Hi gengs, fact that the presence of the police and the constabulary was deemed necessary and that
fact that the presence of the police and the constabulary was deemed necessary and that these
Dili ni kompleto. Mao ni ang mag kulang:
American Communications Ass’n. v. Douds, 339 US 282
Tanada v. Bagatsing, GR No. 68273, August 18, 1984 (read also the dissent of
Teehankee, J., and the separate opinion of Abad Santos, J.)
Aquino v. Bagatsing, GR No. 68318, August 18, 1984
Alliance of Gov’t. Workers v. Ministry of Labor, 124 SCRA 1
Alliance of Gov’t. Workers v. Ministry of Labor, 124 SCRA 1
Pang-share if naa mo. 
Thanks,
Ten
Rubi vs Provincial Board of Mindoro
Rubi and various other Manguianes (Mangyans) in the province of Mindoro were ordered by the
provincial governor of Mindoro to remove their residence from their native habitat and to established
themselves on a reservation in Tigbao, still in the province of Mindoro, and to remain there, or be
punished by imprisonment if they escaped. Manguianes had been ordered to live in
a reservation made to that end and for purposes of cultivation under certain plans. The Manguianes
are a Non-Christian tribe who were considered to be of “very low culture”.
One of the Manguianes, a certain Dabalos, escaped from the reservation but was later caught and
was placed in prison at Calapan, solely because he escaped from thereservation. An application for
habeas corpus was made on behalf by Rubi and other Manguianes of the province, alleging that by
virtue of the resolution of the provincial board of Mindoro creating the reservation, they had been
illegally deprived of their liberty. In this case, the validity of Section 2145 of the Administrative Code,
which provides:
With the prior approval of the Department Head, the provincial governor of any province in which
non-Christian inhabitants are found is authorized, when such a course is deemed necessary in the
interest of law and order, to direct such inhabitants to take up their habitation on sites on
unoccupied public lands to be selected by him and approved by the provincial board.
was challenged.
ISSUE: Whether or not Section 2145 of the Administrative Code constitutes undue delegation.
Whether or not the Manguianes are being deprived of their liberty.
HELD:
I. No. By a vote of five to four, the Supreme Court sustained the constitutionality of this section of the
Administrative Code. Under the doctrine of necessity, who else was in a better position to determine
whether or not to execute the law but the provincial governor. It is optional for the provincial
governor to execute the law as circumstances may arise. It is necessary to give discretion to the
provincial governor. The Legislature may make decisions of executive departments of subordinate
official thereof, to whom it has committed the execution of certain acts, final on questions of fact.
II. No. Among other things, the term “non-Christian” should not be given a literal meaning or a
religious signification, but that it was intended to relate to degrees of civilization. The term “non-
Christian” it was said, refers not to religious belief, but in a way to geographical area, and more
directly to natives of the Philippine Islands of a low grade of civilization. In this case, the Manguianes
were being reconcentrated in the reservationto promote peace and to arrest their seminomadic
lifestyle. This will ultimately settle them down where they can adapt to the changing times.
The Supreme Court held that the resolution of the provincial board of Mindoro was neither
discriminatory nor class legislation, and stated among other things: “. . . one cannot hold that the
liberty of the citizen is unduly interfered with when the degree of civilization of the Manguianes is
considered. They are restrained for their own good and the general good of the Philippines. Nor can
one say that due process of law has not been followed. To go back to our definition of due process
of law and equal protection of the laws, there exists a law; the law seems to be reasonable; it is
enforced according to the regular methods of procedure prescribed; and it applies alike to all of a
class.”
Villacicencio Vs Lukban
Facts : One hundred and seventy women were isolated from society, and then at night, without their
consent and without any opportunity to consult with friends or to defend their rights, were forcibly
hustled on board steamers for transportation to regions unknown. Despite the feeble attempt to
prove that the women left voluntarily and gladly, that such was not the case is shown by the mere
officers of the law chose the shades of night to cloak their secret and stealthy acts. Indeed, this is a
fact impossible to refute and practically admitted by the respondents.
ISSUE : WON Mayor Lukban has the right to deport women with ill repute.
HELD : Law defines power. No official, no matter how high, is above the law. Lukban committed a
grave abuse of discretion by deporting the prostitutes to a new domicile against their will. There is
no law expressly authorizing his action. On the contrary, there is a law punishing public officials, not
expressly authorized by law or regulation, who compels any person to change his residence
Furthermore, the prostitutes are still, as citizens of the Philippines, entitled to the same rights, as
stipulated in the Bill of Rights, as every other citizen. Thei rchoice of profession should not be a
cause for discrimination. It may make some, like Lukban, quite uncomfortable but it does not
authorize anyone to compel said prostitutes to isolate themselves from the rest of the human race.
These women have been deprived of their liberty by being exiled to Davao without even being given
the opportunity to collect their belongings or, worse, without even consenting to being transported to
Mindanao. For this, Lukban etal must be severely punished
Manotoc vs. CA | May 30, 1986
FACTS:
Ricardo Manotoc Jr. was one of the two principal stockholders of Trans-Insular Management Inc.
and the Manotoc Securities Inc. (stock brokerage house). He was in US for a certain time, went
home to file a petition with SEC for appointment of a management committee for both
businesses. Such was granted. However, pending disposition of a case filed with SEC, the latter
requested the Commissioner of Immigration not to clear him for departure. Consequently, a
memorandum to this effect was issued.
There was a torrens title submitted to and accepted by Manotoc Securities Inc which was suspected
to be fake. 6 of its clients filed separate criminal complaints against the petitioner and Leveriza,
President and VP respectively. He was charged with estafa and was allowed by the Court to post
bail.
Petitioner filed before each trial court motion for permission to leave the country stating his desire to
go to US relative to his business transactions and opportunities. Such was opposed by the
prosecution and was also denied by the judges. He filed petition for certiorari with CA seeking to
annul the prior orders and the SEC communication request denying his leave to travel abroad.
According to the petitioner, having been admitted to bail as a matter of right, neither the courts that
granted him bail nor SEC, which has no jurisdiction over his liberty, could prevent him from
exercising his constitutional right to travel.
ISSUE: WON petitioner’s constitutional right to travel was violated.
HELD: NO.
The court has power to prohibit person admitted to bail from leaving the country because this is a
necessary consequence of the nature and function of a bail bond. The condition imposed upon
petitioner to make himself available at all times whenever the court requires his presence
operates as a valid restriction on his constitutional right to travel. In case he will be allowed to
leave the country without sufficient reason, he may be placed beyond the reach of courts.
Furthermore, petitioner failed to satisfy trial court and CA of the urgency of his travel, duration
thereof, as well as consent of his surety to the proposed travel. He was not able to show the
necessity of his travel abroad. He never indicated that no other person in his behalf could undertake
such business transaction.
Article 3 Sec6: “The liberty of abode and of changing the same… shall not be impaired except upon
lawful order of the court….” According to SC, the order of trial court in releasing petitioner on bail
constitutes such lawful order as contemplated by the provision on right to travel.
PASEI v. Drilon
FACTS:
Phil association of Service Exporters, Inc., is engaged principally in the recruitment of Filipino
workers, male and female of overseas employment. It challenges the constitutional validity of Dept.
Order No. 1 (1998) of DOLE entitled “Guidelines Governing the Temporary Suspension of
Deployment of Filipino Domestic and Household Workers.” It claims that such order is a
discrimination against males and females. The Order does not apply to all Filipino workers but only
to domestic helpers and females with similar skills, and that it is in violation of the right to travel, it
also being an invalid exercise of the lawmaking power. Further, PASEI invokes Sec 3 of Art 13 of the
Constitution, providing for worker participation in policy and decision-making processes affecting
their rights and benefits as may be provided by law. Thereafter the Solicitor General on behalf of
DOLE submitting to the validity of the challenged guidelines involving the police power of the State
and informed the court that the respondent have lifted the deployment ban in some states where
there exists bilateral agreement with the Philippines and existing mechanism providing for sufficient
safeguards to ensure the welfare and protection of the Filipino workers.
ISSUE:
Whether or not D.O. No. 1 of DOLE is constitutional as it is an exercise of police power.
RULING:
“[Police power] has been defined as the "state authority to enact legislation that may interfere with
personal liberty or property in order to promote the general welfare." As defined, it consists of (1) an
imposition of restraint upon liberty or property, (2) in order to foster the common good. It is not
capable of an exact definition but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace.
“The petitioner has shown no satisfactory reason why the contested measure should be nullified.
There is no question that Department Order No. 1 applies only to "female contract workers," but it
does not thereby make an undue discrimination between the sexes. It is well-settled that "equality
before the law" under the Constitution does not import a perfect Identity of rights among all men
and women. It admits of classifications, provided that (1) such classifications rest on substantial
distinctions; (2) they are germane to the purposes of the law; (3) they are not confined to existing
conditions; and (4) they apply equally to all members of the same class.
The Court is satisfied that the classification made-the preference for female workers — rests on
substantial distinctions.
MARCOS VS. MANGLAPUS [177 SCRA 668; G.R. NO. 88211; 15 SEPT 1989]
Facts: This case involves a petition of mandamus and prohibition asking the court to order the
respondents Secretary of Foreign Affairs, etc. To issue a travel documents to former Pres. Marcos
and the immediate members of his family and to enjoin the implementation of the President's
decision to bar their return to the Philippines. Petitioners assert that the right of the Marcoses to
return in the Philippines is guaranteed by the Bill of Rights, specifically Sections 1 and 6. They
contended that Pres. Aquino is without power to impair the liberty of abode of the Marcoses because
only a court may do so within the limits prescribed by law. Nor the President impair their right to
travel because no law has authorized her to do so.
They further assert that under international law, their right to return to the Philippines is guaranteed
particularly by the Universal Declaration of HumanRights and the International Covenant on Civil
and Political Rights, which has been ratified by the Philippines.
Issue: Whether or not, in the exercise of the powers granted by the constitution, the President
(Aquino) may prohibit the Marcoses from returning to the Philippines.
Held: "It must be emphasized that the individual right involved is not the right to travel from the
Philippines to other countries or within the Philippines. These are what the right to travel would
normally connote. Essentially, the right involved in this case at bar is the right to return to one's
country, a distinct right under international law, independent from although related to the right to
travel. Thus, the Universal Declaration ofHuman Rights and the International Covenant on Civil and
Political Rights treat the right to freedom of movement and abode within the territory of a state, the
right to leave the country, and the right to enter one's country asseparate and distinct rights. What
the Declaration speaks of is the "right to freedom of movement and residence within the borders of
each state". On the other hand, the Covenant guarantees the right to liberty of movement and
freedom to choose his residence and the right to be free to leave any country, including his own.
Such rights may only be restricted by laws protecting the national security, public order, public health
or morals or theseparate rights of others. However, right to enter one's country cannot be arbitrarily
deprived. It would be therefore inappropriate to construe the limitations to the right to return to ones
country in the same context as those pertaining to the liberty of abode and the right to travel.
The Bill of rights treats only the liberty of abode and the right to travel, but it is a well considered
view that the right to return may be considered, as a generally accepted principle of International
Law and under our Constitution as part of the law of the land.
The court held that President did not act arbitrarily or with grave abuse of discretion in determining
that the return of the Former Pres. Marcos and his family poses a serious threat to national interest
and welfare. President Aquino has determined that the destabilization caused by the return of the
Marcoses would wipe away the gains achieved during the past few years after the Marcos regime.
The return of the Marcoses poses a serious threat and therefore prohibiting their return to the
Philippines, the instant petition is hereby DISMISSED.
Engel v. Vitale, 370 U.S. 421 (1962)
FACTS
A New York State law required public schools to open each day with the Pledge of Allegiance and a
nondenominational prayer in which the students recognized their dependence upon God. The law
allowed students to absent themselves from this activity if they found it objectionable. A parent sued
on behalf of his child, arguing that the law violated the Establishment Clause of the First
Amendment, as made applicable to the states through the Due Process Clause of the Fourteenth
Amendment.
ISSUE
Whether school-sponsored nondenominational prayer in public schools violates the Establishment
Clause of the First Amendment.
RULING
Yes (8-1)
REASONING
The majority, via Justice Black, held that school-sponsored prayer violates the Establishment Clause
of the First Amendment. The majority stated that the provision allowing students to absent
themselves from this activity did not make the law constitutional because the purpose of the First
Amendment was to prevent government interference with religion. The majority noted that religion is
very important to a vast majority of the American people. Since Americans adhere to a wide variety
of beliefs, it is not appropriate for the government to endorse any particular belief system. The
majority noted that wars, persecutions, and other destructive measures often arose in the past when
the government involved itself in religious affairs.
CONCURRENCE
Justice Douglas
In his concurrence, Justice Douglas took an even broader view of the Establishment Clause,
arguing that any type of public promotion of religion, including giving financial aid to religious
schools, violates the Establishment Clause.
DISSENT
Justice Stewart
Justice Stewart argued in his dissent that the Establishment Clause was only meant to prohibit the
establishment of a state-sponsored church, such as the Church of England, and not prohibit all
types of government insolvent with religion. In particular, he found that the nondenominational
nature of the prayer and the "absentee" provision removed constitutional challenges.
Everson v. Board of Education
Brief Fact Summary. The Petitioner, Everson (Petitioner), in his status as a taxpayer, filed suit
challenging the ability of the Respondent, Board of Education (Respondent), to reimburse funds to
parents of parochial school students for the transportation of their children to and from school.
Synopsis of Rule of Law. This case stands for the proposition that, while no law respecting an
establishment of religion will stand under the United States Constitution (Constitution), neutral laws,
which afford benefits to children will be upheld.
Facts. The Petitioner in his status as a taxpayer filed suit challenging the ability of the Respondent
to reimburse funds to parents of parochial school students for the transportation of their children to
and from school. The Petitioner brought suit alleging that the New Jersey reimbursement statute
respects the establishment of religion, by allowing the parents of parochial school students to benefit
from the reimbursement scheme. The New Jersey Court of Appeals held that the statute did not
violate the Constitution and the Supreme Court of the United States (Supreme Court) granted
certiorari to consider the issue.
Issue. This case considers whether the parents of parochial school children can benefit from the
same services afforded to the parents of public school children.
Held. Affirmed.
In affirming the judgment of the Court of Appeals, the Supreme Court found the statute was not
unconstitutional because it was designed to provide a benefit to the parents of all school children,
distinct from any religious function in which the children engaged.
Dissent. The dissents of Justice Robert Jackson (J. Jackson) and Justice Wiley Rutledge (J.
Rutledge) stand for strict adherence to the establishment clause.
Discussion. It is important to understand, in striking down the Establishment Clause challenge, the
Supreme Court highlights the fact that funds cannot be commingled when they are reimbursed only
for transportation costs already expended. Thus, because there is no possibility of funding parochial
activities in themselves, the statute is allowed to stand.
Facts of the Case
A New Jersey law allowed reimbursements of money to parents who sent their children to school on
buses operated by the public transportation system. Children who attended Catholic schools also
qualified for this transportation subsidy.
Question
Did the New Jersey statute violate the Establishment Clause of the First Amendment as made
applicable to the states through the Fourteenth Amendment?
Conclusion
No. A divided Court held that the law did not violate the Constitution. After detailing the history and
importance of the Establishment Clause, Justice Black argued that services like bussing and police
and fire protection for parochial schools are "separate and so indisputably marked off from the
religious function" that for the state to provide them would not violate the First Amendment. The law
did not pay money to parochial schools, nor did it support them directly in anyway. It was simply a
law enacted as a "general program" to assist parents of all religions with getting their children to
school.
LEMON v. KURTZMAN
Facts of the Case
This case was heard concurrently with two others, Earley v. DiCenso (1971) and Robinson v.
DiCenso (1971). The cases involved controversies over laws in Pennsylvania and Rhode Island. In
Pennsylvania, a statute provided financial support for teacher salaries, textbooks, and instructional
materials for secular subjects to non-public schools. The Rhode Island statute provided direct
supplemental salary payments to teachers in non-public elementary schools. Each statute made aid
available to "church-related educational institutions."
Question
Did the Rhode Island and Pennsylvania statutes violate the First Amendment's Establishment
Clause by making state financial aid available to "church- related educational institutions"?
Conclusion
Decision: 8 votes for Lemon, 0 vote(s) against
Legal provision: Establishment of Religion
Yes. Writing for the majority, Chief Justice Burger articulated a three-part test for laws dealing with
religious establishment. To be constitutional, a statute must have "a secular legislative purpose," it
must have principal effects which neither advance nor inhibit religion, and it must not foster "an
excessive government entanglement with religion." The Court found that the subsidization of
parochial schools furthered a process of religious inculcation, and that the "continuing state
surveillance" necessary to enforce the specific provisions of the laws would inevitably entangle the
state in religious affairs. The Court also noted the presence of an unhealthy "divisive political
potential" concerning legislation which appropriates support to religious schools.
ABINGTON SCHOOL DISTRICT v. SCHEMPP
Facts of the Case
The Abington case concerns Bible-reading in Pennsylvania public schools. At the beginning of the
school day, students who attended public schools in the state of Pennsylvania were required to read
at least ten verses from the Bible. After completing these readings, school authorities required all
Abington Township students to recite the Lord's Prayer. Students could be excluded from these
exercises by a written note from their parents to the school. In a related case -- Murray v. Curlett -- a
Baltimore statute required Bible-reading or the recitation of the Lord's Prayer at open exercises in
public schools. Murray and his mother, professed atheists -- challenged the prayer requirement.
Question
Did the Pennsylvania law and Abington's policy, requiring public school students to participate in
classroom religious exercises, violate the religious freedom of students as protected by the First and
Fourteenth Amendments?
Conclusion
Decision: 8 votes for Schempp, 1 vote(s) against
Legal provision: Establishment of Religion
The Court found such a violation. The required activities encroached on both the Free Exercise
Clause and the Establishment Clause of the First Amendment since the readings and recitations
were essentially religious ceremonies and were "intended by the State to be so." Furthermore,
argued Justice Clark, the ability of a parent to excuse a child from these ceremonies by a written
note was irrelevant since it did not prevent the school's actions from violating the Establishment
Clause.
Tudor v. Board of Education of Borough of Rutherford
BERNARD TUDOR, PLAINTIFF-APPELLANT, v. BOARD OF EDUCATION OF THE BOROUGH OF
RUTHERFORD, DEFENDANT-RESPONDENT, THE GIDEONS INTERNATIONAL, A
CORPORATION OF ILLINOIS, INTERVENOR-RESPONDENT.
The Supreme Court of New Jersey.
Argued October 5, 1953.
Decided December 7, 1953.
*32 Mr. Leo Pfeffer (of the New York Bar) argued the cause for the appellant (Mr. Archibald Kreiger,
attorney).
Mr. Jacob Stam argued the cause for the respondents (Messrs. Kipp, Ashen and Somerville,
attorneys for respondent Board of Education; Mr. W. Adriance Kipp, Jr., of counsel with both
respondents).
A brief amici curiae was filed by the Synagogue Council of America and the National Community
Relations Advisory *33 Council (Mr. Harry Silverstein, attorney, Messrs. Philip Baum and Joseph B.
Robison, of the New York Bar, of counsel).
The opinion of the court was delivered by VANDERBILT, C.J.
I.
The Gideons International is a nonprofit corporation organized under the laws of the State of Illinois,
whose object is "to win men and women for the Lord Jesus Christ, through * * * (c) placing the Bible
God's Holy Words or portions thereof in hotels, hospitals, schools, institutions, and also through the
distribution of same for personal use." In recent years it began a campaign to make available to
pupils in the public schools of this country the so-called "Gideon Bible," which was characterized by
the International in its pleadings as "a book containing all of the New Testament, all of the Book of
Psalms from the Old Testament, all of the Book of Proverbs from the Old Testament; all without note
or comment, conformable to the edition of 1611, commonly known as the Authorized, or King James
version of the Holy Bible." In furtherance of this campaign it applied by letter to the Board of
Education of the Borough of Rutherford for permission to distribute its Bible to the public schools of
that municipality:
"Board of Education Rutherford, N.J.
Attention: Mr. Guy Hilleboe
Gentlemen:
The Gideons of Passaic and Bergen County, consisting of local business men, hereby offer to
furnish, without charge, a volume containing the book of Psalms, Proverbs and the New Testament
to each of the children in the schools of Rutherford from the fifth grade up through the eighth grade,
and High School.
This offer is part of a national campaign conducted by the Gideons International to furnish the Word
of God free to the young people *34 of our country from the fifth grade through the high school. If
God's word is heard and heeded, if it is read and believed, we believe that this is the answer to the
problem of juvenile delinquency.
If your board approves this distribution, we will be glad to have our committee work out the details
with the principals of the schools.
Yours very truly, PASSAIC COUNTY CAMP OF GIDEONS /s/ John Van Der Eems, John Van Der
Eems, Treasurer"
The proposal was considered at a meeting of the board of education on November 5, 1951, at which
time there was voiced some opposition to the proposal by a Catholic priest and a Jewish rabbi on
the grounds that the Gideons' New Testament was sectarian and forbidden to Catholic and Jewish
children under the laws of their respective religions. The proposal, however, was passed by the
board with one dissenting vote, the resolution adopted providing that "the Gideons International be
allowed to furnish copies of the New Testament, Psalms and Proverbs to those pupils who request
them." Under date of November 21, 1951 the following request form for signature of the parents was
prepared by the board of education and distributed to the pupils of the public schools of Rutherford:
"Rutherford Pubilc Schools, Rutherford, N.J. November 21, 1951
To all Parents:
At the regular meeting of the Board of Education on November 5, 1951, The Gideon Bible Society,
presented a request that the New Testament, Psalms and Proverbs be made available, without cost,
to all children who wish a copy. The Board approved this request provided the distribution be
voluntary. If you wish a copy of this Bible, will you please sign the slip below and return it with your
child to the school he attends by Friday, December 21.
_______________________________________________________ School
___________________________ ________________________ Date
Please request The Gideon Bible Society to provide my child ____ with a copy of the New *35
Testament, Psalms and Proverbs. This request involved no obligation on my part or on the part of
the Board of Education.
Signed ................................. Parent or Guardian"
On January 14, 1952 the board of education was advised by its counsel that the proposed
distribution was in his opinion legal. At a principal's meeting on February 6, 1952 the following
instructions were issued:
"(a) Only names of pupils whose parents had previously signed for the Bibles should be used in any
announcement.
(b) Pupils whose parents had signed for Bibles are to report to the home room at the close of the
session and no other pupils are to be in the room when the Bibles are distributed.
(c) Any announcement of names for the purpose of reporting after school should not include a
reference as to the purpose of reporting."
Prior to the distribution of the books the present action was commenced demanding judgment as to
the validity of the distribution under the Federal and New Jersey Constitutions and seeking an
injunction against it. On February 19, 1952 the trial judge granted a temporary injunction and by
order dated February 29, 1952 restrained the board of education from carrying out the terms of its
resolution of December 10, 1951, until further determination of the action. By consent Gideons
International was permitted to intervene as a party defendant. After a full hearing the trial judge on
March 30, 1953 found in favor of the defendant and vacated the restraint and stay. By consent of the
parties, however, the stay has been continued pending appeal. While the appeal was before the
Appellate Division of the Superior Court, we ordered certification on our own motion.
The plaintiff Bernard Tudor is an adherent of the Jewish religion, while plaintiff Ralph Lecoque is a
member of the Catholic faith, each being a New Jersey citizen and taxpayer of Rutherford and a
parent of a pupil in a Rutherford public school. Each contends that the Gideon Bible is "a sectarian
work of peculiar religious value and significance to members of the Protestant faith." Mr. Tudor
claiming that "its distribution to children of the Jewish faith violates the *36 teachings, tenets and
principles of Judaism," while Mr. Lecoque states that "its distribution to children of Catholic faith
violates the teachings, tenets and principles of Catholicism." After this action was commenced, the
child of plaintiff Ralph Lecoque transferred from the public school to a Catholic parochial school and
to the extent that the complaint was based upon his status as a parent, the issue became moot. The
State of New Jersey was originally named as a party defendant but the action as to it has been
dismissed. The Synagogue Council of America and the National Community Relations Advisory
Council have submitted a brief amici curiae.
II.
The American doctrine of the separation of Church and State cannot be understood apart from its
history for it is the epitome of centuries of struggle and conflict. In 311 A.D. Christians were still
being persecuted; but shortly thereafter the Fourth Century witnessed the toleration of Christianity in
the Roman world. In 313 A.D. Constantine, the ruler of the West, and Licinius, the emperor of the
East, met in Italy and proclaimed the Edict of Milan, which made the toleration of the Christian
religion "a part of a universal toleration of all religions, and it establishes absolute freedom of
worship," Innes, Church and State, p. 23. In 410 A.D. Rome was sacked by Alaric. Italy, as well as
Spain and Africa, fell to the Teutonic barbarians, but these conquests did not spell defeat for
Christianity. The attitude of the invaders is illustrated by the words of Theodoric, speaking shortly
after the fall of Rome:
"That to pretend to a dominion over the conscience is to usurp the prerogative of God; that by the
nature of things the power of sovereigns is confined to external government; that they have no right
of punishment, but over those who disturb the public peace, of which they are the guardians; and
that the most dangerous heresy is that of a sovereign who separates himself from a part of his
subjects, because they believe not according to his belief." Innes, Church and State, p. 51.
*37 After the collapse of the Roman Empire the Church remained as the one stable, permanent
element in society. Gradually it came to claim not merely equality with the State, but actual
superiority. Thomas Aquinas summed up the Church's attitude:
"The highest aim of mankind is eternal happiness. To this chief aim of mankind all earthly aims must
be subordinated. This chief aim cannot be realized through human direction alone but must obtain
divine assistance which is only to be obtained through the Church. Therefore the State, through
which earthly aims are obtained, must be subordinated to the Church. Church and State are as two
swords which God has given to Christendom for protection; both of these, however, are given by
him to the Pope and the temporal sword by him handed to the rulers of the State." Bates, Religious
Liberty: An Inquiry (1945), p. 140.
The Church's claim of supremacy did not go unchallenged. Charlemagne, who had been crowned
by the Pope, deliberately crowned his own son as successor without consulting the Pope. The
struggle for supremacy was on between Church and State, and the history of the Middle Ages in
Europe is largely a history of this continuing conflict. The struggles between Pope Gregory VII and
Emperor Henry IV in the 11th Century, and between the English kings Henry II and John and
Celestine III and Innocent III a century later were but phases of the conflict. The Church reached the
height of its supremacy over the State in the 13th Century, under Innocent III, who informed the
Patriarch of Constantinople that "the Lord left to Peter (the Pope) the government not of the Church
only but of the whole world," and advised Philip Augustus of France that "single rulers have single
provinces and single kings have single kingdoms, but Peter, as in the plentitude, so in the extent of
his power, is preeminent over all since he is the vicar of Him Whose is the earth and fullness
thereof, the whole world and all that dwell therein." Bates, Religious Liberty: An Inquiry, supra, pp.
140-141. During his rule Innocent was not only a spiritual leader but he was also the supreme
temporal chief of the Italian State, the Spanish Peninsula, the Scandinavian States, Hungary,
Bohemia, Poland, Servia, Bosnia, *38 Bulgaria, and the Christian state of Syria, 17 Encyclopaedia
Britannica (14th ed.), "Papacy," p. 203.
The 14th Century witnessed the growth of new ideas. In 1324 Marsilius of Padua in his Defensor
Pacis denied the right of the Church to interfere in any matters which were not spiritual. He
expounded the very ideas that centuries later were credited to Locke, Montesquieu, Rousseau and
Jefferson. Marsilius was far ahead of his age when he claimed that "no man may be punished for his
religion." Acton, History of Freedom in Christianity, in Essays on Freedom and Power, p. 65.
But the doctrine of religious liberty and the separation of Church and State were not established in
Europe even with the advent of the Reformation. The Reformation brought forth the more prevalent
Erastian doctrine of state supremacy and the use of religion to help carry out state policy. The peace
of Augsburg in 1555 was a compromise between Lutherans and Catholics, based on the theory that
the religion of a province was to be determined by the religion of its ruler (cuius regio, eius religio).
To the same effect was the peace of Westphalia in 1648 ending a 30-year religious war which swept
Central Europe:
"Each secular state in Germany was henceforth free to profess its existing religion, whether
Catholic, Lutheran, or Reformed; but no other religion was to be `received or tolerated in the Holy
Roman Empire,' and the power of the reigning princes to `reform' their states by driving out
dissenters was restrained rather than abolished." Innes, Church and State, p. 157
In England under Queen Elizabeth the Thirty-nine Articles of the Church of England were adopted
and the supremacy of the Crown over the Church was clearly established. Bloody struggles
between Anglicans, Catholics and Dissenters continued. By the 17th Century Catholics were
regarded with disfavor and in 1647 the Constitution established by Cromwell granted religious
freedom to all except Catholics. In the Glorious Revolution of 1689 the Act of Toleration under
William and Mary established religious toleration in England, but again Catholics were excepted.
*39 By 1787 in Europe no nation had established complete freedom of worship or the mutual
independence of religion and civil government. There had been steps in that direction and there
were those who strongly advocated the separation of Church and State but the Erastian doctrine still
prevailed. In almost every country there was a state-supported or at least a state-favored religion
while the other faiths were treated with varying degrees of toleration. In Spain the Inquisition was
still in existence in 1787 while at the other extreme Holland represented the utmost in religious
toleration and freedom for all faiths. In 1784 James Madison summed up the centuries of bloody
religious battles in Europe:
"Torrents of blood have been spilt in the world in vain attempts of the secular arm to extinguish
religious discord, by proscribing all differences in religious opinions." Blau, Cornerstones of
Religious Freedom in America (1949), p. 85.
While America has been free from religious wars, our history has had its dark pages of religious
persecution.
III.
Religion was a strong motivating force in the American colonies. People of all faiths flocked to the
New World, many with the hope that here for the first time they could enjoy religious freedom.
Unfortunately to America these earlier settlers also brought the Old World idea of a state-established
and state-dominated religion. Many of the original charters granted by the Crown required the
settlers to establish a religion that was to be supported by all, believers and nonbelievers alike.
Thus, in early Virginia all ministers were required to conform to the canons of the Church of
England. Quakers were banished and Catholics were disqualified from public office, while priests
were not permitted in the colony. In New York Peter Stuyvesant established the Dutch Reformed
Church, which all settlers were required to support. Baptists who attempted to hold services in their
*40 homes were subject to fines, whipping and banishment. Quakers were unwelcome and subject
to persecution. The Commission of New Hampshire of 1680 provided:
"And above all things We do by these presents will, require and command our said Council to take
all possible care for ye discountenancing of vice and encouraging of virtue and good living; and that
by such examples ye infidle may be invited and desire to partake of ye Christian Religion, and for ye
greater ease and satisfaction of ye sd loving subjects in matters of religion, We do hereby require
and command yt liberty of conscience shall be allowed unto all protestants; yt such especially as
shall be conformable to ye rites of ye Church of Engld shall be particularly countenanced and
encouraged." 2 Poore, Constitutions (1878), p. 1277.
In New England generally the Calvinist Congregational Church was the established religion.
Religious freedom in the colonies was far from an established fact. In the Massachusetts Bay
Colony Anne Hutchinson in 1638 was tried and convicted as a blasphemer and seducer of the
faithful and as a teacher of erroneous doctrines, because she held meetings in her home where she
advocated the direct intuition of God's grace and love instead of obedience to the laws of the
Church and the State. Roger Williams was banished because "he broached and divulged divers
new and dangerous opinions, against the authority of the magistrates," 1 Stokes, Church and State
in the United States (1950), p. 195. Catholics were persecuted and in 1647 the General Court
ordered that:
"No Jesuit or spiritual or ecclesiastical person ordained by the pope or see of Rome shall henceforth
come into Massachusetts. Any person not freeing himself of suspicion shall be jailed, then banished.
If taken a second time he shall be put to death." Pfeffer, Church, State and Freedom (1953), p. 68.
Despite these instances of intolerance and persecution there were successful examples of religious
freedom. In 1649, largely due to the efforts of Cecil Calvert, the second Lord Baltimore, Maryland
granted toleration to all Trinitarian Christians. In Rhode Island through the efforts of John *41 Clarke,
a follower of Roger Williams, Charles II granted a charter in 1663 which provided for complete
religious freedom. In 1683 Pennsylvania received from William Penn its "Frame of Government"
which stated that all who believed in "One Almighty God" should be protected and all who believed
in "Jesus Christ the Savior of the World" could hold civil office.
The history of religious freedom in the province of New Jersey was not fundamentally different from
that in the other colonies, although Stokes states that we "had a better colonial record in the matter
of toleration than most of the colonies," 1 Church and State in the United States, supra, p. 435. The
grantees of the Concessions of 1665, Lord Berkeley and Sir George Carteret, offered liberty of
worship as an inducement to settlers. This was continued under the Quakers by a law of 1681 in
West Jersey and in East Jersey by a law of 1683. Nevertheless, despite what appeared to be the
establishment of religious freedom in the Province of New Jersey, Leaming and Spicer, Grants and
Concessions of New Jersey, 1664-1702 (2nd ed. 1881, p. 14), there was strong anti-Catholic feeling
in the colony, and holders of civil office were required to take an oath against the Pope, Ibid. p. 92.
By the king's instructions to Lord Cornbury (Ibid., p. 633) in 1702 he was to permit a liberty of
conscience to all persons except Papists. Our Constitution of 1776 provides:
"XVIII. Free Exercise of religion.
"That no person shall ever within this colony be deprived of the inestimable privilege of worshiping
Almighty God in a manner agreeable to the dictates of his own conscience; nor under any pretense
whatsoever, compelled to attend any place of worship, contrary to his own faith and judgment; nor
shall any person within this colony, ever be obliged to pay tithes, taxes or any other rates, for the
purpose of building or repairing any church or churches, place or places of worship, or for the
maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberately
or voluntarily engaged himself to perform."
But the very next article of this same Constitution, after providing that there shall be "no
establishment of any one *42 religious sect in this province in preference to another," goes on to
guarantee civil rights and the right to hold office to all who are of the "protestant sect." The exclusion
of Catholics from this guarantee of civil rights and from holding civil office was not eliminated until
the Constitution of 1844.
