, it will simply be a matter for
against deprivation of property without due process of law.261 The present facts investigation and proof of fraud on the part of the COMELEC.
do not involve such posting of election propaganda absent consent from the
property owner. Thus, this regulation does not apply in this case.
The guarantee of freedom of expression to individuals without any relationship
to any political candidate should not be held hostage by the possibility of abuse
Respondents likewise cite the Constitution262
on their authority to recommend by those seeking to be elected. It is true that there can be underhanded, covert,
effective measures to minimize election spending. Specifically, Article IX-C, or illicit dealings so as to hide the candidates real levels of expenditures.
Section 2(7) provides: However, labelling all expressions of private parties that tend to have an effect
on the debate in the elections as election paraphernalia would be too broad a
Sec. 2. The Commission on Elections shall exercise the following powers and remedy that can stifle genuine speech like in this case. Instead, to address this
functions: evil, better and more effective enforcement will be the least restrictive means to
the fundamental freedom.

....
On the other extreme, moved by the credentials and the message of a
candidate, others will spend their own resources in order to lend support for the
(7) Recommend to the Congress effective measures to minimize election campaigns. This may be without agreement between the speaker and the
spending, including limitation of places where propaganda materials shall be candidate or his or her political party. In lieu of donating funds to the campaign,
posted, and to prevent and penalize all forms of election frauds, offenses, they will instead use their resources directly in a way that the candidate or
malpractices, and nuisance candidates. (Emphasis supplied) This does not political party would have doneso. This may effectively skirt the constitutional
qualify as a compelling and substantial government interest to justify regulation and statutory limits of campaign spending.
of the preferred right to freedom of expression.
Again, this is not the situation in this case.
The assailed issuances for the removal of the tarpaulin are based on the two
feet (2) by three feet (3) size limitation under Section 6(c) of COMELEC
Resolution No. 9615. This resolution implements the Fair Election Act that The message of petitioners in thiscase will certainly not be what candidates and
provides for the same size limitation.263 political parties will carry in their election posters or media ads. The message of
petitioner, taken as a whole, is an advocacy of a social issue that it deeply
believes. Through rhetorical devices, it communicates the desire of Diocese
This court held in Adiong v. COMELEC that "[c]ompared to the paramount that the positions of those who run for a political position on this social issue be
interest of the State in guaranteeing freedom of expression, any financial determinative of how the public will vote. It primarily advocates a stand on a
considerations behind the regulation are of marginal significance."264 In fact, social issue; only secondarily even almost incidentally will cause the
speech with political consequences, as in this case, should be encouraged and election or non-election of a candidate.
not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the
number of tarpaulins that may be posted.265 The twin tarpaulins consist of satire of political parties. Satire is a "literary form
that employs such devices as sarcasm, irony and ridicule to deride prevailing
vices or follies,"268 and this may target any individual or group in society, private
The third requisite is likewise lacking. We look not only at the legislative intent and government alike. It seeks to effectively communicate a greater purpose,
or motive in imposing the restriction, but more so at the effects of such often used for "political and social criticism"269 "because it tears down facades,
restriction, if implemented. The restriction must not be narrowly tailored to deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
achieve the purpose. It must be demonstrable. It must allow alternative avenues democratic than to have the high-and-mighty lampooned and
for the actor to make speech. spoofed."270 Northrop Frye, wellknown in this literary field, claimed that satire
had two defining features: "one is wit or humor founded on fantasy or a sense of
the grotesque and absurd, the other is an object of attack."271 Thus, satire
In this case, the size regulation is not unrelated to the suppression of speech. frequently uses exaggeration, analogy, and other rhetorical devices.
Limiting the maximum sizeof the tarpaulin would render ineffective petitioners
message and violate their right to exercise freedom of expression.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead
individuals nor could the Archbishop of the Diocese of Bacolod have intended it
The COMELECs act of requiring the removal of the tarpaulin has the effect of to mean that the entire plan of the candidates in his list was to cause death
dissuading expressions with political consequences. These should be intentionally. The tarpaulin caricatures political parties and parodies the
encouraged, more so when exercised to make more meaningful the equally intention of those in the list. Furthermore, the list of "Team Patay" is juxtaposed
important right to suffrage. with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to
The restriction in the present case does not pass even the lower test of endorse.
intermediate scrutiny for content-neutral regulations.
The messages in the tarpaulins are different from the usual messages of
The action of the COMELEC in thiscase is a strong deterrent to further speech candidates. Election paraphernalia from candidates and political parties are
by the electorate. Given the stature of petitioners and their message, there are more declarative and descriptive and contain no sophisticated literary allusion
indicators that this will cause a "chilling effect" on robust discussion during to any social objective. Thus, they usually simply exhort the public to vote for a
elections. person with a brief description of the attributes of the candidate. For example
"Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
kami sa Makati."
The form of expression is just as important as the message itself. In the words
of Marshall McLuhan, "the medium is the message."266 McLuhans colleague
and mentor Harold Innis has earlier asserted that "the materials on which words This courts construction of the guarantee of freedom of expression has always
were written down have often counted for more than the words themselves."267 been wary of censorship or subsequent punishment that entails evaluation of
the speakers viewpoint or the content of ones speech. This is especially true
when the expression involved has political consequences. In this case, it hopes
III to affect the type of deliberation that happens during elections. A becoming
Freedom of expression and equality humility on the part of any human institution no matter how endowed with the
secular ability to decide legal controversies with finality entails that we are not is a natural right of resistance for oppressed and overpowered minorities to
the keepers of all wisdom. use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and
transcends from established hierarchies, power structures, and indoctrinations.
Humanitys lack of omniscience, even acting collectively, provides space for the The tolerance of libertarian society he refers to as "repressive tolerance."
weakest dissent. Tolerance has always been a libertarian virtue whose version
is embedded in our Billof Rights. There are occasional heretics of yesterday
that have become our visionaries. Heterodoxies have always given us pause. Legal scholars
The unforgiving but insistent nuance that the majority surely and comfortably
disregards provides us with the checks upon reality that may soon evolve into
creative solutions to grave social problems. This is the utilitarian version. It The 20th century also bears witness to strong support from legal scholars for
could also be that it is just part of human necessity to evolve through being able "stringent protections of expressive liberty,"281 especially by political
to express or communicate. egalitarians. Considerations such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background facts, when
taken together, produce bases for a system of stringent protections for
However, the Constitution we interpret is not a theoretical document. It contains expressive liberties.283
other provisions which, taken together with the guarantee of free expression,
enhances each others value. Among these are the provisions that
acknowledge the idea of equality. In shaping doctrine construing these Many legal scholars discuss the interest and value of expressive liberties.
constitutional values, this court needs to exercise extraordinary prudence and Justice Brandeis proposed that "public discussion is a political duty."284 Cass
produce narrowly tailored guidance fit to the facts as given so as not to Sustein placed political speech on the upper tier of his twotier model for
unwittingly cause the undesired effect of diluting freedoms as exercised in freedom of expression, thus, warranting stringent protection.285 He defined
reality and, thus, render them meaningless. political speech as "both intended and received as a contribution to public
deliberation about some issue."286

III.B.
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean substantive
Speech and equality: equality and not mere formal equalitysince "favorable conditions for realizing the
expressive interest will include some assurance of the resources required for
expression and some guarantee that efforts to express views on matters of
Some considerations We first establish that there are two paradigms of free common concern will not be drowned out by the speech of betterendowed
speech that separate at the point of giving priority to equality vis--vis liberty.272 citizens."288 Justice Brandeis solution is to "remedy the harms of speech with
more speech."289 This view moves away from playing down the danger as
In an equality-based approach, "politically disadvantaged speech prevails over merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing]
regulation[,] but regulation promoting political equality prevails over expression as the preferred strategy for addressing them."290 However, in some
speech."273 This view allows the government leeway to redistribute or equalize cases, the idea of more speech may not be enough. Professor Laurence Tribe
speaking power, such as protecting, even implicitly subsidizing, unpopular or observed the need for context and "the specification of substantive values
dissenting voices often systematically subdued within societys ideological before [equality] has full meaning."291 Professor Catherine A. MacKinnon adds
ladder.274 This view acknowledges that there are dominant political actors who, that "equality continues to be viewed in a formal rather than a substantive
through authority, power, resources, identity, or status, have capabilities that sense."292 Thus, more speech can only mean more speech from the few who
may drown out the messages of others. This is especially true in a developing are dominant rather than those who are not.
or emerging economy that is part of the majoritarian world like ours.
Our jurisprudence
The question of libertarian tolerance
This court has tackled these issues.
This balance between equality and the ability to express so as to find ones
authentic self or to participate in the self determination of ones communities is Osmea v. COMELEC affirmed National Press Club v. COMELEC on the
not new only to law. It has always been a philosophical problematique. validity of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This section
"prohibits mass media from selling or giving free of charge print space or air
In his seminal work, Repressive Tolerance, philosopher and social theorist time for campaign or other political purposes, except to the Commission on
Herbert Marcuse recognized how institutionalized inequality exists as a Elections."294 This court explained that this provision only regulates the time and
background limitation, rendering freedoms exercised within such limitation as manner of advertising in order to ensure media equality among
merely "protect[ing] the already established machinery of discrimination."275 In candidates.295 This court grounded this measure on constitutional provisions
his view, any improvement "in the normal course of events" within an unequal mandating political equality:296 Article IX-C, Section 4
society, without subversion, only strengthens existing interests of those in
power and control.276 Section 4. The Commission may, during the election period, supervise or
regulate the enjoyment or utilization of all franchises or permits for the operation
In other words, abstract guarantees of fundamental rights like freedom of of transportation and other public utilities, media of communication or
expression may become meaningless if not taken in a real context. This information, all grants, special privileges, or concessions granted by the
tendency to tackle rights in the abstract compromises liberties. In his words: Government or any subdivision, agency, or instrumentality thereof, including
any government-owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal opportunity, time, and
Liberty is self-determination, autonomythis is almost a tautology, but a space, and the right to reply, including reasonable, equal rates therefor, for
tautology which results from a whole series of synthetic judgments. It stipulates public information campaigns and forums among candidates in connection with
the ability to determine ones own life: to be able to determine what to do and the objective of holding free, orderly, honest, peaceful, and credible elections.
what not to do, what to suffer and what not. But the subject of this autonomy is (Emphasis supplied)
never the contingent, private individual as that which he actually is or happens
to be; it is rather the individual as a human being who is capable of being free
with the others. And the problem of making possible such a harmony between Article XIII, Section 1
every individual liberty and the other is not that of finding a compromise
between competitors, or between freedom and law, between general and Section 1. The Congress shall give highest priorityto the enactment of
individual interest, common and private welfare in an established society, but of measures that protect and enhance the right of all the people to human dignity,
creating the society in which man is no longer enslaved by institutions which reducesocial, economic, and political inequalities, and remove cultural
vitiate self-determination from the beginning. In other words, freedom is still to inequities by equitably diffusing wealth and political power for the common
be created even for the freest of the existing societies.277 (Emphasis in the good.
original)

To this end, the State shall regulate the acquisition, ownership, use, and
Marcuse suggests that the democratic argument with all opinions presented disposition of property and its increments. (Emphasis supplied)
to and deliberated by the people "implies a necessary condition, namely, that
the people must be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic information, and that, on Article II, Section 26
this basis, their evaluation must be the result of autonomous thought."278 He
submits that "[d]ifferent opinions and philosophies can no longer compete
peacefully for adherence and persuasion on rational grounds: the marketplace Section 26. The State shall guarantee equal access to opportunities for public
of ideas is organized and delimited by those who determine the national and service, and prohibit political dynasties as may be defined by law. (Emphasis
the individual interest."279 A slant toward left manifests from his belief that "there supplied)
Thus, in these cases, we have acknowledged the Constitutions guarantee for to election paraphernalia
more substantive expressive freedoms that take equality of opportunities into
consideration during elections.
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
The other view valorizes the ability of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take into consideration the
effects it will have in a deliberative democracy. Skewed distribution of resources
However, there is also the other view. This is that considerations of equality of as well as the cultural hegemony of the majority may have the effect of
opportunity or equality inthe ability of citizens as speakers should not have a drowning out the speech and the messages of those in the minority. In a sense,
bearing in free speech doctrine. Under this view, "members of the public are social inequality does have its effect on the exercise and effect of the guarantee
trusted to make their own individual evaluations of speech, and government is of free speech. Those who have more will have better access to media that
forbidden to intervene for paternalistic or redistributive reasons . . . [thus,] ideas reaches a wider audience than those who have less. Those who espouse the
are best left to a freely competitive ideological market."297 This is consistent with more popular ideas will have better reception than the subversive and the
the libertarian suspicion on the use of viewpoint as well as content to evaluate dissenters of society.To be really heard and understood, the marginalized view
the constitutional validity or invalidity of speech. normally undergoes its own degree of struggle.

The textual basis of this view is that the constitutional provision uses negative The traditional view has been to tolerate the viewpoint of the speaker and the
rather than affirmative language. It uses speech as its subject and not content of his or her expression. This view, thus, restricts laws or regulation that
speakers.298 Consequently, the Constitution protects free speech per se, allows public officials to make judgments of the value of such viewpoint or
indifferent to the types, status, or associations of its speakers.299 Pursuant to message content. This should still be the principal approach.
this, "government must leave speakers and listeners in the private order to their
own devices in sorting out the relative influence of speech."300
However, the requirements of the Constitution regarding equality in opportunity
must provide limits to some expression during electoral campaigns.
Justice Romeros dissenting opinion in Osmea v. COMELEC formulates this
view that freedom of speech includes "not only the right to express ones views,
but also other cognate rights relevant to the free communication [of] ideas, not Thus clearly, regulation of speech in the context of electoral campaigns made
excluding the right to be informed on matters of public concern."301 She adds: by candidates or the members of their political parties or their political parties
may be regulated as to time, place, and manner. This is the effect of our rulings
in Osmea v. COMELEC and National Press Club v. COMELEC.
And since so many imponderables may affect the outcome of elections
qualifications of voters and candidates, education, means of transportation,
health, public discussion, private animosities, the weather, the threshold of a Regulation of speech in the context of electoral campaigns made by persons
voters resistance to pressure the utmost ventilation of opinion of men and who are not candidates or who do not speak as members of a political party
issues, through assembly, association and organizations, both by the candidate which are, taken as a whole, principally advocacies of a social issue that the
and the voter, becomes a sine qua non for elections to truly reflect the will of the public must consider during elections is unconstitutional. Such regulation is
electorate.302 (Emphasis supplied) inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
Justice Romeros dissenting opinion cited an American case, if only to
emphasize free speech primacy such that"courts, as a rule are wary to impose
greater restrictions as to any attempt to curtail speeches with political This does not mean that there cannot be a specie of speech by a private citizen
content,"303 thus: which will not amount toan election paraphernalia to be validly regulated by law.

the concept that the government may restrict the speech of some elements in Regulation of election paraphernalia will still be constitutionally valid if it reaches
our society in order to enhance the relative voice of the others is wholly foreign into speech of persons who are not candidates or who do not speak as
to the First Amendment which was designed to "secure the widest possible members of a political party if they are not candidates, only if what is regulated
dissemination of information from diverse and antagonistic sources" and "to is declarative speech that, taken as a whole, has for its principal object the
assure unfettered interchange of ideas for the bringing about of political and endorsement of a candidate only. The regulation (a) should be provided by law,
social changes desired by the people."304 (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the primacy of the
guarantee of free expression, and (d) demonstrably the least restrictive means
This echoes Justice Oliver Wendell Holmes submission "that the market place to achieve that object. The regulation must only be with respect to the time,
of ideas is still the best alternative to censorship."305 place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored onthe basis of its content. For this purpose, it
Parenthetically and just to provide the whole detail of the argument, the majority will notmatter whether the speech is made with or on private property.
of the US Supreme Court in the campaign expenditures case of Buckley v.
Valeo "condemned restrictions (even if content-neutral) on expressive liberty This is not the situation, however, in this case for two reasons. First, as
imposed in the name of enhanc[ing] the relative voice of others and thereby discussed, the principal message in the twin tarpaulins of petitioners consists of
equaliz[ing] access to the political arena."306 The majority did not use the a social advocacy.
equality-based paradigm.

Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the
One flaw of campaign expenditurelimits is that "any limit placed on the amount present law Section 3.3 of Republic Act No. 9006 and Section 6(c) of
which a person can speak, which takes out of his exclusive judgment the COMELEC Resolution No. 9615 if applied to this case, will not pass the test
decision of when enough is enough, deprives him of his free speech."307 of reasonability. A fixed size for election posters or tarpaulins without any
relation to the distance from the intended average audience will be arbitrary. At
Another flaw is how "[a]ny quantitative limitation on political campaigning certain distances, posters measuring 2 by 3 feet could no longer be read by the
inherently constricts the sum of public information and runs counter to our general public and, hence, would render speech meaningless. It will amount to
profound national commitment that debate on public issues should be the abridgement of speech with political consequences.
uninhibited, robust, and wide-open."308
IV
In fact, "[c]onstraining those who have funds or have been able to raise funds Right to property
does not ease the plight of those without funds in the first place . . . [and] even if
ones main concern isslowing the increase in political costs, it may be more Other than the right to freedom of expression311 and the meaningful exercise of
effective torely on market forces toachieve that result than on active legal the right to suffrage,312 the present case also involves ones right to property.313
intervention."309 According to Herbert Alexander, "[t]o oppose limitations is not
necessarily to argue that the skys the limit [because in] any campaign there are
saturation levels and a point where spending no longer pays off in votes per Respondents argue that it is the right of the state to prevent the circumvention
dollar."310 of regulations relating to election propaganda by applying such regulations to
private individuals.314 Certainly, any provision or regulation can be
circumvented. But we are not confronted with this possibility. Respondents
III. C. agree that the tarpaulin in question belongs to petitioners. Respondents have
also agreed, during the oral arguments, that petitioners were neither
When private speech amounts commissioned nor paid by any candidate or political party to post the material
on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains Section 5. No law shall be made respecting an establishment of religion, or
the private property of petitioners. Their right to use their property is likewise prohibiting the free exercise thereof. The free exercise and enjoyment of
protected by the Constitution. religious profession and worship, without discrimination or preference, shall
forever be allowed. Noreligious test shall be required for the exercise of civil or
political rights.
In Philippine Communications Satellite Corporation v. Alcuaz:315

There are two aspects of this provision.321 The first is the none stablishment
Any regulation, therefore, which operates as an effective confiscation of private clause.322 Second is the free exercise and enjoyment of religious profession
property or constitutes an arbitrary or unreasonable infringement of property and worship.323
rights is void, because it is repugnant to the constitutional guaranties of due
process and equal protection of the laws.316 (Citation omitted)
The second aspect is atissue in this case.
This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the citizens Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or
private property."317 Consequently, it violates Article III, Section 1 of the any other religious make such act immune from any secular regulation.324 The
Constitution which provides thatno person shall be deprived of his property religious also have a secular existence. They exist within a society that is
without due process of law. This court explained: regulated by law.

Property is more than the mere thing which a person owns, it includes the right The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a
to acquire, use, and dispose of it; and the Constitution, in the 14th Amendment, bishop amounts to religious expression. This notwithstanding petitioners claim
protects these essential attributes. that "the views and position of the petitioners, the Bishop and the Diocese of
Bacolod, on the RH Bill is inextricably connected to its Catholic dogma, faith,
and moral teachings. . . ."325
Property is more than the mere thing which a person owns. It is elementary that
it includes the right to acquire, use, and dispose of it. The Constitution protects
these essential attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. The difficulty that often presents itself in these cases stems from the reality that
ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the free use, every act can be motivated by moral, ethical, and religious considerations. In
enjoyment, and disposal of a persons acquisitions without control or diminution terms of their effect on the corporeal world, these acts range from belief, to
save by the law of the land. 1 Cooleys Bl. Com. 127. (Buchanan v. Warley 245 expressions of these faiths, to religious ceremonies, and then to acts of a
US 60 [1917])318 secular character that may, from the point of view of others who do not share
the same faith or may not subscribe to any religion, may not have any religious
bearing.
This court ruled that the regulation in Adiong violates private property rights:

Definitely, the characterizations ofthe religious of their acts are not conclusive
The right to property may be subject to a greater degree of regulation but when on this court. Certainly, our powers of adjudication cannot be blinded by bare
this right is joined by a "liberty" interest, the burden of justification on the part of claims that acts are religious in nature.
the Government must be exceptionally convincing and irrefutable. The burden
is not met in this case.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court "emphatically"
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits held that the adherents ofa particular religion shall be the ones to determine
the posting or display of election propaganda in any place, whether public or whether a particular matter shall be considered ecclesiastical in nature.327 This
private, except inthe common poster areas sanctioned by COMELEC. This court in Ebralinagexempted Jehovahs Witnesses from participating in the flag
means that a private person cannot post his own crudely prepared personal ceremony "out of respect for their religious beliefs, [no matter how] "bizarre"
poster on his own front dooror on a post in his yard. While the COMELEC will those beliefsmay seem to others."328 This court found a balance between the
certainly never require the absurd, there are no limits to what overzealous and assertion of a religious practice and the compelling necessities of a secular
partisan police officers, armed with a copy of the statute or regulation, may command. It was an early attempt at accommodation of religious beliefs.
do.319 Respondents ordered petitioners, who are private citizens, to remove the
tarpaulin from their own property. The absurdity of the situation is in itself an
indication of the unconstitutionality of COMELECs interpretation of its powers. In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:

Freedom of expression can be intimately related with the right to property. With religion looked upon with benevolence and not hostility, benevolent
There may be no expression when there is no place where the expression may neutrality allows accommodation of religion under certain circumstances.
be made. COMELECs infringement upon petitioners property rights as in the Accommodations are government policies that take religion specifically
present case also reaches out to infringement on their fundamental right to intoaccount not to promote the governments favored form of religion, but to
speech. allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise
of, a persons or institutions religion. As Justice Brennan explained, the
Respondents have not demonstrated thatthe present state interest they seek to "government [may] take religion into account . . . to exempt, when possible,
promote justifies the intrusion into petitioners property rights. Election laws and from generally applicable governmental regulation individuals whose religious
regulations must be reasonable. It must also acknowledge a private individuals beliefs and practices would otherwise thereby be infringed, or to create without
right to exercise property rights. Otherwise, the due process clause will be state involvement an atmosphere in which voluntary religious exercise may
violated. flourish."330

COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the This court also discussed the Lemon test in that case, such that a regulation is
posting of election propaganda in private property without the consent of the constitutional when: (1) it has a secular legislative purpose; (2) it neither
owners of such private property. COMELEC has incorrectly implemented these advances nor inhibits religion; and (3) it does not foster an excessive
regulations. Consistent with our ruling in Adiong, we find that the act of entanglement with religion.331
respondents in seeking to restrain petitioners from posting the tarpaulin in their
own private property is an impermissible encroachments on the right to
property. As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church."332 That the position of the
Catholic church appears to coincide with the message of the tarpaulin regarding
V the RH Law does not, by itself, bring the expression within the ambit of religious
Tarpaulin and its message are not religious speech speech. On the contrary, the tarpaulin clearly refers to candidates classified
under "Team Patay" and "Team Buhay" according to their respective votes on
We proceed to the last issues pertaining to whether the COMELEC in issuing the RH Law.
the questioned notice and letter violated the right of petitioners to the free
exercise of their religion. The same may be said of petitioners reliance on papal encyclicals to support
their claim that the expression onthe tarpaulin is an ecclesiastical matter. With
At the outset, the Constitution mandates the separation of church and all due respect to the Catholic faithful, the church doctrines relied upon by
state.320 This takes many forms. Article III, Section 5 of the Constitution, for petitioners are not binding upon this court. The position of the Catholic religion
instance provides: in the Philippines as regards the RH Law does not suffice to qualify the posting
by one of its members of a tarpaulin as religious speech solely on such basis.
The enumeration of candidates on the face of the tarpaulin precludes any
doubtas to its nature as speech with political consequences and not religious 1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner, v. COMMISSION
speech. ON ELECTIONS, Respondent.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National The right to participate in electoral processes is a basic and fundamental right in
Labor Relations Commission333 cited by petitioners finds no application in the any democracy. It includes not only the right to vote, but also the right to urge
present case. The posting of the tarpaulin does not fall within the category of others to vote for a particular candidate. The right to express one's preference
matters that are beyond the jurisdiction of civil courts as enumerated in the for a candidate is likewise part of the fundamental right to free speech. Thus,
Austriacase such as "proceedings for excommunication, ordinations of religious any governmental restriction on the right to convince others to vote for a
ministers, administration of sacraments and other activities withattached candidate carries with it a heavy presumption of invalidity.
religious significance."334
This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of Court
filed by 1-United Transport Koalisyon (petitioner), a party-list organization,
A FINAL NOTE assailing Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution
No. 96152 of the Commission on Elections (COMELEC).
We maintain sympathies for the COMELEC in attempting to do what it thought
was its duty in this case. However, it was misdirected. The Facts

On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the
COMELECs general role includes a mandate to ensure equal opportunities and
"Fair Elections Act", was passed. Section 9 thereof provides:
reduce spending among candidates and their registered political parties. It is
not to regulate or limit the speech of the electorate as it strives to participate
inthe electoral exercise. Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political
parties and party-list groups to erect common poster areas for their candidates
in not more than ten (10) public places such as plazas, markets, barangay
The tarpaulin in question may be viewed as producing a caricature of those who centers and the like, wherein candidates can post, display or exhibit election
are running for public office.Their message may be construed generalizations of propaganda: Provided that the size of the poster areas shall not exceed twelve
very complex individuals and party-list organizations. (12) by sixteen (16) feet or its equivalent.