Generally speaking, it can then be said that religious toleration varied from one province to another
with very few approaching a system of full religious freedom. Pfeffer reviews the religious
atmosphere in the colonies:
"Summarizing the colonial period, we may note that the proprietary regimes permitted a
considerable degree of toleration, at least in comparison with the other colonies. This difference may
be explained partly by the idealism of the proprietors and partly by the economic necessity of
attracting large numbers of settlers in order to preserve and make profitable the proprietor's
substantial investment.
Even in the proprietary colonies, however, the death of the idealistic founder, Calvert, Williams, or
Penn, resulted in considerable backsliding, and the imposition of restrictions on civil and religious
rights, particularly of non-Protestants. The limited tolerance which did exist did not include Catholics,
Jews, Unitarians, or Deists. The variety and degree of discrimination against them varied. Primarily,
the discrimination was political the non-Protestants could not vote or hold office. But the restrictions
were not always limited to political disabilities. Public performance of Catholic worship was
prohibited almost everywhere, and as late as 1756 the colony which had been founded by the
Catholic Calverts enacted a law subjecting Catholics to double taxation. Perhaps the incident that
most ironically illustrates the turnabout after the death of the idealistic founder is the action of a
Rhode Island court which in 1762 denied the petition of two Jews for naturalization on the ground
that to grant the petition would be `inconsistent with the first principles on which the colony was
founded.'" Church, State and Freedom, supra, p. 79.
It was left to Virginia to lead the struggle for religious freedom and the separation of Church and
State. In 1784 there was proposed in its House of Delegates a "bill establishing provision for
teachers of the Christian religions." Action thereon was postponed until the next session in order
that the bill could be publicized and distributed to the people who could then make known their
views. The issue was fought on a very high plane of principle with Thomas *43 Jefferson, James
Madison and George Mason aligned with the opposition. It was then that James Madison wrote his
famous A Memorial and Remonstrance in which he presented his views that religion was not a
matter within the scope of civil government. For complete historical background and full text
reference is made to Mr. Justice Rutledge's dissenting opinion in Everson v. Board of Education,
330 U.S. 1, 28, 67 S.Ct. 504, 91 L.Ed. 711, 730 (1947). At the next session the proposed bill was
defeated and in its place an act "for establishing religious freedom" drafted by Thomas Jefferson
was passed, the preamble of which stated: "that to suffer the civil magistrate to intrude his powers
into the field of opinion, and to restrain the profession or propagation of principles on supposition of
their ill tendency, is a dangerous fallacy which at once destroys all religious liberty." The bill further
provided "that it is time enough for the rightful purposes of civil government for its officers to interfere
when principles break out into overt acts against peace and good order." In his opinion for the court
in Reynolds v. United States, 98 U.S. 145, 163, 25 L.Ed. 244, 248 (1879), Mr. Chief Justice Waite
states that "in these two sentences is found the true distinction between what properly belongs to
the Church and what to the State."
It was a little over a year later that the Convention met in Philadelphia to draft the Constitution of the
United States. The Convention failed to include in the proposed Constitution any Bill of Rights or any
provision concerning freedom of religion. Although adopting the Constitution, several states did so
only on the understanding that a Bill of Rights would be added including a provision for a declaration
of religious liberty. At the very first session of Congress the first ten amendments, or Bill of Rights,
were proposed and largely through the efforts of James Madison were adopted, the First
Amendment providing that "Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof." It took us over 14 centuries and an incalculable amount of
persecution to gain the religious *44 tolerance and freedom expounded in 313 A.D. by the rulers of
the Roman world.
The First Amendment, of course, applied only to the Federal Government, but it has been held that
upon the adoption of the Fourteenth Amendment the prohibitions of the First Amendment were
applicable to state action bridging religious freedom, Cantwell v. State of Connecticut, 310 U.S. 296,
303, 60 S.Ct. 900, 84 L.Ed. 1213, 1217 (1940).
IV.
The charge here is sectarianism. The defendant board of education is accused of showing a
preference by permitting the distribution of the King James version of the New Testament, which is
unacceptable to those of the Jewish faith and, in fact, in conflict with their tenets. This violates the
mandate of the First Amendment, as incorporated into the Fourteenth Amendment, prohibiting the
making of any law "respecting an establishment of religion," and the requirement of Article I,
paragraph 4 of the New Jersey Constitution that "there shall be no establishment of one religious
sect, in preference to another." By its very terms the New Jersey constitutional provision prohibits
any such religious preference, while the First Amendment to the Federal Constitution has been
judicially interpreted as so providing. As stated by Mr. Justice Black in his opinion for the majority of
the court in Everson v. Board of Education, supra, 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711:
"The `establishment of religion' clause of the First Amendment means at least this: Neither a state
nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid
all religions, or prefer one religion over another. * * *
That Amendment [First] requires the state to be a neutral in its relations with groups of religious
believers and non-believers." (330 U.S. at page 18, 67 S.Ct. at page 511.)
In Zorach v. Clauson, 343 U.S. 306, 314, 72 S.Ct. 679, 684, 96 L.Ed. 954, 962 (1952), Mr. Justice
Douglas in his opinion for the majority of the court stated:
*45 "The government must be neutral when it comes to competition between sects."
In Fowler v. State of Rhode Island, 345 U.S. 67, 69, 73 S.Ct. 526, 527, 97 L.Ed. 828 (1953), a
minister of Jehovah's Witnesses was convicted in the state court for violation of a municipal
ordinance prohibiting the addressing of a religious meeting in a public park. The evidence showed
that the ordinance had not been construed to prohibit church services of Catholics and Protestants.
The court set aside the conviction, saying:
"For it plainly shows that a religious service of Jehovah's Witnesses is treated differently than a
religious service of other sects. That amounts to the state preferring some religious groups over this
one."
We are well aware of the ever continuing debates that have been taking place in this country for
many years as to the meaning which should be given to the First Amendment. There are those who
contend that our forefathers never intended to erect a "wall of separation" between Church and
State. On the other hand, there are those who insist upon this absolute separation between Church
and State. The plaudits and the criticisms of the various majority, concurring, and dissenting
opinions rendered by the United States Supreme Court in Everson v. Board of Education, supra,
330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711; People of State of Illinois ex rel. McCollum v. Board of
Education, 333 U.S. 203, 68 S.Ct. 461, 92 L.Ed. 648 (1948), and Zorach v. Clauson, supra, 343
U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954, still continue.
But regardless of what our views on this fundamental question may be, our decision in this case
must be based upon the undoubted doctrine of both the Federal Constitution and our New Jersey
Constitution, that the state or any instrumentality thereof cannot under any circumstances show a
preference for one religion over another. Such favoritism cannot be tolerated and must be
disapproved as a clear violation of the Bill of Rights of our Constitutions.
*46 This brings us to the heart of our problem here namely, whether the resolution of the board of
education displays that favoritism that is repugnant to our Constitutions. By permitting the
distribution of the Gideon Bible, has the board of education established one religious sect in
preference to another? Although as to the Catholic plaintiff this action has become moot due to the
withdrawal of his child from the public schools of Rutherford, some testimony was presented at the
trial as to his claim of sectarianism so we will at times refer to such testimony in our opinion. Our
decision, however, is based upon the claim of the Jewish plaintiff that the resolution of the
Rutherford Board of Education constitutes a preference of one religion over the Hebrew faith.
A review of the testimony at the trial convinces us that the King James version or Gideon Bible is
unacceptable to those of the Jewish faith. In this regard Rabbi Joachim Prinz testified:
"The New Testament is in profound conflict with the basic principles of Judaism. It is not accepted by
the Jewish people as a sacred book. The Bible of the Jewish people is the Old Testament. The New
Testament is not recognized as part of the Bible. The teachings of the New Testament are in
complete and profound conflict with what Judaism teaches. It presupposes the concept of Jesus of
Nazareth as a divinity, a concept which we do not accept."
"They are in complete and utter conflict with what we teach, for we teach the oneness of God, which
to our and in accordance with our belief, excludes the existence of a Son of God. We accept Jesus
of Nazareth as one of the figures of Jewish history, a Jew born, a Jew, died as a Jew, but we do not
accept Jesus of Nazareth as the Christ. * * *
No, it is certainly not a nonsectarian book. It is a book that is expresses the view of one
denomination among the many religious denominations of the world."
Dr. Bernard J. Bamberger, rabbi of the West End Synagogue in New York City and former president
of the Synagogue Council of America, stated:
"Well, the New Testament, of course, is itself a complex document which contains a great many
different writings, and so forth. Some of the passages and some of those writings are in themselves
*47 not necessarily in conflict with Judaism, but a very great many of them are in conflict with
Judaism, first, because they teach certain doctrines which are contradictory to doctrines taught by
Judaism, and also because in certain passages the New Testament writers directly attack certain
Jewish beliefs which are very sacred to Jews."
He concluded that the King James Version was "completely not a nonsectarian book." Rabbi Irving
Schnipper, in answer to a question whether the teachings of the New Testament are in conflict with
his teaching of the children of the plaintiff Bernard Tudor, testified:
"Definitely, the New Testament itself is in direct opposition to the teachings of Judaism."
Nor is there any doubt that the King James version of the Bible is as unacceptable to Catholics as
the Douay version is to Protestants. According to the testimony in this case the canon law of the
Catholic Church provides that "Editions of the original test of the sacred scriptures published by non-
Catholics are forbidden ipso jure."
The defendant refers us to various statements by legal scholars and others to show that the Bible is
not sectarian, but rather is the universal book of the Christian world, but in many of these statements
the question of the New Testament was not discussed. In Doremus v. Board of Education of
Borough of Hawthorne, 5 N.J. 435 (1950), appeal dismissed 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed.
475 (1952), relied on by the defendant, the issue was whether R.S. 18:14-77 and 78, providing for
compulsory reading in the public schools of five verses of the Old Testament and permissive reading
of the Lord's Prayer violated the Federal Constitution. In upholding the constitutionality of the
statutes we specifically stated 5 N.J., at page 453:
"We consider that the Old Testament and the Lord's Prayer, pronounced without comment, are not
sectarian, and that the short exercise provided by the statute does not constitute sectarian
instruction or sectarian worship * * *." *48 We adhere to the Doremus case, but its holding does not
apply here, where clearly the issue of sectarianism is present. Here the issue is the distribution of
the New Testament. The uncontradicted evidence presented by the plaintiff reveals that as far as the
Jewish faith is concerned, the Gideon Bible is a sectarian book, the teachings of which are in conflict
with the doctrines of his religion as well as that of his child, who is a pupil in the Rutherford public
school. The full force of the violation of both the State and Federal Constitutions is revealed when
we perceive what might happen if a single school board were besieged by three separate
applications for the distribution of Bibles one from Protestants as here, another from Catholics for
the distribution of the Douay Bible, and a third from Jews for the same privilege for their Bible.
We find from the evidence presented in this case that the Gideon Bible is a sectarian book, and that
the resolution of the defendant board of education to permit its distribution through the public school
system of the Borough of Rutherford was in violation of the First Amendment of the United States
Constitution, as incorporated into the Fourteenth Amendment, and of Article I, paragraph 4, of the
New Jersey Constitution. It therefore must be set aside.
V.
The defendant contends that the distribution of the Gideon Bible in no way injects any issue of the
"free exercise" of religion, that "no one is forced to take a New Testament and no religious exercise
or instrument is brought to the classrooms of the public schools." In other words, it asserts the
arguments of Zorach v. Clauson, supra, 343 U.S. 306, 315, 72 S.Ct. 679, 96 L.Ed. 954, that the
"accommodation" of religion is permissible. This argument, however, ignores the realities of life. In
his concurring opinion joined in by three other members of the Court, Mr. Justice Frankfurter stated
in People of State of Illinois *49 ex rel. McCollum v. Board of Education, supra, 333 U.S. 203, 227,
68 S.Ct. 461, 473, 92 L.Ed. 648:
"Religious education so conducted on school time and property is patently woven into the working
scheme of the school. The Champaign arrangement thus presents powerful elements of inherent
pressure by the school system in the interests of religious sects. The fact that this power has not
been used to discriminate is beside the point. Separation is a requirement to abstain from fusing
functions of Government and of religious sects, not merely to treat them all equally. That a child is
offered an alternative may reduce the constraint; it does not eliminate the operation of influence by
the school in matters sacred to conscience and outside the school's domain. The law of imitation
operates, and non-conformity is not an outstanding characteristic of children. The result is an
obvious pressure upon children to attend. Again, while the Champaign school population represents
only a fraction of the more than two hundred and fifty sects of the nation, not even all the practicing
sects in Champaign are willing or able to provide religious instruction. The children belonging to
these non-participating sects will thus have inculcated in them a feeling of separatism when the
school should be the training ground for habits of community, or they will have religious instruction in
a faith which is not that of their parents. As a result, the public school system of Champaign actively
furthers inculcation in the religious tenets of some faiths, and in the process sharpens the
consciousness of religious differences at least among some of the children committed to its care.
These are consequences not amenable to statistics. But they are precisely the consequences
against which the Constitution was directed when it prohibited the Government common to all from
becoming embroiled, however innocently, in the destructive religious conflicts of which the history of
even this country records some dark pages."
In State ex rel. Weiss v. District Board, 76 Wis. 177, 44 N.W. 967, 7 L.R.A. 330 (Sup.Ct. 1890), it
was stated:
"When * * * a small minority of the pupils in the public school is excluded, for any cause, from a
stated school exercise, particularly when such cause is apparent hostility to the Bible which a
majority of the pupils have been taught to revere, from that moment the excluded pupil loses caste
with his fellows, and is liable to be regarded with aversion, and subjected to reproach and insult. But
it is a sufficient refutation of the argument that the practice in question tends to destroy the equality
of the pupils which the constitution seeks to establish and protect, and puts a portion of them to
serious disadvantage in many ways with respect to the others." (at 44 N.W. 975)
*50 Professor Isidore Chein, Supervisor of Psychology and Acting Director of the Research Center
for Mental Health at New York University, testified on behalf of the plaintiff:
"* * * I would expect that a slip of this kind, distributed under the authority of the school, would create
a subtle pressure on the child which would leave him with a sense that he is not quite as free as the
statement on that slip says; in other words, that he will be something of an outcast and a pariah if he
does not go along with this procedure."
"* * * I think that they would be in a situation where they have to play along with this or else feel
themselves to be putting themselves in a public position where they are different, where they are not
the same as other people, and the whole pressure would exist on them to conform."
Dr. Dan Dodson, professor in the School of Education of New York University and director of
curriculum and research in the Center for Human Relations Studies, when questioned as to the
divisive effect of the distribution of the Gideon Bible stated:
"I would say that any instance of this kind in which the * * * a document that has the importance that
this has to certain religious groups, including my own, would be distributed or used as a means of
propaganda or indoctrination by official channels, such as the school system, would create tensions
among the religious groups; there would be a controversial problem."
"I would say that it would raise questions among the children as to who is and who isn't, in terms of
receiving the Bible. It would also create problems as to why some accepted it and others didn't. That
would be divisive."
See also People ex rel. Ring v. Board of Education, 245 Ill. 334, 92 N.E. 251, 29 L.R.A., N.S. 442
(Sup. Ct. 1910), where the court maintained that the fact that pupils could request to be excused
from religious exercises did not make the requirement of sectarian Bible reading constitutional, and
Miller v. Cooper, 56 N.M. 355, 244 P.2d 520 (Sup.Ct. 1952), where the plaintiffs brought an action
seeking, among other things, an injunction against the dissemination of allegedly sectarian literature
among the public school pupils in violation of the provisions of the Federal *51 and State
Constitutions. The court there granted this relief, saying:
"The charge [that] the defendants were using the school as a medium for the dissemination of
religious pamphlets published by the Presbyterian Church presents a different situation. It is true
that the teachers did not hand them to the pupils or instruct that they be taken or read. The
pamphlets were, however, kept in plain sight in a school room and were available to the pupils and
the supply was evidently replenished from time to time. We condemned such practice in Zellers v.
Huff, supra, and condemn it here and hold [that] the trial court was in error when it failed to enjoin
such acts * * *." (at 244 P.2d 521)
We cannot accept the argument that here, as in the Zorach case, supra, the State is merely
"accommodating" religion. It matters little whether the teachers themselves will distribute the Bibles
or whether that will be done by members of the Gideons International. The same vice exists, that of
preference of one religion over another. This is all the more obvious when we realize the motive of
the Gideons. Its purpose is "to win men and women for the Lord Jesus Christ, through * * * (c)
placing the Bible God's Holy Word * * * or portions thereof in hotels, hospitals, schools, institutions,
and also through distribution of same for personal use." The society is engaged in missionary work,
accomplished in part by placing the King James version of the Bible in the hands of public school
children throughout the United States. To achieve this end it employs the public school system as
the medium of distribution. It is at the school that the pupil receives the request slip to take to his
parents for signature. It is at the school that the pupil actually receives his Gideon Bible. In other
words, the public school machinery is used to bring about the distribution of these Bibles to the
children of Rutherford. In the eyes of the pupils and their parents the board of education has placed
its stamp of approval upon this distribution and, in fact, upon the Gideon Bible itself. Dr. Dodson
further testified:
"I would say it would leave a lefthanded implication that the school thought this was preferential in
terms of what is the divine *52 word, and that the backing of the State would inevitably be
interpreted as being behind it."
Dr. William Heard Kilpatrick stated:
"The Protestants would feel that the school is getting behind this thing; the Catholics would feel that
the school is getting behind a Protestant affair; the Jews would feel that the school is getting behind
the Protestant religion as opposed to their religion; and the people who don't accept any religion
would feel that the school is actually trying to teach the religion through this means."
This is more than mere "accommodation" of religion permitted in the Zorach case. The school's part
in this distribution is an active one and cannot be sustained on the basis of a mere assistance to
religion.
We are here concerned with a vital question involving the very foundation of our civilization.
Centuries ago our forefathers fought and died for the principles now contained in the Bill of Rights of
the Federal and New Jersey Constitutions. It is our solemn duty to preserve these rights and to
prohibit any encroachment upon them. To permit the distribution of the King James version of the
Bible in the public schools of this State would be to cast aside all the progress made in the United
States and throughout New Jersey in the field of religious toleration and freedom. We would be
renewing the ancient struggles among the various religious faiths to the detriment of all. This we
must decline to do.
The judgment below is reversed and the resolution of the Board of Education of the Borough of
Rutherford under review is stricken.
For reversal Chief Justice VANDERBILT, and Justices HEHER, OLIPHANT, WACHENFELD,
BURLING, JACOBS and BRENNAN 7.
For affirmance None.
Zorach v. Clauson, 343 U.S. 306 (1952)
Facts:
New York City allowed public school students to be released during the school day to religious
centers located off school grounds. There, students choosing to participate would receive religious
instruction and participate in devotional exercises. Attendance was kept by these religious centers
and provided to the school. Students whose families chose not to participate in the release program
stayed at school.
Issue:
Whether voluntary "released time" programs that allow religious instruction occurring off school
grounds violate the Establishment Clause.
Holding:
By a 6-3 vote, the Court held that non-coercive, off campus "released time" programs are
permissible accommodations of the religious needs of students, and do not violate the
Establishment Clause.
Reasoning:
The Court found New York’s released time program to be substantially different from the program in
McCollum. In the New York program, the students were released to receive instruction off campus.
"This ‘released time’ program involved neither religious instruction in public school classrooms nor
the expenditure of public funds."
Majority:
"We are a religious people whose institutions presuppose a Supreme Being. We guarantee the
freedom to worship as one chooses. We make room for a wide variety of beliefs and creed as the
spiritual needs of man deem necessary. We sponsor an attitude of on the part of government that
shows no partiality to any one group and that lets each flourish according to the zeal of adherents
and the appeal of its dogma. When the state encourages religious instruction or cooperates with
religious authorities, it follows the best of our traditions." (Justice William Douglas)
Dissent:
In his dissent, Justice Hugo Black argued that released time programs were no different from the
program struck down in McCollum. Released time programs "channel children into sectarian
classes." He also warned against the state favoring believers over non-believers. "Before today, our
judicial opinions have refrained from drawing invidious distinctions between those who believe in no
religion and those who do believe. The First Amendment has lost much if the religious follower and
the atheist are no longer to be judicially regarded as entitled to equal justice under the law."
BOARD OF EDUCATION v. ALLEN
Facts of the Case
A 1965 amendment to New York's Education Law required public school boards to lend textbooks to
elementary and secondary school students enrolled in private and parochial schools. The Board of
Education for New York Central School District No. 1, contending that the law violated the
Establishment and Free Exercise Clauses of the First Amendment, filed suit against James Allen,
Commissioner of Education, requesting a declaratory injunction to prevent enforcement of the
statute. The trial court agreed with the board and found the statute unconstitutional. The Appellate
Division reversed the ruling, finding that the boards lacked standing. On appeal, the New York Court
of Appeals ruled the boards did have standing, but also found that, because the law's purpose was
to benefit all students regardless of the type of school they attended, the law did not violate the First
Amendment.
Question
Do the Establishment and Free Exercise Clauses of the First Amendment forbid New York from
requiring that public school boards loan textbooks to parochial school students without cost?
Conclusion
Decision: 6 votes for Allen, 3 vote(s) against
Legal provision: Establishment of Religion
No. In a 6-3 opinion authored by Justice Byron R. White, the Court applied the test constructed
in Abington School District v. Schempp and found that, because the stated legislative purpose and
necessary effects of the statute did not advance any one religion or religion in general, the law did
not violate the First Amendment. Because the books were given to the students, rather than the
parochial schools themselves, the Court reasoned, "the financial benefit is to parents and children,
not schools."
Aglipay vs Ruiz
Facts of the Case:
The Director of Posts announced on May 1936 in Manila newspapers that he would order the
issuance of postage stamps for the commemoration of the 33rd International Eucharistic Congress
celebration in the City of Manila. The said event was organized by the Roman Catholic Church.
Monsignor Gregorio Aglipay, the petitioner, is the Supreme Head of the Philippine Independent
Church, requested Vicente Sotto who is a member of the Philippine Bar to raise the matter to the
President. The said stamps in consideration were actually issued already and sold though the
greater part thereof remained unsold. The further sale of the stamps was sought to be prevented by
the petitioner.
Issue:
Whether or not the respondent violated the Constitution in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress
Held:
No, the respondent did not violate the Constitution by issuing and selling the commemorative
postage stamps. Ruiz acted under the provision of Act No. 4052, which contemplates no religious
purpose in view, giving the Director of Posts the discretion to determine when the issuance of new
postage stamps would be “advantageous to the Government.” Of course, the phrase “advantageous
to the Government” does not authorize the violation of the Constitution. In the case at bar, the
issuance of the postage stamps was not intended by Ruiz to favor a particular church or
denomination. The stamps did not benefit the Roman Catholic Church, nor were money derived
from the sale of the stamps given to that church. The purpose of issuing of the stamps was to
actually take advantage of an international event considered to be a great opportunity to give
publicity to the Philippines and as a result attract more tourists to the country. In evaluating the
design made for the stamp, it showed the map of the Philippines instead of showing a Catholic
chalice. The focus was on the location of the City of Manila, and it also bore the inscription that
reads “Seat XXXIII International Eucharistic Congress, Feb. 3-7, 1937.” In considering these, it is
evident that there is no violation of the Constitution therefore the act of the issuing of the stamps is
constitutional.
The Supreme Court denied the petition for a writ of prohibition, without pronouncement as to costs.
GARCES VS. ESTENZO [104 SCRA 510; G.R. L-53487; 25 MAY 1981]
Facts: Two resolutions of the Barangay Council of Valencia, Ormoc City were passed:
a. Resolution No. 5- Reviving the traditional socio-religious celebration every fifth of April. This
provided for the acquisition of the image of San Vicente Ferrer and the construction of a waiting
shed. Funds for the saidprojects will be obtained through the selling of tickets and cash donations.
b. Resolution No. 6- The chairman or hermano mayor of the fiesta would be the caretaker of
the image of San Vicente Ferrer and that the image would remain in his residence for one year and
until the election of his successor. The image would be made available to the Catholic Church
during the celebration of the saint’s feast day.
These resolutions have been ratified by 272 voters, and said projects were implemented. The image
was temporarily placed in the altar of the CatholicChurch of the barangay. However, after a mass,
Father Sergio Marilao Osmeña refused to return the image to the barangay council, as it was the
church’s property since church funds were used in its acquisition.
Resolution No. 10 was passed for the authorization of hiring a lawyer for the replevin case against
the priest for the recovery of the image. Resolution No. 12 appointed Brgy. Captain Veloso as a
representative to the case. The priest, in his answer assailed the constitutionality of the
said resolutions. The priest with Andres Garces, a member of the Aglipayan Church, contends that
Sec. 8 Article IV1 and Sec 18(2) Article VIII) 2 of the constitution was violated.
Issue: Whether or Not any freedom of religion clause in the Constitution violated.
Held: No. As said by the Court this case is a petty quarrel over the custody of the image. The image
was purchased in connection with the celebration of the barrio fiesta and not for the purpose of
favoring any religion nor interfering with religious matters or beliefs of the barrioresidents. Any
activity intended to facilitate the worship of the patron saint(such as the acquisition) is not illegal.
Practically, the image was placed in a layman’s custody so that it could easily be made available to
any family desiring to borrow the image in connection with prayers and novena. It was the council’s
funds that were used to buy the image, therefore it is their property. Right of the determination of
custody is their right, and even if they decided to give it to the Church, there is no violation of the
Constitution, since private funds were used. Not every government activity which involves the
expenditure of public funds and which has some religious tint is violative of the constitutional
provisions regarding separation of church and state, freedom of worship and banning the use
of public money or property.
Fonacier v. CA
Facts: Case was filed by Iglesia Filipina Independiente (IFI), represented by its supreme
bishop Gerardo Bayaca, against Bishop Fonacier seeking to render an accounting of his
administration of all the temporal properties and to recover the same on the ground that he ceased
to be the supreme bishop of IFI. Isabelo De los Reyes Jr. had been elected as the Supreme Bishop.
Petitioner claims that he was not properly removed as Supreme Bishop and his legal successor was
Juan Jamias. He claims that the there was anaccounting of his administration and was turned over
to bishop Jamias. Also, that Isabelo De los Reyes and Bayaca have abandoned their faith and
formally joined the Prostestant Episcopal Church of America.
CFI rendered judgment declaring Isabelo De Los Reyes, Jr. as the sole and legitimate Supreme
Bishop of IFI and ordered Fonacier to render anaccounting of his admistration
CA affirmed the decision of the CFI
Issue: Whether or not the petitioner should still be regarded as the legitimate supreme bishop of IFI.
Held: Supreme Court affirmed CA’s decision. The legitimate Supreme Bishop of IFI is Isabelo De los
Reyes, Jr. The Supreme Court affirms the validity of the election of Bishop Delos Reyes as the
Supreme Bishop based on their internal laws
To finally dispose of the property issue, the Court, citing Watson v. Jones,368 declared that the rule
in property controversies within religious congregations strictly independent of any
other superior ecclesiastical association (such as the Philippine Independent Church) is that the
rules for resolving such controversies should be those of any voluntary association. If the
congregation adopts the majority rule then the majority should prevail; if it adopts adherence to duly
constituted authorities within the congregation, then that should be followed.
Gonzales v. Archbishop of Manila
Petitioner wanted to collect income from certain properties located in Calle Rosario,District of
Binondo. He contended that as having been assigned by the propertyowner as chaplain, he had the
right to do so.
Facts:1.
Petitioner (Angel Gonzales) wanted to collect the income from certainproperties situated in Calle
Rosario, District of Binondo. He was assignedby the property owner (Petronila de Guzman) for the
maintenance of acollative chaplaincy founded by her. The ownership dates back to June 20,1901.2.
Petitioner contends that as the chaplain, incumbent and beneficiary of thesaid chaplaincy, he had
the right, by virtue of a title in perpetuity, fromJune 20, 1901, to receive and retain all the income and
revenues of thesaid property. The property mentioned had been producing and yieldingnot less than
Php 650/month. Thus, from June 20, 1901 to the time theaction was instituted, the property in
question is a sum of Php 12,500.00.3.
Respondents are the Archbishop of Manila (Msgr. Harty) and theadministrator of funds of the
Sagrada Mitra (Thomas Hartigan).4.
Going back to history, by virtue of the provisions contained in the willexecuted by Donya Petronila
de Guzman on March 3, 1816, a collativechaplaincy was founded in this archdiocese. It entailed a
certain obligationof a spiritual character and possessed a capital of Php 1,700. It was alsoprovided
that the first executor of the estate of the testatrix should act asadministrator of the property subject
to the chaplaincy during the minorityof Esteban de Guzman, the first chaplain appointed for the
foundation.Angel Gonzales, a descent of Petronila, was appointed chaplain on August21, 1901.
Ruling:1.
Our attention has been invited to the fact that the property affected by thechaplaincy should have
been administered by the chaplains and not by theadministrators of the Sagrada Mitra inasmuch as
clause 11 of the
foundress’ will so pr
ovided. To refute this assertion, it suffices to say thatthe provisions of the said will set forth that the
first testamentary executorof the estate of the testatrix should act as the administrator of theproperty
during the minority of the first chaplain appointed in thatdocument. This provision must
be understood to be mandatory, except asotherwise provided by the canonical laws and as,
pursuant therewith, thechief ecclesiastical authority may order for, after the latter had acceptedthe
foundation of the chaplaincy, the administration of its propertyappertains to the authorities
established by the Church, pursuant to the
latter’s own laws, and this rule has been observed since 1863.
2.
The defendants in this case were absolved.
West Virginia State Board of Education v. Barnette
Brief Fact Summary. The Respondent, Barnette (Respondent), is a Jehovah’s Witness who
refused to pledge allegiance the United States flag while in public school. According to the
Petitioner, the West Virginia State Board of Education’s (Petitioner), rule, the Respondent was
expelled from school and charged with juvenile delinquency.
Synopsis of Rule of Law. The right to not speak is as equally protected under the First Amendment
of the United States Constitution (Constitution) as the right to free speech.
Facts. In 1942, the Petitioner adopted a rule that forced all teachers and pupils to pledge allegiance
the nation’s flag each day. If the student refused he would be found insubordinate and expelled from
school. He would not be readmitted to school until he conformed. Meanwhile, he was considered to
be “unlawfully absent” and subject to delinquency hearings. The parents could be fined $50 per day
with a jail term not to exceed 30 days. The Respondent asked for an exception for all Jehovah’s
Witnesses because this pledge goes against their religious belief. But he was denied an exception.
Issue. Does this rule compelling a pledge violate the First Amendment of the Constitution?
Held. Yes. Compelling a salute to the flag infringes upon an individual’s intellect and right to choose
their own beliefs.
Dissent. This legislation is well within the states purview to encourage good citizenship.
Discussion. The majority focuses on the right of persons to choose beliefs and act accordingly. As
long as the actions do not present a clear and present danger of the kind the state is allowed to
prevent, then the Constitution encourages diversity of thought and belief. The state has not power to
mandate allegiance in hopes that it will encourage patriotism. This is something the citizens will
choose or not.
Cantwell v. Connecticut
Brief Fact Summary. A Jehovah’s Witnesses was convicted on a charge of breach of the peace for
playing a phonograph record sharply critical of the Catholic religion to persons he encountered on
the street.
Synopsis of Rule of Law. A State may proscribe speech if it amounts to a breach of the peace,
which encompasses not only violent acts, but also acts and words likely to produce violence in
others.
Facts. Jesse Cantwell (Cantwell), a Jehovah’s Witnesses, was convicted on the charge of breach of
the peace for playing a phonograph record sharply critical of the Catholic religion to persons he
encountered on the street. His intent was to proselytize his listeners. Prior to his arrest, there was no
evidence that Cantwell’s deportment was noisy or offensive. Moreover, although the message on the
record was offensive, it was only played to persons who voluntarily agreed to listen.
Issue. Did the arrest and conviction of Cantwell for violating the common law offense of breach of
the peace violate his constitutional rights of free speech under the First Amendment of the United
States Constitution (Constitution)?
Held. Yes. The lower court is reversed.
Justice Owen Roberts (J. Roberts) stated that while it is obvious that the principles of freedom of
speech and religion do not sanction incitement to riot or violence, it is equally obvious that a State
may not unduly suppress free communication of views under the guise of maintaining desirable
conditions. With these considerations in mind, we note that there was no evidence of assaultive
behavior or threatening of bodily harm, no truculent bearing, no profane, abusive, indecent remarks
directed to the person of the hearer. Thus, it cannot be said that Cantwell’s actions resulted in a
breach of the peace or an incitement to a breach thereof.
Discussion. By ruling that the facts of this case, speaking to an audience hostile to ones message,
does not amount to a breach of the peace, the Supreme Court of the United States (Supreme Court)
gives insight into the degree of public disorder it requires to permit a government to regulate free
expression on those grounds.
Marsh v. Alabama
Brief Fact Summary. Marsh, a Jehovah’s Witness, was arrested for trespassing after attempting to
distribute religious literature in a privately owned Alabama town.
Synopsis of Rule of Law. A private entity that acts like a governmental body and performs a public
function is subject to the United States Constitution (Constitution).
Facts. A Corporation owned a town called Chickasaw in Alabama. The town was accessible and
used freely by the public except for the fact that the Gulf Shipbuilding Corporation owned title to the
town and paid the police. Marsh, a Jehovah’s Witness was told she needed a permit to distribute her
flyers. However, Marsh declined to obtain a permit and refused to leave the sidewalk. Marsh was
arrested and charged with violating Alabama’s anti-trespassing statute.
Marsh claimed that applying the statute to her violated the First and Fourteenth Amendments of the
Constitution.
Issue. Is the Constitution applicable to privately owned towns?
Held. Yes, it applies, because the town acts like a government body. The Supreme Court of the
United States (Supreme Court) first recognizes that if Chickasaw had been a municipality the anti-
trespassing statute would not be unconstitutional. The Supreme Court specifically states that a
private town is not the same as a private homeowner. Meaning, it is not appropriate to suppress
unwanted religious expression in the town like it would be in a private home.