They are classified into black and white: as belonging to "Team Patay" or Independent candidates with no political parties may likewise be authorized to
"Team Buhay." erect common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent.

But this caricature, though not agreeable to some, is still protected speech. Candidates may post any lawful propaganda material in private places with the
consent of the owner thereof, and in public places or property which shall be
allocated equitably and impartially among the candidates.
That petitioners chose to categorize them as purveyors of death or of life on the
basis of a single issue and a complex piece of legislation at that can On January 15, 2013, the COMELEC promulgated Resolution No. 9615, which
easily be interpreted as anattempt to stereo type the candidates and party-list provided for the rules implementing R.A. No. 9006 in connection with the May
organizations. Not all may agree to the way their thoughts were expressed, as 13, 2013 national and local elections and subsequent elections. Section 7
in fact there are other Catholic dioceses that chose not to follow the example of thereof, which enumerates the prohibited forms of election propaganda,
petitioners. pertinently provides:

Some may have thought that there should be more room to consider being SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign
more broad-minded and non-judgmental. Some may have expected that the period, it is unlawful:
authors would give more space to practice forgiveness and humility.
xxxx
But, the Bill of Rights enumerated in our Constitution is an enumeration of our
(f) To post, display or exhibit any election campaign or propaganda material
fundamental liberties. It is not a detailed code that prescribes good conduct. It
outside of authorized common poster areas, in public places, or in private
provides space for all to be guided by their conscience, not only in the act that
properties without the consent of the owner thereof.
they do to others but also in judgment of the acts of others.
(g) Public places referred to in the previous subsection (f) include any of the
Freedom for the thought we can disagree with can be wielded not only by those following:
in the minority. This can often be expressed by dominant institutions, even xxxx
religious ones. That they made their point dramatically and in a large way does
not necessarily mean that their statements are true, or that they have basis, or 5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries,
that they have been expressed in good taste. pedicabs and tricycles, whether motorized or not;

6. Within the premises of public transport terminals, such as bus terminals,


Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is airports, seaports, docks, piers, train stations, and the like.
a specie of expression protected by our fundamental law. It is an expression The violation of items [5 and 6] under subsection (g) shall be a cause for the
designed to invite attention, cause debate, and hopefully, persuade. It may be revocation of the public utility franchise and will make the owner and/or operator
motivated by the interpretation of petitioners of their ecclesiastical duty, but their of the transportation service and/or terminal liable for an election offense under
parishioners actions will have very real secular consequences. Certainly, Section 9 of Republic Act No. 9006 as implemented by Section 18 (n) of these
provocative messages do matter for the elections. Rules.3

What is involved in this case is the most sacred of speech forms: expression by In its letter4 dated January 30, 2013, the petitioner, through its president,
the electorate that tends to rouse the public to debate contemporary issues. Melencio F. Vargas, sought clarification from the COMELEC as regards the
This is not speechby candidates or political parties to entice votes. It is a portion application of Resolution No. 9615, particularly Section 7(g) items (5) and (6), in
of the electorate telling candidates the conditions for their election. It is the relation to Section 7(f), vis-a-vis privately owned public utility vehicles (PUVs)
substantive content of the right to suffrage. and transport terminals. The petitioner explained that the prohibition stated in
the aforementioned provisions impedes the right to free speech of the private
owners of PUVs and transport terminals. The petitioner then requested the
This. is a form of speech hopeful of a quality of democracy that we should all COMELEC to reconsider the implementation of the assailed provisions and
deserve. It is protected as a fundamental and primordial right by our allow private owners of PUVs and transport terminals to post election campaign
Constitution. The expression in the medium chosen by petitioners deserves our materials on their vehicles and transport terminals.
protection.
On February 5, 2013, the COMELEC en banc issued Minute Resolution No. 13-
0214,5 which denied the petitioner's request to reconsider the implementation of
WHEREFORE, the instant petition is GRANTED. The temporary restraining
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
order previously issued is hereby made permanent. The act of the COMELEC
9615. The COMELEC en banc, adopting the recommendation of Commissioner
in issuing the assailed notice dated February 22, 2013 and letter dated
Christian Robert S. Lim, opined that:
February 27, 2013 is declared unconstitutional. SO ORDERED.

From the foregoing, x x x the primary fact in consideration here is actually


G.R. No. 206020, April 14, 2015 whether 1 -UTAK or any other [PUV] owners in the same position do in fact
possess a franchise and/or certificate of public convenience and operate
as a public utility. If it does not, then the ruling in Adiong applies squarely. If it
does, then its operations, pursuant to Section 4, Article IX-C of the Constitution,
will be placed directly under the supervision and regulation of the Commission The petitioner presents the following issues for the Court's resolution:
for the duration of the election period so as to ensure equality of opportunity,
time, and space for all candidates in the placement of political advertisements. I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE
Having placed their property for use by the general public and having secured a SPEECH OF THE OWNERS OF [PUVs] AND TRANSPORT TERMINALS.
license or permit to do so, 1-UTAK and other PUV owners, as well as transport
terminal owners, cannot now complain that their property is subject to regulation II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO FREE
by the State. Securing a franchise or a certificate of public convenience in their SPEECH AND EXPRESSION FOR FAILURE TO SATISFY THE O'BRIEN
favor does not exempt them from the burdens imposed by the Constitution, TEST.
Republic Act No. 9006 x x x, and other related statutes. It must be stressed that
the Constitution itself, under Section 6, Article XII, commands that the use of III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL
property bears a social function and all economic agents shall contribute OPPORTUNITY TO INFORM THE ELECTORATE IS NOT IMPAIRED BY
to the common good; and there is no higher Common good than that as POSTING POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT
espoused in R.A. No. 9006 - the equalization of opportunities for all candidates TERMINALS.
for political office during elections - a policy which Res. No. 9615 merely
implements. IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND
INDEPENDENT FROM THE FRANCHISE OR OPERATION OF THE PUBLIC
As required in Adiong, and in compliance with the O'Brien standards, the UTILITY, THE FORMER BEING BEYOND THE POWER OF REGULATION BY
prohibition furthers two important and substantial governmental interests - THE COMELEC.7
equalizing opportunity, time, and space for all candidates, and putting to a stop
excessive campaign spending. The regulation bears a clear and reasonable In sum, the issue presented for the Court's resolution is whether Section 7(g)
nexus with these Constitutionally- and statutorily-sanctioned objectives, and the items (5) and (6), in relation to Section 7(f), of Resolution No. 9615, which
infringement of freedom is merely incidental and limited as to time. The prohibits the posting of any election campaign or propaganda material, inter
Commission has not taken away all avenues of expression available to PUV alia, in PUVs and public transport terminals are valid regulations.
and transport terminal owners. They may express their political preferences
elsewhere.
Ruling of the Court
The exact purpose for placing political advertisements on a PUV or in transport
terminals is exactly because it is public and can be seen by all; and although The petition is meritorious.
it is true that private vehicles ply the same route as public vehicles, the
exposure of a [PUV] servicing the general, riding public is much more compared Resolution No. 9615, which was promulgated pursuant to Section 4, Article IX-
to private vehicles. Categorizing PUVs and transport terminals as 'public C of the Constitution and the provisions of R.A. No. 9006, lays down the
places' under Section 7 (f) of Reso. No. 9615 is therefore logical. The same administrative rules relative to the COMELEC's exercise of its supervisory and
reasoning for limiting political advertisements in print media, in radio, and in regulatory powers over all franchises and permits for the operation of
television therefore holds true for political advertisements in PUVs and transport transportation and other public utilities, media of communication or information,
terminals.6 and all grants, special privileges, or concessions granted by the Government.

Hence, the instant petition. Like any other administrative regulations, Resolution No. 9615, or any part
thereof, must not run counter to the Constitution. It is basic that if a law or an
administrative rule violates any norm of the Constitution, that issuance is null
Arguments of the Petitioner and void and has no effect. The Constitution is the basic law to which all laws
must conform; no act shall be valid if it conflicts with the Constitution. 8 In this
The petitioner maintains that Section 7(g) items (5) and (6), in relation to regard, an administrative regulation, even if it purports to advance a legitimate
Section 7(f), of Resolution No. 9615 violate the right to free speech of the governmental interest, may not be permitted to run roughshod over the
owners of PUVs and transport terminals; that the prohibition curtails their ideas cherished rights of the people enshrined in the Constitution.
of who should be voted by the public. The petitioner also claims that there is no
substantial public interest threatened by the posting of political advertisements Section 7(g) items (5) and (6), in
on PUVs and transport terminals to warrant the prohibition imposed by the relation to Section 7(f), of Resolution No.
COMELEC. Further, the petitioner posits that the ownership of the PUVs per se, 9615 are prior restraints on speech.
as well as the transport terminals, remains private and, hence, the owners
thereof could not be prohibited by the COMELEC from expressing their political Free speech may be identified with the liberty to discuss publicly and truthfully
opinion lest their property rights be unduly intruded upon. any matter of public concern without prior restraint or censorship and
subsequent punishment.9 Prior restraint refers to official governmental
Further, assuming that substantial public interest exists in the said prohibition restrictions on the press or other forms of expression in advance of actual
imposed under Resolution No. 9615, the petitioner claims that the curtailment of publication or dissemination. Freedom from prior restraint is largely freedom
the right to free speech of the owners of PUVs and transport terminals is much from government censorship of publications, whatever the form of censorship,
greater than is necessary to achieve the desired governmental purpose, i.e., and regardless of whether it is wielded by the executive, legislative or judicial
ensuring equality of opportunity to all candidates in elective office. branch of the government.10 Any system of prior restraints of expression comes
to this Court bearing a heavy presumption against its validity.11
Arguments of COMELEC
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No. 9615
On the other hand, the COMELEC posits that privately-owned PUVs and unduly infringe on the fundamental right of the people to freedom of speech.
transport terminals are public spaces that are subject to its regulation. It Central to the prohibition is the freedom of individuals, i.e., the owners of PUVs
explains that under the Constitution, the COMELEC has the power to enforce and private transport terminals, to express their preference, through the posting
and administer all laws and regulations relative to the conduct of an election, of election campaign material in their property, and convince others to agree
including the power to regulate the enjoyment or utilization of all franchises and with them.
permits for the operation of transportation utilities.
Pursuant to the assailed provisions of Resolution No. 9615, posting an election
The COMELEC points out that PUVs and private transport terminals hold a campaign material during an election period in PUVs and transport terminals
captive audience - the commuters, who have no choice but be subjected to the carries with it the penalty of revocation of the public utility franchise and shall
blare of political propaganda. Thus, the COMELEC avers, it is within its make the owner thereof liable for an election offense.
constitutional authority to prevent privately-owned PUVs and transport terminals
from concurrently serving campaign materials to the captive audience that they The prohibition constitutes a clear prior restraint on the right to free expression
transport. of the owners of PUVs and transport terminals. As a result of the prohibition,
owners of PUVs and transport terminals are forcefully and effectively inhibited
The COMELEC further claims that Resolution No. 9615 is a valid content- from expressing their preferences under the pain of indictment for an election
neutral regulation and, thus, does not impinge on the constitutional right to offense and the revocation of their franchise or permit to operate.
freedom of speech. It avers that the assailed regulation is within the
constitutional power of the COMELEC pursuant to Section 4, Article IX-C of the It is now deeply embedded in our jurisprudence that freedom of speech and of
Constitution. The COMELEC alleges that the regulation simply aims to ensure the press enjoys a preferred status in our hierarchy of rights. The rationale is
equal campaign opportunity, time, and space for all candidates - an important that the preservation of other rights depends on how well we protect our
and substantial governmental interest, which is totally unrelated to the freedom of speech and of the press.12 It has been our constant holding that this
suppression of free expression; that any restriction on free speech is merely preferred freedom calls all the more for utmost respect when what may be
incidental and is no greater than is essential to the furtherance of the said curtailed is the dissemination of information to make more meaningful the
governmental interest. equally vital right of suffrage.13

The Issue Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's
prohibition against the posting of decals and stickers on "mobile places." The election campaign stickers on his vehicle.
Court ratiocinated that:
In National Press Club v. COMELEC,18 while the Court upheld the
Significantly, the freedom of expression curtailed by the questioned prohibition constitutionality of a prohibition on the selling or giving free of charge, except to
is not so much that of the candidate or the political party. The regulation the COMELEC, of advertising space and commercial time during an election
strikes at the freedom of an individual to express his preference and, by period, it was emphasized that the grant of supervisory and regulatory powers
displaying it on his car, to convince others to agree with him. A sticker may to the COMELEC under Section 4, Article IX-C of the Constitution, is limited to
be furnished by a candidate but once the car owner agrees to have it placed on ensuring equal opportunity, time, space, and the right to reply among
his private vehicle, the expression becomes a statement by the owner, primarily candidates.
his own and not of anybody else. If, in the National Press Club case, the Court
was careful to rule out restrictions on reporting by newspaper or radio and Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court,
television stations and commentators or columnists as long as these are not notwithstanding the grant of supervisory and regulatory powers to the
correctly paid-for advertisements or purchased opinions with less reason can COMELEC under Section 4, Article IX-C of the Constitution, declared
we sanction the prohibition against a sincere manifestation of support unconstitutional a regulation prohibiting the release of election surveys prior to
and a proclamation of belief by an individual person who pastes a sticker the election since it "actually suppresses a whole class of expression, while
or decal on his private property.15 (Emphases ours) allowing the expression of opinion concerning the same subject matter by
newspaper columnists, radio and [television (TV)] commentators, armchair
The assailed prohibition on posting theorists, and other opinion makers."20
election campaign materials is an
invalid content-neutral regulation In the instant case, the Court further delineates the constitutional grant of
repugnant to the free speech clause. supervisory and regulatory powers to the COMELEC during an election period.
As worded, Section 4, Article IX-C of the Constitution only grants COMELEC
The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution supervisory and regulatory powers over the enjoyment or utilization "of all
No. 9615 may incidentally restrict the right to free speech of owners of PUVs franchises or permits for the operation," inter alia, of transportation and other
and transport terminals, the same is nevertheless constitutionally permissible public utilities. The COMELEC's constitutionally delegated powers of
since it is a valid content-neutral regulation. The Court does not agree. supervision and regulation do not extend to the ownership per se of PUVs and
transport terminals, but only to the franchise or permit to operate the same.
A content-neutral regulation, i.e., which is merely concerned with the incidents
of the speech, or one that merely controls the time, place or manner, and under There is a marked difference between the franchise or permit to operate
well-defined standards,16 is constitutionally permissible, even if it restricts the transportation for the use of the public and the ownership per se of the vehicles
right to free speech, provided that the following requisites concur: first, the used for public transport. Thus, in Tatad v. Garcia, Jr.,21 the Court explained
government regulation is within the constitutional power of the that:
Government; second, it furthers an important or substantial governmental
interest; third, the governmental interest is unrelated to the suppression of free What private respondent owns are the rail tracks, rolling stocks like the
expression; and fourth, the incidental restriction on freedom of expression is no coaches, rail stations, terminals and the power plant, not a public utility. While a
greater than is essential to the furtherance of that interest.17 franchise is needed to operate these facilities to serve the public, they do not by
themselves constitute a public utility. What constitutes a public utility is not their
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral ownership but their use to serve the public x x x.
regulations since they merely control the place where election campaign
materials may be posted. However, the prohibition is still repugnant to the free The Constitution, in no uncertain terms, requires a franchise for the operation of
speech clause as it fails to satisfy all of the requisites for a valid content-neutral a public utility. However, it does not require a franchise before one can own the
regulation. facilities needed to operate a public utility so long as it does not operate them to
serve the public.
It is conceded that Resolution No. 9615, including the herein assailed
provisions, furthers an important and substantial governmental interest, i.e., xxxx
ensuring equal opportunity, time and space among candidates aimed at the
holding of free, orderly, honest, peaceful, and credible elections. It is further In law, there is a clear distinction between the "operation" of a public
conceded that the governmental interest in imposing the said prohibition is utility and the ownership of the facilities and equipment used to serve the
unrelated to the suppression of free expression. However, Section 7(g) items public.
(5) and (6), in relation to Section 7(f), of Resolution No. 9615, are not within the
constitutionally delegated power of the COMELEC under Section 4, Article IX-C xxxx
of the Constitution. Also, there is absolutely no necessity to restrict the right to
free speech of the owners of PUVs and transport terminals. The right to operate a public utility may exist independently and
separately from the ownership of the facilities thereof. One can own said
The COMELEC may only regulate facilities without operating them as a public utility, or conversely, one may
the franchise or permit to operate and operate a public utility without owning the facilities used to serve the
not the ownership per se of PUVs public. The devotion of property to serve the public may be done by the owner
and transport terminals. or by the person in control thereof who may not necessarily be the owner
thereof.
The prohibition under Section 7(g) items (5) and (6), in relation to Section 7(f),
of Resolution No. 9615 is not within the COMELEC's constitutionally delegated This dichotomy between the operation of a public utility and the ownership of
power of supervision or regulation. It is not disputed that the COMELEC has the the facilities used to serve the public can be very well appreciated when we
power to supervise or regulate the enjoyment or utilization of all franchises or consider the transportation industry. Enfranchised airline and shipping
permits for the operation of transportation utilities during an election period. companies may lease their aircraft and vessels instead of owning them
Section 4, Article IX-C of the Constitution, thus provides: themselves.22 (Emphases ours)