Discussion. The more an owner opens up his property to the public, the more the Constitution is
applicable. Here, the town was treated like a town, where the public was free to do as they pleased.
The fact that the property (the town) is privately owned, does not justify restricting fundamental
liberties. Therefore, Alabama’s attempt to convict Marsh cannot stand.
American Bible Society v. City of Manila
The acting City Treasurer of the City of Manila required the payment of a particular
amount from petitioner. Respondent claims that petitioner’s Philippine agency had
distributed and sold bibles and/or gospel portions throughout the country; thus,conducting business
of general merchandise.
Facts:1.
Petitioner’s Philippine
agency has been distributing and selling biblesand/or gospel portions throughout the country and
translating the sameinto several Philippine dialects.2.
On May 29, 1953, the acting City Treasurer of the City of Manila informedpetitioner that it was
conducting the business of general merchandise
since November 1945 without providing itself with necessary Mayor’s
permit and municipal license in violation of Ordinance No. 3000, asamended, and further required
petitioner to secure the correspondingpermit and license fees, together with compromise covering
the periodfrom 4
th
quarter of 1945 to 2
nd
quarter of 1953, within 3 days. Sum of saidfees amounted to Php 5,821.45.Ruling:1.
Article III, Section 1(7) of the Constitution guarantees the freedom of
religious profession and worship. It has reference to one’s views of his
relations to His Creator and to the obligations they impose of reverence toHis being and character,
and obedience to His Will. The constitutionalguaranty of the free exercise and enjoyment of religious
profession andworship carries with it the right to disseminate religious information. Anyrestraint of
such right can only be justified like other restraints of freedom of expression on the grounds that
there is a clear and present danger ofany substantive evil which the State has the right to prevent.2.
It may be true that in the case at bar, the price asked for the bibles andother religious pamphlets
was in some instances a little bit higher than theactual cost of the same but this cannot mean that
petitioner was engaged
in the business or occupation of selling said “merchandise” for profit. To
have the City Ordinance in question applied would impair its free exerciseand enjoyment of its
religious profession and worship as well as its rightsof dissemination of religious beliefs.
Arturo Tolentino vs Secretary of Finance
Arturo Tolentino et al are questioning the constitutionality of RA 7716 otherwise known as the
Expanded Value Added Tax (EVAT) Law. Tolentino averred that this revenue bill did not exclusively
originate from the House of Representatives as required by Section 24, Article 6 of the Constitution.
Even though RA 7716 originated as HB 11197 and that it passed the 3 readings in the HoR, the
same did not complete the 3 readings in Senate for after the 1 st reading it was referred to the Senate
Ways & Means Committee thereafter Senate passed its own version known as Senate Bill 1630.
Tolentino averred that what Senate could have done is amend HB 11197 by striking out its text and
substituting it with the text of SB 1630 in that way “the bill remains a House Bill and the Senate
version just becomes the text (only the text) of the HB”. (It’s ironic however to note that Tolentino
and co-petitioner Raul Roco even signed the said Senate Bill.)
ISSUE: Whether or not the EVAT law is procedurally infirm.
HELD: No. By a 9-6 vote, the Supreme Court rejected the challenge, holding that such consolidation
was consistent with the power of the Senate to propose or concur with amendments to the version
originated in the HoR. What the Constitution simply means, according to the 9 justices, is that the
initiative must come from the HoR. Note also that there were several instances before where Senate
passed its own version rather than having the HoR version as far as revenue and other such bills
are concerned. This practice of amendment by substitution has always been accepted. The
proposition of Tolentino concerns a mere matter of form. There is no showing that it would make a
significant difference if Senate were to adopt his over what has been done.
Ebralinag vs. Division of Superintendent of Schools of Cebu (1993)
FACTS: All the petitioners in these two cases were expelled from their classes by the public school
authorities in Cebu for refusing to salute the flag, sing the national anthem and recite the patriotic
pledge. Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national
anthem, and recite the patriotic pledge for they believe that those are "acts of worship" or "religious
devotion" which they "cannot conscientiously give to anyone or anything except God”. They feel
bound by the Bible's command to "guard ourselves from idols. They consider the flag as an image
or idol representing the State. They think the action of the local authorities in compelling the flag
salute and pledge transcends constitutional limitations on the State's power and invades the sphere
of the intellect and spirit which the Constitution protects against official control.
ISSUE: Whether school children who are members of a religious sect known as Jehovah's
Witnesses may be expelled from school (both public and private), for refusing, on account of their
religious beliefs, to take part in the flag ceremony which includes playing (by a band) or singing the
Philippine national anthem, saluting the Philippine flag and reciting the patriotic pledge
RULING: Religious freedom is a fundamental right which is entitled to the highest priority and the
amplest protection among human rights, for it involves the relationship of man to his Creator. The
right to religious profession and worship has a two-fold aspect, freedom to believe and freedom to
act on one's belief. The first is absolute as long as the belief is confined within the realm of thought.
The second is subject to regulation where the belief is translated into external acts that affect the
public welfare. Since they do not engage in disruptive behavior, there is no warrant for their
expulsion. The sole justification for a prior restraint or limitation on the exercise of religious freedom
is the existence of a grave and present danger of a character both grave and imminent, of a serious
evil to public safety, public morals, public health or any other legitimate public interest, that the State
has a right (and duty) to prevent." Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified. We are not persuaded that by exempting the Jehovah's
Witnesses, this religious which admittedly comprises a "small portion of the school population" will
shake up our part of the globe and suddenly produce a nation "untaught and uninculcated in and
unimbued with reverence for the flag, patriotism, love of country and admiration for national heroes.
After all, what the petitioners seek only is exemption from the flag ceremony, not exclusion from the
public schools where they may study the Constitution, the democratic way of life and form of
government, and learn not only the arts, science, Philippine history and culture but also receive
training for a vocation or profession and be taught the virtues of "patriotism, respect for human
rights, appreciation for national heroes, the rights and duties of citizenship, and moral and spiritual
values. Forcing a small religious group, through the iron hand of the law, to participate in a
ceremony that violates their religious beliefs, will hardly be condusive to love of country or respect
for duly constituted authorities. The expulsion of members of Jehovah's Witnesses from the schools
where they are enrolled will violate their right as Philippine citizens, under the 1987 Constitution, to
receive free education, for it is the duty of the State to "protect and promote the right of all citizens to
quality education and to make such education accessible to all. While the highest regard must be
afforded their right to the exercise of their religion, "this should not be taken to mean that school
authorities are powerless to discipline them" if they should commit breaches of the peace by actions
that offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at
attention during the flag ceremony while their classmates and teachers salute the flag, sing the
national anthem and recite the patriotic pledge, we do not see how such conduct may possibly
disturb the peace, or pose "a grave and present danger of a serious evil to public safety, public
morals, public health or any other legitimate public interest that the State has a right. The petition for
certiorari and prohibition is GRANTED. The expulsion orders issued by the public respondents
against the petitioners are hereby ANNULLED AND SET ASIDE.
German v. Barangan
Facts:
1. In the afternoon of October 2, 1984, petitioners, composed of about 50 businessmen, students
and office employees converged at J.P. Laurel Street, Manila, for the purpose of hearing Mass at the
St. Jude Chapel which adjoins the Malacañang grounds located in the same street. Wearing yellow
T-shirts, they started to march down with raised clenched fists and shouts of anti-government
invectives. The marchers were barred by respondent Major Lariosa, upon orders of his superiors
and co-respondent Gen. Santiago Barangan, from proceeding any further, on the ground that St.
Jude Chapel was located within the Malacañang security area. Despite plea, they were not allowed
in the church.
2. Because of the alleged warning given them by respondent Major Lariosa that any similar attempt
by petitioners to enter the church in the future would likewise be prevented, petitioners took this
present recourse.
3. Petitioners' alleged purpose in converging at J.P. Laurel Street was to pray and hear mass at St.
Jude church. At the hearing of this petition, respondents assured petitioners and the Court that they
have never restricted, and will never restrict, any person or persons from entering and worshipping
at said church. They maintain, however, that petitioners' intention was not really to perform an act of
religious worship, but to conduct an anti-government demonstration at a place close to the very
residence and offices of the President of the Republic.
4. Invoking their constitutional freedom to religious worship and locomotion, petitioners seek the
issuance of [1] a writ of mandamus to compel respondents to allow them to enter and pray inside St.
Jude Chapel located at J.P. Laurel Street, Manila; and [2] a writ of injunction to enjoin respondents
from preventing them from getting into and praying in said church.
ISSUE: Whether or not the restriction to petitioners to attend church is a violation of their
freedom to religious worship
NO.
1. The restriction imposed on the use of J.P. Laurel Street, was established in the interest of national
security. Petitioners are not denied or restrained of their freedom of belief or choice of their religion,
but only in the manner by which they had attempted to translate the same into action. This
curtailment is in accord with the pronouncement of this Court in Gerona v. Secretary of Education.
2. While it is beyond debate that every citizen has the undeniable and inviolable right to religious
freedom, the exercise thereof, and of all fundamental rights for that matter, must be done in good
faith. As Article 19 of the Civil Code admonishes: "Every person must in the exercise of his rights
and in the performance of his duties ... observe honesty and good faith."
IN RE SUMMERS, 325 U.S. 561 (1945)
Mr. Julien Cornell, of New York City, for petitioner. [325 U.S. 561, 562] Mr. William C. Wines, of
Chicago, Ill., for respondents.
Mr. Justice REED delivered the opinion of the Court.
Petitioner sought a writ of certiorari from this Court under Section 237(b) of the Judicial Code, 28
U.S.C.A. 344(b), to review the action of the Supreme Court of Illinois in denying petitioner's prayer
for admission to the practice of law in that state. It was alleged that the denial was 'on the sole
ground that he is a conscientious objector to war' or to phrase petitioner's contention slightly differen
ly 'because of his conscientious scruples against participation in war.' Petitioner challenges here the
right of the Supreme Court to exclude him from the bar under the due process clause of the
Fourteenth Amendment to the Constitution of the United States which secured to him protection
against state action in violation of the principles of the First Amendment. 1 Because of the
importance of the tendered issue in the domain of civil rights, we granted certiorari. 2 323 U.S.
705 , 65 S.Ct. 274. [325 U.S. 561, 563] Since the proceedings were not treated as judicial by the
Supreme Court of Illinois, the record is not in the customary form. It shows accurately, however, the
steps by which the issue was developed and the action of the Supreme Court on the prayer for
admission to the practice of law in the State of Illinois. From the record it appears that Clyde Wilson
Summers has complied with all prerequisites for admission to the bar of Illinois except that he has
not obtained the certificate of the Committee on Character and Fitness. Cf. Illinois Revised Statutes
1943, c. 110, 259.58. No report appears in the record from the Committee. An unofficial letter from
the Secretary gives his personal views. 3 A petition was filed in the [325 U.S. 561, 564] Supreme
Court on August 2, 1943, which alleged that petitioner was informed in January, 1943, that the
Committee declined to sign a favorable certificate. The petition set out that the sole reason for the
Committee's refusal was that petitioner was a conscientious objector to war, and averred that such
reason did not justify his exclusion because of the due process clause of the Fourteenth
Amendment. The denial of the petition for admission is informal. It consists of a letter of September
20, 1943, to the Secretary of the Committee which is set out Below, 4 a letter of the same date toMr.
Summers and a third letter of March 22, 1944, to Mr. Summers' attorney on petition for rehearing.
These latter two letters are set out in note 8.
The answer of the Justices to these allegations does not appear in the record which was transmitted
from the Supreme Court of Illinois to this Court but in their return to the rule to show cause why
certiorari should not be granted. The answer is two-fold: First, that the proceedings were not a
matter of judicial cognizance in Illinois and that no case or controversy exists in this Court [325 U.S.
561, 565] under Article III of the Federal Constitution; second, that assuming the sole ground for
refusing to petitioner admission to practice was his profession of conscientious objection to military
service, such refusal did not violate the Fourteenth Amendment because the requirement for
applicants for admission to the bar to take an oath to support the Constitution of Illinois could not be
met. In view of his religious affirmations, petitioner could not agree, freely, to serve in the Illinois
militia. Therefore petitioner was not barred because of his religion but because he could not in good
faith take the prescribed oath, even though he might be willing to do so. We turn to consideration of
the Justices' contentions.
Case or Controversy. The return of the Chief Justice and the Associate Justices states that the
correspondence and communications of petitioner with the Justices were not spread upon the
records of the Supreme Court of Illinois and that under the law of Illinois this petition for admission to
the bar does not constitute a case or controversy or a judicial proceeding but is a mere application
for appointment as an officer of the court. 5 We of course accept this authoritative commentary upon
the law of Illinois as establishing for that state the non-judicial character of an application for
admission to the bar. 6 We take it that the law of Illinois treats the action of the Su- [325 U.S. 561,
566] preme Court on this petition as a ministerial act which is performed by virtue of the judicial
power, such as the appointment of a clerk or bailiff or the specification of the requirements of
eligibility or the course of study for applicants for admission to the bar, rather than a judicial
proceeding.
For the purpose of determining whether the action of the Supreme Court of Illinois in denying
Summers' petition for an order for admission to practice law in Illinois is a judgment in a judicial
proceeding which involves a case or controversy reviewable in this Court under Article III, Sec. 2, Cl.
1, of the Constitution of the United States,7 we must for ourselves appraise the circumstances of the
refusal. Nashville, C. & St. L. Ry. v. Wallace,288 U.S. 249, 259 , 53 S.Ct. 345, 346, 87 A.L. R. 1191.
Cf. Bridges v. California, 314 U.S. 252, 259 , 260 S., 62 S.Ct. 190, 192; Nixon v. Condon, 286 U.S.
73, 88 , 52 S.Ct. 484, 487, 88 A.L.R. 458; First National Bank of Hartford, Wis. v. Hartford, 273 U.S.
548, 552 , 47 S.Ct. 462, 463, 59 A.L.R. 1; Truax v. Corrigan, 257 U.S. 312, 324 , 42 S.Ct. 124, 126,
27 A.L.R. 375.
A case arises, within the meaning of the Constitution, when any question respecting the
Constitution, treatise[325 U.S. 561, 567] or laws of the United States has assumed 'such a form
that the judicial power is capable of acting on it.' Osborn v. Bank, 9 Wheat. 738, 819. The Court was
then considering the power of the bank to sue in the federal courts. A declaration on rights as they
stand must be sought, not on rights which may arise in the future, Prentis v. Atlantic Coast Line
Co., 211 U.S. 210, 226 , 29 S.Ct. 67, 69, and there must be an actual controversy over an issue, not
a desire for an abstract declaration of the law. Muskrat v. United States, 219 U.S. 346, 361 , 31 S.
Ct. 250, 255; Fairchild v. Hughes, 258 U.S. 126, 129 , 42 S. Ct. 274, 275. The form of the
proceeding is not significant. It is the nature and effect which is controlling. Nashville, C. & St. L. Ry.
v. Wallace, 288 U.S. 249, 259 , 53 S.Ct. 345, 346, 87 A.L. R. 1191.
The brief for the Justices raises the question as to who are the adversary parties. The petition in the
state court was entitled, 'Clyde Wilson, Summers, Petitioner, v. Committee on Character and Fitness
for Third Appellate District, Respondent.' The prayer sought relief against those named as
respondents. The record does not show that any process issued or that any appearance was made.
Our rule on the petition for certiorari required the Supreme Court of Illinois to show cause why a
record should not be certified and the writ of certiorari granted. The return was by the Justices, not
by t e Court. The Supreme Court of Illinois, however, concluded that the 'report of the Committee on
Character and Fitness should be sustained.' Thus it considered the petition on its merits. While no
entry was placed by the Clerk in the file, on a docket, or on a judgment roll, the Court took
cognizance of the petition and passed an order which is validated by the signature of the presiding
officer. 8Where relief is thus sought in a state court against the action of a com- [325 U.S. 561,
568] mittee, appointed to advise the court, and the court takes cognizance of the complaint without
requiring the appearance of the committee or its members, we think the consideration of the petition
by the Supreme Court, the body which has authority itself by its own act to give the relief sought,
makes the proceeding adversary in the sense of a true case or controversy.
A claim of a present right to admission to the bar of a state and a denial of that right is a controversy.
When the claim is made in a state court and a denial of the right is [325 U.S. 561, 569] made by
judicial order, it is a case which may be reviewed under Article III of the Constitution when federal
questions are raised and proper steps taken to that end, in this Court. 9
Disqualification Under Illinois Constitution. The Justices justify their refusal to admit petitioner to
practice before the courts of Illinois on th ground of petitioner's inability to take in good faith the
required oath to support the Constitution of Illinois. His inability to take such an oath, the justices
submit, shows that the Committee on Character and Fitness properly refused to certify to his moral
character and moral fitness to be an officer of the Court, charged with the administration of justice
under the Illinois law. His good citizenship, they think, judged by the standards required for
practicing law in Illinois, is not satisfactorily shown. 10 A conscientious belief in non- [325 U.S. 561,
570] violence to the extent that the believer will not use force to prevent wrong, no matter how
aggravated, and so cannot swear in good faith to support the Illinois Constitution, the Justices
contend, must disqualify such a believer for admission.
Petitioner appraises the denial of admission from the viewpoint of a religionist. He said in his
petition:
'The so-called 'misconduct' for which petitioner could be reproached for is his taking the New
Testament too seriously. Instead of merely reading or preaching the Sermon on the Mount, he tries
to practice it. The only fault of the petitioner consists in his attempt to act as a good Christian in
accordance with his interpretation of the Bible, and according to the dictates of his conscience. We
respectfully submit that the profession of law does not shut its gates to persons who have qualified
in all other respects, even when they follow in the footsteps of that Great Teacher of mankind who
delivered the Sermon on the Mount. We respectfully submit that under out Constitutional guarantees
even good Christians who have met all the requirements for the admission to the bar may be
admitted to practice law.'
Thus a court created to administer the laws of Illinois, as it understands them and charged
particularly with the protection of justice in the courts of Illinois through supervision of admissions to
the bar found itself faced with the dilemma of excluding an applicant whom it deemed disqualified for
the responsibilities of the profession of law or of admitting the applicant because of its deeply rooted
tradition in freedom of belief. The responsibility for choice as to the personnel of its bar rests [325
U.S. 561, 571] with Illinois. Only a decision which violated a federal right secured by the Fourteenth
Amendment would authorize our intervention. It is said that the action of the Supreme Court of
Illinois is contrary to the principles of that portion of the First Amendment which guarantees the free
exercise of religion. Of course, under our Constitutional system, men could not be excluded from the
practice of law, or indeed from following any other calling, simply because they belong to any of our
religious groups, whether Protestant, Catholic, Quaker or Jewish, assuming it conceivable that any
state of the Union would draw such a religious line. We cannot say that any such purpose to
discriminate motivated the action of the Illinois Supreme Court.
The sincerity of petitioner's beliefs re not questioned. He has been classified as a conscientious
objector under the Selective Training and Service Act of 1940, 54 Stat. 885, as amended, 50
U.S.C.A.Appendix 301 et seq. Without detailing petitioner's testimony before the Committee or his
subsequent statements in the record, his position may be compendiously stated as one of non-
violence. Petitioner will not serve in the armed forces. While he recognizes a difference between the
military and police forces, he would not act in the latter to coerce threatened violations. Petitioner
would not use force to meet aggressions against himself or his family, no matter how aggravated or
whether or not carrying a danger of bodily harm to himself or others. He is a believer in passive
resistance. We need to consider only his attitude toward service in the armed forces.
Illinois has constitutional provisions which require service in the militia in time of war of men of
petitioner's age group. 11 The return of the Justices alleges that petitioner has not made any
showing that he would serve not- [325 U.S. 561, 572] withstanding his conscientious objections.
This allegation is undenied in the record and unchallenged by brief. We accept the allegation as to
unwillingness to serve in the militia as established. While under Section 5(g) of the Selective
Training and Service Act, supra, conscientious objectors to participation in war in any form now are
permitted to do non- war work of national importance, this is by grace of Congressional recognition
of their beliefs. Hamilton v. Regents, 293 U.S. 245 , 261-265, 55 S.Ct. 197, 203-205, and cases
cited. The Act may be repealed. No similar exemption during war exists under Illinois law. The
Hamilton decision was made in 1934, in time of peace. 12 This decision as to the powers of the
state government over military training is applicable to the power of Illinois to require military service
from her citizens.
The United States does not admit to citizenship the alien who refuses to pledge military service.
United States v. Schwimmer, 279 U.S. 644 , 49 S. Ct. 448; United States v. Macintosh, 283 U.S.
605 , 51 S.Ct. 570. Even the powerful dissents which emphasized the deep cleavage in this Court
on the issue of ad- [325 U.S. 561, 573] mission to citizenship did not challenge the right of
Congress to require military service from every able-bodied man. 279 U.S. at page 653, 49 S.Ct. at
page 451; 283 .S. at page 632, 51 S.Ct. at page 577. It is impossible for us to conclude that the
insistence of Illinois that an officer who is charged with the administration of justice must take an
oath to support the Constitution of Illinois and Illinois' interpretation of that oath to require a
willingness to perform military service violates the principles of religious freedom which the
Fourteenth Amendment secures against state action, when a like interpretation of a similar oath as
to the Federal Constitution bars an alien from national citizenship. 13
AFFIRMED.
Mr. Justice BLACK, dissenting.
The State of Illinois has denied the petitioner the right to practice his profession and to earn his
living as a lawyer. It has denied him a license on the ground that his present religious beliefs
disqualify him for membership in the legal profession. The question is, therefore, whether a state
which requires a license as a prerequisite to practicing law can deny an applicant a license solely
because of his deeply-rooted religious convictions. The fact that petitioner measures up to every
other requirement for admission to [325 U.S. 561, 574] the Bar set by the State demonstrates
beyond doubt that the only reason for his rejection was his religious beliefs.
The state does not deny that petitioner possesses the following qualifications:
He is honest, moral, and intelligent, has had a college and a law school education. He has been a
law professor and fully measures up to the high standards of legal knowledge Illinois has set as a
prerequisite to admission to practice law in that State. He has never been convicted for, or charged
with, a violation of law. That he would serve his clients faithfully and efficiently if admitted to practice
is not denied. His ideals of what a lawyer should be indicate that his activities would not reflect
discredit upon the bar, that he would strive to make the legal system a more effective instrument of
justice. Because he thinks that 'Lawsuits do not bring love and brotherliness, they just create
antagonisms,' he would, as a lawyer, exert himself to adjust controversies out of court, but would
vigorously press his client's cause in court if efforts to adjust failed. Explaining to his examiners
some of the reasons why he wanted to be a lawyer, he told them: 'I think there is a lot of work to be
done in the law. ... I think the law has a place to see to it that every man has a chance to eat and a
chance to live equally. I think the law has a place where people can go and get justice done for
themselves without paying too much, for the bulk of people that are too poor.' No one contends that
such a vision of the law in action is either illegal or reprehensible.
The petitioner's disqualifying religious beliefs stem chiefly from a study of the New Testament and a
literal acceptance of the teachings of Christ as he understands them. Those beliefs are these:
He is opposed to the use of force for either offensive or defensive purposes. The taking of human
life under any circumstances he believes to be against the Law of God and contrary to the best
interests of man. He would if he could, he told his exa iners, obey to the letter [325 U.S. 561,
575] these precepts of Christ: 'Love your Enemies; Do good to those that hate you; Even though
your enemy strike you on your right cheek, turn to him your left cheek also.'1 The record of his
evidence before us bears convincing marks of the deep sincerity of his convictions, and counsel for
Illinois with commendable candor does not question the genuineness of his professions.
I cannot believe that a state statute would be consistent with our constitutional guarantee of freedom
of religion if it specifically denied the right to practice law to all members of one of our great religious
groups, Protestant, Catholic, or Jewish. Yet the Quakers have had a long and honorable part in the
growth of our nation, and an amicus curiae brief filed in their behalf informs us that under the test
applied to this petitioner, not one of them if true to the tenets of their faith could qualify for the bar in
Illinois. And it is obvious that the same disqualification would exist as to every conscientious objector
to the use of force, even though the Congress of the United States should continue its practice of
absolving them from military service. The conclusion seems to me inescapable that if Illinois can bar
this petitioner from the practice of law it can bar every person from every public occupation solely
because he believes in non-resistance rather than in force. For a lawyer is no more subject to call
for military duty than a plumber, a highway worker, a Secretary of State, or a prison chaplain.[325
U.S. 561, 576] It may be, as many people think, that Christ's Gospel of love and submission is not
suited to a world in which men still fight and kill one another. But I am not ready to say that a mere
profession of belief in that Gospel is a sufficient reason to keep otherwise well qualified men out of
the legal profession, or to drive law-abiding lawyers of that belief out of the profession, which would
be the next logical development.
Nor am I willing to say that such a belief can be penalized through the circuitous method of
prescribing an oath, and then barring an applicant on the ground that his present belief might later
prompt him to do or refrain from doing something that might violate that oath. Test oaths, designed
to impose civil disabilities upon men for their beliefs rather than for unlawful conduct, were an
abomination to the founders of this nation. This feeling was made manifest in Article VI of the
Constitution which provides that 'no religious Test shall ever be required as a Qualification to any
Office or public Trust under the United States.' Cummings v. State of Missouri, 4 Wall. 277; Ex parte
Garland, 4 Wall. 333.
The state's denial of petitioner's application to practice law resolves itself into a holding that it is
lawfully required that all lawyers take an oath to support the state constitution and that petitioner's
religious convictions against the use of force make it impossible for him to observe that oath. The
petitioner denies this and is willing to take the oath. The particular constitutional provision involved
authorizes the legislature to draft Illinois citizens from 18 to 45 years of age for militia service. It can
be assumed that the State of Illinois has the constitutional power to draft conscientious objectors for
war duty and to punish them for a refusal to serve as soldiers,- powers which this Court held the
United States possesses in United States v. Schwimmer, 279 U.S. 64, 49 S.Ct. 448, and United
States v. Macintosh, 283 U.S. 605 , 51 S.Ct. 570. But that is not to say [325 U.S. 561, 577] that
Illinois could constitutionally use the test oath it did in this case. In the Schwimmer and Macintosh
cases aliens were barred from natuaralization because their then religious beliefs would bar them
from bearing arms to defend the country. Dissents in both cases rested in part on the permise that
religious tests are incompatible with our constitutional guarantee of freedom of thought and religion.
In the Schwimmer case dissent, Mr. Justice Holmes said that 'if there is any principle of the
Constitution that more imperatively calls for attachment than any other it is the principle of free
thought-not free thought for those who agree with us but freedom for the thought that we hate. I
think that we should adhere to that principle with regard to admission into, as well as to life within his
country.' Pages 654, 655, of 279 U.S., page 451 of 49 S.Ct.. In the Macintosh case dissent, Mr.
Chief Justice Hughes said, 'To conclude that the general oath of office is to be interpreted as
disregarding the religious scruples of these citizens and as disqualifying them for office because
they could not take the oath with such an interpretation would, I believe, be generally regarded as
contrary not only to the specific intent of the Congress but as repugnant to the fundamental principle
of representative government.' Page 632, of 283 U.S., page 577 of 51 S.Ct.. I agree with the
constitutional philosophy underlying the dissents of Mr. Justice Holmes and Mr. Chief Justice
Hughes.
The Illinois Constitution itself prohibits the draft of conscientious objectors except in time of war and
also excepts from militia duty persons who are 'exempted by the laws of the United States.' It has
not drafted men into the militia since 1864, and if it ever should again, no one can say that it will not,
as has the Congress of the United States, exempt men who honestly entertain the views that this
petitioner does. Thus the probability that Illinois would ever call the petitioner to serve in a war has
little more reality than an imaginary quantity in mathematics. [325 U.S. 561, 578] I cannot agree
that a state can lawfully bar from a semi-public position, a well-qualified man of good character
solely because he entertains a religious belief which might prompt him at some time in the future to
violate a law which has not yet been and may never be enacted. Under our Constitution men are
punished for what they do or fail to do and not for what they think and believe. Freedom to think, to
believe, and to worship, has too exalted a position in our country to be penalized on such an illusory
basis. West Virginia State Board of Education v. Barnette, 319 U.S. 624 , 643-646, 63 S.Ct. 1178,
1187-1189, 147 A.L.R. 674.
I would reverse the decision of the State Supreme Court.
Mr. Justice DOUGLAS, Mr. Justice MURPHY, and Mr. Justice RUTLEDGE concur in this opinion.
Abrams v. United States
Brief Fact Summary. The defendants’ convictions for distributing leaflets advocating strikes during
the Russian Revolution were upheld because their speech was not protected by the United States
Constitution (Constitution) based on the “clear and present danger” test.
Synopsis of Rule of Law. Men must be held to have intended and to be accountable for the
effects, which their acts are likely to produce.
Facts. The Defendants, Abrams and others (Defendants) were Russian immigrants. The Defendant
were self-proclaimed revolutionists and anarchists who wrote and distributed thousands of circulars
advocating a general strike and appealing to workers in ammunitions factories to stop the production
of weapons to be used against Russian revolutionaries. They were convicted under 1918
amendments to the Espionage Act that prohibited the curtailment of production of materials
necessary to the prosecution of war against Germany with intent to hinder its prosecution.
Issue. Whether the Defendants’ speech was protected by the First Amendment of the Constitution?
Held. No. Men must be held to have intended and to be accountable for the effects which their acts
are likely to produce. The plain purpose of Defendants’ propaganda was to excite, at the supreme
crisis of war, disaffection, sedition, riots and as they hoped, revolution in this country for the purpose
of embarrassing and if possible defeating the military plans of the Government in Europe. Therefore,
their speech is not protected by the First Amendment of the Constitution.
Dissent. In this case, sentences of twenty years have been imposed for the publishing of two
leaflets that the Defendants had as much right to publish as the Government had to publish the
Constitution.
Discussion. Clear and present danger supposedly assures special attention to the time dimension.
Speech may not be curtailed until there is an immediate risk of an evil. Speech with a remote
tendency to cause danger may not be curtailed.
Grosjean v. American Press Co.
Facts: Fast-forward to the 1930s, when the colorful if dictatorial Huey “Kingfish” Long was governor
of Louisiana. Long’s political machine controlled the legislature, but not some newspapers. In fact,
12 of the 13 largest newspapers in Louisiana—all newspapers having a circulation of more than
20,000 a week—were editorially opposed to Governor Long. The Long-controlled legislature passed
a statute to put a special 2 percent license tax on all periodicals having a circulation of more than
20,000 copies per week. The nine newspaper publishers who produced the larger-circulation
newspapers targeted by the tax sued, claiming that the special tax violated the First Amendment
rights of the newspapers.
Issue: Can a discriminatory tax hitting political foes of a government official withstand First
Amendment scrutiny.
Decision: (9-0) A unanimous Supreme Court of the United States
Reasons: (Justice George Sutherland, for the Court, with apparent drafting help from the younger,
far more liberal, Justice Benjamin Nathan Cardozo.)
The Court’s opinion quoted from the legendary 19 th Century American constitutional scholar, Judge
Thomas Cooley. The Court quoted Cooley:13
“The evils to be prevented were not the censorship of the press merely, but any action of the
government by means of which it might prevent such free and general discussion of public matters
as seems absolutely essential to prepare the people for an intelligent exercise of their rights as
citizens.”
Grosjean v. American Press Co. remains the leading case awarding the media constitutional
protection from discriminatory taxation. And that is important, for as the Court said in Grosjean, “A
free press stands as one of the great interpreters between the government and the people. To allow
it to be fettered is to fetter ourselves.”14
New York Times v. United States
Facts of the Case:
In what became known as the "Pentagon Papers Case," the Nixon Administration attempted to
prevent the New York Times and Washington Post from publishing materials belonging to a
classified Defense Department study regarding the history of United States activities in Vietnam.
The President argued that prior restraint was necessary to protect national security. This case was
decided together with United States v. Washington Post Co. Question: Did the Nixon
administration's efforts to prevent the publication of what it termed "classified information" violate the
First Amendment? Conclusion: Yes. In its per curiam opinion the Court held that the government did
not overcome the "heavy presumption against" prior restraint of the press in this case. Justices
Black and Douglas argued that the vague word "security" should not be used "to abrogate the
fundamental law embodied in the First Amendment." Justice Brennan reasoned that since
publication would not cause an inevitable, direct.
Iglesia ni Cristo vs. Court of Appeals
Facts:
Petitioner Iglesia ni Cristo, a duly organized religious organization, has a television program
entitled "Ang Iglesia ni Cristo" aired on Channel 2 every Saturday and on Channel 13 every Sunday.
The program presents and propagates petitioner's religious beliefs, doctrines and practices often
times in comparative studies with other religions. Sometime in the months of September, October
and November 1992, petitioner submitted to the respondent Board of Review for Motion Pictures
and Television the VTR tapes of its TV program Series Nos. 116, 119, 121 and 128. The Board
classified the series as "X" or not for public viewing on the ground that they "offend and constitute an
attack against other religions which is expressly prohibited by law." Petitioner pursued two (2)
courses of action against the respondent Board. On November 28, 1992, it appealed to the Office of
the President the classification of its TV Series No. 128. It succeeded in its appeal for on December
18, 1992, the Office of the President reversed the decision of the respondent Board. Forthwith, the
Board allowed Series No. 128 to be publicly telecast. On December 14, 1992, petitioner also filed
against the respondent Board Civil Case No. Q-92-14280, with the Regional Trial Court of Quezon
City. Petitioner alleged that the respondent Board acted without jurisdiction or with grave abuse of
discretion in requiring petitioner to submit the VTR tapes of its TV program and in x-rating them. It
cited its TV Program Series Nos. 115, 119, 121 and 128. In their Answer, respondent Board invoked
its power under PD No. 1986 in relation to Article 201 of the Revised Penal Code. On January 4,
1993, the trial court held a hearing on petitioner's prayer for a writ of preliminary injunction. The
parties orally argued and then marked their documentary evidence. After evaluating the evidence of
the parties, the trial court issued a writ of preliminary injunction on petitioner's bond of P10,000.00.