Section 4. The Commission may, during the election period, supervise or The franchise or permit to operate transportation utilities is a privilege granted
regulate the enjoyment or utilization of all franchises or permits for the operation to certain persons to engage in the business of transporting people or goods; it
of transportation and other public utilities, media of communication or does not refer to the ownership of the vehicleper se. Ownership is a relation in
information, all grants, special privileges, or concessions granted by the private law by virtue of which a thing pertaining to one person is completely
Government or any subdivision, agency, or instrumentality thereof, including subjected to his will in everything not prohibited by public law or the
any government-owned or controlled corporation or its subsidiary. Such concurrence with the rights of another.23 Thus, the owner of a thing has the right
supervision or regulation shall aim to ensure equal opportunity, time, and to enjoy and dispose of a thing, without other limitations than those established
space, and the right to reply, including reasonable, equal rates therefor, for by law.24
public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible elections. One such limitation established by law, as regards PUVs, is the franchise or
permit to operate. However, a franchise or permit to operate a PUV is a
Nevertheless, the constitutional grant of supervisory and regulatory powers to limitation only on certain aspects of the ownership of the vehicle pertinent to the
the COMELEC over franchises and permits to operate, though seemingly franchise or permit granted, but not on the totality of the rights of the owner over
unrestrained, has its limits. Notwithstanding the ostensibly broad supervisory the vehicle. Otherwise stated, a restriction on the franchise or permit to operate
and regulatory powers granted to the COMELEC during an election period transportation utilities is necessarily a limitation on ownership, but a limitation
under Section 4, Article IX-C of the Constitution, the Court had previously set on the rights of ownership over the PUV is not necessarily a regulation on the
out the limitations thereon. In Adiong, the Court, while recognizing that the franchise or permit to operate the same.
COMELEC has supervisory power vis-a-vis the conduct and manner of
elections under Section 4, Article IX-C of the Constitution, nevertheless held A franchise or permit to operate transportation utilities pertains to
that such supervisory power does not extend to the very freedom of an considerations affecting the operation of the PUV as such, e.g., safety of the
individual to express his preference of candidates in an election by placing passengers, routes or zones of operation, maintenance of the vehicle, of
reasonable fares, rates, and other charges, or, in certain cases,
nationality.25 Thus, a government issuance, which purports to regulate a restriction on freedom of expression is no greater than is essential to the
franchise or permit to operate PUVs, must pertain to the considerations furtherance of that interest. There is absolutely no necessity to restrict the right
affecting its operation as such. Otherwise, it becomes a regulation or of the owners of PUVs and transport terminals to free speech to further the
supervision not on the franchise or permit to operate, but on the very ownership governmental interest. While ensuring equality of time, space, and opportunity
of the vehicle used for public transport. to candidates is an important and substantial governmental interest and is
essential to the conduct of an orderly election, this lofty aim may be
The expression of ideas or opinion of an owner of a PUV, through the posting of achieved sans any intrusion on the fundamental right of expression.
election campaign materials on the vehicle, does not affect considerations
pertinent to the operation of the PUV. Surely, posting a decal expressing First, while Resolution No. 9615 was promulgated by the COMELEC to
support for a certain candidate in an election will not in any manner affect the implement the provisions of R.A. No. 9006, the prohibition on posting of election
operation of the PUV as such. Regulating the expression of ideas or opinion in campaign materials on PUVs and transport terminals was not provided for
a PUV, through the posting of an election campaign material thereon, is not a therein.
regulation of the franchise or permit to operate, but a regulation on the very
ownership of the vehicle. Second, there are more than sufficient provisions in our present election laws
that would ensure equal time, space, and opportunity to candidates in elections.
The dichotomy between the regulation of the franchise or permit to operate of a Section 6 of R.A. No. 9006 mandates that "all registered parties and bona fide
PUV and that of the very ownership thereof is better exemplified in the case of candidates shall have equal access to media time and space" and outlines the
commercial advertisements posted on the vehicle. A prohibition on the posting guidelines to be observed in the implementation thereof, viz:
of commercial advertisements on a PUV is considered a regulation on the
ownership of the vehicle per se; the restriction on the enjoyment of the Section 6. Equal Access to Media Time and Space. - All registered parties and
ownership of the vehicle does not have any relation to its operation as a PUV. bona fide candidates shall have equal access to media time and space. The
following guidelines may be amplified on by the COMELEC:
On the other hand, prohibitions on the posting of commercial advertisements on
windows of buses, because it hinders police authorities from seeing whether the 6.1 Print advertisements shall not exceed one-fourth (1/4) page in broadsheet
passengers inside are safe, is a regulation on the franchise or permit to and one-half (1/2) page in tabloids thrice a week per newspaper, magazine or
operate. It has a direct relation to the operation of the vehicle as a PUV, i.e., the other publications, during the campaign period.
safety of the passengers.
6.2 a. Each bona fide candidate or registered political party for a nationally
In the same manner, the COMELEC does not have the constitutional power to elective office shall be entitled to not more than one hundred twenty (120)
regulate public transport terminals owned by private persons. The ownership of minutes of television advertisement and one hundred eighty (180) minutes of
transport terminals, even if made available for use by the public commuters, radio advertisement whether by purchase or donation.
likewise remains private. Although owners of public transport terminals may be
required by local governments to obtain permits in order to operate, the permit b. Each bona fide candidate or registered political party for a locally elective
only pertains to circumstances affecting the operation of the transport terminal office shall be entitled to not more than sixty (60) minutes of television
as such. The regulation of such permit to operate should similarly be limited to advertisement and ninety (90) minutes of radio advertisement whether by
circumstances affecting the operation of the transport terminal. A regulation of purchase or donation.
public transport terminals based on extraneous circumstances, such as
prohibiting the posting of election campaign materials thereon, amounts to For this purpose, the COMELEC shall require any broadcast station or entity to
regulating the ownership of the transport terminal and not merely the permit to submit to the COMELEC a copy of its broadcast logs and certificates of
operate the same. performance for the review and verification of the frequency, date, time and
duration of advertisements broadcast for any candidate or political party.
Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not
within the constitutionally delegated power of the COMELEC to supervise or 6.3 All mass media entities shall furnish the COMELEC with a copy of all
regulate the franchise or permit to operate of transportation utilities. The posting contracts for advertising, promoting or opposing any political party or the
of election campaign material on vehicles used for public transport or on candidacy of any person for public office within five (5) days after its signing. In
transport terminals is not only a form of political expression, but also an act of every case, it shall be signed by the donor, the candidate concerned or by the
ownership - it has nothing to do with the franchise or permit to operate the PUV duly authorized representative of the political party.
or transport terminal.
6.4 No franchise or permit to operate a radio or television station shall be
The rulings in National Press Club granted or issued, suspended or cancelled during the election period. In all
and Osmena v. COMELEC26 instances, the COMELEC shall supervise the use and employment of press,
find no application to this case. radio and television facilities insofar as the placement of political
advertisements is concerned to ensure that candidates are given equal
The COMELEC pointed out that the issue presented in the instant case is akin opportunities under equal circumstances to make known their qualifications and
to the Court's rulings in National Press Club and Osmea. It explained that in their stand on public issues within the limits set forth in the Omnibus Election
both cases, the Court sustained Section II(b) of R.A. No. 6646 or the Electoral Code and Republic Act No. 7166 on election spending.
Reforms Law of 1997, which prohibits newspapers, radio broadcasting or TV
stations, and other mass media from selling or giving print space or airtime for The COMELEC shall ensure that radio or television or cable television
campaign or other political purposes, except to the COMELEC, during the broadcasting entities shall not allow the scheduling of any program or permit
election campaign. The COMELEC averred that if the legislature can empower any sponsor to manifestly favor or oppose any candidate or political party by
it to impose an advertising ban on mass media, it could likewise empower it to unduly or repeatedly referring to or including said candidate and/or political
impose a similar ban on PUVs and transport terminals. party in such program respecting, however, in all instances the right of said
broadcast entities to air accounts of significant news or news worthy events and
The Court does not agree. views on matters of public interest.
The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct 6.5 All members of media, television, radio or print, shall scrupulously report
relation to the enjoyment and utilization of the franchise or permit to operate of and interpret the news, taking care not to suppress essential facts nor to distort
newspapers, radio broadcasting and TV stations, and other mass media, which the truth by omission or improper emphasis. They shall recognize the duty to air
the COMELEC has the power to regulate pursuant to Section 4, Article IX-C of the other side and the duty to correct substantive errors promptly.
the Constitution. The print space or airtime is an integral part of the franchise or
permit to operate of mass media utilities. Thus, the restriction under Section 6.6 Any mass media columnist, commentator, announcer, reporter, on-air
ll(b) of R.A. No. 6646 is within the confines of the constitutionally delegated correspondent or personality who is a candidate for any elective public office or
power of the COMELEC under Section 4, Article IX-C of the Constitution. is a campaign volunteer for or employed or retained in any capacity by any
candidate or political party shall be deemed resigned, if so required by their
On the other hand, the prohibition on the posting of election campaign materials employer, or shall take a leave of absence from his/her work as such during the
under Section 7(g) items (5) and (6) of Resolution No. 9615, as already campaign period: Provided, That any media practitioner who is an official of a
explained, does not have any relation to the franchise or permit of PUVs and political party or a member of the campaign staff of a candidate or political party
transport terminals to operate as such and, hence, is beyond the power of the shall not use his/her time or space to favor any candidate or political party.
COMELEC under Section 4, Article IX-C of the Constitution.
6.7 No movie, cinematograph or documentary portraying the life or biography of
The restriction on free speech of a candidate shall be publicly exhibited in a theater, television station or any
owners of PUVs and transport public forum during the campaign period.
terminals is not necessary to
further the stated governmental 6.8 No movie, cinematograph or documentary portrayed by an actor or media
interest. personality who is himself a candidate shall likewise be publicly exhibited in a
theater or any public forum during the campaign period.
Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy
the fourth requisite of a valid content-neutral regulation, i.e., the incidental Section 9 of R.A. No. 9006 authorizes political parties and party-list groups and
independent candidates to erect common poster areas and candidates to post Shaker Heights,37 a case decided by the U.S. Supreme Court. In Lehman, a
lawful election campaign materials in private places, with the consent of the policy of the city government, which prohibits political advertisements on
owner thereof, and in public places or property, which are allocated equitably government-run buses, was upheld by the U.S. Supreme Court. The U.S.
and impartially. Supreme Court held that the advertising space on the buses was not a public
forum, pointing out that advertisement space on government-run buses,
Further, Section 1327 of R.A. No. 716628 provides for the authorized expenses "although incidental to the provision of public transportation, is a part of
of registered political parties and candidates for every voter; it affords commercial venture."38 In the same way that other commercial ventures need
candidates equal opportunity in their election campaign by regulating the not accept every proffer of advertising from the general public, the city's transit
amount that should be spent for each voter. Likewise, Section 1429 of R.A. No. system has the discretion on the type of advertising that may be displayed on
7166 requires all candidates and treasurers of registered political parties to its vehicles.
submit a statement of all contributions and expenditures in connection with the
election. Section 14 is a post-audit measure that aims to ensure that the Concurring in the judgment, Justice Douglas opined that while Lehman, a
candidates did not overspend in their election campaign, thereby enforcing the candidate for state office who sought to avail himself of advertising space on
grant of equal opportunity to candidates under Section 13. government-run buses, "clearly has a right to express his views to those who
wish to listen, he has no right to force his message upon an audience incapable
A strict implementation of the foregoing provisions of law would suffice to of declining to receive it."39 Justice Douglas concluded: "the right of the
achieve the governmental interest of ensuring equal time, space, and commuters to be free from forced intrusions on their privacy precludes the city
opportunity for candidates in elections. There is thus no necessity of still from transforming its vehicles of public transportation into forums for the
curtailing the right to free speech of the owners of PUVs and transport terminals dissemination of ideas upon this captive audience."40
by prohibiting them from posting election campaign materials on their
properties. The COMELEC's reliance on Lehman is utterly misplaced.

Section 7(g) items (5) and (6) of In Lehman, the political advertisement was intended for PUVs owned by the city
Resolution No. 9615 are not justified under government; the city government, as owner of the buses, had the right to decide
the captive-audience doctrine. which type of advertisements would be placed on its buses. The U.S. Supreme
Court gave primacy to the city government's exercise of its managerial
The COMELEC further points out that PUVs and transport terminals hold a decision, viz:
"captive audience" - commuters who have no choice but be subjected to the
blare of political propaganda. The COMELEC further claims that while owners Revenue earned from long-term commercial advertising could be jeopardized
of privately owned PUVs and transport terminals have a right to express their by a requirement that short-term candidacy or issue-oriented advertisements be
views to those who wish to listen, they have no right to force their message displayed on car cards. Users would be subjected to the blare of political
upon an audience incapable of declining to receive it. propaganda. There could be lurking doubts about favoritism, and sticky
administrative problems might arise in parceling out limited space to eager
The COMELEC's claim is untenable. politicians. In these circumstances, the managerial decision to limit car
card space to innocuous and less controversial commercial and service-
The captive-audience doctrine states that when a listener cannot, as a practical oriented advertising does not rise to the dignity of First Amendment
matter, escape from intrusive speech, the speech can be restricted. 30 The violation. Were we to hold to the contrary, display cases in public hospitals,
"captive-audience" doctrine recognizes that a listener has a right not to be libraries, office buildings, military compounds, and other public facilities
exposed to an unwanted message in circumstances in which the immediately would become Hyde Parks open to every would be pamphleteer
communication cannot be avoided.31 and politician. This the Constitution does not require.41 (Emphasis ours)
A regulation based on the captive-audience doctrine is in the guise of Lehman actually upholds the freedom of the owner of the utility vehicles, i.e.,
censorship, which undertakes selectively to shield the public from some kinds of the city government, in choosing the types of advertisements that would be
speech on the ground that they are more offensive than others. Such selective placed on its properties. In stark contrast, Section 7(g) items (5) and (6) of
restrictions have been upheld only when the speaker intrudes on the privacy of Resolution No. 9615 curtail the choice of the owners of PUVs and transport
the home or the degree of captivity makes it either impossible or impractical for terminals on the advertisements that may be posted on their properties.
the unwilling viewer or auditor to avoid exposure.32
Also, the city government in Lehman had the right, nay the duty, to refuse
In Consolidated Edison Co. v. Public Service Commission,33 the Supreme Court political advertisements on their buses. Considering that what were involved
of the United States of America (U.S. Supreme Court) struck down the order of were facilities owned by the city government, impartiality, or the appearance
New York Public Service Commission, which prohibits public utility companies thereof, was a necessity. In the instant case, the ownership of PUVs and
from including inserts in monthly bills discussing controversial issues of public transport terminals remains private; there exists no valid reason to suppress
policy. The U.S. Supreme Court held that "[t]he prohibition cannot be justified as their political views by proscribing the posting of election campaign materials on
being necessary to avoid forcing appellant's views on a captive audience, since their properties.
customers may escape exposure to objectionable material simply by throwing
the bill insert into a wastebasket."34 Prohibiting owners of PUVs and transport
terminals from posting election campaign
Jacksonville,35
Similarly, in Erznoznik v. City of the U.S. Supreme Court nullified materials violates the equal protection
a city ordinance, which made it a public nuisance and a punishable offense for clause.
a drive-in movie theater to exhibit films containing nudity, when the screen is
visible from a public street or place. The U.S. Supreme Court opined that the Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of
degree of captivity is not so great as to make it impracticable for an unwilling the free speech clause, but also of the equal protection clause. One of the basic
viewer to avoid exposure, thus: principles on which this government was founded is that of the equality of right,
which is embodied in Section 1, Article III of the 1987 Constitution.42 "Equal
The Jacksonville ordinance discriminates among movies solely on the basis of protection requires that all persons or things similarly situated should be treated
content. Its effect is to deter drive-in theaters from showing movies containing alike, both as to rights conferred and responsibilities imposed. Similar subjects,
any nudity, however innocent or even educational. This discrimination cannot in other words, should not be treated differently, so as to give undue favor to
be justified as a means of preventing significant intrusions on privacy. The some and unjustly discriminate against others."43
ordinance seeks only to keep these films from being seen from public streets
and places where the offended viewer readily can avert his eyes. In short, the "The equal protection clause is aimed at all official state actions, not just those
screen of a drive-in theater is not "so obtrusive as to make it impossible of the legislature. Its inhibitions cover all the departments of the government
for an unwilling individual to avoid exposure to it." x x x Thus, we conclude including the political and executive departments, and extend to all actions of a
that the limited privacy interest of persons on the public streets cannot justify state denying equal protection of the laws, through whatever agency or
this censorship of otherwise protected speech on the basis of its whatever guise is taken."44
content.36(Emphasis ours)
Nevertheless, the guaranty of equal protection of the laws is not a guaranty of
Thus, a government regulation based on the captive-audience doctrine may not equality in the application of the laws to all citizens of the state. Equality of
be justified if the supposed "captive audience" may avoid exposure to the operation of statutes does not mean their indiscriminate operation on persons
otherwise intrusive speech. The prohibition under Section 7(g) items (5) and (6) merely as such, but on persons according to the circumstances surrounding
of Resolution No. 9615 is not justified under the captive-audience doctrine; the them. It guarantees equality, not identity of rights. The Constitution does not
commuters are not forced or compelled to read the election campaign materials require that things, which are different in fact, be treated in law as though they
posted on PUVs and transport terminals. Nor are they incapable of declining to were the same. The equal protection clause does not forbid discrimination as to
receive the messages contained in the posted election campaign materials things that are different.45
since they may simply avert their eyes if they find the same unbearably
intrusive. In order that there can be valid classification so that a discriminatory
governmental act may pass the constitutional norm of equal protection, it is
The COMELEC, in insisting that it has the right to restrict the posting of election necessary that the four requisites of valid classification be complied with,
campaign materials on PUVs and transport terminals, cites Lehman v. City of namely: (1) it must be based upon substantial distinctions; (2) it must be
germane to the purposes of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all members of the class. 46 x ------------------------------------------------- x

It is conceded that the classification under Section 7(g) items (5) and (6) of JESS DEL PRADO, WILSON
Resolution No. 9615 is not limited to existing conditions and applies equally to FORTALEZA, LEODY DE GUZMAN,
the members of the purported class. However, the classification remains PEDRO PINLAC, CARMELITA
MORANTE, RASTI DELIZO, PAUL
constitutionally impermissible since it is not based on substantial distinction and
BANGAY, MARIE JO OCAMPO,
is not germane to the purpose of the law. LILIA DELA CRUZ, CRISTETA
RAMOS, ADELAIDA RAMOS,
A distinction exists between PUVs and transport terminals and private vehicles MARY GRACE GONZALES, MICHAEL
and other properties in that the former, to be considered as such, needs to TORRES, RENDO SABUSAP,
secure from the government either a franchise or a permit to operate. PRECIOUS BALUTE, ROXANNE
Nevertheless, as pointed out earlier, the prohibition imposed under Section 7(g) MAGBOO, ERNIE BAUTISTA,
items (5) and (6) of Resolution No. 9615 regulates the ownership per se of the JOSEPH DE JESUS, MARGARITA
PUV and transport terminals; the prohibition does not in any manner affect the ESCOBER, DJOANNALYN JANIER,
franchise or permit to operate of the PUV and transport terminals. MAGDALENA SELLOTE, MANNY
QUIAZON, ERICSON DIZON,
As regards ownership, there is no substantial distinction between owners of NENITA CRUZAT, LEONARDO
PUVs and transport terminals and owners of private vehicles and other DE LOS REYES, PEDRITO
properties. As already explained, the ownership of PUVs and transport FADRIGON,
Petitioners,
terminals, though made available for use by the public, remains private. If
owners of private vehicles and other properties are allowed to express their
political ideas and opinion by posting election campaign materials on their - versus - G.R. No. 169848
properties, there is no cogent reason to deny the same preferred right to
owners of PUVs and transport terminals. In terms of ownership, the distinction
between owners of PUVs and transport terminals and owners of private EDUARDO ERMITA, in his Present:
vehicles and properties is merely superficial. Superficial differences do not official capacity as The Executive
make for a valid classification.47 Secretary and in his personal PANGANIBAN, C.J.,
capacity, ANGELO REYES, in his PUNO,*
The fact that PUVs and transport terminals are made available for use by the official capacity as Secretary of QUISUMBING,
public is likewise not substantial justification to set them apart from private the Interior and Local Governments, YNARES-SANTIAGO,
vehicles and other properties. Admittedly, any election campaign material that ARTURO LOMIBAO, in his SANDOVAL-GUTIERREZ,
would be posted on PUVs and transport terminals would be seen by many official capacity as the Chief, CARPIO,
people. However, election campaign materials posted on private vehicles and Philippine National Police, VIDAL AUSTRIA-MARTINEZ,
QUEROL, in his official capacity CORONA,
other places frequented by the public, e.g., commercial establishments, would
as the Chief, National Capital CARPIO MORALES,
also be seen by many people. Thus, there is no reason to single out owners of Regional Police Office (NCRPO), CALLEJO, SR.,
PUVs and transport terminals in the prohibition against posting of election PEDRO BULAONG, in his official AZCUNA,
campaign materials. capacity as the Chief, Manila TINGA,
Police District (MPD) AND ALL CHICO-NAZARIO,**
Further, classifying owners of PUVs and transport terminals apart from owners OTHER PUBLIC OFFICERS GARCIA, and
of private vehicles and other properties bears no relation to the stated purpose AND PRIVATE INDIVIDUALS VELASCO, JJ.
of Section 7(g) items (5) and (6) of Resolution No. 9615, i.e., to provide equal ACTING UNDER THEIR CONTROL,
time, space and opportunity to candidates in elections. To stress, PUVs and SUPERVISION AND INSTRUCTIONS, Promulgated:
transport terminals are private properties. Indeed, the nexus between the Respondents.
restriction on the freedom of expression of owners of PUVs and transport April 25, 2006
terminals and the government's interest in ensuring equal time, space, and x -------------------------------------------------- x
opportunity for candidates in elections was not established by the COMELEC. KILUSANG MAYO UNO, represented
by its Chairperson ELMER C. LABOG
In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution and Secretary General JOEL
No. 9615 violate the free speech clause; they are content-neutral regulations, MAGLUNSOD, NATIONAL
which are not within the constitutional power of the COMELEC issue and are FEDERATION OF LABOR
not necessary to further the objective of ensuring equal time, space and UNIONS-KILUSANG MAYO UNO G.R. No. 169881
opportunity to the candidates. They are not only repugnant to the free speech (NAFLU-KMU), represented by its
clause, but are also violative of the equal protection clause, as there is National President, JOSELITO V.
no substantial distinction between owners of PUVs and transport terminals and USTAREZ, ANTONIO C. PASCUAL,
owners of private vehicles and other properties. SALVADOR T. CARRANZA, GILDA
SUMILANG, FRANCISCO
On a final note, it bears stressing that the freedom to advertise one's political LASTRELLA, and ROQUE M. TAN,
candidacy is clearly a significant part of our freedom of expression. A restriction Petitioners,
on this freedom without rhyme or reason is a violation of the most valuable - versus -
feature of the democratic way of life.48
THE HONORABLE EXECUTIVE
WHEREFORE, in light of the foregoing disquisitions, the instant petition is SECRETARY, PNP DIRECTOR
hereby GRANTED. Section 7(g) items (5) and (6), in relation to Section 7(f), of GENRAL ARTURO LOMIBAO,
Resolution No. 9615 issued by the Commission on Elections are hereby HONORABLE MAYOR LITO
declared NULL and VOID for being repugnant to Sections 1 and 4, Article III of ATIENZA, and PNP MPD CHIEF
the 1987 Constitution. SO ORDERED. SUPT. PEDRO BULAONG,
Respondents.

KILUSANG MAGBUBUKID Petitioners come in three groups.


NG PILIPINAS (KMP),
GABRIELA, Fr. Jose Dizon,
Renato Constantino, Jr., Froyel The first petitioners, Bayan, et al., in G.R. No. 169838,[1] allege that they are
Yaneza, and Fahima Tajar, citizens and taxpayers of the Philippines and that their rights as organizations
Petitioners, and individuals were violated when the rally they participated in on October 6,
2005 was violently dispersed by policemen implementing Batas Pambansa
- versus - G.R. No. 169838 (B.P.) No. 880.

EDUARDO ERMITA, in his


The second group consists of 26 individual petitioners, Jess del Prado, et al.,
capacity as Executive Secretary, in G.R. No. 169848,[2] who allege that they were injured, arrested and detained
Manila City Mayor LITO when a peaceful mass action they held on September 26, 2005 was preempted
ATIENZA, Chief of the Philippine and violently dispersed by the police. They further assert that on October 5,
National Police, Gen. ARTURO 2005, a group they participated in marched to Malacaang to protest issuances
M. LOMIBAO, NCRPO Chief of the Palace which, they claim, put the country under an undeclared martial
Maj. Gen. VIDAL QUEROL, rule, and the protest was likewise dispersed violently and many among them
and Western Police District Chief were arrested and suffered injuries.
Gen. PEDRO BULAONG,
Respondents.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No. institution. Political meetings or rallies held during any election
169881,[3] allege that they conduct peaceful mass actions and that their rights campaign period as provided for by law are not covered by this Act.
as organizations and those of their individual members as citizens, specifically SEC. 5. Application requirements. All applications for a permit shall
the right to peaceful assembly, are affected by Batas Pambansa No. 880 and comply with the following guidelines:
the policy of Calibrated Preemptive Response (CPR) being followed to
implement it. (a) The applications shall be in writing and shall
include the names of the leaders or organizers; the purpose of such
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to public assembly; the date, time and duration thereof, and place or
be conducted at the Mendiola bridge but police blocked them along C.M. Recto streets to be used for the intended activity; and the probable
and Lepanto Streets and forcibly dispersed them, causing injuries to several of number of persons participating, the transport and the public
their members. They further allege that on October 6, 2005, a multi-sectoral address systems to be used.
rally which KMU also co-sponsored was scheduled to proceed along Espaa
Avenue in front of the University of Santo Tomas and going towards Mendiola (b) The application shall incorporate the duty
bridge. Police officers blocked them along Morayta Street and prevented them and responsibility of the applicant under Section 8 hereof.
from proceeding further. They were then forcibly dispersed, causing injuries on
one of them.[4] Three other rallyists were arrested. (c) The application shall be filed with the office
of the mayor of the city or municipality in whose jurisdiction the
All petitioners assail Batas Pambansa No. 880, some of them in toto and others intended activity is to be held, at least five (5) working days before
only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They the scheduled public assembly.
seek to stop violent dispersals of rallies under the no permit, no rally policy and
the CPR policy recently announced. (d) Upon receipt of the application, which must
be duly acknowledged in writing, the office of the city or municipal
B.P. No. 880, The Public Assembly Act of 1985, provides: mayor shall cause the same to immediately be posted at a
conspicuous place in the city or municipal building.
Batas Pambansa Blg. 880
SEC. 6. Action to be taken on the application.
AN ACT ENSURING THE FREE EXERCISE BY THE
PEOPLE OF THEIR RIGHT PEACEABLY TO (a) It shall be the duty of the mayor or any
ASSEMBLE AND PETITION THE official acting in his behalf to issue or grant a permit unless there is
GOVERNMENT [AND] FOR OTHER clear and convincing evidence that the public assembly will create a
PURPOSES clear and present danger to public order, public safety, public
convenience, public morals or public health.
Be it enacted by the Batasang Pambansa in session
assembled: (b) The mayor or any official acting in his behalf
shall act on the application within two (2) working days from the
SECTION 1. Title. This Act shall be known as The Public date the application was filed, failing which, the permit shall be
Assembly Act of 1985. deemed granted. Should for any reason the mayor or any official
acting in his behalf refuse to accept the application for a permit, said
SEC. 2. Declaration of policy. The constitutional right of the people application shall be posted by the applicant on the premises of the
peaceably to assemble and petition the government for redress of office of the mayor and shall be deemed to have been filed.
grievances is essential and vital to the strength and stability of the
State. To this end, the State shall ensure the free exercise of such (c) If the mayor is of the view that there is imminent and
right without prejudice to the rights of others to life, liberty and equal grave danger of a substantive evil warranting the denial or modification of
protection of the law. the permit, he shall immediately inform the applicant who must be heard on
the matter.
SEC. 3. Definition of terms. For purposes of this Act:
(d) The action on the permit shall be in writing
(a) Public assembly means any rally, demonstration, and served on the applica[nt] within twenty-four hours.
march, parade, procession or any other form of mass or concerted
action held in a public place for the purpose of presenting a lawful (e) If the mayor or any official acting in his behalf
cause; or expressing an opinion to the general public on any denies the application or modifies the terms thereof in his permit, the
particular issue; or protesting or influencing any state of affairs applicant may contest the decision in an appropriate court of law.
whether political, economic or social; or petitioning the government
for redress of grievances. (f) In case suit is brought before the
Metropolitan Trial Court, the Municipal Trial Court, the Municipal
The processions, rallies, parades, demonstrations, public meetings Circuit Trial Court, the Regional Trial Court, or the Intermediate
and assemblages for religious purposes shall be governed by local Appellate court, its decisions may be appealed to the appropriate
ordinances; Provided, however, That the declaration of policy as court within forty-eight (48) hours after receipt of the same. No
provided in Section 2 of this Act shall be faithfully observed. appeal bond and record on appeal shall be required. A decision
granting such permit or modifying it in terms satisfactory to the
The definition herein contained shall not include picketing and other applicant shall be immediately executory.
concerted action in strike areas by workers and employees resulting
from a labor dispute as defined by the Labor Code, its implementing (g) All cases filed in court under this section shall
rules and regulations, and by the Batas Pambansa Bilang 227. be decided within twenty-four (24) hours from date of filing. Cases
filed hereunder shall be immediately endorsed to the executive judge
(b) Public place shall include any highway, boulevard, avenue, road, for disposition or, in his absence, to the next in rank.
street, bridge or other thoroughfare, park, plaza, square, and/or any
open space of public ownership where the people are allowed (h) In all cases, any decision may be appealed
access. to the Supreme Court.

(c) Maximum tolerance means the highest degree of restraint that (i) Telegraphic appeals to be
the military, police and other peace keeping authorities shall followed by formal appeals are hereby allowed.
observe during a public assembly or in the dispersal of the same.
SEC. 7. Use of Public throroughfare. Should the proposed
(d) Modification of a permit shall include the change of the place public assembly involve the use, for an appreciable length of time, of
and time of the public assembly, rerouting of the parade or street any public highway, boulevard, avenue, road or street, the mayor or
march, the volume of loud-speakers or sound system and similar any official acting in his behalf may, to prevent grave public
changes. inconvenience, designate the route thereof which is convenient to
the participants or reroute the vehicular traffic to another direction so
SEC. 4. Permit when required and when not required. A written that there will be no serious or undue interference with the free flow
permit shall be required for any person or persons to organize and of commerce and trade.
hold a public assembly in a public place. However, no permit shall
be required if the public assembly shall be done or made in a SEC. 8. Responsibility of applicant. It shall be the duty
freedom park duly established by law or ordinance or in private and responsibility of the leaders and organizers of a public assembly
property, in which case only the consent of the owner or the one to take all reasonable measures and steps to the end that the
entitled to its legal possession is required, or in the campus of a intended public assembly shall be conducted peacefully in
government-owned and operated educational institution which shall accordance with the terms of the permit. These shall include but not
be subject to the rules and regulations of said educational be limited to the following:
secured that written permit where a permit is required from the
(a) To inform the participants of their office concerned, or the use of such permit for such purposes in any
responsibility under the permit; place other than those set out in said permit: Provided, however,
That no person can be punished or held criminally liable for
(b) To police the ranks of the demonstrators in participating in or attending an otherwise peaceful assembly;
order to prevent non-demonstrators from disrupting the lawful
activities of the public assembly; (b) Arbitrary and unjustified denial or
modification of a permit in violation of the provisions of this Act by
(c) To confer with local government officials concerned and the mayor or any other official acting in his behalf;
law enforcers to the end that the public assembly may be held peacefully;
(d) To see to it that the public assembly (c) The unjustified and arbitrary refusal to
undertaken shall not go beyond the time stated in the permit; and accept or acknowledge receipt of the application for a permit by the
mayor or any official acting in his behalf;
(e) To take positive steps that demonstrators do not molest
any person or do any act unduly interfering with the rights of other persons not (d) Obstructing, impeding, disrupting or
participating in the public assembly. otherwise denying the exercise of the right to peaceful assembly;

SEC. 9. Non-interference by law enforcement authorities. Law (e) The unnecessary firing of firearms by a
enforcement agencies shall not interfere with the holding of a public member of any law enforcement agency or any person to disperse
assembly. However, to adequately ensure public safety, a law enforcement the public assembly;
contingent under the command of a responsible police officer may be detailed
and stationed in a place at least one hundred (100) meters away from the area (f) Acts in violation of Section 10 hereof;
of activity ready to maintain peace and order at all times.
(g) Acts described hereunder if committed
SEC. 10. Police assistance when requested. It shall be imperative within one hundred (100) meters from the area of activity of the
for law enforcement agencies, when their assistance is requested by the public assembly or on the occasion thereof:
leaders or organizers, to perform their duties always mindful that their
responsibility to provide proper protection to those exercising their right 1. the carrying of a deadly or offensive
peaceably to assemble and the freedom of expression is primordial. Towards weapon or device such as firearm, pillbox,
this end, law enforcement agencies shall observe the following guidelines: bomb, and the like;

(a) Members of the law enforcement contingent who deal 2. the carrying of a bladed weapon and
with the demonstrators shall be in complete uniform with their nameplates and the like;
units to which they belong displayed prominently on the front and dorsal parts 3. the malicious burning of any object in
of their uniform and must observe the policy of maximum tolerance as herein the streets or thoroughfares;
defined;
4. the carrying of firearms by members of
(b) The members of the law enforcement contingent shall the law enforcement unit;
not carry any kind of firearms but may be equipped with baton or riot sticks,
shields, crash helmets with visor, gas masks, boots or ankle high shoes with 5. the interfering with or intentionally
shin guards; disturbing the holding of a public assembly
by the use of a motor vehicle, its horns and
(c) Tear gas, smoke grenades, water cannons, or any similar anti- loud sound systems.
riot device shall not be used unless the public assembly is attended
by actual violence or serious threats of violence, or deliberate SEC. 14. Penalties. Any person found guilty and
destruction of property. convicted of any of the prohibited acts defined in the immediately
preceding section shall be punished as follows:
SEC. 11. Dispersal of public assembly with permit. No public assembly with
a permit shall be dispersed. However, when an assembly becomes (a) violation of subparagraph (a) shall be
violent, the police may disperse such public assembly as follows: punished by imprisonment of one month and one day to six
months;
(a) At the first sign of impending violence, the ranking officer of the
law enforcement contingent shall call the attention of the leaders of (b) violations of subparagraphs (b), (c), (d),
the public assembly and ask the latter to prevent any possible (e), (f), and item 4, subparagraph (g) shall be punished by
disturbance; imprisonment of six months and one day to six years;

(b) If actual violence starts to a point where rocks or other harmful (c) violation of item 1, subparagraph (g) shall
objects from the participants are thrown at the police or at the non- be punished by imprisonment of six months and one day to six
participants, or at any property causing damage to such property, years without prejudice to prosecution under Presidential Decree
the ranking officer of the law enforcement contingent shall audibly No. 1866;
warn the participants that if the disturbance persists, the public
assembly will be dispersed; (d) violations of item 2, item 3, or item 5 of
subparagraph (g) shall be punished by imprisonment of one day
(c) If the violence or disturbance prevailing as stated in the to thirty days.
preceding subparagraph should not stop or abate, the ranking
officer of the law enforcement contingent shall audibly issue a SEC. 15. Freedom parks. Every city and municipality in
warning to the participants of the public assembly, and after the country shall within six months after the effectivity of this Act
allowing a reasonable period of time to lapse, shall immediately establish or designate at least one suitable freedom park or mall
order it to forthwith disperse; in their respective jurisdictions which, as far as practicable, shall
be centrally located within the poblacion where demonstrations
(d) No arrest of any leader, organizer or participant shall also be and meetings may be held at any time without the need of any
made during the public assembly unless he violates during the prior permit.
assembly a law, statute, ordinance or any provision of this
Act. Such arrest shall be governed by Article 125 of the Revised In the cities and municipalities of Metropolitan Manila, the
Penal Code, as amended; respective mayors shall establish the freedom parks within the
period of six months from the effectivity this Act.
(e) Isolated acts or incidents of disorder or breach of the peace
during the public assembly shall not constitute a ground for SEC. 16. Constitutionality. Should any provision of this Act be
dispersal. declared invalid or unconstitutional, the validity or constitutionality
of the other provisions shall not be affected thereby.
SEC. 12. Dispersal of public assembly without permit. When the public
assembly is held without a permit where a permit is required, the SEC. 17. Repealing clause. All laws, decrees, letters of
said public assembly may be peacefully dispersed. instructions, resolutions, orders, ordinances or parts thereof which
are inconsistent with the provisions of this Act are hereby
SEC. 13. Prohibited acts. The following shall constitute violations of the Act: repealed, amended, or modified accordingly.

(a) The holding of any public assembly as SEC. 18. Effectivity. This Act shall take effect upon its approval.
defined in this Act by any leader or organizer without having first
Approved, October 22, 1985. the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it
causes a chilling effect on the exercise by the people of the right to peaceably
CPR, on the other hand, is a policy set forth in a press release by Malacaang assemble.
dated September 21, 2005, shown in Annex A to the Petition in G.R. No.
169848, thus: Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive
Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National
Malacaang Official Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office
Manila, Philippines NEWS (NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District (MPD)
Chief Gen. Pedro Bulaong.
Release No. 2 September 21, 2005
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary
and in his personal capacity; Angelo Reyes, as Secretary of the Interior and
STATEMENT OF EXECUTIVE SECRETARY EDUARDO Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief,
ERMITA NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and
private individuals acting under their control, supervision and instruction.
On Unlawful Mass Actions
Respondents in G.R. No. 169881 are the Honorable Executive Secretary,
In view of intelligence reports pointing to credible plans of PNP Director General Arturo Lomibao, the Honorable Mayor Joselito
anti-government groups to inflame the political situation, Atienza, and PNP MPD Chief Pedro Bulaong.
sow disorder and incite people against the duly
constituted authorities, we have instructed the PNP as Respondents argue that:
well as the local government units to strictly enforce a no
permit, no rally policy, disperse groups that run afoul of 1. Petitioners have no standing because they have not
this standard and arrest all persons violating the laws of presented evidence that they had been injured, arrested or detained because of
the land as well as ordinances on the proper conduct of the CPR, and that those arrested stand to be charged with violating Batas
mass actions and demonstrations. Pambansa [No.] 880 and other offenses.

The rule of calibrated preemptive response is now in 2. Neither B.P. No. 880 nor CPR is void on its
force, in lieu of maximum tolerance. The authorities will face. Petitioners cannot honestly claim that the time, place and manner
not stand aside while those with ill intent are herding a regulation embodied in B.P. No. 880 violates the three-pronged test for such a
witting or unwitting mass of people and inciting them into measure, to wit: (a) B.P. No. 880 is content-neutral, i.e., it has no reference to
actions that are inimical to public order, and the peace of content of regulated speech; (b) B.P. No. 880 is narrowly tailored to serve a
mind of the national community. significant governmental interest, i.e., the interest cannot be equally well served
by a means that is less intrusive of free speech interests; and (c) B.P. No. 880
Unlawful mass actions will be dispersed. The majority of leaves open alternative channels for communication of the information.[6]
law-abiding citizens have the right to be protected by a
vigilant and proactive government. 3. B.P. No. 880 is content-neutral as seen from the text of
the law. Section 5 requires the statement of the public assemblys time, place
We appeal to the detractors of the government to engage and manner of conduct. It entails traffic re-routing to prevent grave public
in lawful and peaceful conduct befitting of a democratic inconvenience and serious or undue interference in the free flow of commerce
society. and trade. Furthermore, nothing in B.P. No. 880 authorizes the denial of a
permit on the basis of a rallys program content or the statements of the
The Presidents call for unity and reconciliation stands, speakers therein, except under the constitutional precept of the clear and
based on the rule of law. present danger test. The status of B.P. No. 880 as a content-neutral regulation
has been recognized in Osmea v. Comelec.[7]
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a
violation of the Constitution and the International Covenant on Civil and Political 4. Adiong v. Comelec[8] held that B.P. No. 880 is a content-
Rights and other human rights treaties of which the Philippines is a signatory.[5] neutral regulation of the time, place and manner of holding public assemblies
and the law passes the test for such regulation, namely, these regulations need
They argue that B.P. No. 880 requires a permit before one can stage a public only a substantial governmental interest to support them.
assembly regardless of the presence or absence of a clear and present
danger. It also curtails the choice of venue and is thus repugnant to the freedom 5. Sangalang v. Intermediate Appellate Court[9] held that a
of expression clause as the time and place of a public assembly form part of the local chief executive has the authority to exercise police power to meet the
message for which the expression is sought. Furthermore, it is not content- demands of the common good in terms of traffic decongestion and public
neutral as it does not apply to mass actions in support of the government. The convenience. Furthermore, the discretion given to the mayor is narrowly
words lawful cause, opinion, protesting or influencing suggest the exposition of circumscribed by Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the
some cause not espoused by the government. Also, the phrase maximum law.
tolerance shows that the law applies to assemblies against the government
because they are being tolerated. As a content-based legislation, it cannot pass 6. The standards set forth in the law are not
the strict scrutiny test. inconsistent. Clear and convincing evidence that the public assembly will create
a clear and present danger to public order, public safety, public convenience,
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is public morals or public health and imminent and grave danger of a substantive
unconstitutional as it is a curtailment of the right to peacefully assemble and evil both express the meaning of the clear and present danger test.[10]
petition for redress of grievances because it puts a condition for the valid
exercise of that right. It also characterizes public assemblies without a permit as 7. CPR is simply the responsible and judicious use of
illegal and penalizes them and allows their dispersal. Thus, its provisions are means allowed by existing laws and ordinances to protect public interest and
not mere regulations but are actually prohibitions. restore public order. Thus, it is not accurate to call it a new rule but rather it is a
more pro-active and dynamic enforcement of existing laws, regulations and
Furthermore, the law delegates powers to the Mayor without providing clear ordinances to prevent chaos in the streets. It does not replace the rule of
standards. The two standards stated in the laws (clear and present danger and maximum tolerance in B.P. No. 880.
imminent and grave danger) are inconsistent.
Respondent Mayor Joselito Atienza, for his part, submitted in his
Regarding the CPR policy, it is void for being an ultra vires act that alters the Comment that the petition in G.R. No. 169838 should be dismissed on the
standard of maximum tolerance set forth in B.P. No. 880, aside from being void ground that Republic Act No. 7160 gives the Mayor power to deny a permit
for being vague and for lack of publication. independently of B.P. No. 880; that his denials of permits were under the clear
and present danger rule as there was a clamor to stop rallies that disrupt the
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on the economy and to protect the lives of other people; that J. B. L. Reyes v.
right to assembly and therefore B.P. No. 880 cannot put the prior requirement of Bagatsing,[11] Primicias v. Fugoso,[12] and Jacinto v. CA,[13] have affirmed the
securing a permit. And even assuming that the legislature can set limits to this constitutionality of requiring a permit; that the permit is for the use of a public
right, the limits provided are unreasonable: First, allowing the Mayor to deny the place and not for the exercise of rights; and that B.P. No. 880 is not a content-
permit on clear and convincing evidence of a clear and present danger is too based regulation because it covers all rallies.
comprehensive.Second, the five-day requirement to apply for a permit is too
long as certain events require instant public assembly, otherwise interest on the The petitions were ordered consolidated on February 14, 2006. After
issue would possibly wane. the submission of all the Comments, the Court set the cases for oral arguments
on April 4, 2006,[14] stating the principal issues, as follows:
As to the CPR policy, they argue that it is preemptive, that the government
takes action even before the rallyists can perform their act, and that no law,
ordinance or executive order supports the policy.Furthermore, it contravenes
1. On the constitutionality of Batas Pambansa protest against grievances whether real or imaginary,
No. 880, specifically Sections 4, 5, 6, 12 13(a) because on such occasions feeling is always wrought to a
and 14(a) thereof, and Republic Act No. 7160: high pitch of excitement, and the greater, the grievance
and the more intense the feeling, the less perfect, as a
(a) Are these content-neutral or rule will be the disciplinary control of the leaders over their
content-based regulations? irresponsible followers. But if the prosecution be permitted
(b) Are they void on grounds of to seize upon every instance of such disorderly conduct
overbreadth or vagueness? by individual members of a crowd as an excuse to
(c) Do they constitute prior restraint? characterize the assembly as a seditious and tumultuous
(d) Are they undue delegations of rising against the authorities, then the right to assemble
powers to Mayors? and to petition for redress of grievances would become a
(e) Do they violate international delusion and a snare and the attempt to exercise it on the
human rights treaties and the most righteous occasion and in the most peaceable
Universal Declaration of Human manner would expose all those who took part therein to
Rights? the severest and most unmerited punishment, if the
purposes which they sought to attain did not happen to be
2. On the constitutionality and legality of the pleasing to the prosecuting authorities. If instances of
policy of Calibrated Preemptive Response disorderly conduct occur on such occasions, the guilty
(CPR): individuals should be sought out and punished therefor,
but the utmost discretion must be exercised in drawing the
(a) Is the policy void on its face or line between disorderly and seditious conduct and
due to vagueness? between an essentially peaceable assembly and a
(b) Is it void for lack of publication? tumultuous uprising.
(c) Is the policy of CPR void as
applied to the rallies of September
26 and October 4, 5 and 6, 2005? Again, in Primicias v. Fugoso,[17] the Court likewise sustained the
primacy of freedom of speech and to assembly and petition over comfort and
During the course of the oral arguments, the following developments convenience in the use of streets and parks.
took place and were approved and/or noted by the Court:
Next, however, it must be remembered that the right, while
1. Petitioners, in the interest of a speedy resolution of the sacrosanct, is not absolute. In Primicias, this Court said:
petitions, withdrew the portions of their petitions raising factual issues,
particularly those raising the issue of whether B.P. No. 880 and/or CPR is void The right to freedom of speech, and to
as applied to the rallies of September 20, October 4, 5 and 6, 2005. peacefully assemble and petition the government for
redress of grievances, are fundamental personal rights of
2. The Solicitor General agreed with the observation of the the people recognized and guaranteed by the
Chief Justice that CPR should no longer be used as a legal term inasmuch as, constitutions of democratic countries. But it is a settled
according to respondents, it was merely a catchword intended to clarify what principle growing out of the nature of well-ordered civil
was thought to be a misunderstanding of the maximum tolerance policy set societies that the exercise of those rights is not absolute
forth in B.P. No. 880 and that, as stated in the affidavit executed by Executive for it may be so regulated that it shall not be injurious to
Secretary Eduardo Ermita and submitted to the Ombudsman, it does not the equal enjoyment of others having equal rights, nor
replace B.P. No. 880 and the maximum tolerance policy embodied in that law. injurious to the rights of the community or society. The
power to regulate the exercise of such and other
The Court will now proceed to address the principal issues, taking constitutional rights is termed the sovereign police power,
into account the foregoing developments. which is the power to prescribe regulations, to promote
the health, morals, peace, education, good order or
Petitioners standing cannot be seriously challenged. Their right as safety, and general welfare of the people. This sovereign
citizens to engage in peaceful assembly and exercise the right of petition, as police power is exercised by the government through its
guaranteed by the Constitution, is directly affected by B.P. No. 880 which legislative branch by the enactment of laws regulating
requires a permit for all who would publicly assemble in the nations streets and those and other constitutional and civil rights, and it may
parks. They have, in fact, purposely engaged in public assemblies without the be delegated to political subdivisions, such as towns,
required permits to press their claim that no such permit can be validly required municipalities and cities by authorizing their legislative
without violating the Constitutional guarantee. Respondents, on the other hand, bodies called municipal and city councils to enact
have challenged such action as contrary to law and dispersed the public ordinances for the purpose.[18]
assemblies held without the permit.