The trial court set the pre-trial of the case and the parties submitted their pre-trial briefs. The pre-trial
briefs show that the parties' evidence is basically the evidence they submitted in the hearing of the
issue of preliminary injunction. The trial of the case was set and reset several times as the parties
tried to reach an amicable accord. Their efforts failed and the records show that after submission of
memoranda, the trial court rendered a Judgment, on December 15, 1993, the dispositive portion.
Petitioner moved for reconsideration praying: (a) for the deletion of the second paragraph of the
dispositive portion of the Decision, and (b) for the Board to be perpetually enjoined from requiring
petitioner to submit for review the tapes of its program. The respondent Board opposed the motion.
On March 7, 1993, the trial court granted petitioner's Motion for Reconsideration. On March 5, 1995,
the respondent Court of Appeals reversed the trial court. It ruled that: (1) the respondent board has
jurisdiction and power to review the TV program "Ang Iglesia ni Cristo," and (2) the respondent
Board did not act with grave abuse of discretion when it denied permit for the exhibition on TV of the
three series of "Ang Iglesia ni Cristo" on the ground that the materials constitute an attack against
another religion. It also found the series "indecent, contrary to law and contrary to good customs."
Issue:
Whether or not the "Ang Iglesia Ni Cristo" program is not constitutionally protected as a form
of religious exercise and expression.
Held:
Yes. Freedom of religion has been accorded a preferred status by the framers of our
fundamental laws, past and present. We have affirmed this preferred status well aware that it is
"designed to protect the broadest possible liberty of conscience, to allow each man to believe as his
conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good. Thus, any act that restrains speech is accompanied
with presumption of invalidity. It is the burden of the respondent Board to overthrow this
presumption. If it fails to discharge this burden, its act of censorship will be struck down. This is true
in this case. So-called "attacks" are mere criticisms of some of the deeply held dogmas and tenets
of other religions. Regional Trial Court’s ruling clearly suppresses petitioner's freedom of speech and
interferes with its right to free exercise of religion. “Attack” is different from “offend” any race or
religion. The respondent Board may disagree with the criticisms of other religions by petitioner but
that gives it no excuse to interdict such criticisms, however, unclean they may be. Under our
constitutional scheme, it is not the task of the State to favor any religion by protecting it against an
attack by another religion. Religious dogmas and beliefs are often at war and to preserve peace
among their followers, especially the fanatics; the establishment clause of freedom of religion
prohibits the State from leaning towards any religion. Respondent board cannot censor the speech
of petitioner Iglesia ni Cristo simply because it attacks other religions, even if said religion happens
to be the most numerous church in our country. The basis of freedom of religion is freedom of
thought and it is best served by encouraging the marketplace of dueling ideas. It is only where it is
unavoidably necessary to prevent an immediate and grave danger to the security and welfare of the
community that infringement of religious freedom may be justified, and only to the smallest extent
necessary to avoid the danger. There is no showing whatsoever of the type of harm the tapes will
bring about especially the gravity and imminence of the threatened harm. Prior restraint on speech,
including religious speech, cannot be justified by hypothetical fears but only by the showing of a
substantive and imminent evil. It is inappropriate to apply the clear and present danger test to the
case at bar because the issue involves the content of speech and not the time, place or manner of
speech. Allegedly, unless the speech is first allowed, its impact cannot be measured, and the causal
connection between the speech and the evil apprehended cannot be established. The determination
of the question as to whether or not such vilification, exaggeration or fabrication falls within or lies
outside the boundaries of protected speech or expression is a judicial function which cannot be
arrogated by an administrative body such as a Board of Censors." A system of prior restraint may
only be validly administered by judges and not left to administrative agencies.
Primicias vs. Fugoso [L-18000. Jan 27, 1948]
Doctrine:
Clear and Present Danger Test, Freedom of Assembly and Expression
FACTS:
This case is an action of mandamus instituted by petitioner Cipriano Primicias, manager of
theCoalesced Minority Parties, against respondent Manila City Mayor, Valeriano Fugoso, to compel
thelatter to issue a permit for the holding of a public meeting at the Plaza Miranda on Nov 16, 1947.
The
petitioner requested for a permit to hold a “peaceful public meeting”.
However, the respondent refused
to issue such permit because he found “that there is a reasonable ground to believe, basing upon
previous utterances and upon the fact that passions, specially on the part of the losing groups,
remainsbitter and high, that similar speeches will be delivered tending to undermine the faith and
confidence of
the people in their government, and in the duly peace and a disruption of public order.”
Respondentbased his refusal to the Revised Ordinances of 1927 prohibiting as an offense against
public peace, andpenalizes as a misdemeanor, "any act, in any public place, meeting,
or procession, tending to disturb thepeace or excite a riot; or collect with other persons in a body or
crowd for any unlawful purpose; ordisturb or disquiet any congregation engaged in any lawful
assembly." Included herein is Sec. 1119, Freeuse of Public Place.
ISSUE:
Whether or not the Mayor has the right to refuse to issue permit hence violating freedom
of assembly.
HELD:
The answer is negative. Supreme Court states that the freedom of speech, and to
peacefullyassemble and petition the government for redress of grievances, are fundamental
personal rights of thepeople recognized and guaranteed by the constitution. However, these rights
are not absolute. They can
be regulated under the state’s police power –
that they should not be injurious to the equal enjoymentof others having equal rights, nor to the
rights of the community or society.The Court holds that there can be 2 interpretations of Sec.
1119: 1) the Mayor of the City of Manila isvested with unregulated discretion to grant or refuse, to
grant permit for the holding of a lawfulassembly or meeting, parade, or procession in the streets and
other public places of the City of Manila;and 2) The right of the Mayor is subject to reasonable
discretion to determine or specify the streets orpublic places to be used with the view to prevent
confusion by overlapping, to secure convenient use of the streets and public places by others, and
to provide adequate and proper policing to minimize therisk of disorder.The court favored the
second construction since the first construction is tantamount to authorizing theMayor to prohibit the
use of the streets. Under our democratic system of government no such unlimitedpower may be
validly granted to any officer of the government, except perhaps in cases of nationalemergency. It is
to be noted that the permit to be issued is for the use of public places and not for theassembly
itself.The Court holds that the assembly is lawful and thus cannot be struck down. Fear of serious
injurycannot alone justify suppression of free speech and assembly. It is the function of speech to
free menfrom the bondage of irrational fears. To justify suppression of free speech there must be
reasonableground to fear that serious evil will result if free speech is practiced. There must be
reasonable groundto believe that the danger apprehended is imminent. There must be reasonable
ground to believe thatthe evil to be prevented is a serious one . The fact that speech is likely to
result in some violence or in destruction of property is not enough to justify its suppression. There
must be the probability of seriousinjury to the state.PETITION IS GRANTED.
AMELITO R. MUTUC vs. COMMISSION ON ELECTIONS
Facts:
Petitioner Amelito Mutuc was a candidate for the position of delegate to the Constitutional
Convention. He alleged that respondent Commission on Elections gave his certificate of candidacy
due course but prohibited him from using jingles in his mobile units equipped with sound system and
loud speakers. According to him, this violated his constitutional right to freedom of speech. Petitioner
filed a case against Commission on elections seeking a writ of prohibition and at the same time
praying for a preliminary injunction. The respondent argued that this authority was granted by the
Constitutional Convention Act.
Issues:
Was the prohibition imposed by respondent a violation of the right to freedom of speech of the
petitioner?
Ruling:
Supreme Court ruled that there was absence of statutory authority on the part of respondent to
impose such ban in the light of the doctine of ejusdem generis. The respondent commission failed to
manifest fealty to a cardinal principle of construction that a statute should be interpreted to assure its
being consonance with, rather than repugnant to, any constitutional command or prescription. The
Constitution prohibits abridgement of free speech or a free press. According to the Supreme Court,
this preferred freedom calls all the more for the utmost respect when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage. What the
respondent Commission did was to impose censorship on petitioner, an evil against which this
constitutional right is directed.
The respondent Commission is permanently restrained and prohibited from enforcing or
implementing or demanding compliance with its aforesaid order banning the use of political taped
jingles.
Burgos vs. Chief of Staff
Doctrine: A machinery which is movable by nature becomes immobilized when placed by the owner
of the tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other
person having only temporary right, unless such person acted as the agent of the owner.
Facts: Armed with a search warrant issued by the Court of First Instance of Rizal, law enforcement
officers searched the offices of the “We forum” and “Metropolitan Mail” newspapers. During the
course of the search, the law enforcement officers seized office and printing machines, equipment,
paraphernalia and several other materials used in the distribution of newspapers. Petitioner avers,
among others, that the seizure of the properties mentioned above amounts to seizure of real
properties, which cannot be validly conducted under the strength of a search warrant. It must be
noted that real properties are not susceptible of confiscation under a search warrant. Hence this
appeal which assails the validity of the search and the seizure of the properties of the petitioner.
Issue: Whether there is merit in the petitioner’s assertion that real property were invalidly seized
under the disputed warrants.
Held: No. The petitioner’s assertion does not hold water. Under Article 415(5) of the civil code,
“machinery, receptacles, instruments or implements intended by the owner of the tenement for an
industry or works which may be carried on in a building or on a piece of land and which tend directly
to meet the needs of the said industry or works” are considered immovable property. In another
case decided by the Court, in which the abovementioned legal provision was invoked, it was ruled
that machinery which is movable by nature becomes immobilized when placed by the owner of the
tenement, property or plant, but not so when placed by a tenant, usufructuary, or any other person
having only temporary right, unless such person acted as the agent of the owner. In the case at bar,
petitioners do not claim to be the owners of the land and/or building on which the machineries were
placed. This being the case, the machineries in question, while in fact bolted to the ground remains
movable property susceptible to seizure under a search warrant.
NATIONAL PRESS CLUB VS. COMELEC [201 SCRA 1; G.R. NO. 1026653; 5 MAR 1992]
Facts: Petitioners in these cases consist of representatives of the massmedia which are prevented
from selling or donating space and time for political advertisements; two (2) individuals who are
candidates for office (one for national and the other for provincial office) in the coming May 1992
elections; and taxpayers and voters who claim that their right to be informed of election Issue and of
credentials of the candidates is being curtailed. It is principally argued by petitioners that Section 11
(b) of Republic Act No. 66461 invades and violates the constitutional guarantees comprising
freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (b) amounts
to censorship, because it selects and singles out for suppression and repression with criminal
sanctions, only publications of a particular content, namely, media-based election or political
propaganda during the election period of 1992. It is asserted that the prohibition is in derogation
of media's role, function and duty to provide adequate channels of public information and public
opinion relevant to election Issue. Further, petitioners contend that Section 11 (b) abridges the
freedom of speech of candidates, and that the suppression of media-basedcampaign or political
propaganda except those appearing in the Comelec space of the newspapers and on Comelec time
of radio and television broadcasts, would bring about a substantial reduction in the quantity or
volume of information concerning candidates and Issue in the election thereby curtailing and limiting
the right of voters to information and opinion.
Issue: Whether or Not Section 11 (b) of Republic Act No. 6646 constitutional.
Held: Yes. It seems a modest proposition that the provision of the Bill of Rights which enshrines
freedom of speech, freedom of expression and freedom of the press has to be taken in conjunction
with Article IX (C) (4) which may be seen to be a special provision applicable during a specific
limited period — i.e., "during the election period." In our own society, equality of opportunity to
proffer oneself for public office, without regard to the level of financial resources that one may have
at one's disposal, is clearly an important value. One of the basic state policies given constitutional
rank by Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall
guarantee equal access to opportunities for public service and prohibit political dynasties as may be
defined by law." The essential question is whether or not the assailed legislative or administrative
provisions constitute a permissible exercise of the power of supervision or regulation of
the operations of communication and information enterprises during an election period, or whether
such act has gone beyond permissible supervision or regulation of media operationsso as to
constitute unconstitutional repression of freedom of speech and freedom of the press. The Court
considers that Section 11 (b) has not gone outside the permissible bounds of supervision or
regulation of mediaoperations during election periods.
Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the
operation of Article IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to
election periods. Section 11 (b) does not purport in any way to restrict the reporting by newspapers
or radio or television stations of news or news-worthy events relating to candidates, their
qualifications, political parties and programs of government. Moreover, Section 11 (b) does not
reach commentaries andexpressions of belief or opinion by reporters or broadcasters or editors or
commentators or columnists in respect of candidates, their qualifications, and programs and so
forth, so long at least as such comments, opinions and beliefs are not in fact advertisements for
particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any
report or commentary other coverage that, in responsible media, is not paid for by candidates for
political office. Section 11 (b) as designed to cover only paid political advertisements of particular
candidates.
The limiting impact of Section 11 (b) upon the right to free speech of the candidates themselves is
not unduly repressive or unreasonable.
Adiong vs. Comelec, G.R. NO. 103956; 31 MAR 1992; 207 SCRA 713
FACTS: Public respondent promulgated a resolution prohibiting the posting of decals and stickers
on “mobile” places, public or private, and limit their location or publication to the authorized posting
areas that COMELEC fixes. Petitioner senatorial candidate assails said resolution insofar as it
prohibits the posting of decals and stickers in mobile places like cars and other moving vehicles,
wherein it is his last medium to inform the electorate that he is a senatorial candidate, due to the ban
on radio, tv and print political advertisements.
ISSUE: WON a resolution prohibiting posting of decals and stickers is constitutional.
HELD: No. The prohibition on posting of decals and stickers on “mobile”places whether public or
private except in the authorized areas designated by the COMELEC becomes censorship which is
unconstitutional. There is no public interest substantial enough to warrant the prohibition.
Schenck v. United States
Brief Fact Summary. The Petitioner, Schenck (Petitioner), distributed mailers that opposed the draft
during World War I.
Synopsis of Rule of Law. When speech presents a clear and present danger of bringing about
harm that Congress has the power to prevent, restrictions on such speech are constitutional.
Facts. The Petitioner sent mailers to all men that were drafted into the war. The flyer consisted of 2
pages that implored the draftees to “Assert Your Rights” and standup against the draft. The
Respondent, the United States (Respondent), charged the Petitioner with conspiracy to violate the
Espionage Act of 1917 by encouraging insubordination in the military.
Issue. Is the Petitioner’s expression of his opinion of the draft protected speech under the First
Amendment of the United States Constitution (Constitution)?
Held. No. Because the nation is at war these types of expression encouraging disruption of wartime
activities cannot be tolerated.
Discussion. No actual obstruction of military recruiting resulted from the Petitioner’s actions.
However, the circumstance of the times is what makes this unprotected speech. It was equated to
yelling, “Fire!” in a crowded theatre. It was meant to induce panic and disrupt the security actions of
the nation.
Gonzales Vs. Comelec
Facts: RA 4880 which took effect on June 17, 1967, prohibiting the too early nomination of
candidates and limiting the period of election campaign or partisan political activity was challenged
on constitutional grounds. More precisely, the basic liberties of free speech and free press, freedom
of assembly and freedom of association are invoked to nullify the act. Petitioner Cabigao was, at the
time of the filing the petition, an incumbent councilor in the 4th District of Manila and the
Nacionalista Party official candidate for Vice-Mayor of Manila to which he was subsequently elected
on November 11, 1967; petitioner Gonzales, on the other hand, is a private individual, a registered
voter in the City of Manila and a political leader of his co-petitioner. There was the further allegation
that the nomination of a candidate and the fixing of period of election campaign are matters of
political expediency and convenience which only political parties can regulate or curtail by and
among themselves through self-restraint or mutual understanding or agreement and that the
regulation and limitation of these political matters invoking the police power, in the absence of clear
and present danger to the state, would render the constitutional rights of petitioners meaningless
and without effect. Senator Lorenzo M. Tañada was asked to appear as amicus curiae, and
elucidated that Act No. 4880 could indeed be looked upon as a limitation on the preferred rights of
speech and press, of assembly and of association. He did justify its enactment however under the
clear and present danger doctrine, there being the substantive evil of elections, whether for national
or local officials, being debased and degraded by unrestricted campaigning, excess of partisanship
and undue concentration in politics with the loss not only of efficiency in government but of lives as
well. The Philippine Bar Association, the Civil Liberties Union, the U.P. Law Center and the U.P.
Women Lawyers' Circle were requested to give their opinions. Respondents contend that the act
was based on the police power of the state.
Issue: Whether or Not RA 4880 unconstitutional.
Held: Yes. As held in Cabansag v. Fernandez there are two tests that may supply an acceptable
criterion for permissible restriction on freedom of speech. These are the “clear and present danger”
rule and the 'dangerous tendency' rule. The first, means that the evil consequence of the comment
or utterance must be extremely serious and the degree of imminence extremely high before the
utterance can be punished. The danger to be guarded against is the 'substantive evil' sought to be
prevented. It has the advantage of establishing according to the above decision a definite rule in
constitutional law. It provides the criterion as to what words may be publicly established. The
"dangerous tendency rule" is such that “If the words uttered create a dangerous tendency which the
state has a right to prevent, then such words are punishable.” It is not necessary that some definite
or immediate acts of force, violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be reasonably calculated to
incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and
probable effect of the utterance be to bring about the substantive evil which the legislative body
seeks to prevent.
The challenged statute could have been more narrowly drawn and the practices prohibited more
precisely delineated to satisfy the constitutional requirements as to a valid limitation under the clear
and present danger doctrine. As the author Tañada clearly explained, such provisions were deemed
by the legislative body to be part and parcel of the necessary and appropriate response not merely
to a clear and present danger but to the actual existence of a grave and substantive evil of
excessive partisanship, dishonesty and corruption as well as violence that of late has invariably
marred election campaigns and partisan political activities in this country.
The very idea of a government, republican in form, implies a right on the part of its citizens to meet
peaceably for consultation in respect to public affairs and to petition for redress of grievances. As in
the case of freedom of expression, this right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that Congress has a right to prevent.
The prohibition of any speeches, announcements or commentaries, or the holding of interviews for
or against the election of any party or candidate for public office and the prohibition of the
publication or distribution of campaign literature or materials, against the solicitation of votes
whether directly or indirectly, or the undertaking of any campaign literature or propaganda for or
against any candidate or party is repugnant to a constitutional command.
Reyes v. Bagatsing
FACTS: Petitioner’s request for a permit to hold a peaceful march and rally was denied by
respondent mayor due to police intelligence reports affirming plans of criminal intent to disrupt the
assembly. Respondent recommended that the permit may be issued if said rally is to be held at any
other enclosed area where safety is ensured.
ISSUE: Whether or not denial of a permit to rally violates freedom of speech.
HELD: Yes. The sole justification for a limitation on the exercise of this right, is the danger of a
character both grave and imminent, of a serious evil public safety, public morals, or any other
legitimate public interest. Peaceful assemblies are guaranteed in freedom of speech.
Navarro v. Villegas
FACTS:On February 24, 1970, the petitioner, acting in behalf of the Movement of a
DemocraticPhilippines, wrote a letter to the respondent, the Mayor of the city of Manila, applying
tohold a rally at Plaza Miranda February 26, 1970, from 4-11pm.On the same day, the respondent
wrote a reply, denying his request on the grounds that,the have temporarily adopted the policy of not
issuing any permit for the used of PlazaMiranda for rallies or demonstration during weekdays due
to the events that happenedfrom the past week.On the same letter, the respondent gave the
petitioner an option to use the Sunken Gardennear Intamuros for its rally, and for it to be held earlier
for it to end before dark.The petitioner filed suit contesting the Mayor’s action on the ground that it
violates the petitioner’s right to peaceable assemble and petition the government for redress
of grievances (ART. 3, sec 1(8)) and of the petitioner’s right to the equal protection of thelaw (art. 3,
sec. 1).ISSUE:Whether or not the respondents act on denying the request of the petitioner violates
the petitioners’ Right to peaceable assembly and right to the equal protection of the law.Held:The
right of peaceable assemble is subject to regulation under the police power of thestate.The right to
freedom of speech and peaceful assembly, though granted by theConstitution, is not absolute for it
may be regulated in order that it may not be injuriousto the equal enjoyment of others having an
equal right of community and society, This power may be exercised under the police power of the
state, which is the power of thestate, which is the power to prescribe regulations to promote the
health, morals, peace,education, and good order, safety and general welfare of the people.While the
privilege of the citizen to use streets and parks for communication may beregulated in the interest of
all, said privilege is not absolute. It must be exercised insubordination to the general comfort and
convenience and in consonance with peace andgood order, but it must not guise of regulation be
abridged or denied.
Ruiz v Gordon
Facts:
Hector S. Ruiz, Coordinator of Olongapo Citizen's Alliance for National Reconciliation, filed a petition
for mandamus against Richard Gordon to be allowed to hold a parade/march from Gordon Avenue
to the Rizal Triangle starting at 1:00 P.M.
The Court required the respondents to answer. Respondents replied by stating the request for a
prayer rally was received in the Office of the Mayor and that respondent had repeatedly announced
in his regular program on Sunday over the radio (DWGO) and at the Monday morning flag ceremony
before hundreds of government employees that he would grant the request of any group that would
like to exercise their freedom of speech and assembly.
When interviewed on the matter by the Editor-in Chief of the 'Guardian', he mentioned the fact that
he had granted the permit of the petitioner, which interview appeared in the November 22-28, 1983
issue of the said newspaper.
Given these, the respondent prayed for the dismissal of the petition. This was complied with.
Issue: Can the petition be granted?
Held No. Petition dismissed.
Ratio:
The Reyes case was given some discussion in the course of this petition as to the role of the
judiciary in petitions for permits to hold peaceable assembles.
"The applicants for a permit to hold an assembly should inform the licensing authority of the date,
the public place where and the time when it will take place. If it were a private place, only the
consent of the owner or the one entitled to its legal possession is required. Such applicationshould
be filed well ahead in time to enable the public official concerned to appraise whether there may be
valid objections to the grant of the permit or to its grant but at another public place. It is an
indispensable condition to such refusal or modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there is such an imminent and grave
danger of a substantive evil, the applicants must be heard on the matter.”
Thereafter, his decision must be transmmitted to them at the earliest opportunity. They can have
recourse to the proper judicial authority. Free speech and peaceable assembly, along with the other
intellectual freedoms, are highly ranked in our scheme of constitutional values. It cannot be too
strongly stressed that on the judiciary, — even more so than on the other departments — rests the
grave and delicate responsibility of assuring respect for and deference to such preferred rights.
As shown both in the manifestation and the answer, this action for mandamus could have been
obviated if only petitioner took the trouble of verifying on November 23 whether or not a permit had
been issued. A party desirous of exercising the right to peaceable assembly should be the one most
interested in ascertaining the action taken on a request for a permit. Necessarily, after a reasonable
time or, if the day and time was designated for the decision on the request, such party or his
representative should be at the office of the public official concerned. If he fails to do so, a copy of
the decision reached, whether adverse or favorable, should be sent to the address of petitioner.
Teehankee concurring:
The burden to show the existence of such grave and imminent danger that would justify an adverse
action lies on the mayor as the licensing authority. There must be objective and convincing, not
subjective or conjectural, proof of the existence of such clear and present danger. As the Court
stated in its Resolution of October 25, 1983 in the J. B. L. Reyes case, "It is essential for the validity
of a denial of a permit which amounts to a previous restraint or censorship that the licensing
authority does not rely solely on his own appraisal of what publicwelfare, peace or safety may
require. To justify such a limitation, there must be proof of such weight and sufficiency to satisfy the
clear and present danger test. The possibility that subversives may infiltrate the ranks of the
demonstrators is not enough."
As likewise underscored in the J. B. L. Reyes case, the exercise of the right of peaceable assembly
is not to be 4 abridged on the plea that it may be exercised in some other place" (at paragraph 6)
and "It is the duty of the city authorities to provide the proper police protection to
those exercising their right to peaceable assembly and freedom of expression" (at paragraph 7).
J. Conception concurring opinion
9 In order that public officials may not be charged, rightly or wrongly, with dereliction of duty
or abuse of powers in the granting or denying of such permits, the following guidelines are deemed
necessary:
(a) When a peaceful assembly is to be held in a private lot, house, or edifice, only the consent of the
owner of the place is necessary. No permit from the government or any public officer is required.
(b) When an application to hold a rally, parade, or peaceful assembly has to make use
of publicplaces like parks, plazas, and streets, the public authority charged with the duty of granting
or denying the permit should also consider the convenience and the right of the rest of the public to
use and enjoy these same facilities.
(c) Conditions of peace and order in the locality should be carefully considered and precautionary
steps taken to prevent vandals, hooligans, provocateurs, and other criminals from turning into a
violent one what otherwise should be a peaceful demonstration.
BAYAN VS. EXECUTIVE SECRETARY ERMITA [488 SCRA 226; G.R. NO. 169838; 25 APR 2006]
Facts: Rallies of September 20, October 4, 5 and 6, 2005 is at issue. BAYAN’s rally was violently
dispersed. 26 petitioners were injured, arrested and detained when a peaceful mass action they was
preempted and violently dispersed by the police. KMU asserts that the right to peaceful assembly,
are affected by Batas Pambansa No. 880 and the policy of “Calibrated Preemptive Response”
(CPR) being followed to implement it. KMU, et al., claim that on October 4, 2005, a rally KMU co-
sponsored was to be conducted at the Mendiola bridge but police blocked them along C.M. Recto
and Lepanto Streets and forcibly dispersed them, causing injuries to several of their members. They
further allege that on October 6, 2005, a multi-sectoral rally which KMU also co-sponsored was
scheduled to proceed along España Avenue in front of the UST and going towards Mendiola bridge.
Police officers blocked them along Morayta Street and prevented them from proceeding further.
They were then forcibly dispersed, causing injuries on one of them. Three other rallyists were
arrested.
All petitioners assail Batas Pambansa No. 880 The Public Assembly Act of 1985, some of them in
toto and others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of CPR. They seek
to stop violent dispersals of rallies under the “no permit, no rally” policy and the CPR policy
announced on Sept. 21, 2005.
Petitioners Bayan, et al., contend that BP 880 is clearly a violation of the Constitution and
the International Covenant on Civil and Political Rights and other human rights treaties of which the
Philippines is a signatory.
They argue that B.P. No. 880 requires a permit before one can stage apublic assembly regardless of
the presence or absence of a clear and present danger. It also curtails the choice of venue and is
thus repugnant to the freedom of expression clause as the time and place of a public assembly form
part of the message for which the expression is sought.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is unconstitutional as it is a
curtailment of the right to peacefully assemble and petition for redress of grievances because it puts
a condition for the valid exercise of that right. It also characterizes public assemblies without a
permit as illegal and penalizes them and allows their dispersal. Thus, its provisions are not mere
regulations but are actually prohibitions. Regarding the CPR policy, it is void for being an ultra vires
act that alters the standard of maximum tolerance set forth in B.P. No. 880, aside from being void for
being vague and for lack of publication.
KMU, et al., argue that the Constitution sets no limits on the right to assembly and therefore B.P. No.
880 cannot put the prior requirement of securing a permit. And even assuming that the legislature
can set limits to this right, the limits provided are unreasonable: First, allowing the Mayor to deny the
permit on clear and convincing evidence of a clear and present danger is too comprehensive.
Second, the five-day requirement to apply for a permit is too long as certain events require
instant public assembly, otherwise interest on the issue would possibly wane.As to the CPR policy,
they argue that it is preemptive, that the government takes action even before the rallyists can
perform their act, and that no law, ordinance orexecutive order supports the policy. Furthermore, it
contravenes the maximum tolerance policy of B.P. No. 880 and violates the Constitution as it causes
a chilling effect on the exercise by the people of the right to peaceably assemble.
Respondents argued that petitioners have no standing. BP 880 entails traffic re-routing to prevent
grave public inconvenience and serious or undue interference in the free flow of commerce and
trade. It is content-neutral regulation of the time, place and manner of
holding publicassemblies. According to Atienza RA. 7160 gives the Mayor power to deny a permit
independently of B.P. No. 880. and that the permit is for the use of apublic place and not for the
exercise of rights; and that B.P. No. 880 is not a content-based regulation because it covers all
rallies.
Issue: Whether or Not BP 880 and the CPR Policy unconstitutional.
Held: No question as to standing. Their right as citizens to engage in peaceful assembly and
exercise the right of petition, as guaranteed by the Constitution, is directly affected by B.P. No. 880.
B.P. 880 is not an absolute ban of public assemblies but a restriction that simply regulates the time,
place and manner of the assemblies. It refers to all kinds of publicassemblies that would
use public places. The reference to “lawful cause” does not make it content-based because
assemblies really have to be for lawful causes, otherwise they would not be “peaceable” and entitled
to protection. Maximum tolerance1 is for the protection and benefit of all rallyists and is independent
of the content of the expressions in the rally. There is, likewise, no prior restraint, since the content
of the speech is not relevant to the regulation.
The so-called calibrated preemptive response policy has no place in our legal firmament and must
be struck down as a darkness that shrouds freedom. It merely confuses our people and is used by
some police agents to justify abuses. Insofar as it would purport to differ from or be in lieu of
maximum tolerance, this was declared null and void.
The Secretary of the Interior and Local Governments, are DIRECTED to take all necessary steps for
the immediate compliance with Section 15 of Batas Pambansa No. 880 through the establishment
or designation of at least one suitable freedom park or plaza in every city and municipality of the
country. After thirty (30) days from the finality of this Decision, subject to the giving of advance
notices, no prior permit shall be required to exercise the right to peaceably assemble and petition in
the public parks or plazas of a city or municipality that has not yet complied with Section 15 of the
law.
Cabansag v. Fernandez
Facts: This is a contempt proceeding.Apolonio Cabansag and his lawyersRoberto V. Merrera were
found guiltyand sentenced the first to pay a fine of P20 and the last two P50 each with
thewarning that a repetition of the of offense will next time be heavily
dealtwith. Apolonio Cabansag filed on January 13, 1947 in the Court of
FirstInstance of Pangasinan a complaintseeking the ejectment of GeminianaFernandez, et al. from
a parcel of land.the court, presided over by JudgeVillamor upon petition of both
parties,ordered the stenographers who tookdown the notes during the previoushearings to
transcribe them within 15days upon payment of their fees,
andthe hearing was postponed until thetranscript of said notes had beensubmitted. Notwithstanding
the failureof the stenographers to transcribe
theirnotes, the hearing was set. , JudgePasicolan presiding, issued an ordersuggesting to the partie
s to arrangewith the stenographers who took downthe notes to transcribe their respectivenotes and
that the case would be setfor hearing after the submission of thetranscript. From December 9, 1952
toAugust 12, 1954, no further step wastaken either by the court or any of
thecontending parties in the case. . ,President Magsaysay assumed office,he issued Executive Orde
r No. Icreating the Presidential Complaintsand Action Commission (PCAC),Apolonio Cabansag, app
arently irkedand disappointed by the delay in thedisposition of his case, wrote the PCAC,a letter
copy which he furnished theSecretary of Justice and the Executive Judge of the Court of First
Instance of Pangasinan. Atty. Manuel Fernandez,counsel for defendants, filed a
motionbefore Judge Morfe praying thatApolonio Cabansag be declared incontempt of court for an all
egedscurrilous remark he made in his letterto the PCAC to the effect that he,Cabansag, has long
been deprived of his land "thru the careful maneuvers of a tactical lawyer", to which counsel
forCabansag replied with a counter-chargepraying that Atty. Fernandez be in
turndeclared in contempt because of certain contemptuous remarks made
byhim in his pleading. Judge Morfedismissed both charges but orderedCabansag to show cause in
writingwithin 10 days why he should not beheld liable for contempt for sending theabove letter to the
PCAC which tendedto
degrade the court in the eyes of the President and the people
.Cabansag filed his answer stating thathe did not have the idea to besmirchthe dignity or belittle the
respect duethe court nor was he actuated withmalice when he addressed the letter
tothe PCAC. order requiring also saidattorneys to show cause why theyshould not likewise be held f
orcontempt for having committed actswhich tend to impede, obstruct or
degrade the administration of justice
Issue: whether or not the Cabansagshould be held in contempt for hisremarks.Ruling: the decision
appealed from isreversed, without pronouncement as tocosts. the criticism refers, not to thecourt,
but to opposing counsel whosetactical maneuvers" has allegedlycaused the undue delay of the
case. The grievance or complaint, if any,
isaddressed to the stenographers fortheir apparent indifference intranscribing their notes. The onlydi
sturbing effect of the letter whichperhaps has been the motivating factorof the lodging of the
contempt chargeby the trial judge is the fact that the
letter was sent to the Office of thePresident asking for help because of
the precarious predicament of Cabansag. To be so the danger mustcause a
serious imminent threat to theadministration of justice. Nor can weinfer that such act has "a
dangeroustendency" to belittle the court orundermine the administration of
justicefor the writer merely exercised hisconstitutional right to petition thegovernment for redress of
a legitimategrievance.
←
The fact is that even the
trialcourt itself has at the beginningentertained such impression when itfound that the criticism was
directednot against the court but against thecounsel of the opposite party, and thatonly on second
thought did it change itsmind when it developed that the act of Cabansag was prompted by the
adviceof his lawyers. Cabansag cannotcertainly be blamed for entertaining thebelief that the only
way by which hecould obtain redress of his grievance isto address his letter to the PCAC whichafter
all is the office created by the
latePresident to receive and hear allcomplaints against officials andemployees of the government to
facilitate which the assistance andcooperation of all the executivedepartments were enjoined.
Gitlow v. New York
Brief Fact Summary. The Petitioner, Gitlow (Petitioner), published a communist manifesto for
distribution in the United States. He was charged with plotting to overthrow the United States
government.
Synopsis of Rule of Law. State statutes are unconstitutional if they are arbitrary and unreasonable
attempts to exercise authority vested in the state to protect public interests.
Facts. The Petitioner was charged with criminal anarchy because he was an advocate of socialist
reform in the United States. The Petitioner is a member of the Left Wing Section of the Socialist
Party. He served as the business manager for the paper that was run by the organization. In 1919
he published the group’s manifesto and prepared for widespread distribution from the New York City
headquarters.
Issue. Did the statute prohibiting such activity deprive the Petitioner of his First Amendment
constitutional right to freedom of expression?
Held. No. The current statute is not an unreasonable or arbitrary means of exercising the state’s
police power. It is within the state’s power to prevent the disturbance of the peace and regulate
speech that may incite crime even if the threat of such action is not immediate.