Section 4 of Article III of the Constitution provides: Reyes v. Bagatsing[19] further expounded on the right and its limits,
as follows:
SEC. 4. No law shall be passed abridging the 1. It is thus clear that the Court is called upon
freedom of speech, of expression, or of the press, or the to protect the exercise of the cognate rights to free speech
right of the people peaceably to assemble and petition the and peaceful assembly, arising from the denial of a
government for redress of grievances. permit. The Constitution is quite explicit: No law shall be
passed abridging the freedom of speech, or of the press,
The first point to mark is that the right to peaceably assemble and or the right of the people peaceably to assemble and
petition for redress of grievances is, together with freedom of speech, of petition the Government for redress of grievances. Free
expression, and of the press, a right that enjoys primacy in the realm of speech, like free press, may be identified with the liberty
constitutional protection. For these rights constitute the very basis of a to discuss publicly and truthfully any matter of public
functional democratic polity, without which all the other rights would be concern without censorship or punishment. There is to be
meaningless and unprotected. As stated in Jacinto v. CA,[15] the Court, as early then no previous restraint on the communication of views
as the onset of this century, in U.S. v. Apurado,[16] already upheld the right to or subsequent liability whether in libel suits, prosecution
assembly and petition, as follows: for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger
There is no question as to the petitioners rights of a substantive evil that [the State] has a right to
to peaceful assembly to petition the government for a prevent. Freedom of assembly connotes the right of the
redress of grievances and, for that matter, to organize or people to meet peaceably for consultation and discussion
form associations for purposes not contrary to law, as well of matters of public concern. It is entitled to be accorded
as to engage in peaceful concerted activities. These rights the utmost deference and respect. It is not to be limited,
are guaranteed by no less than the Constitution, much less denied, except on a showing, as is the case
particularly Sections 4 and 8 of the Bill of Rights, Section with freedom of expression, of a clear and present danger
2(5) of Article IX, and Section 3 of Article XIII. of a substantive evil that the state has a right to
Jurisprudence abounds with hallowed pronouncements prevent. Even prior to the 1935 Constitution, Justice
defending and promoting the peoples exercise of these Malcolm had occasion to stress that it is a necessary
rights. As early as the onset of this century, this Court consequence of our republican institutions and
in U.S. vs. Apurado, already upheld the right to assembly complements the right of free speech. To paraphrase the
and petition and even went as far as to acknowledge: opinion of Justice Rutledge, speaking for the majority of
the American Supreme Court in Thomas v. Collins, it was
It is rather to be expected that more or less not by accident or coincidence that the rights to freedom
disorder will mark the public assembly of the people to of speech and of the press were coupled in a single
guarantee with the rights of the people peaceably to thus nullified a contract that leased Plaza Soledad of
assemble and to petition the government for redress of plaintiff-municipality. Reference was made to such plaza
grievances. All these rights, while not identical, are being a promenade for public use, which certainly is not
inseparable. In every case, therefore, where there is a the only purpose that it could serve. To repeat, there can
limitation placed on the exercise of this right, the judiciary be no valid reason why a permit should not be granted for
is called upon to examine the effects of the challenged the proposed march and rally starting from a public park
governmental actuation. The sole justification for a that is the Luneta.
limitation on the exercise of this right, so fundamental to
the maintenance of democratic institutions, is the danger, 4. Neither can there be any valid objection to
of a character both grave and imminent, of a serious evil the use of the streets to the gates of the US embassy,
to public safety, public morals, public health, or any other hardly two blocks away at the Roxas Boulevard. Primicias
legitimate public interest. v. Fugoso has resolved any lurking doubt on the matter. In
holding that the then Mayor Fugoso of the City of Manila
2. Nowhere is the rationale that underlies the freedom of should grant a permit for a public meeting at Plaza
expression and peaceable assembly better expressed Miranda in Quiapo, this Court categorically declared: Our
than in this excerpt from an opinion of Justice conclusion finds support in the decision in the case of
Frankfurter: It must never be forgotten, however, that the Willis Cox v. State of New Hampshire, 312 U.S., 569. In
Bill of Rights was the child of the Enlightenment. Back of that case, the statute of New Hampshire P.L. chap. 145,
the guaranty of free speech lay faith in the power of an section 2, providing that no parade or procession upon
appeal to reason by all the peaceful means for gaining any ground abutting thereon, shall be permitted unless a
access to the mind. It was in order to avert force and special license therefor shall first be obtained from the
explosions due to restrictions upon rational modes of selectmen of the town or from licensing committee, was
communication that the guaranty of free speech was construed by the Supreme Court of New Hampshire as
given a generous scope. But utterance in a context of not conferring upon the licensing board unfettered
violence can lose its significance as an appeal to reason discretion to refuse to grant the license, and held
and become part of an instrument of force. Such valid. And the Supreme Court of the United States, in its
utterance was not meant to be sheltered by the decision (1941) penned by Chief Justice Hughes affirming
Constitution. What was rightfully stressed is the the judgment of the State Supreme Court, held that a
abandonment of reason, the utterance, whether verbal or statute requiring persons using the public streets for a
printed, being in a context of violence. It must always be parade or procession to procure a special license therefor
remembered that this right likewise provides for a safety from the local authorities is not an unconstitutional
valve, allowing parties the opportunity to give vent to their abridgment of the rights of assembly or of freedom of
views, even if contrary to the prevailing climate of speech and press, where, as the statute is construed by
opinion. For if the peaceful means of communication the state courts, the licensing authorities are strictly
cannot be availed of, resort to non-peaceful means may limited, in the issuance of licenses, to a consideration of
be the only alternative. Nor is this the sole reason for the the time, place, and manner of the parade or procession,
expression of dissent. It means more than just the right to with a view to conserving the public convenience and of
be heard of the person who feels aggrieved or who is affording an opportunity to provide proper policing, and
dissatisfied with things as they are. Its value may lie in the are not invested with arbitrary discretion to issue or refuse
fact that there may be something worth hearing from the license, * * *. Nor should the point made by Chief Justice
dissenter. That is to ensure a true ferment of ideas. There Hughes in a subsequent portion of the opinion be ignored:
are, of course, well-defined limits.What is guaranteed is Civil liberties, as guaranteed by the Constitution, imply the
peaceable assembly. One may not advocate disorder in existence of an organized society maintaining public order
the name of protest, much less preach rebellion under the without which liberty itself would be lost in the excesses of
cloak of dissent. The Constitution frowns on disorder or unrestricted abuses. The authority of a municipality to
tumult attending a rally or assembly.Resort to force is impose regulations in order to assure the safety and
ruled out and outbreaks of violence to be avoided. The convenience of the people in the use of public highways
utmost calm though is not required. As pointed out in an has never been regarded as inconsistent with civil liberties
early Philippine case, penned in 1907 to be but rather as one of the means of safeguarding the good
precise, United States v. Apurado: It is rather to be order upon which they ultimately depend. The control of
expected that more or less disorder will mark the public travel on the streets of cities is the most familiar
assembly of the people to protest against grievances illustration of this recognition of social need. Where a
whether real or imaginary, because on such occasions restriction of the use of highways in that relation is
feeling is always wrought to a high pitch of excitement, designed to promote the public convenience in the
and the greater the grievance and the more intense the interest of all, it cannot be disregarded by the attempted
feeling, the less perfect, as a rule, will be the disciplinary exercise of some civil right which in other circumstances
control of the leaders over their irresponsible followers. It would be entitled to protection.
bears repeating that for the constitutional right to be
invoked, riotous conduct, injury to property, and acts of xxx
vandalism must be avoided. To give free rein to ones 6. x x x The principle under American doctrines was given
destructive urges is to call for condemnation. It is to make utterance by Chief Justice Hughes in these words: The
a mockery of the high estate occupied by intellectual question, if the rights of free speech and peaceable
liberty in our scheme of values. assembly are to be preserved, is not as to the auspices
under which the meeting is held but as to its purpose; not
There can be no legal objection, absent the existence of a as to the relations of the speakers, but whether their
clear and present danger of a substantive evil, on the utterances transcend the bounds of the freedom of
choice of Luneta as the place where the peace rally would speech which the Constitution protects. There could be
start. The Philippines is committed to the view expressed danger to public peace and safety if such a gathering
in the plurality opinion, of 1939 vintage, of Justice Roberts were marked by turbulence. That would deprive it of its
in Hague v. CIO: Whenever the title of streets and parks peaceful character. Even then, only the guilty parties
may rest, they have immemorially been held in trust for should be held accountable. It is true that the licensing
the use of the public and, time out of mind, have been official, here respondent Mayor, is not devoid of discretion
used for purposes of assembly, communicating thoughts in determining whether or not a permit would be
between citizens, and discussing public questions. Such granted. It is not, however, unfettered discretion. While
use of the streets and public places has, from ancient prudence requires that there be a realistic appraisal not of
times, been a part of the privileges, immunities, rights and what may possibly occur but of what may probably occur,
liberties of citizens. The privilege of a citizen of the United given all the relevant circumstances, still the assumption
States to use the streets and parks for communication of especially so where the assembly is scheduled for a
views on national questions may be regulated in the specific public place is that the permit must be for the
interest of all; it is not absolute, but relative, and must be assembly being held there. The exercise of such a right,
exercised in subordination to the general comfort and in the language of Justice Roberts, speaking for the
convenience, and in consonance with peace and good American Supreme Court, is not to be abridged on the
order; but must not, in the guise of regulation, be abridged plea that it may be exercised in some other place.
or denied. The above excerpt was quoted with approval in
Primicias v. Fugoso. Primicias made explicit what was xxx
implicit in Municipality of Cavite v. Rojas, a 1915 decision,
where this Court categorically affirmed that plazas or 8. By way of a summary. The applicants for a permit to
parks and streets are outside the commerce of man and hold an assembly should inform the licensing authority of
the date, the public place where and the time when it will be heard on the which, the permit shall be deemed granted. Should
take place. If it were a private place, only the consent of matter. Thereafter, for any reason the mayor or any official acting in his
the owner or the one entitled to its legal possession is his decision, behalf refuse to accept the application for a permit,
required. Such application should be filed well ahead in whether favorable said application shall be posted by the applicant on
time to enable the public official concerned to appraise or adverse, must the premises of the office of the mayor and shall be
whether there may be valid objections to the grant of the be transmitted to deemed to have been filed.
permit or to its grant but at another public place. It is an them at the earliest (c) If the mayor is of the view that there is
indispensable condition to such refusal or modification opportunity. Thus if imminent and grave danger of a substantive evil
that the clear and present danger test be the standard for so minded, they warranting the denial or modification of the permit,
the decision reached. If he is of the view that there is such can have recourse he shall immediately inform the applicant who must
an imminent and grave danger of a substantive evil, the to the proper be heard on the matter.
applicants must be heard on the matter. Thereafter, his judicial authority. (d) The action on the permit shall be in writing
decision, whether favorable or adverse, must be and served on the applica[nt] within twenty-four
transmitted to them at the earliest opportunity. Thus if so hours.
minded, they can have recourse to the proper judicial (e) If the mayor or any official acting in his
authority. Free speech and peaceable assembly, along behalf denies the application or modifies the terms
with the other intellectual freedoms, are highly ranked in thereof in his permit, the applicant may contest the
our scheme of constitutional values. It cannot be too decision in an appropriate court of law.
strongly stressed that on the judiciary, -- even more so (f) In case suit is brought before the
than on the other departments rests the grave and Metropolitan Trial Court, the Municipal Trial Court,
delicate responsibility of assuring respect for and the Municipal Circuit Trial Court, the Regional Trial
deference to such preferred rights. No verbal formula, no Court, or the Intermediate Appellate Court, its
sanctifying phrase can, of course, dispense with what has decisions may be appealed to the appropriate court
been so felicitiously termed by Justice Holmes as the within forty-eight (48) hours after receipt of the
sovereign prerogative of judgment. Nonetheless, the same. No appeal bond and record on appeal shall
presumption must be to incline the weight of the scales of be required. A decision granting such permit or
justice on the side of such rights, enjoying as they do modifying it in terms satisfactory to the applicant
precedence and primacy. x x x. shall be immediately executory.
(g) All cases filed in court under this section
shall be decided within twenty-four (24) hours from
B.P. No. 880 was enacted after this Court rendered its decision in Reyes. date of filing. Cases filed hereunder shall be
immediately endorsed to the executive judge for
The provisions of B.P. No. 880 practically codify the ruling in Reyes: disposition or, in his absence, to the next in rank.
(h) In all cases, any decision may be appealed
to the Supreme Court.
Reyes v. B.P. No. 880 (i) Telegraphic appeals to be followed by formal
Bagatsing appeals are hereby allowed.
(G.R. No. L-
65366, November
9, 1983, SEC. 4. Permit when required and when not
125 SCRA 553, required.-- A written permit shall be required for any It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
569) person or persons to organize and hold a public assemblies but a restriction that simply regulates the time, place and manner of
assembly in a public place. However, no permit the assemblies. This was adverted to in Osmea v. Comelec,[20] where the Court
8. By way of a shall be required if the public assembly shall be referred to it as a content-neutral regulation of the time, place, and manner of
summary. The done or made in a freedom park duly established holding public assemblies.[21]
applicants for a by law or ordinance or in private property, in which
permit to hold an case only the consent of the owner or the one A fair and impartial reading of B.P. No. 880 thus readily shows that it refers
assembly should entitled to its legal possession is required, or in the to all kinds of public assemblies[22] that would use public places. The reference
inform the licensing campus of a government-owned and operated to lawful cause does not make it content-based because assemblies really have
authority of the educational institution which shall be subject to the to be for lawful causes, otherwise they would not be peaceable and entitled to
date, the public rules and regulations of said educational institution. protection. Neither are the words opinion, protesting and influencing in the
place where and Political meetings or rallies held during any election definition of public assembly content based, since they can refer to any
the time when it will campaign period as provided for by law are not subject. The words petitioning the government for redress of grievances come
take place. If it covered by this Act. from the wording of the Constitution, so its use cannot be avoided. Finally,
were a private SEC. 5. Application requirements.-- All maximum tolerance is for the protection and benefit of all rallyists and is
place, only the applications for a permit shall comply with the independent of the content of the expressions in the rally.
consent of the following guidelines:
owner or the one (a) The applications shall be in writing and shall Furthermore, the permit can only be denied on the ground of clear and present
entitled to its legal include the names of the leaders or organizers; the danger to public order, public safety, public convenience, public morals or
possession is purpose of such public assembly; the date, time public health. This is a recognized exception to the exercise of the right even
required. Such and duration thereof, and place or streets to be under the Universal Declaration of Human Rights and the International
application should used for the intended activity; and the probable Covenant on Civil and Political Rights, thus:
be filed well ahead number of persons participating, the transport and
in time to enable the public address systems to be used.
the public official (b) The application shall incorporate the duty Universal Declaration of Human Rights
concerned to and responsibility of applicant under Section 8
appraise whether hereof. Article 20
there may be valid (c) The application shall be filed with the office
objections to the of the mayor of the city or municipality in whose 1. Everyone has the right to freedom
grant of the permit jurisdiction the intended activity is to be held, at of peaceful assembly and association.
or to its grant but at least five (5) working days before the scheduled
another public public assembly. xxx
place. It is an (d) Upon receipt of the application, which must
indispensable be duly acknowledged in writing, the office of the Article 29
condition to such city or municipal mayor shall cause the same to
refusal or immediately be posted at a conspicuous place in 1. Everyone has duties to the community in
modification that the city or municipal building. which alone the free and full development of his
the clear and personality is possible.
present danger test SEC. 6. Action to be taken on the application.
be the standard for (a) It shall be the duty of the mayor or any 2. In the exercise of his rights and freedoms,
the decision official acting in his behalf to issue or grant a permit everyone shall be subject only to such limitations as are
reached. If he is of unless there is clear and convincing evidence that determined by law solely for the purpose of securing due
the view that there the public assembly will create a clear and present recognition and respect for the rights and freedoms of
is such an danger to public order, public safety, public others and of meeting the just requirements of morality,
imminent and convenience, public morals or public health. public order and the general welfare in a democratic
grave danger of a (b) The mayor or any official acting in his behalf society.
substantive evil, shall act on the application within two (2) working
the applicants must days from the date the application was filed, failing
3. These rights and freedoms may in no case effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The
be exercised contrary to the purposes and principles of matter appears to have been taken for granted amidst the swell of freedom that
the United Nations. rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential
part of the laws system of regulation of the peoples exercise of their right to
The International Covenant on Civil and Political Rights peacefully assemble and petition, the Court is constrained to rule that after thirty
(30) days from the finality of this Decision, no prior permit may be required for
Article 19. the exercise of such right in any public park or plaza of a city or municipality
until that city or municipality shall have complied with Section 15 of the law. For
1. Everyone shall have the right to hold without such alternative forum, to deny the permit would in effect be to deny the
opinions without interference. right. Advance notices should, however, be given to the authorities to ensure
proper coordination and orderly proceedings.
2. Everyone shall have the right to
freedom of expression; this right shall include freedom to The Court now comes to the matter of the CPR. As stated earlier, the
seek, receive and impart information and ideas of all Solicitor General has conceded that the use of the term should now be
kinds, regardless of frontiers, either orally, in writing or in discontinued, since it does not mean anything other than the maximum
print, in the form of art, or through any other media of his tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
choice. respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor
General, thus:
3. The exercise of the rights
provided for in paragraph 2 of this article carries with it 14. The truth of the matter is the policy of calibrated preemptive
special duties and responsibilities. It may therefore be response is in consonance with the legal definition of maximum tolerance
subject to certain restrictions, but these shall only be such under Section 3 (c) of B.P. Blg. 880, which is the highest degree of
as are provided by law and are necessary: restraint that the military, police and other peacekeeping authorities shall
observe during a public assembly or in the dispersal of the
(a) For respect of the rights or same. Unfortunately, however, the phrase maximum tolerance has
reputations of others; acquired a different meaning over the years.Many have taken it to mean
(b) For the protection of national inaction on the part of law enforcers even in the face of mayhem and
security or of public order (ordre serious threats to public order. More so, other felt that they need not
public), or of public health or morals. bother secure a permit when holding rallies thinking this would be
tolerated. Clearly, the popular connotation of maximum tolerance has
departed from its real essence under B.P. Blg. 880.
Contrary to petitioners claim, the law is very clear and is nowhere vague in its
provisions. Public does not have to be defined. Its ordinary meaning is well- 15. It should be emphasized that the policy of
known. Websters Dictionary defines it, thus:[23] maximum tolerance is provided under the same law which requires all
pubic assemblies to have a permit, which allows the dispersal of rallies
public, n, x x x 2a: an organized body of people without a permit, and which recognizes certain instances when water
x x x 3: a group of people distinguished by common cannons may be used. This could only mean that maximum tolerance is
interests or characteristics x x x. not in conflict with a no permit, no rally policy or with the dispersal and use
of water cannons under certain circumstances for indeed, the maximum
Not every expression of opinion is a public assembly. The law refers to rally, amount of tolerance required is dependent on how peaceful or unruly a
demonstration, march, parade, procession or any other form of mass or mass action is. Our law enforcers should calibrate their response based on
concerted action held in a public place. So it does not cover any and all kinds of the circumstances on the ground with the view to preempting the outbreak
gatherings. of violence.

Neither is the law overbroad. It regulates the exercise of the right to peaceful 16. Thus, when I stated that calibrated
assembly and petition only to the extent needed to avoid a clear and present preemptive response is being enforced in lieu of maximum
danger of the substantive evils Congress has the right to prevent. tolerance I clearly was not referring to its legal definition but
to the distorted and much abused definition that it has now
There is, likewise, no prior restraint, since the content of the speech acquired. I only wanted to disabuse the minds of the public
is not relevant to the regulation. from the notion that law enforcers would shirk their
responsibility of keeping the peace even when confronted
As to the delegation of powers to the mayor, the law provides a precise and with dangerously threatening behavior. I wanted to send a
sufficient standard the clear and present danger test stated in Sec. 6(a). The message that we would no longer be lax in enforcing the law
reference to imminent and grave danger of a substantive evil in Sec. 6(c) but would henceforth follow it to the letter. Thus I said, we
substantially means the same thing and is not an inconsistent standard. As to have instructed the PNP as well as the local government units
whether respondent Mayor has the same power independently under Republic to strictly enforce a no permit, no rally policy . . . arrest all
Act No. 7160[24] is thus not necessary to resolve in these proceedings, and was persons violating the laws of the land . . . unlawful mass
not pursued by the parties in their arguments. actions will be dispersed. None of these is at loggerheads
with the letter and spirit of Batas Pambansa Blg. 880. It is thus
Finally, for those who cannot wait, Section 15 of the law provides for absurd for complainants to even claim that I ordered my co-
an alternative forum through the creation of freedom parks where no prior respondents to violate any law.[25]
permit is needed for peaceful assembly and petition at any time:
At any rate, the Court rules that in view of the maximum tolerance
SEC. 15. Freedom parks. Every city and mandated by B.P. No. 880, CPR serves no valid purpose if it means the same
municipality in the country shall within six months after the thing as maximum tolerance and is illegal if it means something
effectivity of this Act establish or designate at least one else. Accordingly, what is to be followed is and should be that mandated by the
suitable freedom park or mall in their respective law itself, namely, maximum tolerance, which specifically means the following:
jurisdictions which, as far as practicable, shall be centrally
located within the poblacion where demonstrations and SEC. 3. Definition of terms. For purposes of
meetings may be held at any time without the need of any this Act:
prior permit.
xxx
In the cities and municipalities of Metropolitan Manila, the
respective mayors shall establish the freedom parks (c) Maximum tolerance means the highest degree of restraint that
within the period of six months from the effectivity this Act. the military, police and other peace keeping authorities shall
observe during a public assembly or in the dispersal of the same.

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

The Solicitor General stated during the oral arguments that, to his knowledge, SEC. 9. Non-interference by law enforcement authorities.
only Cebu City has declared a freedom park Fuente Osmea. Law enforcement agencies shall not interfere with the holding of a
public assembly. However, to adequately ensure public safety, a law
That of Manila, the Sunken Gardens, has since been converted into a golf enforcement contingent under the command of a responsible police
course, he added. officer
may be detailed and stationed in a place at least one hundred (100)
If this is so, the degree of observance of B.P. No. 880s mandate that meters away from the area of activity ready to maintain peace and
every city and municipality set aside a freedom park within six months from its order at all times.
police demand a permit and the rallyists could not produce one, the rally is
SEC. 10. Police assistance when requested. It shall be immediately dispersed. In such a situation, as a necessary consequence and
imperative for law enforcement agencies, when their assistance is part of maximum tolerance, rallyists who can show the police an application
requested by the leaders or organizers, to perform their duties always duly filed on a given date can, after two days from said date, rally in accordance
mindful that their responsibility to provide proper protection to those with their application without the need to show a permit, the grant of the permit
exercising their right peaceably to assemble and the freedom of being then presumed under the law, and it will be the burden of the authorities
expression is primordial. Towards this end, law enforcement agencies to show that there has been a denial of the application, in which case the rally
shall observe the following guidelines: may be peacefully dispersed following the procedure of maximum tolerance
prescribed by the law.
(a) Members of the law enforcement contingent who deal
with the demonstrators shall be in complete uniform with their In sum, this Court reiterates its basic policy of upholding the
nameplates and units to which they belong displayed prominently on fundamental rights of our people, especially freedom of expression and freedom
the front and dorsal parts of their uniform and must observe the of assembly. In several policy addresses, Chief Justice Artemio V. Panganiban
policy of maximum tolerance as herein defined; has repeatedly vowed to uphold the liberty of our people and to nurture their
prosperity. He said that in cases involving liberty, the scales of justice should
(b) The members of the law enforcement contingent shall weigh heavily against the government and in favor of the poor, the oppressed,
not carry any kind of firearms but may be equipped with baton or riot the marginalized, the dispossessed and the weak. Indeed, laws and actions that
sticks, shields, crash helmets with visor, gas masks, boots or ankle restrict fundamental rights come to the courts with a heavy presumption against
high shoes with shin guards; their validity. These laws and actions are subjected to heightened scrutiny.[26]

(c) Tear gas, smoke grenades, water cannons, or any For this reason, the so-called calibrated preemptive response policy
similar anti-riot device shall not be used unless the public assembly has no place in our legal firmament and must be struck down as a darkness
is attended by actual violence or serious threats of violence, or that shrouds freedom. It merely confuses our people and is used by some
deliberate destruction of property. police agents to justify abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or unduly restrict freedoms; it
Sec. 11. Dispersal of public assembly with merely regulates the use of public places as to the time, place and manner of
permit. No public assembly with a permit shall be assemblies. Far from being insidious, maximum tolerance is for the benefit of
dispersed. However, when an assembly becomes violent, rallyists, not the government. The delegation to the mayors of the power to
the police may disperse such public assembly as follows: issue rally permits is valid because it is subject to the constitutionally-sound
clear and present danger standard.
(a) At the first sign of impending violence, the
ranking officer of the law enforcement contingent shall call In this Decision, the Court goes even one step further in
the attention of the leaders of the public assembly and ask safeguarding liberty by giving local governments a deadline of 30 days within
the latter to prevent any possible disturbance; which to designate specific freedom parks as provided under B.P. No. 880. If,
after that period, no such parks are so identified in accordance with Section 15
(b) If actual violence starts to a point where rocks or of the law, all public parks and plazas of the municipality or city concerned shall
other harmful objects from the participants are thrown at the police in effect be deemed freedom parks; no prior permit of whatever kind shall be
or at the non-participants, or at any property causing damage to required to hold an assembly therein. The only requirement will be written
such property, the ranking officer of the law enforcement contingent notices to the police and the mayors office to allow proper coordination and
shall audibly warn the participants that if the disturbance persists, orderly activities.
the public assembly will be dispersed;
WHEREFORE, the petitions are GRANTED in part, and
(c) If the violence or disturbance prevailing as stated in the respondents, more particularly the Secretary of the Interior and Local
preceding subparagraph should not stop or abate, the ranking officer of the law Governments, are DIRECTED to take all necessary steps for the immediate
enforcement contingent shall audibly issue a warning to the participants of the compliance with Section 15 of Batas Pambansa No. 880 through the
public assembly, and after allowing a reasonable period of time to lapse, shall establishment or designation of at least one suitable freedom park or plaza in
immediately order it to forthwith disperse; every city and municipality of the country. After thirty (30) days from the finality
(d) No arrest of any leader, organizer or participant shall also be of this Decision, subject to the giving of advance notices, no prior permit shall
made during the public assembly unless he violates during the assembly a law, be required to exercise the right to peaceably assemble and petition in the
statute, ordinance or any provision of this Act. Such arrest shall be governed public parks or plazas of a city or municipality that has not yet complied with
by Article 125 of the Revised Penal Code, as amended; Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR),
insofar as it would purport to differ from or be in lieu of maximum tolerance,
(d) Isolated acts or incidents of disorder or breach of the is NULL and VOID and respondents are ENJOINED to REFRAIN from using it
peace during the public assembly shall not constitute a ground for dispersal. and to STRICTLY OBSERVE the requirements of maximum tolerance. The
xxx petitions are DISMISSED in all other respects, and
the CONSTITUTIONALITY of Batas Pambansa No. 880 is SUSTAINED. No
SEC. 12. Dispersal of public assembly without permit. When the costs SO ORDERED.
public assembly is held without a permit where a permit is required, the said
public assembly may be peacefully dispersed.
INTEGRATED BAR OF THE G.R. No. 175241
SEC. 13. Prohibited acts. The following shall constitute violations of PHILIPPINES represented by its
the Act: National President, Jose Anselmo I. Present:
Cadiz, H. HARRY L. ROQUE, and JOEL
(e) Obstructing, impeding, disrupting or otherwise denying RUIZ BUTUYAN, PUNO, C.J., Chairperson,
the exercise of the right to peaceful assembly; Petitioners, CARPIO MORALES,
LEONARDO-DE CASTRO,
(f) The unnecessary firing of firearms by a member of any BERSAMIN, and
law enforcement agency or any person to disperse the public assembly; - versus - VILLARAMA, JR., JJ.

(g) Acts described hereunder if committed within one hundred (100)


meters from the area of activity of the public assembly or on the occasion HONORABLE MANILA MAYOR JOSE
thereof: LITO ATIENZA,
Respondent. Promulgated:
xxx February 24, 2010

4. the carrying of firearms by x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x


members of the law
enforcement unit;
Petitioners Integrated Bar of the Philippines[1] (IBP) and lawyers H. Harry L.
5. the interfering with or intentionally Roque and Joel R. Butuyan appeal the June 28, 2006 Decision[2] and the
disturbing the holding of October 26, 2006 Resolution[3] of the Court of Appeals that found no grave
a public assembly by the abuse of discretion on the part of respondent Jose Lito Atienza, the then mayor
use of a motor vehicle, its of Manila, in granting a permit to rally in a venue other than the one applied for
horns and loud sound by the IBP.
systems.
On June 15, 2006, the IBP, through its then National President Jose Anselmo
Furthermore, there is need to address the situation adverted to by Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a letter
petitioners where mayors do not act on applications for a permit and when the application[4] for a permit to rally at the foot of Mendiola Bridge on June 22,
2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and or modification of the permit and merely mandates that the action taken shall
members, law students and multi-sectoral organizations. be in writing and shall be served on respondent within 24 hours. The appellate
court went on to hold that respondent is authorized to regulate the exercise of
Respondent issued a permit[5] dated June 16, 2006 allowing the IBP to stage a the freedom of expression and of public assembly which are not absolute, and
rally on given date but indicated therein Plaza Miranda as the venue, instead that the challenged permit is consistent with Plaza Mirandas designation as a
of Mendiola Bridge, which permit the IBP received on June 19, 2006. freedom park where protest rallies are allowed without permit.

Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a The Court finds for petitioners.
petition for certiorari docketed as CA-G.R. SP No. 94949.[6] The petition having
been unresolved within 24 hours from its filing, petitioners filed before this Section 6 of the Public Assembly Act reads:
Court on June 22, 2006 a petition for certiorari docketed as G.R. No. 172951
which assailed the appellate courts inaction or refusal to resolve the petition Section 6. Action to be taken on the application -
within the period provided under the Public Assembly Act of 1985.[7]
(a) It shall be the duty of the mayor or any official acting in his behalf to issue
The Court, by Resolutions of July 26, 2006, August 30, 2006 and or grant a permit unless there is clear and convincing evidence that the
November 20, 2006, respectively, denied the petition for being moot and public assembly will create a clear and present danger to public order, public
academic, denied the relief that the petition be heard on the merits in view of safety, public convenience, public morals or public health.
the pendency of CA-G.R. SP No. 94949, and denied the motion for
reconsideration. (b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing
which, the permit shall be deemed granted. Should for any reason the mayor
The rally pushed through on June 22, 2006 at Mendiola Bridge, or any official acting in his behalf refuse to accept the application for a
after Cadiz discussed with P/Supt. Arturo Paglinawan whose contingent from permit, said application shall be posted by the applicant on the premises of
the Manila Police District (MPD) earlier barred petitioners from proceeding the office of the mayor and shall be deemed to have been filed.
thereto. Petitioners allege that the participants voluntarily dispersed after the
peaceful conduct of the program. (c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
The MPD thereupon instituted on June 26, 2006 a criminal action,[8]
docketed immediately inform the applicant who must be heard on the matter.
as I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in
staging a rally at a venue not indicated in the permit, to which (d) The action on the permit shall be in writing and served on the application
charge Cadiz filed a Counter-Affidavit of August 3, 2006. [sic] within twenty-four hours.

In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the (e) If the mayor or any official acting in his behalf denies the application or
first assailed issuance, that the petition became moot and lacked merit. The modifies the terms thereof in his permit, the applicant may contest the
appellate court also denied petitioners motion for reconsideration by the decision in an appropriate court of law.
second assailed issuance.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal
Hence, the filing of the present petition for review on certiorari, to which Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
respondent filed his Comment of November 18, 2008 which merited petitioners Intermediate Appellate Court, its decisions may be appealed to the
Reply of October 2, 2009. appropriate court within forty-eight (48) hours after receipt of the same. No
appeal bond and record on appeal shall be required. A decision granting
The main issue is whether the appellate court erred in holding that the such permit or modifying it in terms satisfactory to the applicant shall, be
modification of the venue in IBPs rally permit does not constitute grave abuse immediately executory.
of discretion.
(g) All cases filed in court under this Section shall be decided within twenty-
Petitioners assert that the partial grant of the application runs four (24) hours from date of filing. Cases filed hereunder shall be
contrary to the Pubic Assembly Act and violates their constitutional right to immediately endorsed to the executive judge for disposition or, in his
freedom of expression and public assembly. absence, to the next in rank.

The Court shall first resolve the preliminary issue of mootness. (h) In all cases, any decision may be appealed to the Supreme Court.

Undoubtedly, the petition filed with the appellate court on June 21, (i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
2006 became moot upon the passing of the date of the rally on June 22, 2006. (underscoring supplied)

A moot and academic case is one that ceases to present a justiciable In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v.
controversy by virtue of supervening events, so that a declaration thereon Ermita,[13] the Court reiterated:
would be of no practical use or value. Generally, courts decline jurisdiction
over such case or dismiss it on ground of mootness. However, even in cases x x x Freedom of assembly connotes the right of the people to meet
where supervening events had made the cases moot, this Court did not peaceably for consultation and discussion of matters of public concern.
hesitate to resolve the legal or constitutional issues raised to formulate It is entitled to be accorded the utmost deference and respect. It is not
controlling principles to guide the bench, bar and public. Moreover, as an to be limited, much less denied, except on a showing, as is the
exception to the rule on mootness, courts will decide a question otherwise case with freedom of expression, of a clear and present danger of a
moot if it is capable of repetition, yet evading review.[9] substantive evil that the state has a right to prevent. Even prior to
the 1935 Constitution, Justice Malcolm had occasion to stress that it is a
In the present case, the question of the legality of a modification of a permit to necessary consequence of our republican institutions and complements
rally will arise each time the terms of an intended rally are altered by the the right of free speech. To paraphrase the opinion of Justice Rutledge,
concerned official, yet it evades review, owing to the limited time in processing speaking for the majority of the American Supreme Court in Thomas v.
the application where the shortest allowable period is five days prior to the Collins, it was not by accident or coincidence that the rights to freedom
assembly. The susceptibility of recurrence compels the Court to definitively of speech and of the press were coupled in a single guarantee with the
resolve the issue at hand. rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights, while not
Respecting petitioners argument that the issues presented in CA-G.R. SP No. identical, are inseparable. In every case, therefore, where there is a
94949 pose a prejudicial question to the criminal case against Cadiz, the Court limitation placed on the exercise of this right, the judiciary is called upon
finds it improper to resolve the same in the present case. to examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so
Under the Rules,[10] the existence of a prejudicial question is a ground in a fundamental to the maintenance of democratic institutions, is the
petition to suspend proceedings in a criminal action. Since suspension of the danger, of a character both grave and imminent, of a serious evil to
proceedings in the criminal action may be made only upon petition and not at public safety, public morals, public health, or any other legitimate
the instance of the judge or the investigating prosecutor,[11] the latter cannot public interest.[14] (emphasis supplied)
take cognizance of a claim of prejudicial question without a petition to suspend
being filed. Since a petition to suspend can be filed only in the criminal
action,[12] the determination of the pendency of a prejudicial question should be The Court in Bayan stated that the provisions of the Public Assembly Act of
made at the first instance in the criminal action, and not before this Court in an 1985 practically codified the 1983 ruling in Reyes v. Bagatsing.[15] In
appeal from the civil action. juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent
In proceeding to resolve the petition on the merits, the appellate court found no portion of the Reyes case, the Court elucidated as follows:
grave abuse of discretion on the part of respondent because the Public
Assembly Act does not categorically require respondent to specify in writing
the imminent and grave danger of a substantive evil which warrants the denial
x x x [The public official concerned shall] appraise whether there of the Philippine Bar, the submitted explanations, being mere denials and/or
may be valid objections to the grant of the permit or to its grant but tangential to the issues at hand, are decidedly unsatisfactory. The proffered
at another public place. It is an indispensable condition to such defenses even more urgently behoove this Court to call the attention of
refusal or modification that the clear and present danger test be the respondent law professors, who are members of the Bar, to the relationship of
standard for the decision reached. If he is of the view that there is their duties as such under the Code of Professional Responsibility to their civil
such an imminent and grave danger of a substantive evil, the rights as citizens and academics in our free and democratic republic.
applicants must be heard on the matter. Thereafter, his decision,
whether favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have recourse to The provisions of the Code of Professional Responsibility involved in this case
the proper judicial authority.[16] (italics and underscoring supplied) are as follows:
In modifying the permit outright, respondent gravely abused his discretion
when he did not immediately inform the IBP who should have been heard first CANON 1 A lawyer shall uphold the constitution, obey the laws of the land
on the matter of his perceived imminent and grave danger of a substantive evil and promote respect for law and legal processes.
that may warrant the changing of the venue. The opportunity to be heard
precedes the action on the permit, since the applicant may directly go to court
after an unfavorable action on the permit. RULE 1.02 - A lawyer shall not counsel or abet activities aimed at defiance of
the law or at lessening confidence in the legal system.
Respondent failed to indicate how he had arrived at modifying the terms of the
permit against the standard of a clear and present danger test which, it bears
CANON 10 - A lawyer owes candor, fairness and good faith to the court.
repeating, is an indispensable condition to such modification. Nothing in the
issued permit adverts to an imminent and grave danger of a substantive evil,
which blank denial or modification would, when granted imprimatur as the Rule 10.01 - A lawyer shall not do any falsehood, nor consent to the doing of
appellate court would have it, render illusory any judicial scrutiny thereof. any in court; nor shall he mislead, or allow the Court to be misled by any
artifice.

It is true that the licensing official, here respondent Mayor,


is not devoid of discretion in determining whether or not a Rule 10.02 - A lawyer shall not knowingly misquote or misrepresent the
permit would be granted. It is not, however, unfettered contents of paper, the language or the argument of opposing counsel, or the
discretion. While prudence requires that there be a realistic text of a decision or authority, or knowingly cite as law a provision already
appraisal not of what may possibly occur but of what rendered inoperative by repeal or amendment, or assert as a fact that which
may probably occur, given all the relevant has not been proved.
circumstances, still the assumption especially so where the
assembly is scheduled for a specific public place is that the Rule 10.03 - A lawyer shall observe the rules of procedure and shall not misuse
permit must be for the assembly being held there. The them to defeat the ends of justice.
exercise of such a right, in the language of Justice
Roberts, speaking for the American Supreme Court, is
not to be "abridged on the plea that it may be CANON 11 A lawyer shall observe and maintain the respect due to the
exercised in some other place.[17] (emphasis and courts and to judicial officers and should insist on similar conduct by others.
underscoring supplied)
RULE 11.05 A lawyer shall submit grievances against a Judge to the proper
authorities only.
Notably, respondent failed to indicate in his Comment any basis or explanation
for his action. It smacks of whim and caprice for respondent to just impose a CANON 13 A lawyer shall rely upon the merits of his cause and refrain from
change of venue for an assembly that was slated for a specific public place. It any impropriety which tends to influence, or gives the appearance of influencing
is thus reversible error for the appellate court not to have found the court.
such grave abuse of discretion and, under specific statutory

Established jurisprudence will undeniably support our view that when lawyers
provision, not to have modified the permit in terms satisfactory to the speak their minds, they must ever be mindful of their sworn oath to observe
applicant.[18] ethical standards of their profession, and in particular, avoid foul and abusive
language to condemn the Supreme Court, or any court for that matter, for a
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals decision it has rendered, especially during the pendency of a motion for such
in CA-G.R. SP No. 94949 are REVERSED. The Court DECLARES that decisions reconsideration. The accusation of plagiarism against a member of
respondent committed grave abuse of discretion in modifying the rally permit this Court is not the real issue here but rather this plagiarism issue has been
issued on June 16, 2006 insofar as it altered the venue used to deflect everyones attention from the actual concern of this Court to
from Mendiola Bridge to Plaza Miranda. SO ORDERED. determine by respondents explanations whether or not respondent members of
the Bar have crossed the line of decency and acceptable professional conduct
and speech and violated the Rules of Court through improper intervention or
interference as third parties to a pending case. Preliminarily, it should be
A.M. No. 10-10-4-SC March 8, 2011 stressed that it was respondents themselves who called upon the Supreme
Court to act on their Statement,2 which they formally submitted, through Dean
RE: LETTER OF THE UP LAW FACULTY ENTITLED "RESTORING Marvic M.V.F. Leonen (Dean Leonen), for the Courts proper disposition.
INTEGRITY: A STATEMENT BY THE FACULTY OF THE UNIVERSITY OF Considering the defenses of freedom of speech and academic freedom invoked
THE PHILIPPINES COLLEGE OF LAW ON THE ALLEGATIONS OF by the respondents, it is worth discussing here that the legal reasoning used in
PLAGIARISM AND MISREPRESENTATION IN THE SUPREME COURT".: the past by this Court to rule that freedom of expression is not a defense in
administrative cases against lawyers for using intemperate speech in open
court or in court submissions can similarly be applied to respondents invocation
For disposition of the Court are the various submissions of the 37 respondent of academic freedom. Indeed, it is precisely because respondents are not
law professors1 in response to the Resolution dated October 19, 2010 (the merely lawyers but lawyers who teach law and mould the minds of young
Show Cause Resolution), directing them to show cause why they should not be aspiring attorneys that respondents own non-observance of the Code of
disciplined as members of the Bar for violation of specific provisions of the Professional Responsibility, even if purportedly motivated by the purest of
Code of Professional Responsibility enumerated therein. intentions, cannot be ignored nor glossed over by this Court.

At the outset, it must be stressed that the Show Cause Resolution clearly To fully appreciate the grave repercussions of respondents actuations, it is
dockets this as an administrative matter, not a special civil action for indirect apropos to revisit the factual antecedents of this case.
contempt under Rule 71 of the Rules of Court, contrary to the dissenting opinion
of Associate Justice Maria Lourdes P. A. Sereno (Justice Sereno) to the said
October 19, 2010 Show Cause Resolution. Neither is this a disciplinary BACKGROUND OF THE CASE
proceeding grounded on an allegedly irregularly concluded finding of indirect
contempt as intimated by Associate Justice Conchita Carpio Morales (Justice Antecedent Facts and Proceedings
Morales) in her dissenting opinions to both the October 19, 2010 Show Cause
Resolution and the present decision.
On April 28, 2010, the ponencia of Associate Justice Mariano del Castillo
(Justice Del Castillo) in Vinuya, et al. v. Executive Secretary (G.R. No. 162230)
With the nature of this case as purely a bar disciplinary proceeding firmly in was promulgated. On May 31, 2010, the counsel3 for Vinuya, et al. (the "Malaya
mind, the Court finds that with the exception of one respondent whose Lolas"), filed a Motion for Reconsideration of the Vinuya decision, raising solely
compliance was adequate and another who manifested he was not a member the following grounds:
I. Our own constitutional and jurisprudential histories reject this On even date, July 22, 2010, Justice Del Castillo wrote to his colleagues on the
Honorable Courts (sic) assertion that the Executives foreign policy Court in reply to the charge of plagiarism contained in the Supplemental Motion
prerogatives are virtually unlimited; precisely, under the relevant for Reconsideration.18
jurisprudence and constitutional provisions, such prerogatives are
proscribed by international human rights and humanitarian
standards, including those provided for in the relevant international In a letter dated July 23, 2010, another purportedly plagiarized author in the
conventions of which the Philippines is a party.4 Vinuya decision, Dr. Mark Ellis, wrote the Court, to wit:

II. This Honorable Court has confused diplomatic protection with the Your Honours:
broader, if fundamental, responsibility of states to protect the human
rights of its citizens especially where the rights asserted are I write concerning a most delicate issue that has come to my attention in the
subject of erga omnes obligations and pertain to jus cogens norms.5 last few days.

On July 19, 2010,6 counsel for the Malaya Lolas, Attys. H. Harry L. Roque, Jr. Much as I regret to raise this matter before your esteemed Court, I am
(Atty. Roque) and Romel Regalado Bagares (Atty. Bagares), filed a compelled, as a question of the integrity of my work as an academic and as an
Supplemental Motion for Reconsideration in G.R. No. 162230, where they advocate of human rights and humanitarian law, to take exception to the
posited for the first time their charge of plagiarism as one of the grounds for possible unauthorized use of my law review article on rape as an international
reconsideration of the Vinuya decision. Among other arguments, Attys. Roque crime in your esteemed Courts Judgment in the case of Vinuya et al. v.
and Bagares asserted that: Executive Secretary et al. (G.R. No. 162230, Judgment of 28 April 2010).