Dissent. A state may not prohibit speech unless it presents a clear and present danger to the public
interest.
Discussion. Freedom of speech and press do not confer an absolute right to publish or speak
without being held responsible for the results of such speech. The state may regulate to protect its
interests in general welfare of its citizens.
LAGUNZAD V. GONZALES
An agreement whereby a film producer would pay the heirs and relatives of Moises Padilla a sum of
money inorder to depict them in the movie which he included a love interest angle depicting the
mother and a sweetheart, is not a violation of freedom of ex-pression. While it is true that the film
producer purchased the rights to the book entitled "The Moises Padilla Story," that did not dispense
with the need for prior consent and authority from the deceased's heirs to portray publicly episodes
in said deceased's life and in that of his mother and the members of his family. As held in Schuyler v.
Curtis, "a privilege may be given the surviving relatives of a deceased person to protect his memory,
but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation
of their own rights in the charac¬ter and memory of the deceased."
"Being a public figure ipso facto does not automatically destroy in toto a person's right to privacy.
The right to invade a person's privacy to disseminate public information does not extend to fictional
or novelized representation of a person, no matter how public a figure he or she may be. In the case
at bar, while it is true that petitioner exerted efforts to present a true-to-life story of Moises Padilla,
petitioner admits that he included a little romance in the film because without it, it would be a drab
story of torture and brutality."
"The right of freedom of expression, indeed, occupies a preferred position in the hierarchy of civil
liberties. However, it is limited by the clear and present danger rule and the balancing of interest
test. The latter requires the court to take conscious and detailed consideration of the interplay of
interest observable in a given situation. The interests observable in this case are the right to privacy
and freedom of expression. Taking into account the interplay of those interest, we hold that under
the particular circumstances presented, and considering the obligations in the contract, the validity
of such contract must be upheld because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern."
US v Bustos 37 PHIL 73
Facts: In the latter part of 1915, numerous citizens of the Province of Pampanga assembled, and
prepared and signed a petition to the Executive Secretary(privileged communication) through
the law office of Crossfield and O'Brien, and five individuals signed affidavits, charging Roman
Punsalan, justice of the peace of Macabebe and Masantol, Pampanga, with malfeasance in
office and asking for his removal. The specific charges against the justice of the peace include the
solicitation of money from persons who have pending cases before the judge. Now, Punsalan
alleged that accused published a writing which was false, scandalous, malicious, defamatory, and
libelous against him.
Issue: Whether or Not accused is entitled to constitutional protection by virtue of his right to free
speech and free press.
Held: Yes. The guaranties of a free speech and a free press include the right to criticize judicial
conduct. The administration of the law is a matter of vital public concern. Whether the law is wisely
or badly enforced is, therefore, a fit subject for proper comment. If the people cannot criticize
a justice of the peace or a judge the same as any other public officer, public opinion will be
effectively suppressed. It is a duty which every one owes to society or to the State to assist in the
investigation of any alleged misconduct. It is further the duty of all who know of any official
dereliction on the part of a magistrate or the wrongful act of any public officer to bring the facts to the
notice of those whose duty it is to inquire into and punish them.
The right to assemble and petition is the necessary consequence of republican institutions and the
complement of the part of free speech. Assembly means a right on the part of citizens to meet
peaceably for consultation in respect to public affairs. Petition means that any person or group of
persons can apply, without fear of penalty, to the appropriate branch or office of the government for
a redress of grievances. The persons assembling and petitioning must, of course, assume
responsibility for the charges made. All persons have an interest in the pure and efficient
administration of justice and of public affairs.
Public policy, the welfare of society, and the orderly administration of government have demanded
protection for public opinion. The inevitable and incontestable result has been the development
and adoption of the doctrine of privilege. All persons have an interest in the pure and efficient
administration of justice and of public affairs. The duty under which a party is privileged is sufficient if
it is social or moral in its nature and this person in good faith believes he is acting in pursuance
thereof although in fact he is mistaken. Although the charges are probably not true as to the justice
of the peace, they were believed to be true by the petitioners. Good faith surrounded their action.
Probable cause for them to think that malfeasance or misfeasance in office existed is apparent. The
ends and the motives of these citizens— to secure the removal from office of a person thought to be
venal — were justifiable. In no way did they abuse the privilege.
In the usual case malice can be presumed from defamatory words. Privilege destroys that
presumption. A privileged communication should not be subjected to microscopic examination to
discover grounds of malice or falsity.
Rosenbloom vs. Metromedia Inc.
The judicial travails in defamation cases took the United States Supreme Court further.
In New York Times versus Sullivan, the actual malice standard was galvanized as the applicable rule
in defamation cases involving public officials in relation to their ofifical conduct. In the same year, the
U.S. Supreme Court applied the actual malice doctrine in criminal cases in Garrison vs. Louisiana.
In 1967, the actual malice doctrine was held applicable to public figures, and not just public officials
in a divided court in Curtis Publishing Co. vs. Butts.
The next case the U.S. Supreme ruled upon was a case involving plainitffs who were neither public
officials nor public figures, but private individuals.
There was a seeming trend to provide greater accomodations to press freedom as the Supreme
Court introduced a new standard, which is the public interest standard.
In the case of Rosenbloom vs. Metromedia Inc. (1971) the Supreme Court applied the actual malice
standard regardless of the status of the plainitff, as long as the matter involved was one of public
interest.
This became a highly controversial case, in view of the very wide latitude accorded to the press in
defamation cases.
But more significantly, the Rosenbloom case in the United States would be relevant to later
defamation cases decided by the Philippine Supreme Court, which I will discuss later.
See below my digest of this important (significant to Philippine defamation laws) case.
Rosenbloom v Metro Media, Inc.
403 U.S. 20
June 7 1971
In 1963, petitioner was a distributor of nudist magazines in the Philadelphia metropolitan area.
Respondent Metromedia’radio station, which broadcast news reports every half hour, broadcast
news stories of petitioner Rosenbloom’s arrest for possession of obscene literature and the police
seizure of "obscene books," and stories concerning petitioner's lawsuit against certain officials
alleging that the magazines he distributed were not obscene and seeking injunctive relief from police
interference with his business. These latter stories did not mention petitioner Rosenbloom’s name,
but used the terms "smut literature racket" and "girlie-book peddlers." Following petitioner's acquittal
of criminal obscenity charges, he filed this action seeking damages under Pennsylvania's libel law.
Issue:
Whether the New York Times' knowing-or-reckless-falsity standard applies in a state civil libel action
brought not by a "public official" or a "public figure" but by a private individual for a defamatory
falsehood uttered in a news broadcast by a radio station about the individual's involvement in an
event of public or general interest
Held:
The actual malice standard applies.
If a matter is a subject of public or general interest, it cannot suddenly become less so merely
because a private individual is involved, or because in some sense the individual did not
"voluntarily" choose to become involved.
The public's primary interest is in the event; the public focus is on the conduct of the participant and
the content, effect, and significance of the conduct, not the participant's prior anonymity or notoriety.
The present case illustrates the point.
The community has a vital interest in the proper enforcement of its criminal laws, particularly in an
area such as obscenity where a number of highly important values are potentially in conflict: the
public has an interest both in seeing that the criminal law is adequately enforced and in assuring
that the law is not used unconstitutionally to suppress free expression. Whether the person involved
is a famous large-scale magazine distributor or a "private" businessman running a corner newsstand
has no relevance in ascertaining whether the public has an interest in the issue. We honor the
commitment to robust debate on public issues, which is embodied in the First Amendment, by
extending constitutional protection to all discussion and communication involving matters of public or
general concern, without regard to whether the persons involved are famous or anonymous.
Lagunzad vs. Soto Vda. De Gonzales, No. L-32066, 92 SCRA 476 , August 06, 1979
Before us is a Petition for Review by certiorari of the Decision of the Court of Appeals in CA-G.R.
No. 34703, promulgated on January 13, 1970, affirming the Decision of the Court of First Instance of
Negros Occidental, dated June 30, 1964, in Civil Case No. 6414 entitled "Maria Soto Vda. de
Gonzales vs. Manuel Lagunzad," for a Sum of Money and Attachment.
The present controversy stems from a "Licensing Agreement" entered into by and between
petitioner Manuel M. Lagunzad and private respondent Maria Soto Vda. de Gonzales on October 5,
1961, which contract petitioner claims to be null and void for having been entered into by him under
duress, intimidation and undue influence.
The antecedental facts follow: Sometime in August, 1961, petitioner Manuel Lagunzad, a
newspaperman, began the production of a movie entitled "The Moises Padilla Story" under the
name of his own business outfit, the "MML Productions." It was based mainly on the copyrighted but
unpublished book of Atty. Ernesto Rodriguez, Jr., entitled "The Long Dark Night in Negros" subtitled
"The Moises Padilla Story," 1 the rights to which petitioner had purchased from Atty. Rodriguez in
the amount of P2,000.00. 2
The book narrates the events which culminated in the murder of Moises Padilla sometime between
November 11 and November 17, 1951. Padilla was then a mayoralty candidate of the Nacionalista
Party (then the minority party) for the Municipality of Magallon, Negros Occidental, during the
November, 1951 elections. Governor Rafael Lacson, a member of the Liberal Party then in power
and his men were tried and convicted for that murder in People vs. Lacson, et al. 3 In the book,
Moises Padilla is portrayed as "a martyr in contemporary political history."
Although the emphasis of the movie was on the public life of Moises Padilla, there were portions
which dealt with his private and family life including the portrayal in some scenes, of his mother,
Maria Soto Vda. de Gonzales, private respondent herein, and of one "Auring" as his girl friend. 4
The movie was scheduled for a premiere showing on October 16, 1961, or at the very latest, before
the November, 1961 elections.
On October 3, 1961, petitioner received a telephone call from one Mrs. Nelly Amante, half-sister of
Moises Padilla, objecting to the filming of the movie and the "exploitation" of his life. Shown the early
"rushes" of the picture, Mrs. Amante and her sister, Mrs. Gavieres, objected to many portions
thereof notwithstanding petitioner's explanation that the movie had been supervised by Ernesto
Rodriguez, Jr., based on his book "The Long Dark Night in Negros." On October 5, 1961, Mrs.
Amante, for and in behalf of her mother, private respondent, demanded in writing for certain
changes, corrections and deletions in the movie. 5 Petitioner contends that he acceded to the
demands because he had already invested heavily in the picture to the extent of mortgaging his
properties, 6 in addition to the fact that he had to meet the scheduled target date of the premiere
showing.
On the same date, October 5, 1961, after some bargaining as to the amount to be paid, which was
P50,000.00 at first, then reduced to P20,000.00, 7 petitioner and private respondent, represented by
her daughters and Atty. Ernesto Rodriguez, at the law office of Jalandoni and Jamir, executed a
"Licensing Agreement" reading as follows:
LICENSING AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement, made and executed at the City of Manila, Philippines, this 5th day of October,
1961, by and between:
MANUEL M. LAGUNZAD, of legal age, married, presently engaged in the business of producing
motion pictures under the style of "MML Productions" with residence at 76 Central Boulevard,
Quezon City and with offices at 301 Cu Unjieng Bldg., Escolta, Manila and hereinafter referred to as
LICENSEE,
— and —
MARIA SOTO VDA. DE GONZALES, of legal age, widow, resident of the Municipality of Moises
Padilla, Province of Negros Occidental, represented in this Act by her Attorneys-in-fact Atty. Ernesto
Rodriguez, Jr. of legal age and resident of 393F-Buencamino St., San Miguel, Manila; Maria Nelly
G. Amazite, of legal age and resident of 121 South 13, Quezon City; and Dolores G, Gavieres, of
legal age, and resident of 511 San Rafael Street, Quiapo, Manila, also duly authorized and
hereinafter referred to as LICENSOR,
WITNESSETH:
That, the LICENSEE is currently producing a motion picture entitled "The Moises Padilla Story"
(hereinafter referred to as the PICTURE, for short) based on certain episodes in the life of Moises
Padilla, now deceased:
That the LICENSOR is the legitimate mother and only surviving compulsory heir of Moises Padilla,
the latter not having married during his lifetime and having died without any descendants, legitimate
or illegitimate;
That, in the PICTURE and in all incidents thereof, such as scenarios, advertisements, etc., the
LICENSEE has, without the prior consent and authority of LICENSOR, exploited the life story of
Moises Padilla for pecuniary gain and other profit motives, and has, furthermore encroached upon
the privacy of Moises Padilla's immediate family, and has in fact, included in the PICTURE'S cast,
persons portraying some of MOISES PADILLA's kin, including LICENSOR herself;
That, for and in consideration of the foregoing premises and the other covenants and conditions
hereunder stated, the LICENSOR hereby grants authority and permission to LICENSEE to exploit,
use, and develop the life story of Moises Padilla for purposes of producing the PICTURE, and in
connection with matters incidental to said production, such as advertising and the like, as well as
authority and permission for the use of LICENSOR's name in the PICTURE and have herself
portrayed therein, the authority and permission hereby granted, to retroact to the date when
LICENSEE first committed any of the acts herein authorized.
THE CONDITIONS AND OTHER COVENANTS OF THIS AGREEMENT ARE AS FOLLOWS:
1. For and in consideration of the authority and permission hereby granted by LICENSOR to
LICENSEE, LICENSEE shall pay LICENSOR, through Atty. Lope E. Adriano at the Pelaez and
Jalandoni Law Office, 6th Floor, Magsaysay Bldg., San Luis, Ermita, Manila, the following:
a) The sum of TWENTY THOUSAND PESOS (P20,000.00), Philippine Currency, payable without
need of further demand, as follows: P5,000.00 on or before Oct. 10, 1961; P10,000.00 on or before
Oct. 31, 1961; and P5,000.00 on or before November 30, 1961. In default of the payment of any of
these amounts as they fall due, the others become immediately due and demandable.
b) A royalty in such amount corresponding to TWO AND A HALF PER CENTUM (2-½ %) of all gross
income or receipts derived by, and/or for and in behalf of, LICENSEE as rentals and or percentage
of box office receipts from exhibitors and others for the right to exploit, use, distribute and/or exhibit
the picture anywhere here in the Philippines or abroad.
2) The LICENSEE agrees to keep complete, true and accurate books of accounts, contracts and
vouchers relating to the exploitation, distribution and exhibition of the PICTURE, the bookings
thereof and the rentals and gross receipts therefrom, and to give to LICENSOR and/or her
accredited representatives, full access at all reasonable times to all of the said books, accounts,
records, vouchers and all other papers.
3) The LICENSEE shall furnish LICENSOR monthly statements in duplicate, showing in detail the
gross receipts accruing from the picture, which monthly statements shall be delivered to the
LICENSOR with reasonable promptness, and upon verification and approval of said statements by
LICENSOR, the LICENSEE shall pay the corresponding royalties due to the LICENSOR.
4) The authority and permission herein granted is subject to the condition that LICENSEE shall
change, delete, and/or correct such portions in the PICTURE as the LICENSOR may require, in
writing before final printing of the PICTURE, and shall, furthermore, not be understood as a consent
to anything in the picture that is, or tends to be, derogatory to the deceased MOISES PADILLA or to
LICENSOR.
5) The LICENSOR shall not in any way be liable on any claim from third persons as a result of, or
arising from, the manner by which the PICTURE is put together, nor on any claim arising from the
production, distribution and exhibition of the PICTURE, and in the event of any such claim being
asserted against LICENSOR, the LICENSEE undertakes to hold LICENSOR harmless thereon.
6) This agreement shall be binding upon the parties hereto, their representatives, administrators,
successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the date and at the place
first above stated.
MARIA SOTO VDA. DE GONZALES MANUEL M. LAGUNZAD
Licensor Licensee
By:
(Sgd.) ERNESTO R. RODRIGUEZ, Jr.
(Sgd.) MARIA NELLY G. AMANTE
(Sgd.) DOLORES G. GAVIERES
Attorneys-in-fact
SIGNED IN THE PRESENCE OF:
LOPE E. ADRIANO ILLEGIBLE
ACKNOWLEDGMENT
Petitioner takes the position that he was pressured into signing the Agreement because of private
respondent's demand, through Mrs. Amante, for payment for the "exploitation" of the life story of
Moises Padilla, otherwise, she would "call a press conference declaring the whole picture as a fake,
fraud and a hoax and would denounce the whole thing in the press, radio, television and that they
were going to Court to stop the picture." 8
On October 10, 1961, petitioner paid private respondent the amount of P5,000.00 but contends that
he did so not pursuant to their Agreement but just to placate private respondent. 9
On October 14, 1961, the filming of the movie was completed. On October 16, 1961, a premiere
showing was held at the Hollywood Theatre, Manila, with the Moises Padilla Society as its sponsor.
10 Subsequently, the movie was shown in different theaters all over the country.
Because petitioner refused to pay any additional amounts pursuant to the Agreement, on December
22, 1961, private respondent instituted the present suit against him praying for judgment in her favor
ordering petitioner 1) to pay her the amount of P15,000.00, with legal interest from the filing of the
Complaint; 2) to render an accounting of the proceeds from the picture and to pay the corresponding
2-1/2% royalty therefrom; 3) to pay attorney's fees equivalent to 20% of the amounts claimed; and
4) to pay the costs.
Traversing the Complaint, petitioner contended in his Answer that the episodes in the life of Moises
Padilla depicted in the movie were matters of public knowledge and occurred at or about the same
time that the deceased became and was a public figure; that private respondent has no property
right over those incidents; that the Licensing Agreement was without valid cause or consideration
and that he signed the same only because private respondent threatened him with unfounded and
harassing action which would have delayed production; and that he paid private respondent the
amount of P5,000.00 in October, 1961, only because of the coercion and threat employed upon him.
By way of counterclaim, petitioner demanded that the Licensing Agreement be declared null and
void for being without any valid cause; that private respondent be ordered to return to him the
amount of P5,000.00; and that he be paid P50,000.00 by way of moral damages, and P7,500.00 as
attorney's fees.
Private respondent duly filed her Answer to Counterclaim alleging that the transaction between her
and petitioner was entered into freely and voluntarily.
On June 30, 1964, the trial Court rendered a Decision, and decreed in its dispositive portion:
WHEREFORE, judgment is hereby rendered ordering the defendant Manuel Lagunzad to pay the
plaintiff the sum of P15,000.00 with interest at the rate of 6% per annum from December 22, 1961
up to its complete payment; to order the defendant to render an accounting of the gross income or
proceeds derived from the exhibition, use and/or rental of the motion picture of "The Moises Padilla
Story" and to pay the plaintiff 2- 1/2% of said gross income; to pay the plaintiff the amount
equivalent to 20% of the amount due the plaintiff under the first cause of action as attorney's fees;
and to pay the costs.
On appeal to the Court of Appeals, the latter Court affirmed the judgment. Reconsideration having
been denied by the Court, petitioner filed the instant Petition for Review on Certiorari.
Initially, or on June 16, 1970, this Court denied the Petition for lack of merit, but resolved
subsequently to give it due course after petitioner moved for reconsideration on the additional
argument that the movie production was in exercise of the constitutional right of freedom of
expression, and that the Licensing cement is a form of restraint on the freedom of speech and of the
press.
In his Brief, petitioner assigns the following errors to the appellate Court:
I. THE COURT OF APPEALS ERRED IN EXERCISING JURISDICTION IN THE CASE BECAUSE
THE JUDGMENT APPEALED FROM WAS INTERLOCUTORY IN NATURE AND CHARACTER;
II. THE COURT OF APPEALS ERRED IN ITS FAILURE TO MAKE COMPLETE FINDINGS OF
FACTS ON ALL ISSUES BEFORE IT;
III. THE COURT OF APPEALS ERRED IN NOT DECLARING THE LICENSING AGREEMENT,
EXHIBIT "A", NULL AND VOID FOR LACK OF, OR FOR HAVING AN ILLEGAL CAUSE OR
CONSIDERATION OF CONTRACT, PETITIONER HAVING PREVIOUSLY OBTAINED THE
AUTHORITY AND/OR PERMISSION PURPOSELY GRANTED TO HIM BY RESPONDENT UNDER
SAID LICENSING AGREEMENT;
IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING AGREEMENT,
EXHIBIT "A", IS NULL AND VOID; RESPONDENT NOT HAVING HAD ANY PROPERTY NIGHTS
OVER THE INCIDENTS IN THE LIFE OF MOISES PADILLA WHO WAS A PUBLIC FIGURE.
V. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LICENSING AGREEMENT,
EXHIBIT "A", WAS NULL AND VOID, PETITIONER'S CONSENT HAVING BEEN PROCURED BY
MEANS OF DURESS, INTIMIDATION AND UNDUE INFLUENCE;
VI. THE COURT OF APPEALS, IN UPHOLDING THE RIGHT TO PRIVACY OF RESPONDENT AS
DEFINED IN ART. 26 OF THE NEW CIVIL CODE OVER THE RIGHT OF PETITIONER TO FILM
THE PUBLIC LIFE OF A PUBLIC FIGURE, INFRINGED UPON THE CONSTITUTIONAL RIGHT OF
PETITIONER TO FREE SPEECH AND FREE PRESS.
We find the assigned errors bereft of merit.
Petitioner's contention that because an accounting had been ordered, respondent Court of Appeals
did not have jurisdiction over the case as the Decision of the lower Court was not yet final and
appealable, is untenable. The doctrine enunciated in Fuentebella vs. Carrascoso 11 relied upon by
petitioner, which held that whether or not the action for accounting is the principal action or is merely
incidental to another, the judgment requiring such accounting cannot be final, has been abandoned
in Miranda vs. Court of Appeals 12 which ruled:
For the guidance of bench and bar, the Court declares as abandoned the doctrine of Fuentebella vs.
Carrascoso and adopts the opposite rule that judgments for recovery with accounting are final and
appealable (without need of awaiting the accounting) and would become final and executory if not
appealed within the reglementary period.
In other words, where there is complete adjudication and determination of the rights and obligations
of the parties, as in the instant case, an order for accounting in that judgment does not affect its final
character, said accounting being merely incidental to the judgment.
Petitioner's contention that respondent Court failed to make complete findings of fact on all issues
raised before it is without basis. A careful study of the Decision reveals that respondent Court has
substantially and sufficiently complied with the injunction that a decision must state clearly and
distinctly the facts and the law on which it is based. The rule remains that the ultimate test as to the
sufficiency of a Court's findings of fact is "whether they are comprehensive enough and pertinent to
the issues raised to provide a basis for decision." 13 The judgment sought to be reviewed
sufficiently complies with this requirement.
Neither do we agree with petitioner's submission that the Licensing Agreement is null and void for
lack of, or for having an illegal cause or consideration. While it is true that petitioner had purchased
the rights to the book entitled "The Moises Padilla Story," that did not dispense with the need for
prior consent and authority from the deceased heirs to portray publicly episodes in said deceased's
life and in that of his mother and the members of his family. As held in Schuyler v. Curtis, 14 "a
privilege may be given the surviving relatives of a deceased person to protect his memory, but the
privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their
own rights in the character and memory of the deceased."
Petitioner's averment that private respondent did not have any property right over the life of Moises
Padilla since the latter was a public figure, is neither well taken. Being a public figure ipso facto does
not automatically destroy in toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized representation of a person,
no matter how public a figure he or she may be. 15 In the case at bar, while it is true that petitioner
exerted efforts to present a true-to-life story of Moises Padilla, petitioner admits that he included a
little romance in the film because without it, it would be a drab story of torture and brutality. 16
We also find it difficult to sustain petitioner's posture that his consent to the Licensing Agreement
was procured thru duress, intimidation and undue influence exerted on him by private respondent
and her daughters at a time when he had exhausted his financial resources, the premiere showing
of the picture was imminent, and "time was of the essence." As held in Martinez vs. Hongkong &
Shanghai Bank, 17 it is necessary to distinguish between real duress and the motive which is
present when one gives his consent reluctantly. A contract is valid even though one of the parties
entered into it against his own wish and desires, or even against his better judgment. In legal effect,
there is no difference between a contract wherein one of the contracting parties exchanges one
condition for another because he looks for greater profit or gain by reason of such change, and an
agreement wherein one of the contracting parties agrees to accept the lesser of two disadvantages.
In either case, he makes a choice free and untramelled and must accordingly abide by it. The
Licensing Agreement has the force of law between the contracting parties and since its provisions
are not contrary to law, morals, good customs, public order or public policy (Art. 1306, Civil Code),
petitioner Should comply with it in good faith.
Lastly, neither do we find merit in petitioner's contention that the Licensing Agreement infringes on
the constitutional right of freedom of speech and of the press, in that, as a citizen and as a
newspaperman, he had the right to express his thoughts in film on the public life of Moises Padilla
without prior restraint. The right of freedom of expression, indeed, occupies a preferred position in
the "hierarchy of civil liberties." 18 It is not, however, without limitations. As held in Gonzales vs.
Commission on Elections, 27 SCRA 835, 858 (1969):
From the language of the specific constitutional provision, it would appear that the right is not
susceptible of any limitation. No law may be passed abridging the freedom of speech and of the
press. The realities of life in a complex society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times and under all
circumstances it should remain unfettered and unrestrained. There are other societal values that
press for recognition.
The prevailing doctrine is that the clear and present danger rule is such a limitation. Another criterion
for permissible limitation on freedom of speech and of the press, which includes such vehicles of the
mass media as radio, television and the movies, is the "balancing-of-interests test." 19 The principle
i requires a court to take conscious and detailed consideration of the interplay of interests
observable in a given situation or type of situation." 20
In the case at bar, the interests observable are the right to privacy asserted by respondent and the
right of -freedom of expression invoked by petitioner. Taking into account the interplay of those
interests, we hold that under the particular circumstances presented, and considering the obligations
assumed in the Licensing Agreement entered into by petitioner, the validity of such agreement will
have to be upheld particularly because the limits of freedom of expression are reached when
expression touches upon matters of essentially private concern.
WHEREFORE, the Petition for Review is denied and the judgment appealed from hereby affirmed.
Costs against petitioner.
People v. Go Pin
MONTEMAYOR, J.:
Go Pin, an alien and a Chinese citizen, was charged with a violation of Article 201 of the Revised
Penal Code for having exhibited in the City of Manila at the Globe Arcade, a recreation center, a
large number of one-real 16-millimeter films about 100 feet in length each, which are allegedly
indecent and/or immoral. At first, he pleaded not guilty of the information but later was allowed by
the court to change his plea to that of guilty which he did. Not content with the plea of guilty the trial
court had the films in question projected and were viewed by it in order to evaluate the same from
the standpoint of decency and morality. Thereafter, and considering the plea of guilty entered by the
accused, and the fact that after viewing the films the trial court noted only a slight degree of
obscenity, indecency and immorality in them, it sentenced the appellant to 6 months and 1 day
of prision correcciconal and to pay a fine of P300, with subsidiary imprisonment in case of
insolvency, and to pay the costs. He is now appealing from the decision.
Go Pin does not deny his guilt but he claims that under the circumstances surrounding the case,
particularly the slight degree of obscenity, indecency and immorality noted by the court in the films,
the prison sentence should be eliminated from the penalty imposed. His counsel brings to our
attention some authorities to the effect that paintings and pictures of women in the nude, including
sculptures of that kind are not offensive because they are made and presented for the sake of art.
We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in
art exhibits and art galleries for the cause of art, to be viewed and appreciated by people interested
in art, there would be no offense committed. However, the pictures here in question were used not
exactly for art's sake but rather for commercial purposes. In other words, the supposed artistic
qualities of said pictures were being commercialized so that the cause of art was of secondary or
minor importance. Gain and profit would appear to have been the main, if not the exclusive
consideration in their exhibition; and it would not be surprising if the persons who went to see those
pictures and paid entrance fees for the privilege of doing so, were not exactly artists and persons
interested in art and who generally go to art exhibitions and galleries to satisfy and improve their
artistic tastes, but rather people desirous of satisfying their morbid curiosity and taste, and lust, and
for love for excitement, including the youth who because of their immaturity are not in a position to
resist and shield themselves from the ill and perverting effects of these pictures.
Before rendering sentence the trial court asked the prosecuting attorney for this recommendation
and said official recommendation that "considering that the accused Go Pin is an alien who is
supposed to maintain a high degree of morality while he is in the Philippines", and "considering that
he engaged in a very nefarious trade, which degenerates the moral character of our youth, who are
usually the regular customers of his trade", he recommended that appellant be sentenced to 2 years
imprisonment and a fine of P300. Notwithstanding this recommendation, the trial court as already
said, probably considering its opinion that the pictures were not so obscene, indecent and immoral
but only slightly so, gave appellant only 6 months and 1 day of prision correccional in addition to
P300 fine.
The penalty imposed by the trial court is within the range provided by Article 201 of the Revised
Code. We are satisfied that in imposing the penalty the trial court made use of its sound discretion,
and we find no reason for modifying the said sentence. The Solicitor General in his brief even urges
that we recommend to the proper authorities that deportation proceedings be instituted against
appellant as an undesirable alien. The trial court could have done this but did not do so, believing
perhaps that it was warranted. We repeat that we do not feel justified in interfering with the
discretion of the trial court in the imposition of the sentence in this case.
In view of the foregoing, the decision appealed from is affirmed, with costs.
People v Padan
Facts:
The accused exhibited immoral scenes and acts in one of the Manila nightclubs. Moreover, the
manager and ticket collector were also part of the accused for hiring the women to perform sexual
intercourse in the presence of many spectators.
They were charged with a violation of the RPC Article 201 in the trial court. All pleaded not guilty.
One of the accused however, changed her mind and pleaded guilty. All were convicted. The
evidence of the lewd show was confiscated.
The accused filed an appeal in the Supreme Court. 2 of the appellants, manager Fajardo and ticket
collector Yabut, failed to file their briefs within the period prescribed by law and their appeal was
dismissed by resolution of this Court of November 25, 1955, and the decision as to
thembecame final and executory on January 7, 1956.
The defendant who pleaded guilty, Marina Padan, in her appeal did not question her conviction; she
merely urged the reduction of the penalty by eliminating the prison sentence. The Supereme Court
did not consider this because the trial court judge reduced the fine from 600 to 200.
Issue: Were the acts obscene and thereby punishable by Art 201 of the RPC?
Held: Yes.
Ratio:
This is the first time that the courts in this jurisdiction, have been called upon to take cognizance of
an offense against morals and decency of this kind. We have had occasion to consider offenses like
the exhibition of still moving pictures of women in the nude, which we have condemned for
obscenity and as offensive to morals. In those cases, one might yet claim that there was involved
the element of art; that connoisseurs of the same, and painters and sculptors might find inspiration
in the showing of pictures in the nude, or the human body exhibited in sheer nakedness.
But an actual exhibition of the sexual act, preceded by acts of lasciviousness, can have no
redeeming feature. In it, there is no room for art. One can see nothing in it but clear and unmitigated
obscenity, indecency, and an offense to public morals, inspiring and causing as it does, nothing but
lust and lewdness, and exerting a corrupting influence specially on the youth of the land. We repeat
that because of all this, the penalty imposed by the trial court on Marina, despite her plea of guilty, is
neither excessive nor unreasonable.
On the appeal of Fajardo, he claimed that he was an innocent bystander but that because of his
popularity in the neighborhood, he was requested by the spectators to select the man and the
woman to engage or indulge in the actual act of coitus before the spectators. After making the
selection, he did not even care to witness the act but left the scene and returned to it only when he
heard a commotion produced by the raid conducted by the police.
The evidence on his active participation and that he was the manager and one in charge of the
show is however ample, even conclusive. In 1953, the place used for ping-pong was used for an
exhibition of human "fighting fish", the actual act of coitus or copulation. Tickets were sold at P3
each, and the show was supposed to begin at 8:00 o'clock in the evening.
The Manila Police Department must have gotten wind of the affair; it bought tickets and provided
several of its members who later attended the show, but in plain clothes, and after the show
conducted a raid and made arrests. At the trial, said policemen testified as to what actually took
place inside the building. About two civilians who attended the affair gave testimony as to what they
saw.
The customers not provided with tickets actually paid P3 at the entrance to defendant Ernesto
Reyes. He also collected tickets. In all, there were about ninety paying customers, while about
sixteen were allowed to enter free, presumably friends of the management. Jose Fajardo y Garcia
was clearly the manager of the show. He was at the door to see to it that the customers either were
provided with tickets or paid P3.00 entrance fee. He even asked them from whom they had bought
the tickets. He ordered that an army steel bed be placed at the center of the floor, covered with an
army blanket and provided with a pillow. Once the spectators, about 106 in number, were crowded
inside that small building, the show started.
Besides, as found by the trial court and as shown by some of the tickets collected from the
spectators, submitted as exhibits, said tickets while bearing on one side superimposed with rubber
stamped name "Pepe Fajardo," which defendant Fajardo admits to be his name.
Considering all the above circumstances, we agree with the trial court that Jose Fajardo is the most
guilty of the four, for he was the one who conducted the show and presumably derived the most
profit or gain from the same.
Gonzales v Katigbak
Facts:
Antonio Gonzales, president of Malaya Films, claimed that his film Kapit sa Patalim, was rated for
adults only by a subcommittee of the movie review board together with the required cuts and scene
deletions. He justified that these requirements were without basis and were restrains on artistic
expression. He adduced that the film is an integral whole and all its portions, including those to
which the Board now offers belated objection, are essential for the integrity of the film. Viewed as a
whole, there is no basis even for the vague speculations advanced by the Board as basis for its
classification.
He appealed to the movie review board but the same affirmed the decion of the sub committee.
When Gonzales appealed to the supreme court, the board claimed that the deletions were removed
and the requirement to submit the master negative was taken out but the film was still rated for
adults only. The petition was amended to contest the rating only.
Issue: Was the rating made with grave avuse of discretion (Note I put in those regarding obscenity
for future purposes)
Held: No. Petition dismissed. There was no grave abuse of discretion DUE TO LACK OF VOTES
Ratio:
Motion pictures are important both as a medium for the communication of Ideas and the expression
of the artistic impulse
Burstyn-importance of motion pictures as an organ of public opinion lessened by the fact that they
are designed to entertain as well as to inform
(No clear dividing line between what affords knowledge and that of pleasure or else there will be a
diminution to a right to self-expression)
Bagatsing- Press freedom may be identified with the liberty to discuss publicly and truthfully any
matter of public concern without censorship or punishment. This is not to say that such freedom, as
is the freedom of speech, absolute. It can be limited if "there be a 'clear and present danger of a
substantive evil that [the State] has a right to prevent.”