I. My attention was called to the Judgment and the issue of possible plagiarism by
the Philippine chapter of the Southeast Asia Media Legal Defence Initiative
IN THE FIRST PLACE, IT IS HIGHLY IMPROPER FOR THIS HONORABLE (SEAMLDI),19 an affiliate of the London-based Media Legal Defence Initiative
COURTS JUDGMENT OF APRIL 28, 2010 TO PLAGIARIZE AT LEAST (MLDI), where I sit as trustee.
THREE SOURCES AN ARTICLE PUBLISHED IN 2009 IN THE YALE LAW
JOURNAL OF INTERNATIONAL LAW, A BOOK PUBLISHED BY THE In particular, I am concerned about a large part of the extensive discussion in
CAMBRIDGE UNIVERSITY PRESS IN 2005 AND AN ARTICLE PUBLISHED footnote 65, pp. 27-28, of the said Judgment of your esteemed Court. I am also
IN 2006 IN THE CASE WESTERN RESERVE JOURNAL OF INTERNATIONAL concerned that your esteemed Court may have misread the arguments I made
LAW AND MAKE IT APPEAR THAT THESE SOURCES SUPPORT THE in the article and employed them for cross purposes. This would be ironic since
JUDGMENTS ARGUMENTS FOR DISMISSING THE INSTANT PETITION the article was written precisely to argue for the appropriate legal remedy for
WHEN IN TRUTH, THE PLAGIARIZED SOURCES EVEN MAKE A STRONG victims of war crimes, genocide, and crimes against humanity.
CASE FOR THE PETITIONS CLAIMS.7

I believe a full copy of my article as published in the Case Western Reserve


They also claimed that "[i]n this controversy, the evidence bears out the fact not Journal of International Law in 2006 has been made available to your esteemed
only of extensive plagiarism but of (sic) also of twisting the true intents of the Court. I trust that your esteemed Court will take the time to carefully study the
plagiarized sources by the ponencia to suit the arguments of the assailed arguments I made in the article.
Judgment for denying the Petition."8

I would appreciate receiving a response from your esteemed Court as to the


According to Attys. Roque and Bagares, the works allegedly plagiarized in the issues raised by this letter.
Vinuya decision were namely: (1) Evan J. Criddle and Evan Fox-Decents
article "A Fiduciary Theory of Jus Cogens;"9 (2) Christian J. Tams book
Enforcing Erga Omnes Obligations in International Law;10 and (3) Mark Ellis With respect,
article "Breaking the Silence: On Rape as an International Crime."11
(Sgd.)
On the same day as the filing of the Supplemental Motion for Reconsideration Dr. Mark Ellis20
on July 19, 2010, journalists Aries C. Rufo and Purple S. Romero posted an
article, entitled "SC justice plagiarized parts of ruling on comfort women," on the
In Memorandum Order No. 35-2010 issued on July 27, 2010, the Court formed
Newsbreak website.12 The same article appeared on the GMA News TV
the Committee on Ethics and Ethical Standards (the Ethics Committee)
website also on July 19, 2010.13
pursuant to Section 13, Rule 2 of the Internal Rules of the Supreme Court. In an
En Banc Resolution also dated July 27, 2010, the Court referred the July 22,
On July 22, 2010, Atty. Roques column, entitled "Plagiarized and Twisted," 2010 letter of Justice Del Castillo to the Ethics Committee. The matter was
appeared in the Manila Standard Today.14 In the said column, Atty. Roque subsequently docketed as A.M. No. 10-7-17-SC.
claimed that Prof. Evan Criddle, one of the authors purportedly not properly
acknowledged in the Vinuya decision, confirmed that his work, co-authored with
On August 2, 2010, the Ethics Committee required Attys. Roque and Bagares
Prof. Evan Fox-Decent, had been plagiarized. Atty. Roque quoted Prof.
to comment on the letter of Justice Del Castillo.21
Criddles response to the post by Julian Ku regarding the news report15 on the
alleged plagiarism in the international law blog, Opinio Juris. Prof. Criddle
responded to Kus blog entry in this wise: On August 9, 2010, a statement dated July 27, 2010, entitled "Restoring
Integrity: A Statement by the Faculty of the University of the Philippines College
of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme
The newspapers16 [plagiarism] claims are based on a motion for
Court" (the Statement), was posted in Newsbreaks website22 and on Atty.
reconsideration filed yesterday with the Philippine Supreme Court yesterday.
Roques blog.23 A report regarding the statement also appeared on various on-
The motion is available here:
line news sites, such as the GMA News TV24 and the Sun Star25 sites, on the
same date. The statement was likewise posted at the University of the
http://harryroque.com/2010/07/18/supplemental-motion-alleging-plagiarism-in- Philippines College of Laws bulletin board allegedly on August 10, 201026 and
the-supreme-court/ at said colleges website.27

The motion suggests that the Courts decision contains thirty-four sentences On August 11, 2010, Dean Leonen submitted a copy of the Statement of the
and citations that are identical to sentences and citations in my 2009 YJIL University of the Philippines College of Law Faculty (UP Law faculty) to the
article (co-authored with Evan Fox-Decent). Professor Fox-Decent and I were Court, through Chief Justice Renato C. Corona (Chief Justice Corona). The
unaware of the petitioners [plagiarism] allegations until after the motion was cover letter dated August 10, 2010 of Dean Leonen read:
filed today.
The Honorable
Speaking for myself, the most troubling aspect of the courts jus cogens Supreme Court of the Republic of the Philippines
discussion is that it implies that the prohibitions against crimes against
humanity, sexual slavery, and torture are not jus cogens norms. Our article
emphatically asserts the opposite. The Supreme Courts decision is available Through: Hon. Renato C. Corona
here: http://sc.judiciary.gov.ph/jurisprudence/2010/april2010/162230.htm17 Chief Justice

Subject: Statement of faculty


from the UP College of Law
provides additional evidence of a deliberate intention to appropriate the original
on the Plagiarism in the case of
authors work of organizing and analyzing those primary sources.
Vinuya v Executive Secretary

It is also argued that the Members of the Court cannot be expected to be


Your Honors: familiar with all legal and scholarly journals. This is also not acceptable,
because personal unfamiliarity with sources all the more demands correct and
careful attribution and citation of the material relied upon. It is a matter of
We attach for your information and proper disposition a statement signed by diligence and competence expected of all Magistrates of the Highest Court of
thirty[-]eight (38)28members of the faculty of the UP College of Law. We hope the Land.
that its points could be considered by the Supreme Court en banc.

But a far more serious matter is the objection of the original writers, Professors
Respectfully, Evan Criddle and Evan Fox-Descent, that the High Court actually misrepresents
the conclusions of their work entitled "A Fiduciary Theory of Jus Cogens," the
(Sgd.) main source of the plagiarized text. In this article they argue that the
Marvic M.V.F. Leonen classification of the crimes of rape, torture, and sexual slavery as crimes
Dean and Professor of Law against humanity have attained the status of jus cogens, making it obligatory
upon the State to seek remedies on behalf of its aggrieved citizens. Yet, the
Vinuya decision uses parts of the same article to arrive at the contrary
(Emphases supplied.) conclusion. This exacerbates the intellectual dishonesty of copying works
without attribution by transforming it into an act of intellectual fraud by copying
works in order to mislead and deceive.
The copy of the Statement attached to the above-quoted letter did not contain
the actual signatures of the alleged signatories but only stated the names of 37
UP Law professors with the notation (SGD.) appearing beside each name. For The case is a potential landmark decision in International Law, because it deals
convenient reference, the text of the UP Law faculty Statement is reproduced with State liability and responsibility for personal injury and damage suffered in
here: a time of war, and the role of the injured parties home States in the pursuit of
remedies against such injury or damage. National courts rarely have such
opportunities to make an international impact. That the petitioners were Filipino
RESTORING INTEGRITY "comfort women" who suffered from horrific abuse during the Second World
War made it incumbent on the Court of last resort to afford them every
A STATEMENT BY THE FACULTY OF solicitude. But instead of acting with urgency on this case, the Court delayed its
THE UNIVERSITY OF THE PHILIPPINES COLLEGE OF LAW resolution for almost seven years, oblivious to the deaths of many of the
ON THE ALLEGATIONS OF PLAGIARISM AND MISREPRESENTATION petitioners seeking justice from the Court. When it dismissed the Vinuya petition
IN THE SUPREME COURT based on misrepresented and plagiarized materials, the Court decided this case
based on polluted sources. By so doing, the Supreme Court added insult to
injury by failing to actually exercise its "power to urge and exhort the Executive
An extraordinary act of injustice has again been committed against the brave Department to take up the claims of the Vinuya petitioners. Its callous
Filipinas who had suffered abuse during a time of war. After they courageously disposition, coupled with false sympathy and nonchalance, belies a more
came out with their very personal stories of abuse and suffering as "comfort alarming lack of concern for even the most basic values of decency and
women", waited for almost two decades for any meaningful relief from their own respect. The reputation of the Philippine Supreme Court and the standing of the
government as well as from the government of Japan, got their hopes up for a Philippine legal profession before other Judiciaries and legal systems are truly
semblance of judicial recourse in the case of Vinuya v. Executive Secretary, at stake.
G.R. No. 162230 (28 April 2010), they only had these hopes crushed by a
singularly reprehensible act of dishonesty and misrepresentation by the Highest
Court of the land. The High Court cannot accommodate less than absolute honesty in its
decisions and cannot accept excuses for failure to attain the highest standards
of conduct imposed upon all members of the Bench and Bar because these
It is within this frame that the Faculty of the University of the Philippines College undermine the very foundation of its authority and power in a democratic
of Law views the charge that an Associate Justice of the Supreme Court society. Given the Courts recent history and the controversy that surrounded it,
committed plagiarism and misrepresentation in Vinuya v. Executive Secretary. it cannot allow the charges of such clear and obvious plagiarism to pass without
The plagiarism and misrepresentation are not only affronts to the individual sanction as this would only further erode faith and confidence in the judicial
scholars whose work have been appropriated without correct attribution, but system. And in light of the significance of this decision to the quest for justice
also a serious threat to the integrity and credibility of the Philippine Judicial not only of Filipino women, but of women elsewhere in the world who have
System. suffered the horrors of sexual abuse and exploitation in times of war, the
Court cannot coldly deny relief and justice to the petitioners on the basis of
pilfered and misinterpreted texts.
In common parlance, plagiarism is the appropriation and misrepresentation of
another persons work as ones own. In the field of writing, it is cheating at best,
and stealing at worst. It constitutes a taking of someone elses ideas and The Court cannot regain its credibility and maintain its moral authority without
expressions, including all the effort and creativity that went into committing such ensuring that its own conduct, whether collectively or through its Members, is
ideas and expressions into writing, and then making it appear that such ideas beyond reproach. This necessarily includes ensuring that not only the content,
and expressions were originally created by the taker. It is dishonesty, pure and but also the processes of preparing and writing its own decisions, are credible
simple. A judicial system that allows plagiarism in any form is one that allows and beyond question. The Vinuya Decision must be conscientiously reviewed
dishonesty. Since all judicial decisions form part of the law of the land, to allow and not casually cast aside, if not for the purpose of sanction, then at least for
plagiarism in the Supreme Court is to allow the production of laws by dishonest the purpose of reflection and guidance. It is an absolutely essential step toward
means. Evidently, this is a complete perversion and falsification of the ends of the establishment of a higher standard of professional care and practical
justice. scholarship in the Bench and Bar, which are critical to improving the system of
administration of justice in the Philippines. It is also a very crucial step in
ensuring the position of the Supreme Court as the Final Arbiter of all
A comparison of the Vinuya decision and the original source material shows
controversies: a position that requires competence and integrity completely
that the ponente merely copied select portions of other legal writers works and
above any and all reproach, in accordance with the exacting demands of
interspersed them into the decision as if they were his own, original work. Under
judicial and professional ethics.
the circumstances, however, because the Decision has been promulgated by
the Court, the Decision now becomes the Courts and no longer just the
ponentes. Thus the Court also bears the responsibility for the Decision. In the With these considerations, and bearing in mind the solemn duties and trust
absence of any mention of the original writers names and the publications from reposed upon them as teachers in the profession of Law, it is the opinion of the
which they came, the thing speaks for itself. Faculty of the University of the Philippine College of Law that:

So far there have been unsatisfactory responses from the ponente of this case (1) The plagiarism committed in the case of Vinuya v. Executive
and the spokesman of the Court. Secretary is unacceptable, unethical and in breach of the high standards of
moral conduct and judicial and professional competence expected of the
Supreme Court;
It is argued, for example, that the inclusion of the footnotes from the original
articles is a reference to the primary sources relied upon. This cursory
explanation is not acceptable, because the original authors writings and the (2) Such a fundamental breach endangers the integrity
effort they put into finding and summarizing those primary sources are precisely and credibility of the entire Supreme Court and
the subject of plagiarism. The inclusion of the footnotes together with portions of undermines the foundations of the Philippine judicial
their writings in fact aggravates, instead of mitigates, the plagiarism since it system by allowing implicitly the decision of cases and the
establishment of legal precedents through dubious In the course of the submission of Atty. Roque and Atty. Bagares exhibits
means; during the August 26, 2010 hearing in the ethics case against Justice Del
Castillo, the Ethics Committee noted that Exhibit "J" (a copy of the Restoring
Integrity Statement) was not signed but merely reflected the names of certain
(3) The same breach and consequent disposition of the Vinuya case does faculty members with the letters (SGD.) beside the names. Thus, the Ethics
violence to the primordial function of the Supreme Court as the ultimate dispenser Committee directed Atty. Roque to present the signed copy of the said
of justice to all those who have been left without legal or equitable recourse, such Statement within three days from the August 26 hearing.32
as the petitioners therein;

It was upon compliance with this directive that the Ethics Committee was given
(4) In light of the extremely serious and far-reaching nature of the dishonesty and a copy of the signed UP Law Faculty Statement that showed on the signature
to save the honor and dignity of the Supreme Court as an institution, it is pages the names of the full roster of the UP Law Faculty, 81 faculty members in
necessary for the ponente of Vinuya v. Executive Secretary to resign his position, all. Indubitable from the actual signed copy of the Statement was that only 37 of
without prejudice to any other sanctions that the Court may consider appropriate; the 81 faculty members appeared to have signed the same. However, the 37
actual signatories to the Statement did not include former Supreme Court
(5) The Supreme Court must take this opportunity to review the manner by which Associate Justice Vicente V. Mendoza (Justice Mendoza) as represented in the
it conducts research, prepares drafts, reaches and finalizes decisions in order to previous copies of the Statement submitted by Dean Leonen and Atty. Roque. It
prevent a recurrence of similar acts, and to provide clear and concise guidance to also appeared that Atty. Miguel R. Armovit (Atty. Armovit) signed the Statement
the Bench and Bar to ensure only the highest quality of legal research and writing although his name was not included among the signatories in the previous
in pleadings, practice, and adjudication. copies submitted to the Court. Thus, the total number of ostensible signatories
to the Statement remained at 37.

Malcolm Hall, University of the Philippines College of Law, Quezon City, 27 July
2010. The Ethics Committee referred this matter to the Court en banc since the same
Statement, having been formally submitted by Dean Leonen on August 11,
2010, was already under consideration by the Court.33
Meanwhile, in a letter dated August 18, 2010, Prof. Christian J. Tams made
known his sentiments on the alleged plagiarism issue to the Court.30 We quote
Prof. Tams letter here: In a Resolution dated October 19, 2010, the Court en banc made the following
observations regarding the UP Law Faculty Statement:

Glasgow, 18 August 2010


Notably, while the statement was meant to reflect the educators opinion on the
allegations of plagiarism against Justice Del Castillo, they treated such
Vinuya, et al. v. Executive Secretary et al. (G.R. No. 162230) allegation not only as an established fact, but a truth. In particular, they
expressed dissatisfaction over Justice Del Castillos explanation on how he
cited the primary sources of the quoted portions and yet arrived at a contrary
Hon. Renato C. Corona, Chief Justice
conclusion to those of the authors of the articles supposedly plagiarized.

Your Excellency,
Beyond this, however, the statement bore certain remarks which raise concern
for the Court. The opening sentence alone is a grim preamble to the institutional
My name is Christian J. Tams, and I am a professor of international law at the attack that lay ahead. It reads:
University of Glasgow. I am writing to you in relation to the use of one of my
publications in the above-mentioned judgment of your Honourable Court.
An extraordinary act of injustice has again been committed against the brave
Filipinas who had suffered abuse during a time of war.
The relevant passage of the judgment is to be found on p. 30 of your Courts
Judgment, in the section addressing the concept of obligations erga omnes. As
The first paragraph concludes with a reference to the decision in Vinuya v.
the table annexed to this letter shows, the relevant sentences were taken
Executive Secretary as a reprehensible act of dishonesty and misrepresentation
almost word by word from the introductory chapter of my book Enforcing
by the Highest Court of the land. x x x.
Obligations Erga Omnes in International Law (Cambridge University Press
2005). I note that there is a generic reference to my work in footnote 69 of the
Judgment, but as this is in relation to a citation from another author (Bruno The insult to the members of the Court was aggravated by imputations of
Simma) rather than with respect to the substantive passages reproduced in the deliberately delaying the resolution of the said case, its dismissal on the basis
Judgment, I do not think it can be considered an appropriate form of of "polluted sources," the Courts alleged indifference to the cause of petitioners
referencing. [in the Vinuya case], as well as the supposed alarming lack of concern of the
members of the Court for even the most basic values of decency and
respect.34 x x x. (Underscoring ours.)
I am particularly concerned that my work should have been used to support the
Judgments cautious approach to the erga omnes concept. In fact, a most
cursory reading shows that my books central thesis is precisely the opposite: In the same Resolution, the Court went on to state that:
namely that the erga omnes concept has been widely accepted and has a firm
place in contemporary international law. Hence the introductory chapter notes
that "[t]he present study attempts to demystify aspects of the very mysterious While most agree that the right to criticize the judiciary is critical to maintaining
concept and thereby to facilitate its implementation" (p. 5). In the same vein, the a free and democratic society, there is also a general consensus that healthy
concluding section notes that "the preceding chapters show that the concept is criticism only goes so far. Many types of criticism leveled at the judiciary cross
now a part of the reality of international law, established in the jurisprudence of the line to become harmful and irresponsible attacks. These potentially
courts and the practice of States" (p. 309). devastating attacks and unjust criticism can threaten the independence of the
judiciary. The court must "insist on being permitted to proceed to the disposition
of its business in an orderly manner, free from outside interference obstructive
With due respect to your Honourable Court, I am at a loss to see how my work of its functions and tending to embarrass the administration of justice."
should have been cited to support as it seemingly has the opposite
approach. More generally, I am concerned at the way in which your Honourable
Courts Judgment has drawn on scholarly work without properly acknowledging The Court could hardly perceive any reasonable purpose for the facultys less
it. than objective comments except to discredit the April 28, 2010 Decision in the
Vinuya case and undermine the Courts honesty, integrity and competence in
addressing the motion for its reconsideration. As if the case on the comfort
On both aspects, I would appreciate a prompt response from your Honourable womens claims is not controversial enough, the UP Law faculty would fan the
Court. flames and invite resentment against a resolution that would not reverse the
said decision. This runs contrary to their obligation as law professors and
officers of the Court to be the first to uphold the dignity and authority of this
I remain
Court, to which they owe fidelity according to the oath they have taken as
attorneys, and not to promote distrust in the administration of justice.35 x x x.
Sincerely yours (Citations omitted; emphases and underscoring supplied.)

(Sgd.) Thus, the Court directed Attys. Marvic M.V.F. Leonen, Froilan M. Bacungan,
Christian J. Tams31 Pacifico A. Agabin, Merlin M. Magallona, Salvador T. Carlota, Carmelo V.
Sison, Patricia R.P. Salvador Daway, Dante B. Gatmaytan, Theodore O. Te,
Florin T. Hilbay, Jay L. Batongbacal, Evelyn (Leo) D. Battad, Gwen G. De Vera,
Solomon F. Lumba, Rommel J. Casis, Jose Gerardo A. Alampay, Miguel R.
Armovit, Arthur P. Autea, Rosa Maria J. Bautista, Mark R. Bocobo, Dan P. efforts in law reform and in the improvement of the administration of justice"
Calica, Tristan A. Catindig, Sandra Marie O. Coronel, Rosario O. Gallo, (under Canon 4 of the Code of Professional Responsibility) and to "promote
Concepcion L. Jardeleza, Antonio G.M. La Via, Carina C. Laforteza, Jose C. respect for the law and legal processes" (under Canon 1, id.).46 Furthermore, as
Laureta, Owen J. Lynch, Rodolfo Noel S. Quimbo, Antonio M. Santos, Gmeleen academics, they allegedly have a "special interest and duty to vigilantly guard
Faye B. Tomboc, Nicholas Felix L. Ty, Evalyn G. Ursua, Raul T. Vasquez, against plagiarism and misrepresentation because these unwelcome
Susan D. Villanueva and Dina D. Lucenario to show cause, within ten (10) days occurrences have a profound impact in the academe, especially in our law
from receipt of the copy of the Resolution, why they should not be disciplined as schools."47
members of the Bar for violation of Canons 1,36 11 and 13 and Rules 1.02 and
11.05 of the Code of Professional Responsibility.37
Respondents further "[called] on this Court not to misconstrue the Restoring
Integrity Statement as an institutional attack x x x on the basis of its first and
Dean Leonen was likewise directed to show cause within the same period why ninth paragraphs."48 They further clarified that at the time the Statement was
he should not be disciplinarily dealt with for violation of Canon 10, Rules 10.01, allegedly drafted and agreed upon, it appeared to them the Court "was not
10.02 and 10.03 for submitting through his letter dated August 10, 2010, during going to take any action on the grave and startling allegations of plagiarism and
the pendency of G.R. No. 162230 and of the investigation before the Ethics misrepresentation."49 According to respondents, the bases for their belief were
Committee, for the consideration of the Court en banc, a dummy which is not a (i) the news article published on July 21, 2010 in the Philippine Daily Inquirer
true and faithful reproduction of the UP Law Faculty Statement.38 wherein Court Administrator Jose Midas P. Marquez was reported to have said
that Chief Justice Corona would not order an inquiry into the matter;50 and (ii)
the July 22, 2010 letter of Justice Del Castillo which they claimed "did nothing
In the same Resolution, the present controversy was docketed as a regular but to downplay the gravity of the plagiarism and misrepresentation
administrative matter. charges."51 Respondents claimed that it was their perception of the Courts
indifference to the dangers posed by the plagiarism allegations against Justice
Summaries of the Pleadings Filed by Respondents in Response to the October Del Castillo that impelled them to urgently take a public stand on the issue.
19, 2010 Show Cause Resolution
(b) The "correctness" of respondents position that Justice Del
On November 19, 2010, within the extension for filing granted by the Court, Castillo committed plagiarism and should be held accountable in
respondents filed the following pleadings: accordance with the standards of academic writing

(1) Compliance dated November 18, 2010 by counsels for 35 of the A significant portion of the Common Compliance is devoted to a discussion of
37 respondents, excluding Prof. Owen Lynch and Prof. Raul T. the merits of respondents charge of plagiarism against Justice Del Castillo.
Vasquez, in relation to the charge of violation of Canons 1, 11 and Relying on University of the Philippines Board of Regents v. Court of
13 and Rules 1.02 and 11.05 of the Code of Professional Appeals52 and foreign materials and jurisprudence, respondents essentially
Responsibility; argue that their position regarding the plagiarism charge against Justice Del
Castillo is the correct view and that they are therefore justified in issuing their
Restoring Integrity Statement. Attachments to the Common Compliance
(2) Compliance and Reservation dated November 18, 2010 by Prof. included, among others: (i) the letter dated October 28, 2010 of Peter B.
Rosa Maria T. Juan-Bautista in relation to the same charge in par. Payoyo, LL.M, Ph.D.,53 sent to Chief Justice Corona through Justice Sereno,
(1); alleging that the Vinuya decision likewise lifted without proper attribution the
text from a legal article by Mariana Salazar Albornoz that appeared in the
Anuario Mexicano De Derecho Internacional and from an International Court
(3) Compliance dated November 19, 2010 by counsel for Prof. Raul
of Justice decision; and (ii) a 2008 Human Rights Law Review Article entitled
T. Vasquez in relation to the same charge in par. (1);
"Sexual Orientation, Gender Identity and International Human Rights Law" by
Michael OFlaherty and John Fisher, in support of their charge that Justice
(4) Compliance dated November 19, 2010 by counsels for Dean Del Castillo also lifted passages from said article without proper attribution,
Leonen, in relation to the charge of violation of Canon 10, Rules but this time, in his ponencia in Ang Ladlad LGBT Party v. Commission on
10.01, 10.02 and 10.03; and Elections.54

(5) Manifestation dated November 19, 2010 by counsel for Prof. (c) Respondents belief that they are being "singled out" by the Court
Owen Lynch. when others have likewise spoken on the "plagiarism issue"

Common Compliance of 35 Respondents (Excluding Prof. Owen Lynch and In the Common Compliance, respondents likewise asserted that "the
Prof. Raul Vasquez) plagiarism and misrepresentation allegations are legitimate public
issues."55 They identified various published reports and opinions, in
agreement with and in opposition to the stance of respondents, on the issue
Thirty-five (35) of the respondent UP Law professors filed on November 19, of plagiarism, specifically:
2010 a common compliance which was signed by their respective counsels (the
Common Compliance). In the "Preface" of said Common Compliance,
respondents stressed that "[they] issued the Restoring Integrity Statement in the (i) Newsbreak report on July 19, 2010 by Aries Rufo and Purple Romero;56
discharge of the solemn duties and trust reposed upon them as teachers in the
profession of law, and as members of the Bar to speak out on a matter of
(ii) Column of Ramon Tulfo which appeared in the Philippine Daily Inquirer on
public concern and one that is of vital interest to them."39 They likewise alleged
July 24, 2010;57
that "they acted with the purest of intentions" and pointed out that "none of them
was involved either as party or counsel"40 in the Vinuya case. Further,
respondents "note with concern" that the Show Cause Resolutions findings and (iii) Editorial of the Philippine Daily Inquirer published on July 25, 2010;58
conclusions were "a prejudgment that respondents indeed are in contempt,
have breached their obligations as law professors and officers of the Court, and
have violated Canons [1], 11 and 13 and Rules 1.02 and 11.05 of the Code of (iv) Letter dated July 22, 2010 of Justice Del Castillo published in the
Professional Responsibility."41 Philippine Star on July 30, 2010;59

By way of explanation, the respondents emphasized the following points: (v) Column of Former Intellectual Property Office Director General Adrian
Cristobal, Jr. published in the Business Mirror on August 5, 2010;60

(a) Respondents alleged noble intentions


(vi) Column of Former Chief Justice Artemio Panganiban published in the
Philippine Daily Inquirer on August 8, 2010;61
In response to the charges of failure to observe due respect to legal
processes42 and the courts43 and of tending to influence, or giving the
appearance of influencing the Court44 in the issuance of their Statement, (vii) News report regarding Senator Francis Pangilinans call for the
respondents assert that their intention was not to malign the Court but rather to resignation of Justice Del Castillo published in the Daily Tribune and the
defend its integrity and credibility and to ensure continued confidence in the Manila Standard Today on July 31, 2010;62
legal system. Their noble motive was purportedly evidenced by the portion of
their Statement "focusing on constructive action."45 Respondents call in the (viii) News reports regarding the statement of Dean Cesar Villanueva of the
Statement for the Court "to provide clear and concise guidance to the Bench Ateneo de Manila University School of Law on the calls for the resignation of
and Bar to ensure only the highest quality of legal research and writing in Justice Del Castillo published in The Manila Bulletin, the Philippine Star and
adjudication," was reputedly "in keeping with strictures enjoining lawyers to the Business Mirror on August 11, 2010;63
participate in the development of the legal system by initiating or supporting
(ix) News report on expressions of support for Justice Del Castillo from a B. In the event the Honorable Court declines to grant the foregoing
former dean of the Pamantasan ng Lungsod ng Maynila, the Philippine prayer, respondents respectfully pray, in the alternative, and in
Constitutional Association, the Judges Association of Bulacan and the assertion of their due process rights, that before final judgment be
Integrated Bar of the Philippines Bulacan Chapter published in the rendered:
Philippine Star on August 16, 2010;64 and
1. the Show Cause Resolution be set for hearing;
(x) Letter of the Dean of the Liceo de Cagayan University College of Law
published in the Philippine Daily Inquirer on August 10, 2010.65
2. respondents be given a fair and full opportunity to
refute and/or address the findings and conclusions of fact
In view of the foregoing, respondents alleged that this Court has in the Show Cause Resolution (including especially the
singled them out for sanctions and the charge in the Show Cause finding and conclusion of a lack of malicious intent), and in
Resolution dated October 19, 2010 that they may have violated that connection, that appropriate procedures and
specific canons of the Code of Professional Responsibility is unfair schedules for hearing be adopted and defined that will
and without basis. allow them the full and fair opportunity to require the
production of and to present testimonial, documentary,
and object evidence bearing on the plagiarism and
(d) Freedom of expression misrepresentation issues in Vinuya v. Executive Secretary
(G.R. No. 162230, April 28, 2010) and In the Matter of the
In paragraphs 28 to 30 of the Common Compliance, respondents Charges of Plagiarism, etc. Against Associate Justice
briefly discussed their position that in issuing their Statement, "they Mariano C. Del Castillo (A.M. No. 10-7-17-SC); and
should be seen as not only to be performing their duties as members
of the Bar, officers of the court, and teachers of law, but also as 3. respondents be given fair and full access to the
citizens of a democracy who are constitutionally protected in the transcripts, records, drafts, reports and submissions in or
exercise of free speech."66 In support of this contention, they cited relating to, and accorded the opportunity to cross-examine
United States v. Bustos,67In re: Atty. Vicente Raul Almacen, 68 and In the witnesses who were or could have been called in In
the Matter of Petition for Declaratory Relief Re: Constitutionality of The Matter of the Charges of Plagiarism, etc. Against
Republic Act 4880, Gonzales v. Commission on Elections.69 Associate Justice Mariano C. Del Castillo (A.M. No. 10-7-
17-SC).74
(e) Academic freedom
Compliance and Reservation of Prof. Rosa Maria T. Juan-Bautista
In paragraphs 31 to 34 of the Common Compliance, respondents asserted that
their Statement was also issued in the exercise of their academic freedom as Although already included in the Common Compliance, Prof. Rosa Maria T.
teachers in an institution of higher learning. They relied on Section 5 of the Juan-Bautista (Prof. Juan-Bautista) filed a separate Compliance and
University of the Philippines Charter of 2008 which provided that "[t]he national Reservation (the Bautista Compliance), wherein she adopted the allegations in
university has the right and responsibility to exercise academic freedom." They the Common Compliance with some additional averments.
likewise adverted to Garcia v. The Faculty Admission Committee, Loyola
School of Theology70 which they claimed recognized the extent and breadth of
such freedom as to encourage a free and healthy discussion and Prof. Juan-Bautista reiterated that her due process rights allegedly entitled her
communication of a faculty members field of study without fear of reprisal. It is to challenge the findings and conclusions in the Show Cause Resolution.
respondents view that had they remained silent on the plagiarism issue in the Furthermore, "[i]f the Restoring Integrity Statement can be considered indirect
Vinuya decision they would have "compromised [their] integrity and credibility contempt, under Section 3 of Rule 71 of the Rules of Court, such may be
as teachers; [their silence] would have created a culture and generation of punished only after charge and hearing."75
students, professionals, even lawyers, who would lack the competence and
discipline for research and pleading; or, worse, [that] their silence would have
communicated to the public that plagiarism and misrepresentation are Prof. Juan-Bautista stressed that respondents signed the Statement "in good
inconsequential matters and that intellectual integrity has no bearing or faith and with the best intentions to protect the Supreme Court by asking one
relevance to ones conduct."71 member to resign."76 For her part, Prof. Juan-Bautista intimated that her deep
disappointment and sadness for the plight of the Malaya Lolas were what
motivated her to sign the Statement.
In closing, respondents Common Compliance exhorted this Court to consider
the following portion of the dissenting opinion of Justice George A. Malcolm in
Salcedo v. Hernandez,72 to wit: On the point of academic freedom, Prof. Juan-Bautista cited
jurisprudence77 which in her view highlighted that academic freedom is
constitutionally guaranteed to institutions of higher learning such that schools
Respect for the courts can better be obtained by following a calm and impartial have the freedom to determine for themselves who may teach, what may be
course from the bench than by an attempt to compel respect for the judiciary by taught, how lessons shall be taught and who may be admitted to study and that
chastising a lawyer for a too vigorous or injudicious exposition of his side of a courts have no authority to interfere in the schools exercise of discretion in
case. The Philippines needs lawyers of independent thought and courageous these matters in the absence of grave abuse of discretion. She claims the Court
bearing, jealous of the interests of their clients and unafraid of any court, high or has encroached on the academic freedom of the University of the Philippines
low, and the courts will do well tolerantly to overlook occasional intemperate and other universities on their right to determine how lessons shall be taught.
language soon to be regretted by the lawyer which affects in no way the
outcome of a case.73
Lastly, Prof. Juan-Bautista asserted that the Statement was an exercise of
respondents constitutional right to freedom of expression that can only be
On the matter of the reliefs to which respondents believe they are entitled, the curtailed when there is grave and imminent danger to public safety, public
Common Compliance stated, thus: morale, public health or other legitimate public interest.78

WHEREFORE: Compliance of Prof. Raul T. Vasquez

A. Respondents, as citizens of a democracy, professors of law, On November 19, 2010, Prof. Raul T. Vasquez (Prof. Vasquez) filed a separate
members of the Bar and officers of the Court, respectfully pray that: Compliance by registered mail (the Vasquez Compliance). In said Compliance,
Prof. Vasquez narrated the circumstances surrounding his signing of the
Statement. He alleged that the Vinuya decision was a topic of conversation
1. the foregoing be noted; and among the UP Law faculty early in the first semester (of academic year 2010-
11) because it reportedly contained citations not properly attributed to the
2. the Court reconsider and reverse its adverse findings in sources; that he was shown a copy of the Statement by a clerk of the Office of
the Show Cause Resolution, including its conclusions that the Dean on his way to his class; and that, agreeing in principle with the main
respondents have: [a] breached their "obligation as law theme advanced by the Statement, he signed the same in utmost good faith.79
professors and officers of the Court to be the first to
uphold the dignity and authority of this Court, and not In response to the directive from this Court to explain why he should not be
to promote distrust in the administration of justice;" and [b] disciplined as a member of the Bar under the Show Cause Resolution, Prof.
committed "violations of Canons 10, 11, and 13 and Rules Vasquez also took the position that a lawyer has the right, like all citizens in a
1.02 and 11.05 of the Code of Professional democratic society, to comment on acts of public officers. He invited the
Responsibility." attention of the Court to the following authorities: (a) In re: Vicente Sotto;80 (b) In
re: Atty. Vicente Raul Almacen;81 and (c) a discussion appearing in American
Jurisprudence (AmJur) 2d.82 He claims that he "never had any intention to Deans Office to sign the document or had it brought to their
unduly influence, nor entertained any illusion that he could or should influence, classrooms in the College of Law, or to their offices or residences.
[the Court] in its disposition of the Vinuya case"83 and that "attacking the Still other faculty members who, for one reason or another, were
integrity of [the Court] was the farthest thing on respondents mind when he unable to sign Restoring Integrity I at that time, nevertheless
signed the Statement."84Unlike his colleagues, who wish to impress upon this conveyed to Dean Leonen their assurances that they would sign as
Court the purported homogeneity of the views on what constitutes plagiarism, soon as they could manage.
Prof. Vasquez stated in his Compliance that:
2.5. Sometime in the second week of August, judging that Restoring
13. Before this Honorable Court rendered its Decision dated 12 October 2010, Integrity I had been circulated long enough, Dean Leonen instructed
some espoused the view that willful and deliberate intent to commit plagiarism his staff to reproduce the statement in a style and manner
is an essential element of the same. Others, like respondent, were of the appropriate for posting in the College of Law. Following his own
opinion that plagiarism is committed regardless of the intent of the perpetrator, established practice in relation to significant public issuances, he
the way it has always been viewed in the academe. This uncertainty made the directed them to reformat the signing pages so that only the names
issue a fair topic for academic discussion in the College. Now, this Honorable of those who signed the first printed draft would appear, together
Court has ruled that plagiarism presupposes deliberate intent to steal anothers with the corresponding "(SGD.)" note following each name.
work and to pass it off as ones own. 85 (Emphases supplied.) Restoring Integrity II thus came into being.88

Also in contrast to his colleagues, Prof. Vasquez was willing to concede that he According to Dean Leonen, the "practice of eliminating blanks opposite or
"might have been remiss in correctly assessing the effects of such language [in above the names of non-signatories in the final draft of significant public
the Statement] and could have been more careful."86 He ends his discussion issuances, is meant not so much for aesthetic considerations as to secure the
with a respectful submission that with his explanation, he has faithfully complied integrity of such documents."89 He likewise claimed that "[p]osting statements
with the Show Cause Resolution and that the Court will rule that he had not in with blanks would be an open invitation to vandals and pranksters."90
any manner violated his oath as a lawyer and officer of the Court.
With respect to the inclusion of Justice Mendozas name as among the
Separate Compliance of Dean Leonen regarding the charge of violation of signatories in Restoring Integrity II when in fact he did not sign Restoring
Canon 10 in relation to his submission of a "dummy" of the UP Law Faculty Integrity I, Dean Leonen attributed the mistake to a miscommunication involving
Statement to this Court his administrative officer. In his Compliance, he narrated that:

In his Compliance, Dean Leonen claimed that there were three drafts/versions 2.7. Upon being presented with a draft of Restoring Integrity II with
of the UP Law Faculty Statement, which he described as follows: the reformatted signing pages, Dean Leonen noticed the inclusion of
the name of Justice Mendoza among the "(SGD.)" signatories. As
Justice Mendoza was not among those who had physically signed
"Restoring Integrity I" which bears the entire roster of the faculty Restoring Integrity I when it was previously circulated, Dean Leonen
of the UP College of Law in its signing pages, and the actual called the attention of his staff to the inclusion of the Justices name
signatures of the thirty-seven (37) faculty members subject of the among the "(SGD.)" signatories in Restoring Integrity II.
Show Cause Resolution. A copy was filed with the Honorable Court
by Roque and Butuyan on 31 August 2010 in A.M. No. 10-7-17-SC.
2.8. Dean Leonen was told by his administrative officer that she had
spoken to Justice Mendoza over the phone on Friday, 06 August
"Restoring Integrity II" which does not bear any actual physical 2010. According to her, Justice Mendoza had authorized the dean to
signature, but which reflects as signatories the names of thirty-seven sign the Restoring Integrity Statement for him as he agreed
(37) members of the faculty with the notation "(SGD.)". A copy of fundamentally with its contents. Also according to her, Justice
Restoring Integrity II was publicly and physically posted in the UP Mendoza was unable at that time to sign the Restoring Integrity
College of Law on 10 August 2010. Another copy of Restoring Statement himself as he was leaving for the United States the
Integrity II was also officially received by the Honorable Court from following week. It would later turn out that this account was not
the Dean of the UP College of Law on 11 August 2010, almost three entirely accurate.91(Underscoring and italics supplied.)
weeks before the filing of Restoring Integrity I.

Dean Leonen claimed that he "had no reason to doubt his administrative officer,
"Restoring Integrity III" which is a reprinting of Restoring Integrity however, and so placed full reliance on her account"92 as "[t]here were indeed
II, and which presently serves as the official file copy of the Deans other faculty members who had also authorized the Dean to indicate that they
Office in the UP College of Law that may be signed by other faculty were signatories, even though they were at that time unable to affix their
members who still wish to. It bears the actual signatures of the thirty- signatures physically to the document."93
seven original signatories to Restoring Integrity I above their printed
names and the notation "(SGD.") and, in addition, the actual
signatures of eight (8) other members of the faculty above their However, after receiving the Show Cause Resolution, Dean Leonen and his
handwritten or typewritten names.87 staff reviewed the circumstances surrounding their effort to secure Justice
Mendozas signature. It would turn out that this was what actually transpired:
For purposes of this discussion, only Restoring Integrity I and Restoring
Integrity II are relevant since what Dean Leonen has been directed to explain 2.22.1. On Friday, 06 August 2010, when the deans staff talked to
are the discrepancies in the signature pages of these two documents. Restoring Justice Mendoza on the phone, he [Justice Mendoza] indeed initially
Integrity III was never submitted to this Court. agreed to sign the Restoring Integrity Statement as he fundamentally
agreed with its contents. However, Justice Mendoza did not exactly
say that he authorized the dean to sign the Restoring Integrity
On how Restoring Integrity I and Restoring Integrity II were prepared and came Statement. Rather, he inquired if he could authorize the dean to sign
about, Dean Leonen alleged, thus: it for him as he was about to leave for the United States. The deans
staff informed him that they would, at any rate, still try to bring the
2.2 On 27 July 2010, sensing the emergence of a relatively broad Restoring Integrity Statement to him.
agreement in the faculty on a draft statement, Dean Leonen
instructed his staff to print the draft and circulate it among the faculty 2.22.2. Due to some administrative difficulties, Justice Mendoza was
members so that those who wished to may sign. For this purpose, unable to sign the Restoring Integrity Statement before he left for the
the staff encoded the law faculty roster to serve as the printed drafts U.S. the following week.
signing pages. Thus did the first printed draft of the Restoring
Integrity Statement, Restoring Integrity I, come into being.
2.22.3. The staff was able to bring Restoring Integrity III to Justice
Mendoza when he went to the College to teach on 24 September
2.3. As of 27 July 2010, the date of the Restoring Integrity 2010, a day after his arrival from the U.S. This time, Justice
Statement, Dean Leonen was unaware that a Motion for Mendoza declined to sign.94
Reconsideration of the Honorable Courts Decision in Vinuya vs.
Executive Secretary (G.R. No. 162230, 28 April 2010) had already
been filed, or that the Honorable Court was in the process of According to the Dean:
convening its Committee on Ethics and Ethical Standards in A.M.
No. 10-7-17-SC.
2.23. It was only at this time that Dean Leonen realized the true import of the
call he received from Justice Mendoza in late September. Indeed, Justice
2.4. Dean Leonens staff then circulated Restoring Integrity I among Mendoza confirmed that by the time the hard copy of the Restoring Integrity
the members of the faculty. Some faculty members visited the Statement was brought to him shortly after his arrival from the U.S., he declined
to sign it because it had already become controversial. At that time, he Based on the Show Cause Resolution and a perusal of the submissions of
predicted that the Court would take some form of action against the faculty. By respondents, the material issues to be resolved in this case are as follows:
then, and under those circumstances, he wanted to show due deference to the
Honorable Court, being a former Associate Justice and not wishing to unduly
aggravate the situation by signing the Statement.95 (Emphases supplied.) 1.) Does the Show Cause Resolution deny respondents their freedom of
expression?

With respect to the omission of Atty. Armovits name in the signature page of
Restoring Integrity II when he was one of the signatories of Restoring Integrity I 2.) Does the Show Cause Resolution violate respondents academic freedom
and the erroneous description in Dean Leonens August 10, 2010 letter that the as law professors?
version of the Statement submitted to the Court was signed by 38 members of
the UP Law Faculty, it was explained in the Compliance that: 3.) Do the submissions of respondents satisfactorily explain why they should
not be disciplined as Members of the Bar under Canons 1, 11, and 13 and
Respondent Atty. Miguel Armovit physically signed Restoring Integrity I when it Rules 1.02 and 11.05 of the Code of Professional Responsibility?
was circulated to him. However, his name was inadvertently left out by Dean
Leonens staff in the reformatting of the signing pages in Restoring Integrity II. 4.) Does the separate Compliance of Dean Leonen satisfactorily explain why he
The dean assumed that his name was still included in the reformatted signing should not be disciplined as a Member of the Bar under Canon 10, Rules 10.01,
pages, and so mentioned in his cover note to Chief Justice Corona that 38 10.02 and 10.03?
members of the law faculty signed (the original 37 plus Justice Mendoza.)96

5.) Are respondents entitled to have the Show Cause Resolution set for hearing
Dean Leonen argues that he should not be deemed to have submitted a and in relation to such hearing, are respondents entitled to require the
dummy of the Statement that was not a true and faithful reproduction of the production or presentation of evidence bearing on the plagiarism and
same. He emphasized that the main body of the Statement was unchanged in misrepresentation issues in the Vinuya case (G.R. No. 162230) and the ethics
all its three versions and only the signature pages were not the same. This case against Justice Del Castillo (A.M. No. 10-7-17-SC) and to have access to
purportedly is merely "reflective of [the Statements] essential nature as a live the records and transcripts of, and the witnesses and evidence presented, or
public manifesto meant to continuously draw adherents to its message, its could have been presented, in the ethics case against Justice Del Castillo (A.M.
signatory portion is necessarily evolving and dynamic x x x many other printings No. 10-7-17-SC)?
of [the Statement] may be made in the future, each one reflecting the same text
but with more and more signatories."97 Adverting to criminal law by analogy,
Dean Leonen claims that "this is not an instance where it has been made to DISCUSSION
appear in a document that a person has participated in an act when the latter
did not in fact so participate"98 for he "did not misrepresent which members of
The Show Cause Resolution does not deny respondents their freedom of
the faculty of the UP College of Law had agreed with the Restoring Integrity
expression.
Statement proper and/or had expressed their desire to be signatories thereto."99

It is respondents collective claim that the Court, with the issuance of the Show
In this regard, Dean Leonen believes that he had not committed any violation of
Cause Resolution, has interfered with respondents constitutionally mandated
Canon 10 or Rules 10.01 and 10.02 for he did not mislead nor misrepresent to
right to free speech and expression. It appears that the underlying assumption
the Court the contents of the Statement or the identities of the UP Law faculty
behind respondents assertion is the misconception that this Court is denying
members who agreed with, or expressed their desire to be signatories to, the
them the right to criticize the Courts decisions and actions, and that this Court
Statement. He also asserts that he did not commit any violation of Rule 10.03
seeks to "silence" respondent law professors dissenting view on what they
as he "coursed [the Statement] through the appropriate channels by
characterize as a "legitimate public issue."
transmitting the same to Honorable Chief Justice Corona for the latters
information and proper disposition with the hope that its points would be duly
considered by the Honorable Court en banc."100 Citing Rudecon Management This is far from the truth. A reading of the Show Cause Resolution will plainly
Corporation v. Camacho,101 Dean Leonen posits that the required quantum of show that it was neither the fact that respondents had criticized a decision of
proof has not been met in this case and that no dubious character or motivation the Court nor that they had charged one of its members of plagiarism that
for the act complained of existed to warrant an administrative sanction for motivated the said Resolution. It was the manner of the criticism and the
violation of the standard of honesty provided for by the Code of Professional contumacious language by which respondents, who are not parties nor
Responsibility.102 counsels in the Vinuya case, have expressed their opinion in favor of the
petitioners in the said pending case for the "proper disposition" and
consideration of the Court that gave rise to said Resolution. The Show Cause
Dean Leonen ends his Compliance with an enumeration of nearly identical
Resolution painstakingly enumerated the statements that the Court considered
reliefs as the Common Compliance, including the prayers for a hearing and for
excessive and uncalled for under the circumstances surrounding the issuance,
access to the records, evidence and witnesses allegedly relevant not only in
publication, and later submission to this Court of the UP Law facultys Restoring
this case but also in A.M. No. 10-7-17-SC, the ethical investigation involving
Integrity Statement.
Justice Del Castillo.

To reiterate, it was not the circumstance that respondents expressed a belief


Manifestation of Prof. Owen Lynch (Lynch Manifestation)
that Justice Del Castillo was guilty of plagiarism but rather their expression of
that belief as "not only as an established fact, but a truth"111 when it was "[o]f
For his part, Prof. Owen Lynch (Prof. Lynch) manifests to this Court that he is public knowledge [that there was] an ongoing investigation precisely to
not a member of the Philippine bar; but he is a member of the bar of the State determine the truth of such allegations."112 It was also pointed out in the Show
of Minnesota. He alleges that he first taught as a visiting professor at the UP Cause Resolution that there was a pending motion for reconsideration of the
College of Law in 1981 to 1988 and returned in the same capacity in 2010. He Vinuya decision.113 The Show Cause Resolution made no objections to the
further alleges that "[h]e subscribes to the principle, espoused by this Court and portions of the Restoring Integrity Statement that respondents claimed to be
the Supreme Court of the United States, that [d]ebate on pub