Censorship doesn’t full cover free speech or there might bean emasculation of basic rights.
However, there must be in exceptional circumstances a sine qua non for the meaningful exercise of
such right without denying the freedom from liability.
Freedom from censorship is a settled principle in our jurisdiction. Mutuc- board of review is limited to
classification of films to safeguard other constitutional objections, hence the GP, PG, or R-18
ratings.
That is to abide by the principle that freedom of expression is the rule and restrictions the
exemption. The power to exercise prior restraint is not to be presumed, rather the presumption is
against its validity
The test, to repeat, to determine whether freedom of expression may be limited is the clear and
present danger of an evil of a substantive character that the State has a right to prevent. Such
danger must not only be clear but also present. There should be no doubt that what is feared may
be traced to the expression complained of. The causal connection must be evident. Also, there must
be reasonable apprehension about its imminence. The time element cannot be ignored. Nor does it
suffice if such danger be only probable.
Where movies are concerned, censorship, especially so if an entire production is banned, is
allowable only under the clearest proof of a clear and present danger of a substantive evil to public
public morals, public health or any other legitimate public interest.
Roth- "All Ideas having even the slightest redeeming social importance — unorthodox Ideas,
controversial Ideas, even Ideas hateful to the prevailing climate of opinion — have the full protection
of the guaranties, unless excludable because they encroach upon the limited area of the First
Amendment is the rejection of obscenity as utterly without redeeming social importance.”
Given obscenity as the nemesis of censorship, there is difficulty in determining what is obsecene.
Roth- The early leading standard of obscenity allowed material to be judged merely by the effect of
an isolated excerpt upon particularly susceptible persons
The test was whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient interest. Some material can
legitimately deal with sex and its effects on susceptible persons. Such a censorship can be
considered violative of the constitution. On the other hand, the substituted standard provides
safeguards adequate to withstand the charge of constitutional infirmity.
Roth- Sex and obscenity are not synonymous. Obscene material is material which deals with sex in
a manner appealing to prurient interest. The portrayal of sex, e.g., in art, literature and scientific
works, is not itself sufficient reason to deny material the constitutional protection of freedom of
speech and press. Sex, a great and mysterious motive force in human life has indisputably been a
subject of absorbing interest to mankind through the ages; it is one of the vital problems of human
interest and public concern.
In the Philippine context, E.O. 876 applied contemporary Filipino cultural values as a standard.
Moreover, as far as the question of sex and obscenity are concerned, it cannot be stressed strongly
that the arts and letters "shall be under the patronage of the State.
Given this constitutional mandate, It will be less than true to its function if any government office or
agency would invade the sphere of autonomy that an artist enjoys. There is no orthodoxy in what
passes for beauty or for reality. It is for the artist to determine what for him is a true representation. It
is not to be forgotten that art and belleslettres deal primarily with imagination, not so much with
ideas in a strict sense. What is seen or perceived by an artist is entitled to respect, unless there is a
showing that the product of his talent rightfully may be considered obscene.
On the question of obscenity, therefore, such standard set forth in Executive Order No. 878 is to be
construed in such a fashion to avoid any taint of unconstitutionality. To repeat, what was stated in a
recent decision in Trinidad- an elementary, a fundamental, and a universal role of construction,
applied when considering constitutional questions, that when a law is susceptible of two
constructions' one of which will maintain and the other destroy it, the courts will always adopt the
former.
There can be no valid objection to the controlling standard.
There was really a grave abuse of discretion when the Board and its perception of what obscenity is
is very restrictive.
But, sadly, THERE WERE NOT ENOUGH VOTES TO MAINTAIN THAT THERE WAS GRAVE
ABUSE OF DISCRETION. The supporting evidence was in the fact that some scenes were not for
young people. They might misunderstand the scenes. The respondents offered to make it GP if the
petitioners would remove the lesbian and sex scenes. But they refused.
The ruling is to be limited to the concept of obscenity applicable to motion pictures. It is the
consensus of this Court that where television is concerned: a less liberal approach calls for
observance. This is so because unlike motion pictures where the patrons have to pay their way,
television reaches every home where there is a set.
It is hardly the concern of the law to deal with the sexual fantasies of the adult population. It cannot
be denied though that the State as parens patriae is called upon to manifest an attitude of caring for
the welfare of the young.
HELD: Motion pictures are important both as a method for the communication of ideas and the
expression of the artistic impulse. The power of the Board is limited to the classification of films. For
freedom of expression is the rule and restrictions the exception. The power to impose prior restraint
is not to be presumed, rather the presumption is against its validity. Censorship is allowable only
under the clearest proof of a clear and present danger of a substantive evil to public safety, public
morals, public health or any other legitimate public interest. The Board committed an abuse of
discretion in subjecting petitioner to difficulty and travail before the movie was classified as "For
adults only" without deletion. However there is not enough votes to consider the abuse of discretion
grave as it explained that there were reasons for its action because of the scenes showing women
erotically dancing naked and kissing and caressing each other like lesbians. VV.
Notes: The movie involved in this case was "Kapit sa Patalim" which the censors wanted to cut in
some part and to label "For Adults". The SC rules that movies are within the constitutional
protection of freedom of expression, so that censorship is presumed to be valid as constituting prior
restraint. The only case whe the Board of Censors can order a deletion is when there is a clear and
present danger of a substantive evil against national security or public morals or other public
interest. In all other cases, the Board can only classify.
But a different standard must be followed in television because of the pervasive and intrusive
influence of the medium on people who watch its programs without having to pay anything.
On the issue of obscenity, the SC held that sex along is not necessarily obscenity, the test being
whether, using contemporary community standards, the dominant appeal us to the prurient interest.
(Miller v. California). Thus on this score, it found abuse of discretion of the part of the Board for
subjecting the producer to difficulty and for entertaining a narrow view of obscenity, but it lacked the
votes to rules that the abuse was grave.
FREEDMAN v. MARYLAN
Facts of the Case
Maryland required that all films be submitted to a board of censors before being exhibited. The
board could disapprove films that were obscene, debased or corrupted morals, or tended to incite
crime. There was no time limit on the decision-making process. Ronald Freedman challenged the
law as unconstitutional due to the procedures to obtain approval. He did not suggest that prior
approval itself was unconstitutional.
Question
Did the the Maryland law violate the freedom of expression protected by the First Amendment?
Conclusion
Decision: 9 votes for Freedman, 0 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly
The Court found the Maryland law to be invalid. The Court decision reflected a concern that the
statute provides the danger of "unduly suppressing protected expression." The board was allowed
overly broad licensing discretion with a lack of statutory provisions for judicial participation in the the
procedure to prohibit a film. The Court established three guidelines as adequate safeguards to
protect against the "undue inhibition of protected expression." These guidelines are to: (1) place the
burden of proving the film is unprotected expression on the censors, (2) require judicial
determination to impose a valid determination, and (3) require prompt determination "within a
specified time period."
Miller v. California
Brief Fact Summary. The Defendant, Miller’s (Defendant) conviction for mailing advertisements for
“adult” books to unwilling recipients was vacated and remanded in an effort to shift the burden of
obscenity determinations to the state and local courts.
Synopsis of Rule of Law. In determining whether speech is obscene, the basic guidelines for the
trier of fact must be: (a) whether “the average person, applying contemporary community standards”
would find the material, taken as a whole, appeals to the prurient interest of sex, (b) whether the
work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law, and (c) whether the work, taken as a whole, lacks serious literacy, artistic,
political, or scientific value.
Facts. The Defendant was convicted under the California Penal Code for mailing advertisements for
“adult” material to non-soliciting recipients.
Issue. Whether state statutes may regulate obscene material without limits?
Held. No. Judgment of the lower court vacated and remanded for further proceedings. In
determining whether speech is obscene, the basic guidelines for the trier of fact must be: (a)
whether “the average person, applying contemporary community standards” would find the material,
taken as a whole, appeals to the prurient interest of sex, (b) whether the work depicts or describes,
in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c)
whether the work, taken as a whole, lacks serious literacy, artistic, political, or scientific value. The
Supreme Court of the Untied States (Supreme Court) does not adopt as a constitutional standard
the “utterly without redeeming social value” test. If a state law that regulates obscene material is
thus limited, as written or construed, First Amendment constitutional values are adequately
protected by the ultimate power of appellate courts to conduct an independent review of
constitutional claims when necess
ary.
Dissent. To send men to jail for violating standards that they cannot understand due to vagueness,
denies them of due process.
The statute in question is overbroad and thus, unconstitutional.
Discussion. This case attempts a new definition and clarification of obscenity while also trying to
shift the burden of obscenity determinations to the state and local courts.
PITA VS. COURT OF APPEALS [178 SCRA 362; G.R. NO.80806; 5 OCT 1989]
Facts: On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the
City of Manila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group,
Auxilliary Services Bureau, Western Police District, INP of the Metropolitan Police Force of Manila,
seized and confiscated from dealers, distributors, newsstand owners and peddlers along Manila
sidewalks, magazines, publications and other reading materials believed to be obscene,
pornographic and indecent and later burned the seized materials in public at the University belt
along C.M. Recto Avenue, Manila, in the presence of Mayor Bagatsing and several officers and
members of various student organizations.
Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-
edited by plaintiff Leo Pita.
Plaintiff filed a case for injunction with prayer for issuance of the writ of preliminary injunction against
Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of the City of
Manila, seeking to enjoin said defendants and their agents from confiscating plaintiff’s magazines or
from preventing the sale or circulation thereof claiming that the magazine is a decent, artistic
and educational magazine which is not per se obscene, and that the publication is protected by the
Constitutional guarantees of freedom of speech and of the press. Plaintiff also filed an Urgent
Motion for issuance of a temporary restraining order against indiscriminate seizure, confiscation and
burning of plaintiff's "Pinoy Playboy" Magazines, pending hearing on the petition for preliminary
injunction. The Court granted the temporary restraining order. The case was set for trial upon the
lapse of the TRO. RTC ruled that the seizure was valid. This was affirmed by the CA.
Issue: Whether or Not the seizure violative of the freedom of expression of the petitioner.
Held: Freedom of the press is not without restraint as the state has the right to protect society from
pornographic literature that is offensive topublic morals, as indeed we have laws punishing the
author, publishers and sellers of obscene publications. However, It is easier said than done to say,
that if the pictures here in question were used not exactly for art's sake but rather for commercial
purposes, the pictures are not entitled to any constitutional protection. Using the Kottinger rule: the
test of obscenity is "whether the tendency of the matter charged as obscene, is to deprave or
corrupt those whose minds are open to such immoral influences and into whose hands a publication
or other article charged as being obscene may fall." Another is whether it shocks the ordinary and
common sense of men as an indecency. Ultimately "whether a picture is obscene or indecent must
depend upon the circumstances of the case and that the question is to be decided by the "judgment
of the aggregate sense of the community reached by it." The government authorities in the instant
case have not shown the required proof to justify a ban and to warrant confiscation of the literature
First of all, they were not possessed of a lawful court order: (1) finding the said materials to be
pornography, and (2) authorizing them to carry out a search and seizure, by way of a search
warrant. The court provides that the authorities must apply for the issuance of a search warrant from
a judge, if in their opinion an obscenity seizure is in order and that;
1. The authorities must convince the court that the materials sought to be seized are obscene and
pose a clear and present danger of an evil substantive enough to warrant State interference and
action;
2. The judge must determine whether or not the same are indeed obscene. The question is to be
resolved on a case-to-case basis and on the judge’s sound discretion;
Evangelista v. Earnshaw
This is an action of mandamus brought against the defendant mayor of the City of Manila. The
plaintiff alleges that he is the president of the Communist Party in the Philippine Islands, a political
group seeking the speedy granting of independence in these Islands and the redemption of the
proletariat, numbering over 300,000 men and woman in its ranks; that on the 2d of March, 1931, by
means of a letter to the defendant mayor of the city, the plaintiff requested the necessary permission
to hold a popular meeting at Plaza Moriones in that city, on the afternoon of March 12, 1931, to be
followed by a parade through the streets of Juan Luna, Azcarraga, Avenida Rizal, Echague, and
General Solano in order to deliver to the Governor-General a message from the laboring class; that
on the 3d of March, 1931, the mayor of the city denied the plaintiff's petition, instructing his
subaltern, the chief of police, to prohibit all kinds of meetings held by the Communist Party
throughout the city, because he had revoked their permits and licenses; that consequently, the
Communist Party has not been able to hold any private or public meetings in the city since the 6th
day of March, 1931; that in refusing the requested permission and in prohibiting all meetings of the
party within the city, the defendant deprived the Communist Party of a constitutional right. The
plaintiff further prays "that a writ of mandamus be issued against the herein defendant compelling
him to issue a permit for the holding of meetings and parades by the Communist Party in Manila."
The defendant in his answer and special defense stated that subsequent to the issuance of the
above-mentioned permit, it was discovered after an investigation conducted by the office of the
fiscal for the City of Manila, that said Communist Party of the Philippines is an illegal association, or
organization, which having for its principal object to incite the revolt of the proletariat or laboring
class, according to its constitution and by-laws, states as follows:
The Philippines, as a subject nation, in order to establish an independent government, has to revolt
under the leadership of the laborers.
. . . It is clear that the different political parties of the burgesses (Nacionalista-Consolidado,
Democrata, etc.) are no different from another. They have but one aim; to rise into power and
exploit, with independence or not; to enrich themselves and strengthen the control of a government
which is procapitalist and proimperialist.
Because of these, we need a Communist Party, one that is not reformist but revolutionary. Only by
revolutionary means can we demolish the slavery of man by another and of one nation by another
nation. . .
The principal ideal of the C. P. P. (Communist Party of the Philippines) in the desire to head the
Philippine Government is different from that of the burgees political parties. Its aim is not to
strengthen the capitalist government but to engender — as it cannot be avoided — the war of the
classes and to bring about its downfall. Therefore, the aims of the C. P. P. are the following:
1. To lead the movement for the immediate and complete independence of the Philippines.
2. To fight and bring about the downfall of American imperialism which oppresses the Philippines;
3. To stop the exploitation of the laborers and defend their rights and interests;
4. To establish in the Philippines a Soviet Government under the laborers.
5. To bring about the downfall of capitalism.
6. Under the dictatorship of the laborers, to emancipate and redeem the laborers and farm hands, —
to embrace communism.
With these high ideals the Communist Party of the Philippines will be established. And inasmuch as
these ideals are the same as those of the C. I. (Communist International), the C. P. P. will extend its
full help for the redemption and welfare of the laborers.
. . . Here in the Philippines, American Imperialism is being fought also. The reluctance of the Moros
in paying taxes to the Government, the disorders in the large haciendas, the farmers resisting the
owners and the Constabulary, the strike of the high-school students, the uprising of the Colorums,
and the oppression of the imperialists and capitalists of the laborers, are symptoms of a movement,
which if carried on with unity, will perforce bring about the downfall of American imperialism and the
obtaining of Philippine independence.
Before achieving this ultimate ideal of the C. P. P. we will have you take other steps. First, to
overthrow American imperialism which oppresses the Philippines; second, to overthrow capitalism
and feudalism; third, to seize the power in the government; fourth, the establishment of labor
dictatorship; fifth, the bringing about of class consciousness and class struggle and the prompt
establishment of communism.
Under this state of affairs, a struggle is indespensable. This struggle may be peaceful or violent, but
just the same it will be a bitter struggle, where life and death will be staked.
For the prompt overthrow of the institutions of capitalism and for the purpose of opening the eyes of
the people that the imperialists are not really in earnest about giving subject peoples their
independence — because independence is an enemy of oppression and exploitation — unless their
downfall is brought about, it is necessary to struggle, not only during elections.
The difference of the revolutionary movement advocated by the C. P. P. is not found only in its
principal ideal but in the steps that it will take. While the reformists advocate understanding and
cooperation with the burgesses or capitalists, the movement of the laborers is based on the principle
of class struggle. Instead of cooperating with the enemy we should master our own strength and
fight our enemies. And in order to achieve this union, strong and powerful, it is necessary that we
should counteract every move that will tend to prejudice the laborers.
In view of the revolutionary campaign of the C. P. P. for the sake of the laborers and farm workers,
the capitalists and imperialists will become more violent and antagonistic toward them. And
inasmuch as the capitalists and imperialists have control of the government, it is not impossible that
they will use their power to more violently oppress us; in such a case they will make it clear that their
ideals are inconsistent with those of the laborers. When that day comes, the class struggle and the
revolution will redouble their force, for they will be forced to defend themselves by rising in revolt
against the oppression they are being subject to by means of the power of the state.
For the obtaining of the partial demands to be made by the C. P. P., it is necessary that all the
laborers and farm hands, now divided by their different industrial organization, be united. . . . If the
factory laborers and farm hands organizations are already established and ready for the struggle,
and if their movement is already under the leadership of the proletariat thru the C. P. P., it will
endeavor to make the movement more vigorous for the purpose of obtaining its partial demands
until the time comes when the factory laborers and farm hands are able to wrest the control of the
Government from the capitalists and imperialists and place it in the hands of the sons of the sweat;
By virtue of the original permits granted by the defendant mayor to the said Communist Party of the
Philippines, several public meetings were held under the auspices of the aforesaid association in
different parts of the City of Manila, in which seditious speeches were made urging the laboring
class to unite by affiliating to the Communist Party of the Philippines in order to be able to overthrow
the present government, and stirring up enmity against the insular and local police forces by
branding the members thereof as the enemies of the laborers and as tools of the capitalists and
imperialists for oppressing the said laborers.
The communists further insisted that it was the duty of the laborers to bring the government into
their hands and to run it by themselves and for themselves, like the laboring class in Russia; that
when the laborers were united, neither the Constabulary nor the United States Army nor the
imperialist Governor-General could stop them when they rose up as one body in order to free
themselves from slavery by the capitalists; that America was cunning and a coward, as evidenced
by the fact that when she entered the World War, her enemies were already weak; that the
Constabulary and the police were the ones who made trouble for the laborers because they were
the agents of the American imperialists in the Islands and they were used as instruments by the
American Imperialist Government; that united together, the laborers could down the American
Imperialist Government; and other terms and expression of similar tenor and import.
It will be readily seen that the doctrines and principles advocated and urged in the constitution and
by-laws of the said Communist Party of the Philippines, and the speeches uttered, delivered, and
made by its members in the public meetings or gatherings, as above stated, are highly seditious, in
that they suggest and incite rebellious conspiracies and disturb and obstruct the lawful authorities in
their duty.
Considering the actions of the so-called president of the Communist Party, it is evident that he
cannot expect that the defendant will permit the Communist Party to hold meetings or parades in the
manner herein described. Furthermore, it may be noted that the complaint of the case is written
merely in general terms and calls only for a judicial declaration upon a question which is not at
present an issue between the parties to this case. But be that as it may, it must be considered that
the respondent mayor, whose sworn duty it is "to see that nothing should occur which would tend to
provoke or excite the people to disturb the peace of the community or the safety or order of the
Government," did only the right thing under the circumstances, that is, cancel and withdraw, as was
done, the permit previously issued by him to said Communist Party, in accordance with the power
granted him by law — "To grant and refuse municipal licenses or permits of all classes and to revoke
the same for violation of the conditions upon which they were granted, or if acts prohibited by law or
municipal ordinance are being committed under the protection of such licenses or in the premises in
which the business for which the same have been granted is carried on, or for any other good
reason of general interest." (Act No. 2774, sec. 4, amending sec. 2434, par [m], Administrative
Code.)
Instead of being condemned or criticised, the respondent mayor should be praised and commended
for having taken a prompt, courageous, and firm stand towards the said Communist Party of the
Philippines before the latter could do more damage by its revolutionary propaganda, and by the
seditious speeches and utterances of its members. In the case of Gitlow vs. New York (268 U. S.,
652), the Supreme Court of the United States said:
Such utterances, by their very nature, involve danger to the public peace and to the security of the
state. They threaten breaches of the peace and ultimate revolution. And the immediate danger is
none the less real and substantial because the effect of the given utterance cannot be accurately
foreseen. The state cannot reasonably be required to measure the danger from every such
utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that,
smoldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said
that the state is acting arbitrarily on unreasonably when, in the exercise of its judgment as to the
measures necessary to protect the public peace and safety, it seeks to extinguish the spark without
waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be
required to defer the adoption of measures for its own peace and safety until the revolutionary
utterances lead to actual disturbances of the public peace or imminent and immediate danger of its
own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its
incipiency. In People vs. Lloyd, supra, p. 35 (136 N. E., 505)., it was aptly said: "Manifestly, the
legislature has authority to forbid the advocacy of a doctrine designed and intended to overthrow the
government without waiting until there is a present and imminent danger of the success of the plan
advocated. If the state were compelled to wait until the apprehended danger became certain, then
its right to protect itself would come into being simultaneously with the overthrow of the government,
when there would be neither prosecuting officers nor courts for the enforcement of the law."
At any rate, the right of peaceful assemblage is not an absolute one. In the case of People vs.
Perez (45 Phil., 599, 605), this court said:
. . . when the intention and effect of the act is seditious, the constitutional guaranties of freedom of
speech and press and of assembly and petition must yield to punitive measures designed to
maintain the prestige of constituted authority, the supremacy of the constitution and the laws, and
the existence of the State. (Citing III Wharton's Criminal Law, pp. 2127 et seq.; U. S. vs. Apurado
[1907], 7 Phil., 422; People vs. Perfecto [1922], 43 Phil., 887.)
The judgment appealed from is affirmed with the costs against the appellant. So ordered.
De Jonge v. Oregon
Facts of the Case
On July 27, 1934, at a meeting held by the Communist Party, Dirk De Jonge addressed the
audience regarding jail conditions in the county and a maritime strike in progress in Portland. While
the meeting was in progress, police raided it. De Jonge was arrested and charged with violating the
State's criminal syndicalism statute. The law defines criminal syndicalism as "the doctrine which
advocates crime, physical violence, sabotage or any unlawful acts or methods as a means of
accomplishing or effecting industrial or political change or revolution." After being convicted, De
Jonge moved for an acquittal, arguing that the evidence was insufficient to warrant his conviction.
Disagreeing, the State Supreme Court distinguished that the indictment did not charge De Jonge
with criminal syndicalism, but rather that he presided at, conducted and assisted in conducting an
assemblage of persons, organization, society and group called by the Communist Party, which was
unlawfully teaching and advocating in Multnomah county the doctrine of criminal syndicalism and
sabotage.
Question
Does Oregon's criminal syndicalism statute violate the due process clause of the Fourteenth
Amendment?
Conclusion
Yes. In an opinion delivered by Chief Justice Charles E. Hughes, the Court held that the Oregon
statute, as applied, violated the due process clause of the Fourteenth Amendment. After reviewing
the record, the Court determined that De Jonge's sole offense was assisting in a public meeting held
under the auspices of the Communist Party. The Court reasoned that to preserve the rights of free
speech and peaceable assembly - principles embodied in the Fourteenth Amendment - not the
auspices under which a meeting is held, but the purpose of the meeting and whether the speakers'
remarks transcend the bounds of freedom of speech must be examined, which had not occurred in
De Jonge's case. Justice Harlan Fiske Stone took no part in the consideration or decision of the
case.
IGNACIO AND DELA CRUZ VS. ELLA, ETC.
99 Phil 346
FACTS:
1. Petitioners Fernando and Simeon dela Cruz are members of the Jehovah’s Witness, whose
tenets and principles are derogatory to those professed by the Catholic organization.
2. Desiring to hold a meting in furtherance of its objectives, petitioners asked respondent Mayor
Norberto Ela of Zambales to give them permission to use the public plaza together with the kiosk.
3. Instead of granting the permission, respondent Mayor allowed them to hold their meeting on the
northern part corner of the plaza.
4. The mayor adopted as a policy not to allow the use of the kiosk for any meeting by any religious
denomination as it is his belief that said kiosk should only be used “for legal purposes.”
5. Petitioners contend that the action taken by respondent is unconstitutional being an abridgment of
the freedom of speech, assembly, and worship guaranteed by the Constitution.
ISSUE:
Was there a violation of petitioner’s constitutional rights?
HELD:
The right to freedom of speech and to peacefully assemble, though guaranteed by our Constitution,
is not absolute, for it may be regulated in order that it may not be “injurious to the equal enjoyment
of others having equal rights, nor injurious to the right of the community or society,” and this power
may be exercised under the “police power” of the State, which is the power to prescribe regulations
to promote the health, morals, peace, education, good order or safety, and general welfare of the
people.
The power exercised by respondent cannot be considered as capricious or arbitrary considering the
peculiar circumstances of this case. It appears that the public plaza particularly the kiosk, is located
at a short distance from the Roman Catholic Church. The proximity of said church to the kiosk has
cause some concern on the part of the authorities that to avoid disturbance of peace and order, or
the happening of untoward incidents, they deemed it necessary to prohibit the use of the kiosk by
any religious denomination as a place of meeting of its members. This was the policy adopted by
respondent for sometime previous to the request made by petitioners. Respondent never denied
such request but merely tried to enforce his policy by assigning them the northern part of the public
plaza. It cannot therefore be said that petitioners were denied their constitutional right to assembly
for such right is subject to regulation to maintain public order and public safety. This is especially so
considering that the tenet of petitioners’ congregation are derogatory to those of the Roman Catholic
Church, a factor which respondent must have considered in denying their request.
Navarro v. Villegas
FACTS:On February 24, 1970, the petitioner, acting in behalf of the Movement of a
DemocraticPhilippines, wrote a letter to the respondent, the Mayor of the city of Manila, applying
tohold a rally at Plaza Miranda February 26, 1970, from 4-11pm.On the same day, the respondent
wrote a reply, denying his request on the grounds that,the have temporarily adopted the policy of not
issuing any permit for the used of PlazaMiranda for rallies or demonstration during weekdays due
to the events that happenedfrom the past week.On the same letter, the respondent gave the
petitioner an option to use the Sunken Gardennear Intamuros for its rally, and for it to be held earlier
for it to end before dark.The petitioner filed suit contesting the Mayor’s action on the ground that it
violates the petitioner’s right to peaceable assemble and petition the government for redress
of grievances (ART. 3, sec 1(8)) and of the petitioner’s right to the equal protection of thelaw (art. 3,
sec. 1).ISSUE:Whether or not the respondents act on denying the request of the petitioner violates
the petitioners’ Right to peaceable assembly and right to the equal protection of the law.Held:The
right of peaceable assemble is subject to regulation under the police power of thestate.The right to
freedom of speech and peaceful assembly, though granted by theConstitution, is not absolute for it
may be regulated in order that it may not be injuriousto the equal enjoyment of others having an
equal right of community and society, This power may be exercised under the police power of the
state, which is the power of thestate, which is the power to prescribe regulations to promote the
health, morals, peace,education, and good order, safety and general welfare of the people.While the
privilege of the citizen to use streets and parks for communication may beregulated in the interest of
all, said privilege is not absolute. It must be exercised insubordination to the general comfort and
convenience and in consonance with peace andgood order, but it must not guise of regulation be
abridged or denied.
US v. Apurado
SEDITION. — The provisions of section 5 of Act No. 202, defining the crime of sedition, must not be
interpreted so as to abridge "the freedom of speech" and "the right of the people peaceably to
assemble and petition the Government for redress of grievances."
DECISION
CARSON, J. :
The appellants in this case were convicted of the crime of sedition as defined in section 5 of Act No.
292 of the Philippine Commission, and each and all of them sentenced to six months of
imprisonment, to pay a fine of 200 dollars, to subsidiary imprisonment in case of insolvency, and to
pay the costs of the trial.
The record discloses that some little time before the municipal council of San Carlos, Occidental
Negros, entered upon one of its regular morning sessions, some 500 residents of the municipality
assembled near the municipal building, and upon the opening of the session a large number of this
assembled about the building crowded into the council chamber and demanded the dismissal from
office of the municipal treasurer, the municipal secretary, and the chief of police, and the substitution
in their places of new officials whose names were suggested by the spokesman of the party; that the
council acceded to their wishes and drew up a formal document setting out the reasons for its
action, which was signed by the councilors present and by several of the leaders of the crowd; that
the persons who took part in the movement were wholly unarmed except that a few carried canes;
that the crowd was fairly orderly and well-behaved except in so far as their pressing into the council
chamber during a session of that body can be called disorder and misbehavior; and that the
movement had its origin in religious differences between the residents of the municipality, the
petitioners desiring the dismissal of the above-mentioned officials because they believed that they
should not be permitted to hold office in the municipality on account of their outspoken allegiance to
one of the factions into which the town was at that time divided.
Section 5 of Act No. 292 is as follows:jgc:chanrobles.com.ph
"All persons who rise publicly and tumultuously in order to attain by force or outside of legal
methods any of the following objects are guilty of sedition:chanrob1es virtual 1aw library
x x x on such occasions, the guilty individuals should be sought out and punished therefor, but the utmost
"2. To prevent the Insular Government, or any provincial or municipal government or any public
official, from freely exercising its or his duties or the due execution of any judicial or administrative
order."cralaw virtua1aw library
But this law must not be interpreted so as to abridge "the freedom of speech" or "the right of the
people peaceably to assemble and petition the Government for redress or grievances" guaranteed
by the express provisions of section 5 of "the Philippine bill."cralaw virtua1aw library
Counsel for the prosecution contends that the assembly was not a peaceable one; that they did not
limit themselves to petitioning for redress of grievances; and that by the very threat of their presence
in the council chamber they imposed their will upon the municipal authorities and prevented them
from freely exercising their duties.
We think, however, that on the whole the testimony of the witnesses called at the trial does not
sustain these allegations. Not only were the individual members of the crowd wholly unarmed, but
they were manifestly desirous that fact should be known, for it appears that two American officials
having asked what the purpose of the gathering was, were assured that the assembly merely
desired to petition for the removal of several municipal officials; and in proof of the fact that they had
no intention of committing a breach of the peace, the members of the crowd raised their jackets and
camisas to prove that they were carrying no concealed weapons.
The prosecution emphasizes unduly the fact that a few of those who took in the demonstration
carried canes, but there is nothing in the record to indicate that any usual number of sticks were in
the hands of the petitioners, or that they had been brought to the meeting for the purpose of using
them as weapons of assault. It appears, on the contrary; that only such number of canes were in
evidence as might be seen in the hands of any ordinary crowd of citizens on any ordinary occasion,
and that for the most part they were carried by old men who used them as an aid in walking. The
prosecution also emphasizes the fact that the spokesmen of the assembly made their demands in
an imperative tone (roz imperativa) but there is some conflict in the evidence on this point, and in
any event it would be going a long way to say that the use of a more or less "imperative" tone of
voice by a petitioner would be sufficient to convert a lawful and peaceful assembly into an unlawful
and seditious uprising. One of the witnesses testified that when the petitioners had concluded their
business with the council they begged permission (pidicron permiso) to withdraw, which was granted
them by the presidente, and this, together with other evidence as to conversations had between the
leaders and various members of the council and certain American officials, all tend to prove that the
assembly may be described as orderly rather than disorderly and that it could in no sense be said to
have been a tumultuous and seditious rising of the people.
It is true that the municipal presidente testified that the council acceded to the demands of the
assembly through fear, and under the influence of the threatening attitude of the crowd, and that
there is some evidence in the record which tends to establish that some individual members of the
party made use of language which threatened evil consequences should the council deny their
petitioner, but we do not think that under all the circumstances the presidente or the council were in
any immediate danger of personal violence, and such threats as may have been made by a few
individual members of the crowd do not appear to have been made publicly, or to have received the
indorsement of the mass of the people there assembled. If such threats were in fact made, they
might have rendered the individuals making them liable to prosecution therefor, but there is nothing
in the record to sustain a finding that the crowd itself adopted these threats or had any intention of
carrying them into effect.
It is rather to be expected that more or less disorder will mark the public assembly of the people to
protest against grievances whether real or imaginary, because on such occasions feeling is always
wrought to a high pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their
irresponsible followers. But if the prosecution be permitted to seize upon every instance of such
disorderly conduct by individual members of a crowd as an excuse to characterize the assembly as
a seditious and tumultuous rising against the authorities, then the right to assemble and to petition
for redress of grievances would become a delusion and a snare and the attempt to exercise it on the
most righteous occasion and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes which they sought to attain
did not happen to be pleasing to the prosecuting authorities. If instances of disorderly conduct occur
discretion must be exercised in drawing the line between disorderly and seditious conduct and
between an essentially peaceable assembly and a tumultuous uprising.
The evidence of the record does not establish the guilt of the accused of the crime of sedition with
which they are charged, and they should be and are hereby acquitted, and the judgment and
sentence of the trial court are reversed, with the costs of both instances de oficio.
After expiration of ten days let judgment be entered in accordance herewith and ten days thereafter
the record remanded to the court from whence it came for proper action. So ordered.
Malabanan v. Ramento
Facts: Petitioners were officers of the Supreme Student Council of Respondent University. They
sought and were granted by the school authorities a permit to hold a meeting from 8am to 12am.
Pursuant to such permit, along with other students, they held a general assembly at the Veterinary
Medicine and Animal Science (VMAS) Basketball Court. The place indicated in such permit, not in
the basketball court as therein stated, but at the second floor lobby. At such gathering, they
manifested in vehement and vigorous language their opposition to the proposed merger of the
Institute of Animal Science. They continued their language severely critical of the university
authorities and using megaphones in the process. There was, as a result, disturbance of classes
being held. Also, non academic employees within hearing distance, stopped their work because of
noise created. They were asked to explain why they should not be held liable for holding an
assembly.
Issue: Whether or not the suspension of students for one academic year was violative of the
constitutional rights of freedom of assembly and free speech?
Decision: Yes, necessarily their exercise to discuss matters affecting their welfare or involving public
interest is not subjected to previous restraint or subsequent punishment unless there be a showing
of clear and present danger to a substantive evil that the State has a right to prevent. The peaceable
character of an assembly could be lost, however, by an advocacy or disorder. If assembly is to be
held in school premises, permit must be sought from its school authorities who are devoid to deny
such request. In granting such permit, there may be conditions as to the time and place of an
assembly to avoid disruption of classes or stoppage of work of non-academic personnel. However,
in violation of terms, penalty incurred should not be disproportionate to the offense.
VILLAR VS TIP
FACTS: Petitioners invoke their right to freedom of expression
against the respondents, in their refusal to admit the said petitioners at the Technological Institute of
the Philippines. However, reference was made to some of the petitioners' school records. Petitioners
Rufino Salcon Jr., Romeo Guilatco, Venecio Villar, Inocencio Recitis had failed in one or two of their
subjectsin 1983-1985. However, petitioner Noverto Baretto had five failing grades in the first
semester in the first school year, six failing grades in the second semester of 1984-1985. Petitioner
Edgardo de Leon Jr. had three failing grades, one passing grade and one subject dropped in the
first semester of school year 1984-1985. Petitioner Regloben Laxamana had five failing grade with
no passing grade in the first semester of 1984-1985 school year. Petitioners Barreto, de Leon Jr.
and Laxamana could be denied enrollment in view of such failing grades.
SPECIAL CIVIC ACTION for certiorari and prohibition to review the decision of the TIP Board.
ISSUE/S:
Whether or not the exercise of the freedom of assembly on the part of certain students of the
respondent Technological Institute of the Philippines could be a basis for their being barred
from enrollment.
HELD: NO, as is quite clear from the opinion in Reyes v. Bagatsing, theinvocation of the right to
freedom of peaceable assembly carries with it the implication that the right to free speech has
likewise beendisregarded. Both are embraced in the concept of freedom ofexpression, which is
identified with the liberty to discuss publicly and truthfully, any matter of public interest without
censorship orpunishment and which `is not limited, much less denied, except on ashowing * * * of
clear and present danger of substantive evil that the state has the right to prevent.' They do not, to
borrow from the opinion of Justice Fortas in Tinker
v. Des Moines Community School District, `shed their constitutionalrights to freedom of speech or
expression at the schoolhouse gate.'
WHEREFORE, the writ of certiorari is granted to petitioners VenecioVillar, Inocencio F. Recitis,
Rufino G. Salcon, Jr. and Romeo Guilatco, Jr. to nullify the action taken by respondents in
violation of their constitutional rights. The writ of prohibition is likewise granted to such petitioners to
enjoin respondents from the acts of surveillance, black listing, suspension and refusal to allow them
to enroll in the coming academic year 1985-1986, if so minded. The petition is dismissed as to
Noverto Barreto, Edgrado de Leon Jr. and
Regloben Laxamana. No costs.
NON VS. DAMES [185 SCRA 523; G.R. NO. 89317; 20 MAY1990]
Facts:
Petitioners, students in private respondent MabiniColleges, Inc. in Daet, Camarines Norte, were not
allowed tore-enroll by the school for the academic year 1988-1989 forleading or participating
instudent mass actions against theschool in the preceding semester. The subject of the protestsis
not, however, made clear in the pleadings.Petitioners filed a petition in the court seeking
theirreadmission or re-enrollment to the school, but the trial courtdismissed the petition. They now
petition the court to reverseits ruling in Alcuaz vs. PSBA1, which was also applied in thecase. The
court said that petitioners waived their privilege tobe admitted for re-enrollment with respondent
college whenthey adopted, signed, and used its enrollment form for thefirstsemester of school year
1988-89, which states that: TheMabini College reserves the right todeny admission of students
whose scholarship and attendanceare unsatisfactory and to require withdrawal of
studentswhoseconduct discredits the institution and/or whose activitiesunduly disrupts or interfere
with the efficient operation of thecollege.Students, therefore, are required to behavein accord with
the Mabini College code of conduct anddiscipline.
Issue:
Whether or Not the students’ right to freedom of speech and assembly infringed.
Held:
Yes. The protection to the cognate rights of speech andassembly guaranteed by the Constitution is
similarly availabletostudents is well-settled in our jurisdiction. However thereare limitations. The
permissible limitation on Student Exerciseof Constitutional Rights within the school presupposes
thatconduct by the student, in class or out of it, which for anyreason whether it stems from time,
place, or type of behaviorshould not materially disrupt classwork or must not involvesubstantial
disorder or invasion of the rights of others.
PBM Employees vs PBM
Facts:
The petitioner Philippine Blooming Mills Employees Organization (PBMEO) is a legitimate labor
union composed of the employees of the respondent Philippine Blooming Mills Co., Inc., and
petitioners. Benjamin Pagcu and Rodulfo Munsod are officers and members of the petitioner Union.
Petitioners claim that on March 1, 1969, they decided to stage a mass demonstration at Malacañang
on March 4, 1969, in protest against alleged abuses of the Pasig police. PBMEO thru Pagcu
confirmed the planned demonstration and stated that the demonstration or rally cannot be cancelled
because it has already been agreed upon in the meeting. Pagcu explained further that the
demonstration has nothing to do with the Company because the union has no quarrel or dispute
with Management. The Management, thru Atty. C.S. de Leon, Company personnel manager,
informed PBMEO that the demonstration is an inalienable right of the union guaranteed by the
Constitution but emphasized that any demonstration for that matter should not unduly prejudice the
normal operation of the Company. Workers who without previous leave of absence approved by the
Company, particularly , the officers present who are the organizers of the demonstration, who shall
fail to report for work the following morning shall be dismissed, because such failure is a violation of
the existing CBA and, therefore, would be amounting to an illegal strike. Because the petitioners and
their members numbering about 400 proceeded with the demonstration despite the pleas of the
respondent Company that the first shift workers should not be required to participate in the
demonstration and that the workers in the second and third shifts should be utilized for the
demonstration from 6 A.M. to 2 P.M. on March 4, 1969, filed a charge against petitioners and other
employees who composed the first shift, for a violation of Republic Act No. 875(Industrial Peace
Act), and of the CBA providing for 'No Strike and No Lockout.' Petitioners were held guilty in by CIR
for bargaining in bad faith, hence this appeal.
Issue:
Whether or Not the petitioners right to freedom of speech and to peaceable assemble violated.
Held:
Yes. A constitutional or valid infringement of human rights requires a more stringent criterion, namely
existence of a grave and immediate danger of a substantive evil which the State has the right to
prevent. This is not present in the case. It was to the interest herein private respondent firm to rally
to the defense of, and take up the cudgels for, its employees, so that they can report to work free
from harassment, vexation or peril and as consequence perform more efficiently their respective
tasks enhance its productivity as well as profits. Herein respondent employer did not even offer to
intercede for its employees with the local police. In seeking sanctuary behind their freedom of
expression well as their right of assembly and of petition against alleged persecution of local
officialdom, theemployees and laborers of herein private respondent firm were fighting for their very
survival, utilizing only the weapons afforded them by the Constitution — the untrammelled
enjoyment of their basic human rights. The pretension of their employer that it would suffer loss or
damage by reason of the absence of its employees from 6 o'clock in the morning to 2 o'clock in the
afternoon, is a plea for the preservation merely of their property rights. The employees' pathetic
situation was a stark reality — abused, harassment and persecuted as they believed they were by
thepeace officers of the municipality. As above intimated, the condition in which the employees
found themselves vis-a-vis the local police of Pasig, was a matter that vitally affected their right to
individual existence as well as that of their families. Material loss can be repaired or adequately
compensated. The debasement of the human being broken in morale and brutalized in spirit-can
never be fully evaluated in monetary terms. As heretofore stated, the primacy of human rights —
freedom of expression, of peaceful assembly and of petition for redress of grievances — over
property rights has been sustained. To regard the demonstration against policeofficers, not against
the employer, as evidence of bad faith in collective bargaining and hence a violation of the collective
bargaining agreement and a cause for the dismissal from employment of the
demonstratingemployees, stretches unduly the compass of the collective bargainingagreement, is "a
potent means of inhibiting speech" and therefore inflicts a moral as well as mortal wound on the
constitutional guarantees of free expression, of peaceful assembly and of petition. Circulation is one
of the aspects of freedom of expression. If demonstrators are reduced by one-third, then by that
much the circulation of the Issue raised by the demonstration is diminished. The more the
participants, the more persons can be apprised of the purpose of the rally. Moreover, the absence of
one-third of their members will be regarded as a substantial indication of disunity in their ranks
which will enervate their position and abet continued alleged police persecution.
Telebap v. Comelec
FACTS:
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc.
(TELEBAP) is an organization of lawyers of radio and television broadcasting companies. They are
suing as citizens, taxpayers and registered voters. It was declared to be without legal standing to
sue in this case as, among other reasons, it was not able to show that it was to suffer from actual or
threatened injury as a result of the subject law. Other petitioner, GMA Network, Inc., appears to have
the requisite standing to bring this constitutional challenge. Petitioner operates radio and television
broadcast stations in the Philippines affected by the enforcement of Sec. 92 of B.P Blg. 881
requiring radio and television broadcast companies to provide free air time to the COMELEC for the
use of candidates for campaign and other political purposes. Petitioners challenge the validity of
Sec. 92 on the ground (1) that it takes property without due process of law and without just
compensation; (2) that it denies radio and television broadcast companies the equal protection of
the laws; and (3) that it is in excess of the power given to the COMELEC to supervise or regulate
the operation of media of communication or information during the period of election. Petitioner
claims that it suffered losses running to several million pesos in providing COMELEC Time in
connection with the 1992 presidential election and 1995 senatorial election and that it stands to
suffer even more should it be required to do so again this year. Petitioners claim that the primary
source of revenue of the radio and television stations is the sale of air time to advertisers and to
require these stations to provide free air time is to authorize unjust taking of private property.
According to petitioners, in 1992 it lost P22,498,560.00 in providing free air time for one hour each
day and, in this year’s elections, it stands to lost P58,980,850.00 in view of COMELEC’s
requirement that it provide at least 30 minutes of prime time daily for COMELEC Time.
ISSUES:
(1) Whether or not Section 92 of B.P. No. 881 denies radio and television broadcast companies the
equal protection of the laws.
(2) Whether or not Section 92 of B.P. No. 881 constitutes taking of property without due process of
law and without just compensation.
RULING:
Petitioner’s argument is without merit. All broadcasting, whether radio or by television
stations, is licensed by the government. Airwave frequencies have to be allocated as there are more
individuals who want to broadcast that there are frequencies to assign. Radio and television
broadcasting companies, which are given franchises, do not own the airwaves and frequencies
through which they transmit broadcast signals and images. They are merely given the temporary
privilege to use them. Thus, such exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service. In granting the privilege to operate
broadcast stations and supervising radio and television stations, the state spends considerable
public funds in licensing and supervising them.
The argument that the subject law singles out radio and television stations to provide free air time as
against newspapers and magazines which require payment of just compensation for the print space
they may provide is likewise without merit. Regulation of the broadcast industry requires spending of
public funds which it does not do in the case of print media. To require the broadcast industry to
provide free air time for COMELEC is a fair exchange for what the industry gets.
As radio and television broadcast stations do not own the airwaves, no private property is taken by
the requirement that they provide air time to the COMELEC. The use of property bears a social
function and is subject to the state’s duty to intervene for the common good. Broadcast media can
find their just and highest reward in the fact that whatever altruistic service they may render in
connection with the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
SSS Employee Asso. v CA 175 SCRA 686 (July 28, 1989)
Facts: The petitioners went on strike after the SSS failed to act upon the union’s
demands concerning the implementation of their CBA. SSS filed before the court action for
damages with prayer for writ of preliminary injunction against petitioners for staging an illegal strike.
The court issued a temporary restraining order pending the resolution of the application for
preliminary injunction while petitioners filed a motion to dismiss alleging the court’s lack of
jurisdiction over the subject matter. Petitioners contend that the court made reversible error in
taking cognizance on the subject matter since the jurisdiction lies on the DOLE or the National Labor
Relations Commission as the case involves a labor dispute. The SSS contends on one hand that
the petitioners are covered by the Civil Service laws, rules and regulation thus have no right to
strike. They are not covered by the NLRC or DOLE therefore the court may enjoin the petitioners
from striking.
Issue: Whether or not SSS employers have the right to strike
Whether or not the CA erred in taking jurisdiction over the subject matter.
Held: The Constitutional provisions enshrined on Human Rights and Social Justice provides
guarantee among workers with the right to organize and conduct peaceful concerted activities such
as strikes. On one hand, Section 14 of E.O No. 180 provides that “the Civil Service law and rules
governing concerted activities and strikes in the government service shall be observed,
subject to any legislation that may be enacted by Congress” referring to Memorandum Circular No.
6, s. 1987 of the Civil Service Commission which states that “prior to the enactment by Congress of
applicable laws concerning strike by government employees enjoins under pain of administrative
sanctions, all government officers and employees from staging strikes, demonstrations, mass
leaves, walk-outs and other forms of mass action which will result in temporary stoppage or
disruption of public service.” Therefore in the absence of any legislation allowing govt. employees to
strike they are prohibited from doing so.
In Sec. 1 of E.O. No. 180 the employees in the civil service are denominated as
“government employees” and that the SSS is one such government-controlled corporation with an
original charter, having been created under R.A. No. 1161, its employees are part of the civil service
and are covered by the Civil Service Commission’s memorandum prohibiting strikes.
Neither the DOLE nor the NLRC has jurisdiction over the subject matter but instead it is the Public
Sector Labor-Management Council which is not granted by law authority to issue writ of injunction in
labor disputes within its jurisdiction thus the resort of SSS before the general court for the issuance
of a writ of injunction to enjoin the strike is appropriate.
Victoriano v Elizalde Rope Workers Union 59 SCRA 54 (1974)
Facts: Plaintiff is a member of the Elizalde Rope Workers Union who later resigned from his
affiliation to the said union by reason of the prohibition of his religion for its members to become
affiliated with any labor organization. The union has subsisting closed shopagreement in their
collective bargaining agreement with their employer that all permanent employees of the
company must be a member of the union and later was amended by Republic Act No. 3350 with the
provision stating "but such agreement shall not cover members of any religious sects which prohibit
affiliation of their members in any such labor organization".. By his resignation, the union wrote a
letter to the company to separate the plaintiff from the service after which he was informed by the
company that unless he makes a satisfactory arrangement with the union he will be dismissed from
the service. The union contends that RA 3350 impairs obligation of contract stipulated in their CBA
and discriminatorily favors religious sects in providing exemption to be affiliated with any labor
unions.
Issue: WON RA 3350 impairs the right to form association.
Held: The court held that what the Constitution and the Industrial Peace Act recognize and
guarantee is the "right" to form or join associations which involves two broad notions, namely: first,
liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself
without being prevented by law; and second, power, whereby an employee may join or refrain from
joining an association. Therefore the right to join a union includes the right to abstain from joining
any union. The exceptions provided by the assailed Republic Act is that members of said religious
sects cannot be compelled or coerced to join labor unions even when said unions have closed shop
agreements with the employers; that in spite of any closed shop agreement, members of said
religious sects cannot be refused employment or dismissed from their jobs on the sole ground that
they are not members of the collective bargaining union. Thus this exception does not infringe upon
the constitutional provision on freedom of association but instead reinforces it.
Victoriano v Elizalde Rope Workers Union 59 SCRA 54 (1974)
Facts: Plaintiff is a member of the Elizalde Rope Workers Union who later resigned from his
affiliation to the said union by reason of the prohibition of his religion for its members to become
affiliated with any labor organization. The union has subsisting closed shop agreement in their
collective bargaining agreement with their employer that all permanent employees of the company
must be a member of the union and later was amended by Republic Act No. 3350 with the provision
stating "but such agreement shall not cover members of any religious sects which prohibit affiliation
of their members in any such labor organization".. By his resignation, the union wrote a letter to the
company to separate the plaintiff from the service after which he was informed by the company that
unless he makes a satisfactory arrangement with the union he will be dismissed from the service.
The union contends that RA 3350 impairs obligation of contract stipulated in their CBA and
discriminatorily favors religious sects in providing exemption to be affiliated with any labor unions.
Issue: WON RA 3350 impairs the right to form association.
Held: The court held that what the Constitution and the Industrial Peace Act recognize and
guarantee is the "right" to form or join associations which involves two broad notions, namely: first,
liberty or freedom, i.e., the absence of legal restraint, whereby an employee may act for himself
without being prevented by law; and second, power, whereby an employee may join or refrain from
joining an association. Therefore the right to join a union includes the right to abstain from joining
any union. The exceptions provided by the assailed Republic Act is that members of said religious
sects cannot be compelled or coerced to join labor unions even when said unions have closed shop
agreements with the employers; that in spite of any closed shop agreement, members of said
religious sects cannot be refused employment or dismissed from their jobs on the sole ground that
they are not members of the collective bargaining union. Thus this exception does not infringe upon
the constitutional provision on freedom of association but instead reinforces it.
Liberty Flour Mills Employees vs Liberty Flour
G.RN - 58768 December 29, 1989
Cruz, J:
Facts:
On February 6, 1974, respondent Philippine Labor Alliance Council (PLAC) and Liberty Flour
entered into a 3-year CBA effective January 1, 1974 providing for a daily wage increase of PhP2.00
for 1974, PhP1.00 for 1975 and PhP1.00 for 1976. The parties also agreed to establish a union
shop by imposing “membership in good standing for the duration of CBA” as a condition for
continued employment of workers. PLAC complained against the company for non-payment of E-
COLA under P.D. 525. A similar complaint was filed on March 4, 1975, this time by petitioners who
apparently were veering away from PLAC. Evaristo and Biascan, after organizing a union, filed for a
certification election among rank-and-file employees. PLAC then expelled the two for disloyalty and
demanded their dismissal by the respondent company, who complied on May 20, 1975. The claims
for E-COLA was dismissed as it was already absorbed by the wage increase. The termination case
in relation to back wages was also dismissed.
Issue:
Whether or not E_COLA was also absorbed in the wage increases and won dismissal of Evaristo
and Biascan was illegal.
Ruling:
The company agreed to grant the emergency allowance even before the obligation was imposed by
government (P.D. 525). What the petitioners claim they are being made to waive is the additional
allowance but the truth is they are not entitled to because they are already enjoying the stipulated
increases.
As with the case of illegal dismissal, the CBA concluded in 1974 was certifiable and in fact certified
in April 11, 1975 while the two were dismissed on may 20, 1975. Evidence show that after the
cancellation of the registration certificate of the Federation of Democratic Labor Unions, no other
union contested the exclusive representation of the PLAC, consequently there was no more legal
impediment that stood on the way of its validity and enforceability of the provisions of the collective
bargaining agreement entered into by and between respondent corporation and respondent
union. Once it was duly entered into and signed by the parties, a collective bargaining agreement
becomes effective as between the parties regardless of won the same has been certified by the
BLR.
Occena v. COMELEC
G.R. No. L-56350 April 2, 1981
Fernando, C.J.
Facts:
Petitioners Samuel Occena and Ramon A. Gonzales, both members of the Philippine Bar and
former delegates to the 1971 Constitutional Convention that framed the present Constitution, are
suing as taxpayers. The rather unorthodox aspect of these petitions is the assertion that the 1973
Constitution is not the fundamental law, the Javellana ruling to the contrary notwithstanding.
Issue:
What is the power of the Interim Batasang Pambansa to propose amendments and how
may it be exercised? More specifically as to the latter, what is the extent of the changes that may be
introduced, the number of votes necessary for the validity of a proposal, and the standard required
for a proper submission?
Held:
The applicable provision in the 1976 Amendments is quite explicit. Insofar as pertinent it
reads thus: “The Interim Batasang Pambansa shall have the same powers and its Members shall
have the same functions, responsibilities, rights, privileges, and disqualifications as
the interim National Assembly and the regular National Assembly and the Members thereof.” One of
such powers is precisely that of proposing amendments. The 1973 Constitution in its Transitory
Provisions vested the Interim National Assembly with the power to propose amendments upon
special call by the Prime Minister by a vote of the majority of its members to be ratified in
accordance with the Article on Amendments. When, therefore, the Interim Batasang Pambansa,
upon the call of the President and Prime Minister Ferdinand E. Marcos, met as a constituent body its
authority to do so is clearly beyond doubt. It could and did propose the amendments embodied in
the resolutions now being assailed. It may be observed parenthetically that as far as petitioner
Occena is concerned, the question of the authority of the Interim Batasang Pambansa to propose
amendments is not new. Considering that the proposed amendment of Section 7 of Article X of the
Constitution extending the retirement of members of the Supreme Court and judges of inferior courts
from sixty-five (65) to seventy (70) years is but a restoration of the age of retirement provided in the
1935 Constitution and has been intensively and extensively discussed at the Interim Batasang
Pambansa, as well as through the mass media, it cannot, therefore, be said that our people are
unaware of the advantages and disadvantages of the proposed amendment.
Issue:
Were the amendments proposed are so extensive in character that they go far beyond the
limits of the authority conferred on the Interim Batasang Pambansa as Successor of the Interim
National Assembly? Was there revision rather than amendment?
Held:
Whether the Constitutional Convention will only propose amendments to the Constitution
or entirely overhaul the present Constitution and propose an entirely new Constitution based on an
Ideology foreign to the democratic system, is of no moment; because the same will be submitted to
the people for ratification. Once ratified by the sovereign people, there can be no debate about the
validity of the new Constitution. The fact that the present Constitution may be revised and replaced
with a new one is no argument against the validity of the law because ‘amendment’ includes the
‘revision’ or total overhaul of the entire Constitution. At any rate, whether the Constitution is merely
amended in part or revised or totally changed would become immaterial the moment the same is
ratified by the sovereign people.
Issue:
What is the vote necessary to propose amendments as well as the standard for proper
submission?
Held:
The Interim Batasang Pambansa, sitting as a constituent body, can propose amendments.
In that capacity, only a majority vote is needed. It would be an indefensible proposition to assert that
the three-fourth votes required when it sits as a legislative body applies as well when it has been
convened as the agency through which amendments could be proposed. That is not a requirement
as far as a constitutional convention is concerned. It is not a requirement either when, as in this
case, the Interim Batasang Pambansa exercises its constituent power to propose amendments.
Moreover, even on the assumption that the requirement of three- fourth votes applies, such
extraordinary majority was obtained. It is not disputed that Resolution No. 1 proposing an
amendment allowing a natural-born citizen of the Philippines naturalized in a foreign country to own
a limited area of land for residential purposes was approved by the vote of 122 to 5; Resolution No.
2 dealing with the Presidency, the Prime Minister and the Cabinet, and the National Assembly by a
vote of 147 to 5 with 1 abstention; and Resolution No. 3 on the amendment to the Article on the
Commission on Elections by a vote of 148 to 2 with 1 abstention. Where then is the alleged
infirmity? As to the requisite standard for a proper submission, the question may be viewed not only
from the standpoint of the period that must elapse before the holding of the plebiscite but also from
the standpoint of such amendments having been called to the attention of the people so that it could
not plausibly be maintained that they were properly informed as to the proposed changes. As to the
period, the Constitution indicates the way the matter should be resolved. There is no ambiguity to
the applicable provision: “Any amendment to, or revision of, this Constitution shall be valid when
ratified by a majority of the votes cast in a plebiscite which shall be held not later than three months
after the approval of such amendment or revision.” The three resolutions were approved by
theInterim Batasang Pambansa sitting as a constituent assembly on February 5 and 27, 1981. In the
Batasang Pambansa Blg. 22, the date of the plebiscite is set for April 7, 1981. It is thus within the
90-day period provided by the Constitution.
IN RE: EDILLON (AC 1928 12/19/1980)
FACTS: The respondent Marcial A. Edillon is a duly licensed practicingAttorney in the Philippines.
The IBP Board of Governors recommended to the Court the removal of the name of the respondent
from its Roll of Attorneys for stubborn refusal to pay his membership dues assailing the provisions of
the Rule of Court 139-A and the provisions of par. 2, Section 24, Article III, of the IBP By-Laws
pertaining to the organization of IBP, payment of membership fee and suspension for failure to pay
the same.
Edillon contends that the stated provisions constitute an invasion of his constitutional rights in the
sense that he is being compelled as a pre-condition to maintain his status as a lawyer in good
standing, to be a member of the IBP and to pay the corresponding dues, and that as a consequence
of this compelled financial support of the said organization to which he is admitted personally
antagonistic, he is being deprived of the rights to liberty and properly guaranteed to him by the
Constitution. Hence, the respondent concludes the above provisions of the Court Rule and of the
IBP By-Laws are void and of no legal force and effect.
ISSUE: Whether or not the court may compel Atty. Edillion to pay his membership fee to the IBP.
HELD: The Integrated Bar is a State-organized Bar which every lawyer must be a member of as
distinguished from bar associations in which membership is merely optional and voluntary.
All lawyers are subject to comply with the rules prescribed for the governance of the Bar including
payment a reasonable annual fees as one of the requirements. The Rules of Court only compels
him to pay his annual dues and it is not in violation of his constitutional freedom to associate.
Bar integration does not compel the lawyer to associate with anyone. He is free to attend or not the
meeting of his Integrated Bar Chapter or vote or refuse to vote in its election as he chooses. The
only compulsion to which he is subjected is the payment of annual dues. The Supreme Court in
order to further the State’s legitimate interest in elevating the quality of professional legal services,
may require thet the cost of the regulatory program – the lawyers.
Such compulsion is justified as an exercise of the police power of the State. The right to practice law
before the courts of this country should be and is a matter subject to regulation and inquiry. And if
the power to impose the fee as a regulatory measure is recognize then a penalty designed to
enforce its payment is not void as unreasonable as arbitrary. Furthermore, the Court has jurisdiction
over matters of admission, suspension, disbarment, and reinstatement of lawyers and their
regulation as part of its inherent judicial functions and responsibilities thus the court may compel all
members of the Integrated Bar to pay their annual dues.
Brandenburg v. Ohio
Brief Fact Summary. An Ohio law prohibited the teaching or advocacy of the doctrines of criminal
syndicalism. The Defendant, Brandenburg (Defendant), a leader in the Ku Klux Klan, made a
speech promoting the taking of vengeful actions against government and was therefore convicted
under the Ohio Law.
Synopsis of Rule of Law. Speech can be prohibited if it is “directed at inciting or producing
imminent lawless action” and it is likely to incite or produce such action.
Facts. The Ohio Criminal Syndicalism Act (the “Act”) made it illegal to advocate “crime, sabotage,
violence or . . . terrorism as a means of accomplishing industrial or political reform.” It also prohibited
“assembling with any society, group, or assemblage or persons formed to teach or advocate the
doctrines of criminal syndicalism. The Defendant, a leader in the Ku Klux Klan, made a speech
promoting the taking of revenge against the government if it did not stop suppressing the white race
and was therefore convicted under the Act.
Issue. Did the Statute, prohibiting public speech that advocated certain violent activities, violate the
Defendant’s right to free speech under the First and Fourteenth Amendments of the United States
Constitution (Constitution)?
Held. Yes.
(Per Curiam) The Act properly made it illegal to advocate or teach doctrines of violence, but did not
address the issue of whether such advocacy or teaching would actually incite imminent lawlessness.
The mere abstract teaching of the need or propriety to resort to violence is not the same as
preparing a group for violent action. Because the statute failed to provide for the second part of the
test it was overly broad and thus in violation of the First Amendment of the Constitution.
Concurrence.
Justice Hugo (J. Black) I agree with Justice William Douglas (J. Douglas) in his concurring opinion of
this case that the “clear and present danger” doctrine should have no place in our interpretation of
the First Amendment of the Constitution.
J. Douglas argues that the how the “clear and present danger” test has been applied in the past is
disconcerting. First, the threats to which it was applied were often loud but puny. Second, the test
was so perverted as to make trial of those teachers of Marxism all out political trials, which had the
effect of eroding substantial parts of the First Amendment of the Constitution.
Discussion. In order for “incitement to violence” speech to be constitutionally barred, Brandenburg
sets a new standard. The language must (1) expressly advocate violence; (2) advocate immediate
violence and (3) relate to violence likely to occur.
SUBIDO V. OZAETA
80 PHIL 383
FACTS: Petitioner was the editor of the Manila Post who sought the inspection of real estates sold
to aliens and registered with the RD who was given the authority thru DOJ Circular to examine all
the records in the respondent’s custody relative to the said transactions.
ISSUE: What is the extent of the discretion of the RD to regulate the accessibility of records relating
to registered lands in its office.
HELD: What the law expects and requires from the RD is the exercise of an unbiased and impartial
judgment by which all persons resorting to the office, under the legal authority and conducting
themselves with the motives, reasons and objects of the person seeking access to the records.
Except when it is clear that the purpose of the inspection is unlawful, it is not the duty of the
registration officers to concern themselves with the motives, purposes, and objects of the person
seeking to inspect the records. It is not their prerogative to see that the information which the
records contain is not flaunted before the public gaze.
Baldoza vs. Dimaano [AM 1120-MJ, 5 May 1976] Resolution of the Second Division, Antonio (J): 4
concur, 1 on leave, 1 designated to sit in Second Division Facts: In a verified letter-complaint dated
September 9, 1975, the Municipal Secretary of Taal, Batangas, charges Municipal Judge Rodolfo B.
Dimaano, of the same municipality, with abuse of authority in refusing to allow employees of the
Municipal Mayor to examine the criminal docket records of the Municipal Court to secure data in
connection with their contemplated report on the peace and order conditions of the said municipality.
Dimaano, in answer to the complaint, stated that there has never been an intention to refuse access
to official court records; that although court records are among public documents open to inspection
not only by the parties directly involved but also by other persons who have legitimate interest to
such inspection, yet the same is always subject to reasonable regulation as to who, when, where
and how they may be inspected. He further asserted that a court has unquestionably the power to
prevent an improper use or inspection of its records and the furnishing of copies therefrom may be
refused where the person requesting is not motivated by a serious and legitimate interest but acts
out of whim or fancy or mere curiosity or to gratify private spite or to promote public scandal. The
case was thereupon referred to Judge Francisco Mat. Riodique for investigation and report. At the
preliminary hearing on 16 October 1975, Taal Mayor Corazon A. Cañiza filed a motion to dismiss the
complaint to preserve harmony and cooperation among officers in the same municipality. This
motion was denied by the Investigating Judge, but after formal investigation, he recommended the
exoneration of Dimaano. Issue: Whether the rules and conditions imposed by Judge Dimaano on
the inspection of the docket books infringe upon the right of individuals to information. Held: Judge
Dimaano did not act arbitrarily in the premise. As found by the Investigating Judge, Dimaano
allowed the complainant to open and view the docket books of Dimaano under certain conditions
and under his command and supervision. It has not been shown that the rules and conditions
imposed by Dimaano were unreasonable. The access to public records is predicated on the right of
the people to acquire information on matters of public concern. Undoubtedly in a democracy, the
public has a legitimate interest in matters of social and political significance. The New Constitution
expressly recognizes that the people are entitled to information on matters of public concern and
thus are expressly granted access to official records, as well as documents of official acts, or
transactions, or decisions, subject to such limitations imposed by law. The incorporation of this right
in the Constitution is a recognition of the fundamental role of free exchange of information in a
democracy. There can be no realistic perception by the public of the nation's problems, nor a
meaningful democratic decision-making if they are denied access to information of general interest.
Information is needed to enable the members of society to cope with the exigencies of the times. As
has been aptly observed: "Maintaining the flow of such information depends on protection for both
its acquisition and its dissemination since, if either process is interrupted, the flow inevitably
ceases." However, restrictions on access to certain records may be imposed by law. Thus, access
restrictions imposed to control civil insurrection have been permitted upon a showing of immediate
and impending danger that renders ordinary means of control inadequate to maintain order.
Legaspi v. CSC
Facts:
Petitioner Valentin L. Legaspi against the Civil Service Commission. The respondent had
earlier denied Legaspi’s request for information on the civil service eligibilities of certain persons
employed as sanitarians in the Health Department of Cebu City. These government employees,
Julian Sibonghanoy and Mariano Agas, had allegedly represented themselves as civil service
eligibles who passed the civil service examinations for sanitarians.
Issue:
whether or not Legaspi’s request for information on the civil service eligibilities of certain
persons employed must be granted on the basis of his right to information
Held:
Yes. Article III, Section 7 of the 1987 Constitution reads:
The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions,
as well as to government research data used as basis. for policy development, shall be afforded the
citizen, subject to such stations as may be provided by law.
These constitutional provisions are self-executing. They supply the rules by means of which the right
to information may be enjoyed by guaranteeing the right and mandating the duty to afford access to
sources of information. Hence, the fundamental right therein recognized may be asserted by the
people upon the ratification of the constitution without need for any ancillary act of the Legislature.
What may be provided for by the Legislature are reasonable conditions and limitations upon the
access to be afforded which must, of necessity, be consistent with the declared State policy of full
public disclosure of all transactions involving public interest. However, it cannot be overemphasized
that whatever limitation may be prescribed by the Legislature, the right and the duty under Art. III
Sec. 7 have become operative and enforceable by virtue of the adoption of the New Charter.
Therefore, the right may be properly invoked in a mandamus proceeding such as this one.
Government agencies are without discretion in refusing disclosure of, or access to, information of
public concern. This is not to lose sight of the reasonable regulations which may be imposed by said
agencies in custody of public records on the manner in which the right to information may be
exercised by the public.
The authority to regulate the manner of examining public records does not carry with it the power to
prohibit. A distinction has to be made between the discretion to refuse outright the disclosure of or
access to a particular information and the authority to regulate the manner in which the access is to
be afforded. The first is a limitation upon the availability of access to the information sought, which
only the Legislature may impose (Art. III, Sec. 6, 1987 Constitution). The second pertains to the
government agency charged with the custody of public records. Its authority to regulate access is to
be exercised solely to the end that damage to, or loss of, public records may be avoided, undue
interference with the duties of said agencies may be prevented, and more importantly, that the
exercise of the same constitutional right by other persons shall be assured.
Thus, while the manner of examining public records may be subject to reasonable regulation by the
government agency in custody thereof, the duty to disclose the information of public concern, and to
afford access to public records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such agencies.
The constitutional guarantee to information on matters of public concern is not absolute. It does not
open every door to any and all information. Under the Constitution, access to official records,
papers, etc., are “subject to limitations as may be provided by law” (Art. III, Sec. 7, second
sentence). The law may therefore exempt certain types of information from public scrutiny, such as
those affecting national security. It follows that, in every case, the availability of access to a
particular public record must be circumscribed by the nature of the information sought, i.e., (a) being
of public concern or one that involves public interest, and, (b) not being exempted by law from the
operation of the constitutional guarantee.
Issue:
whether or not petitioner has legal personality to bring the mandamus suit
Held:
Yes. The petitioner has firmly anchored his case upon the right of the people to
information on matters of public concern, which, by its very nature, is a public right. When the
question is one of public right and the object of the mandamus is to procure the enforcement of a
public duty, the people are regarded as the real party in interest and the relator at whose instigation
the proceedings are instituted need not show that he has any legal or special interest in the result, it
being sufficient to show that he is a citizen and as such interested in the execution of the laws.
When a mandamus proceeding involves the assertion of a public right, the requirement of personal
interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general
“public” which possesses the right.
The petitioner, being a citizen who, as such is clothed with personality to seek redress for the
alleged obstruction of the exercise of the public right.
Issue:
whether or not the information sought is of public interest or public concern
Held:
The above question is first addressed to the government agency having custody of the
desired information. However, as already discussed, this does not give the agency concerned any
discretion to grant or deny access. In case of denial of access, the government agency has the
burden of showing that the information requested is not of public concern, or, if it is of public
concern, that the same has been exempted by law from the operation of the guarantee. To
safeguard the constitutional right, every denial of access by the government agency concerned is
subject to review by the courts, and in the proper case, access may be compelled by a writ of
Mandamus.
The information sought by the petitioner in this case is the truth of the claim of certain government
employees that they are civil service eligibles for the positions to which they were appointed. The
Constitution expressly declares as a State policy that:
Appointments in the civil service shall be made only according to merit and fitness to be determined,
as far as practicable, and except as to positions which are policy determining, primarily confidential
or highly technical, by competitive examination. (Art. IX, B, Sec. 2.[2]).
But then, it is not enough that the information sought is of public interest. For mandamus to lie in a
given case, the information must not be among the species exempted by law from the operation of
the constitutional guarantee.
In the instant, case while refusing to confirm or deny the claims of eligibility, the respondent has
failed to cite any provision in the Civil Service Law which would limit the petitioner’s right to know
who are, and who are not, civil service eligibles. The names of those who pass the civil service
examinations, as in bar examinations and licensure examinations for various professions, are
released to the public. Hence, there is nothing secret about one’s civil service eligibility, if actually
possessed. Petitioner’s request is, therefore, neither unusual nor unreasonable. And when, as in
this case, the government employees concerned claim to be civil service eligibles, the public,
through any citizen, has a right to verify their professed eligibilities from the Civil Service
Commission.
Valmonte v. Belmonte
FACTS:
Petitioner Valmonte wrote a letter to the respondent Feliciano Belmonte, then GSIS General
Manager, requesting to befurnished with the list of names of the defunct interim and regular
Batasang Pambansa including the ten (10) oppositionmembers who were able to secure a clean
loan of P 2 million each on guaranty of Mrs. Imelda Marcos. And if such is notpossible, an access to
those said documents. Apart from Valmonte’s letter, he is stressing the premise of the request onthe
present provision of the Freedom constitution at that time which is Art. IV, Sec. 6, that emphasizes
the right of thepeople to information on matters of public concern. Mr. Belmonte, aware that such
request contains serious legalimplications seek the help of Mr. Meynardo A. Tiro, a deputy General
Counsel. In Mr. Tiro’s reply letter, a confidentialrelationship exists between the GSIS and all those
who borrow from it, whoever they may be; that the GSIS has a duty toits customers to preserve this
confidentiality; and that it would not be proper for the GSIS to breach this confidentialityunless so
ordered by the courts.On June 26, 1986, apparently not having yet received the reply of the GSIS
Deputy General Counsel, Petitioner Valmontewrote another letter saying that for failure to receive a
reply, they are now considering themselves free to do whateveraction necessary within the premises
to pursue their desired objective in pursuance of public interest.Separate comments were filed by
respondent Belmonte and the Solicitor General. After petitioners filed a consolidatedreply, the
petition was given due course and the parties were required to file their memoranda. The parties
havingcomplied, the case was deemed submitted for decision.In his comment, respondent raise
procedural objection to the issuance of a writ of mandamus, among which is thatpetitioners have
failed to exhaust administrative remedies. Respondent claims that actions of the GSIS General
Managerare reviewable by the Board of Trustees of the GSIS petitioners. However, did not seek
relief from the GSIS Board of Trustees, It is therefore asserted that since administrative remedies
were not exhausted, then petitioners have no causeof action.
ISSUE:
Whether or not that Mr. Valmonte, together with his co-petitioners, are entitled to the documents
sought, by virtue of their constitutional right to information.
RULING:
The cornerstone of this republican system of government is delegation of power by the people to the
state.Governmental agencies and institutions operate within the limits of the authority conferred by
the people. Yet, like allconstitutional guarantees, the right to information is not absolute. People’s
right to information is limited to “matters of public concern” and is further “subject to such limitations
as may be provided by law.”The GSIS is a trustee of contributions from the government and its
employees and the administrator of various insuranceprograms for the benefit of the latter.
Undeniably, its funds assume a public character. More particularly, Secs. 5(b) and46 of P.D 1146, as
amended (the Revised Government Service Insurance act of 1977 provide for annual appropriations
for to pay for contributions, premiums , interest and other amounts payable to GSIS by the
government, as employer, aswell as the obligations which the Republic of the Philippines assumes
or guarantees to pay. Considering the nature of itsfunds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinentrules and regulations. It is
therefore the legitimate concern of the public to ensure that these funds are managedproperly with
end in view of maximizing the benefits that accrue to the insured government employees.
Moreover, thesupposed borrowers were members of the defunct Batasang Pambansa who
themselves appropriated funds for the GSISand were therefore expected to be the first to see to it
that the GSIS performed its tasks with the greatest degree of fidelity and that its transactions were
above board.Respondent maintains that a confidential relationship exists between the GSIS and its
borrowers. It is argued that apolicy of confidentiality restricts the indiscriminate dissemination of
information. He further contends that in view of theright to privacy, which is equally protected by the
Constitution and by existing laws, the documents, evidencing loantransactions of the GSIS must be
deemed outside the ambit of the right to information.There can be no doubt that the right to privacy
is constitutionally protected. In the landmark case of Morfe vs. Mutuc,speaking through then Mr.
Justice Fernando stated that ultimate and pervasive control of the individual, in all aspects of his life,
is the hallmark of the absolute state. In contrast, a system of limited government safeguards a
private sector,which belongs to the individual, firmly distinguishing it from the public sector, which
the state can control.Apparent from the above-quoted statement of the court in
Morfe
is that the right to privacy belongs to the individual inhis private capacity, and not to public and the
government agencies like the GSIS. Moreover, the right cannot be invokedby juridical entities like
the GSIS. A corporation has no right of privacy in its name since the entire basis of the right
toprivacy is an injury to the feelings and sensibilities of the party and a corporation would have no
such ground for relief.Neither can the GSIS through its General manager, the respondent, invoke
the right to privacy of its borrowers. The rightis purely personal in nature, and hence, may be
invoked only by the person whose privacy is claimed to be violated.Respondent next asserts that
the documents evidencing the loan transactions are private in nature and hence, are notcovered by
the Constitutional right to information on matters of public concern which guarantees “access to
officialrecords, and to documents, and papers pertaining to official acts, transactions or decisions”
only. Further, they arguedthat GSIS, is a governmental corporation performing proprietary functions,
are outside the coverage of the people’sright to access to official records.This Dichotomy
characterizing government function has long been repudiated in ACCFA v. Confederation of
Unions andGovernment Corporations and Offices, the Court said that the government, WHETHER
carrying out its sovereignattributes or running some business, discharges the SAME FUNCTION of
service to the people. Consequently, that theGSIS , in granting the loans, was exercising proprietary
function would NOT justify the exclusion of transactions from thecoverage and scope of right to
information.WHEREFORE, the instant petition is hereby granted, and the respondent General
Manager of the Government ServiceInsurance System is ORDERED to allow petitioners access to
documents and records evidencing loans granted tomembers of the former Batasang Pambansa, as
petitioners may specify, subject to reasonable regulations as to time andmanner of inspection, not
incompatible with the decision, as the GSIS may deem necessary. SO ORDERED.
CHAVEZ VS PCGG
Facts:-Petitioner Francisco I Chavez (in his capacity as taxpayer, citizen and a former
governmentofficial) initiated this original action seeking (1) to prohibit and enjoin respondents
[PCGG and itschairman] from privately entering into, perfecting and/or executing any agreement
with the heirs of the late President Ferdinand E. Marcos . . . relating to and concerning the
properties and assets of Ferdinand Marcos located in the Philippines and/or abroad  including the
so-called Marcos goldhoard"; and (2) to compel respondent[s] to make public all negotiations and
agreement, be theyongoing or perfected, and all documents related to or relating to such
negotiations andagreement between the PCGG and the Marcos heirs."-Chavez is the same person
initiated the prosecution of the Marcoses and their cronies whocommitted unmitigated plunder of the
public treasury and the systematic subjugation of thecountry's economy; he says that what impelled
him to bring this action were several newsreports 2 bannered in a number of broadsheets sometime
in September 1997. These news itemsreferred to (1) the alleged discovery of billions of dollars of
Marcos assets deposited in various codedaccounts in Swiss banks; and (2) the reported execution
of a compromise, between the government(through PCGG) and the Marcos heirs, on how to split or
share these assets.-PETITIONER DEMANDS that respondents make public any and all
negotiations and agreementspertaining to PCGG's task of recovering the Marcoses' ill-gotten
wealth. He claims that anycompromise on the alleged billions of ill-gotten wealth involves an issue of
"paramount publicinterest," since it has a "debilitating effect on the country's economy" that would
be greatlyprejudicial to the national interest of the Filipino people. Hence, the people in general have
aright to know the transactions or deals being contrived and effected by the government.-
RESPONDENT ANSWERS that they do not deny forging a compromise agreement with theMarcos
heirs. They claim, though, that petitioner's action is premature, because there is noshowing that he
has asked the PCGG to disclose the negotiations and the Agreements. And even if hehas, PCGG
may not yet be compelled to make any disclosure, since the proposed terms andconditions of the
Agreements have not become effective and binding.-PETITIONER INVOKES Sec. 7 [Article III]. The
right of the people to information on matters of publicconcern shall be recognized. Access to official
records, and to documents, and papers pertaining toofficial acts, transactions, or decisions, as well
as to government research data used as basis forpolicy development, shall be afforded the citizen,
subject to such limitations as may be provided bylaw.Sec. 28 [Article II]. Subject to reasonable
conditions prescribed by law, the State adopts andimplements a policy of full public disclosure of all
its transactions involving public interest.-RESPONDENT ANSWERS that the above constitutional
provisions refer to completed andoperative official acts, not to those still being considered.
Issue:
Whether or not the Court could require the PCGG to disclose to the public the details of
any agreement, perfected or not, with the Marcoses.
Ruling: 
WHEREFORE, the petition is GRANTED. The General and Supplemental Agreement
dated December 28, 1993, which PCGG and the Marcos heirs entered into are hereby
declaredNULL AND VOID for being contrary to law and the Constitution. Respondent PCGG, its
officers andall government functionaries and officials who are or may be directly ot indirectly
involved in therecovery of the alleged ill-gotten wealth of the Marcoses and their associates are
DIRECTED to disclose to the public the terms of any proposed compromise settlment, as well as the
finalagreement, relating to such alleged ill-gotten wealth, in accordance with the
discussionsembodied in this Decision. No pronouncement as to cost.
RD:-
The "information" and the "transactions" referred to in the subject provisions of the Constitution
have as yet no defined scope and extent. There are no specific laws prescribing the exactlimitations
within which the right may be exercised or the correlative state duty may be obliged.However, the
following are some of the recognized restrictions:(1) national security matters and
intelligence information- there is a governmental privilege against public disclosure with respect to
state secretsregarding military, diplomatic and other national security matters. 24 But where there
isno need to protect such state secrets, the privilege may not be invoked to withholddocuments and
other information, 25 provided that they are examined "in strictconfidence" and given "scrupulous
protection." (2) trade secrets and banking transactions-trade or industrial secrets (pursuant to the
Intellectual Property Code 27 and other relatedlaws) as well as banking transactions (pursuant to
the Secrecy of Bank Deposits Act 28)are also exempted from compulsory disclosure (3) criminal
matters- Also excluded are classified law enforcement matters, such as those relating to
theapprehension, the prosecution and the detention of criminals, which courts neither maynor
inquire into prior to such arrest, detention and prosecution. Efforts at effective lawenforcement would
be seriously jeopardized by free public access to, for example, policeinformation regarding rescue
operations, the whereabouts of fugitives, or leads on covertcriminal activities.(4) other confidential
information.- The Ethical Standards Act 31 further prohibits public officials and employees from
usingor divulging "confidential or classified information officially known to them by reason of their
office and not made available to the public." Other acknowledged limitations toinformation access
include diplomatic correspondence, closed door Cabinet meetings andexecutive sessions of either
house of Congress, as well as the internal deliberations of theSupreme Court.
-
In Valmonte v. Belmonte Jr., the Court emphasized that the information sought must be
"matters of public concern," access to which may be limited by law. Similarly, the state policy of full
public disclosure extends only to "transactions involving public interest" and may also be"subject to
reasonable conditions prescribed by law."- As to the meanings of the terms "public interest" and
"public concern," the Court, in Legaspi v.Civil Service Commission, elucidated: In determining
whether or not a particular information isof public concern there is no rigid test which can be applied.
 Public concern" like "publicinterest" is a term that eludes exact definition. Both terms embrace a
broad spectrum of subjectswhich the public may want to know, either because these directly affect
their lives, or simply becausesuch matters naturally arouse the interest of an ordinary citizen. In the
final analysis, it is for thecourts to determine on a case by case basis whether the matter at issue is
of interest or importance,as it relates to or affects the public.-As to whether or not the above cited
constitutional provisions guarantee access to informationregarding ongoing negotiations or
proposals prior to the final agreement, this same clarification wassought and clearly addressed by
the constitutional commissioners during their deliberations, MR.SUAREZ. And when we
say "transactions" which should be distinguished from contracts, agreements,or treaties or
whatever, does the Gentleman refer to the steps leading to the consummation of thecontract, or
does he refer to the contract itself?MR. OPLE. The "transactions" used here, I suppose, is generic
and, therefore, it can cover bothsteps leading to a contract, and already a consummated contract,
Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the consummation of
thetransaction?MR. OPLE. Yes, subject to reasonable safeguards on the national interest.-
Considering the intent of the Constitution, the Court believes that it is incumbent upon thePCGG and
its officers, as well as other government representatives, to disclose sufficient publicinformation on
any proposed settlement they have decided to take up with the ostensible ownersand holders of ill-
gotten wealth. Such information, though, must pertain to definite propositions of the government, not
necessarily to intra-agency or inter-agency recommendations orcommunications during the stage
when common assertions are still in the process of beingformulated or are in the "exploratory"
stage. There is a need, of course, to observe the samerestrictions on disclosure of information in
general, as discussed above such as on mattersinvolving national security, diplomatic or foreign
relations, intelligence and other classifiedinformation.
Senate vs. Ermita
Facts of the Case
These consolidated cases are petitions for certiorari stating that the President has abused her
power by issuing Executive Order No. 464 dated September 28, 2005. Petitioners herein pray that
such order be declared as null and void for being unconstitutional.
In the exercise of its legislative power, the Senate of the Philippines through its various Committees
conducts inquiries and investigations in aid of legislation which call for attendance of officials and
employees of the executive department, bureaus, and offices including those employed in the
Government Owned and Controlled Corporations, the Armed Forces of the Philippines (AFP) and
the Philippine National Police (PNP).
On September 21 - 23, 2005 the Committee of the Senate issued invitations to various officials of
the Executive Department for them to appear on September 29, 2005 as resource speakers in a
public hearing on the railway project of North Luzon Railways Corporation with the China National
Machinery Group. Such railway project is called the North Railway Project.
The Senate issued invitations on several AFP officials for them to attend as resource persons in a
public hearing scheduled on Sept. 28, 2005 for the privilege speech of the following senators: Sen.
Aquilino Pimentel, Jr., Sen. Jinggoy Estrada, Sen. Rodolfo Biazon, Sen. Jamby Madrigal, Sen.
Biazon. Also invited to the hearing was the AFP Chief of Staff, General Generoso Senga who by
letter dated September 28, 2005 requested for its postponement due to a pressing operational
situation that demands his utmost attention.
On September 28, 2005 Senate Franklin Drilon received from Executive Secretary Eduardo Ermita
a letter respectfully requesting for the postponement of the hearing to which various executive
officials have been invited in order for said officials to study and prepare for various issues so they
can better enlighten the Senate Committee on its investigation.
Senate Pres. Drilon however was unable to grant such request because it was sent belatedly and all
preparations are complete within that week. He also received a letter from NorthRail project
President Jose L. Cortes Jr. requesting that the hearing of the NorthRail project be postponed or
cancelled until a copy of the report of UP Law Center on contract agreements related to the project
had been secured.
On Sept. 28, 2005, the President issued Executive Order # 464 entitled “Ensuring Observance of
Principle of Separation of Powers, Adherence to Rule on Executive Privilege and Respect for Rights
of Public Officials Appearing in Legislative Inquiries in Aid of Legislation under the Constitution and
for other Purposes", which states that all heads of the executive branch shall secure the consent of
the President prior to appearing before either house of the Congress; public officials may not divulge
confidential classified information officially known to them by reason of their office and not made
available to the public to prejudice the public interest and thatexecutive matters shall only be
conducted in executive session.
On September 28, Sen. Pres. Franklin Drilon received from Executive Secretary Eduardo Ermita a
copy of E.O. 464 and that executive officials invited were not able to attend because they failed to
secure the required consent from the President.
On October 3, 2005, three petitions docketed as G.R. No. 169659 (Bayan Muna vs. Eduardo
Ermita), 169660 (Francisco Chavez vs. Eduardo Ermita) and 169667 (Alternative Law Groups vs.
Eduardo Ermita) were filed before the court also challenging the constitutionality of E.O. 464.
In G.R. No. 169659 Bayan Muna v. Eduardo Ermita, partylist Bayan Muna and HR members Satur
Ocampo, Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador and Teodoro Casino, COURAGE
= organization of Gov’t employees and CODAL (Counsels for Defense of Liberties) pray that E.O.
464 be declared unconstitutional and that Executive Sec. Eduardo Ermita be prohibited from
imposing sanctions on officials who appear before Congress due to congressional summons. They
also contend that E.O. 464 infringes on their rights and impedes them to fulfil their respective
obligations.
In G.R. No. 169660 Francisco Chavez vs. Eduardo Ermita, Francisco Chavez claims that his
constitutional rights as a citizen and taxpayer and law practicioner are affected by the enforcement
of E.O. 464 thus he prays that such order be declared null and unconstitutional.
In G.R. No. 169667 Alternative Law Groups vs. Eduardo Ermita, ALG claims that the group has
legal standing to institute the petition to enforce its constitutional right to information on matters of
public concern.
On October 11, 2005, Senate of the Philippines alleging that it has a vital interest in the resolution of
the issue of validity in E.O. 464, claims that it prohibits the valid exercise of the Senate’s powers and
functions and conceals information of great public interest and concern.
On October 14, 2005, PDP- Laban a registered political party w/ members elected in the Congress
filed a similar petition.
Issue:
 Whether respondents committed grave abuse of discretion in executing E.O. 464.
 Whether E.O. 464 violates the following provisions of the Constitution: Art. II Sec. 28, Art.
III Sec. 4, Art. III Sec. 7, Art. VI Sec. I, Art. VI, Sec. 21, Art. VI Sec. 22, Article XI sec. 1
and Art. XIII sec. 16.
 Whether E.O. 464 contravenes the power of inquiry vested in the Congress.
 Whether E.O. 464 violates the right of the people to information on matters of public
concern.
Court Ruling:
E.O. 464 to the extent that it bars the appearance of executive officials before the Congress,
deprives the Congress of the information in the possession of these officials. The power of inquiry,
a power vested in the Congress, is expressly recognized in Sec. 21 of Article VI because, according
to the Court, a legislative body cannot legislate wisely or effectively in the absence of information
respecting the conditions which the legislation intended to affect or change; thus, making it an
essential and appropriate auxiliary to the legislative function.
However, even when the inquiry is in aid of legislation, there are still recognized exemptions to the
power of inquiry which exemptions fall under the rubric of “executive privilege”.
The executive privilege, whether asserted against Congress, the courts, or the public; is recognized
only in relation to certain types of information of a sensitive character. Executive privilege per se is
not meant to cover up embarrassing information. It is a relative concept, the validity of its assertion
to a great extent depends upon the political situation of the country.
Echegaray vs. Secretary of Justice
Facts:
The Supreme Court affirmed the conviction of petitioner Leo Echegaray y Pilo for the crime of rape
of the 10 year-old daughter of his common-law spouse. The supreme penalty of death was to be
imposed upon him. He then filed motion for recon and a supplemental motion for recon raising
constitutionality of Republic Act No. 7659 and the death penalty for rape. Both were denied.
Consequently, Congress changed the mode of execution of the death penalty from electrocution to
lethal injection, and passed Republic Act No. 8177, designating death by lethal injection. Echegaray
filed a Petition for prohibition from carrying out the lethal injection against him under the grounds
that it constituted 1. cruel, degrading, or unusual punishment, 2. Being violative of due process, 3. a
violation of the Philippines’ obligations under international covenants, 4. an undue delegation of
legislative power by Congress, an unlawful exercise by respondent Secretary of the power to
legislate, and an unlawful delegation of delegated powers by the Secretary of Justice. In his motion
to amend, the petitioner added equal protection as a ground.
The Solicitor General stated that the Supreme Court has already upheld the constitutionality of the
Death Penalty Law, and has declared that the death penalty is not cruel, unjust, excessive or
unusual punishment; execution by lethal injection, as authorized under R.A. No. 8177 and the
questioned rules, is constitutional, lethal injection being the most modern, more humane, more
economical, safer and easier to apply (than electrocution or the gas chamber); in addition to that,
the International Covenant on Civil and Political Rights does not expressly or impliedly prohibit the
imposition of the death penalty.
Issues: 1. Is the lethal injection a cruel, degrading or inhuman punishment? 2. Is it a violation of our
international treaty obligations? 3. Is it discriminatory (pertaining to sec 17)?
Held: 1. No 2. Yes 3rd. Petition denied.
1. Petitioner contends that death by lethal injection constitutes cruel, degrading and inhuman
punishment because (1) R.A. No. 8177 fails to provide for the drugs to be used in carrying out lethal
injection, the dosage for each drug to be administered, and the procedure in administering said
drug/s into the accused; (2) its implementing rules are uncertain as to the date of the execution, time
of notification, the court which will fix the date of execution, which uncertainties cause the greatest
pain and suffering for the convict; and (3) the possibility of mistakes in administering the drugs
renders lethal injection inherently cruel. It is well-settled in jurisprudence that the death penalty per
se is not a cruel, degrading or inhuman punishment. In Harden v. Director of Prisons- “punishments
are cruel when they involve torture or a lingering death; but the punishment of death is not cruel,
within the meaning of that word as used in the constitution. It implies there something inhuman and
barbarous, something more than the mere extinguishment of life.” Would the lack in particularity
then as to the details involved in the execution by lethal injection render said law “cruel, degrading
or inhuman”? The Court believes not. Petitioner contends that Sec. 16 of R.A. No. 8177 is uncertain
as to which “court” will fix the time and date of execution, and the date of execution and time of
notification of the death convict. As petitioner already knows, the “court” which designates the date
of execution is the trial court which convicted the accused. The procedure is that the “judgment is
entered fifteen (15) days after its promulgation, and 10 days thereafter, the records are remanded to
the court below including a certified copy of the judgment for execution. Neither is there any
uncertainty as to the date of execution nor the time of notification. As to the date of execution,
Section 15 of the implementing rules must be read in conjunction with the last sentence of Section 1
of R.A. No. 8177 which provides that the death sentence shall be carried out “not earlier than one
(1) year nor later then eighteen (18) months from the time the judgment imposing the death penalty
became final and executory, without prejudice to the exercise by the President of his executive
clemency powers at all times.” Hence, the death convict is in effect assured of eighteen (18) months
from the time the judgment imposing the death penalty became final and executor wherein he can
seek executive clemency and attend to all his temporal and spiritual affairs. Petitioner also contends
that the infliction of “wanton pain” in case of possible complications in the intravenous injection that
respondent Director is an untrained and untested person insofar as the choice and administration of
lethal injection is concerned, renders lethal injection a cruel, degrading and inhuman punishment.
This is unsubstantiated. First. Petitioner has neither alleged nor presented evidence that lethal
injection required the expertise only of phlebotomists and not trained personnel and that the drugs to
be administered are unsafe or ineffective. Petitioner simply cites situations in the United States
wherein execution by lethal injection allegedly resulted in prolonged and agonizing death for the
convict, without any other evidence whatsoever. Second. Petitioner overlooked Section 1, third
paragraph of R.A. No. 8177 which requires that all personnel involved in the execution proceedings
should be trained prior to the performance of such task. We must presume that the public officials
entrusted with the implementation of the death penalty will carefully avoid inflicting cruel
punishment. Third. Any infliction of pain in lethal injection is merely incidental in carrying out the
execution of death penalty and does not fall within the constitutional proscription against cruel,
degrading and inhuman punishment. “In a limited sense, anything is cruel which is calculated to give
pain or distress, and since punishment imports pain or suffering to the convict, it may be said that all
punishments are cruel. But of course the Constitution does not mean that crime, for this reason, is to
go unpunished.” The cruelty against which the Constitution protects a convicted man is cruelty
inherent in the method of punishment, not the necessary suffering involved in any method employed
to extinguish life humanely.
2. Violation of international treaties? In countries which have not abolished the death penalty,
sentence of death may be imposed only for the most serious crimes in accordance with the law in
force at the time of the commission of the crime and not contrary to the provisions of the present
Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This
penalty can only be carried out pursuant to a final judgment rendered by a competent court. The
punishment was subject to the limitation that it be imposed for the “most serious crimes”. Included
with the declaration was the Second Optional Protocol to the International Covenant on Civil and
Political Rights, Aiming at the Abolition of the Death Penalty was adopted by the General Assembly
on December 15, 1989. The Philippines neither signed nor ratified said document.
3. Petitioner contends that Section 17 of the Implementing Rules is unconstitutional for being
discriminatory. “SEC. 17. SUSPENSION OF THE EXECUTION OF THE DEATH SENTENCE.
Execution by lethal injection shall not be inflicted upon a woman within the three years next following
the date of the sentence or while she is pregnant, nor upon any person over seventy (70) years of
age. In this latter case, the death penalty shall be commuted to the penalty of reclusion perpetua
with the accessory penalties provided in Article 40 of the Revised Penal Code.” Petitioner contends
that Section 17 amends the instances when lethal injection may be suspended, without an express
amendment of Article 83 of the Revised Penal Code, as amended by section 25 of R.A. No. 7659,
stating that the death sentence shall not be inflicted upon a woman while she is pregnant or within
one (1) year after delivery, nor upon any person over seventy years of age. While Article 83 of the
Revised Penal Code, as amended by Section 25 of Republic Act No. 7659, suspends the
implementation of the death penalty while a woman is pregnant or within one (1) year after delivery,
Section 17 of the implementing rules omits the one (1) year period following delivery as an instance
when the death sentence is suspended, and adds a ground for suspension of sentence no longer
found under Article 83 of the Revised Penal Code as amended, which is the three-year reprieve
after a woman is sentenced. This addition is, in petitioner’s view, tantamount to a gender-based
discrimination. Being an implementing rule, Section 17 must not override, but instead remain
consistent and in harmony with the law it seeks to implement.
Tanada v. Tuvera
Facts:
On 24 April 1985, the Court affirmed the necessity for the publication to the OfficialGazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect. Decision was concurred only by 3 judges.Petitioners move
for reconsideration / clarification of the decision on various questions. Solicitor General avers that
the motion is a request for advisory opinion. February Revolution took place,which subsequently
required the new Solicitor General to file a rejoinder on the issue (under Rule 3, Section 18 of the
Rules of Court).
Issue:
Whether publication is still required in light of the clause ³unless otherwise provided´.
Held:
The clause ³unless it is otherwise provided,´ in Article 2 of the Civil Code, refers to thedate of
effectivity and not to the requirement of publication itself, which cannot in any event beomitted. This
clause does not mean that the legislature may make the law effective immediatelyupon approval, or
on any other date, without its previous publication. The legislature may in itsdiscretion provide that
the usual fifteen-day period shall be shortened or extended. Publicationrequirements applies to (1)
all statutes, including those of local application and private laws; (2) presidential decrees and
executive orders promulgated by the President in the exercise of legislative powers whenever the
same are validly delegated by the legislature or directlyconferred by the Constitution; (3)
Administrative rules and regulations for the purpose of enforcing or implementing existing law
pursuant also to a valid delegation; (4) Charter of a citynotwithstanding that it applies to only a
portion of the national territory and directly affects onlythe inhabitants of that place; (5) Monetary
Board circulars to ³fill in the details´ of the CentralBank Act which that body is supposed to enforce.
Further, publication must be in full or it is no publication at all since its purpose is to inform the public
of the contents of the laws.
Reasoning:
The Supreme Court declared that all laws as above defined shall immediately upontheir approval, or
as soon thereafter as possible, be published in full in the Official Gazette, to become effective only
after 15 days from their publication, or on another date specified by thelegislature, in accordance
with Article 2 of the Civil Code.
NERI VS. SENATE COMMITTEE public concern.50 We might have agreed with such contention if petitioner did not appear before
FACTS: On April 21, 2007, the Department of Transportation and Communication (DOTC) entered them at all. But petitioner made himself available to them during the September 26 hearing, where
into a contract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment he was questioned for eleven (11) hours. Not only that, he expressly manifested his willingness to
and services for the National Broadband Network (NBN) Project in the amount of U.S. $ answer more questions from the Senators, with the exception only of those covered by his claim of
329,481,290 (approximately P16 Billion Pesos). The Project was to be financed by the People’s executive privilege.
Republic of China. The right to public information, like any other right, is subject to limitation. Section 7 of Article III
The Senate passed various resolutions relative to the NBN deal. In the September 18, 2007 hearing provides:
Jose de Venecia III testified that several high executive officials and power brokers were using their The right of the people to information on matters of public concern shall be recognized. Access to
influence to push the approval of the NBN Project by the NEDA. official records, and to documents, and papers pertaining to official acts, transactions, or decisions,
Neri, the head of NEDA, was then invited to testify before the Senate Blue Ribbon. He appeared in as well as to government research data used as basis for policy development, shall be afforded the
one hearing wherein he was interrogated for 11 hrs and during which he admitted that Abalos of citizen, subject to such limitations as may be provided by law.
COMELEC tried to bribe him with P200M in exchange for his approval of the NBN project. He
further narrated that he informed President Arroyo about the bribery attempt and that she instructed
him not to accept the bribe.
However, when probed further on what they discussed about the NBN Project, petitioner refused to
answer, invoking “executive privilege”. In particular, he refused to answer the questions on:
(a) whether or not President Arroyo followed up the NBN Project,
(b) whether or not she directed him to prioritize it, and
(c) whether or not she directed him to approve.
He later refused to attend the other hearings and Ermita sent a letter to the senate averring that the
communications between GMA and Neri are privileged and that the jurisprudence laid down in
Senate vs Ermita be applied. He was cited in contempt of respondent committees and an order for
his arrest and detention until such time that he would appear and give his testimony.
ISSUE:
Are the communications elicited by the subject three (3) questions covered by executive privilege?
HELD:
The communications are covered by executive privilege
The revocation of EO 464 (advised executive officials and employees to follow and abide by the
Constitution, existing laws and jurisprudence, including, among others, the case of Senate v. Ermita
when they are invited to legislative inquiries in aid of legislation.), does not in any way diminish the
concept of executive privilege. This is because this concept has Constitutional underpinnings.
The claim of executive privilege is highly recognized in cases where the subject of inquiry relates to
a power textually committed by the Constitution to the President, such as the area of military and
foreign relations. Under our Constitution, the President is the repository of the commander-in-chief,
appointing, pardoning, and diplomatic powers. Consistent with the doctrine of separation of powers,
the information relating to these powers may enjoy greater confidentiality than others.
Several jurisprudence cited provide the elements of presidential communications privilege:
1) The protected communication must relate to a “quintessential and non-delegable presidential
power.”
2) The communication must be authored or “solicited and received” by a close advisor of the
President or the President himself. The judicial test is that an advisor must be in “operational
proximity” with the President.
3) The presidential communications privilege remains a qualified privilege that may be overcome by
a showing of adequate need, such that the information sought “likely contains important evidence”
and by the unavailability of the information elsewhere by an appropriate investigating authority.
In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the
ground that the communications elicited by the three (3) questions “fall under conversation and
correspondence between the President and public officials” necessary in “her executive and policy
decision-making process” and, that “the information sought to be disclosed might impair our
diplomatic as well as economic relations with the People’s Republic of China.” Simply put, the bases
are presidential communications privilege and executive privilege on matters relating to diplomacy
or foreign relations.
Using the above elements, we are convinced that, indeed, the communications elicited by the three
(3) questions are covered by the presidential communications privilege. First, the communications
relate to a “quintessential and non-delegable power” of the President, i.e. the power to enter into an
executive agreement with other countries. This authority of the President to enter into executive
agreements without the concurrence of the Legislature has traditionally been recognized in
Philippine jurisprudence. Second, the communications are “received” by a close advisor of the
President. Under the “operational proximity” test, petitioner can be considered a close advisor, being
a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling
need that would justify the limitation of the privilege and of the unavailability of the information
elsewhere by an appropriate investigating authority.
Respondent Committees further contend that the grant of petitioner’s claim of executive privilege
violates the constitutional provisions on the right of the people to information on matters of