EN BANC -x  

  ELISEO F. SORIANO,  
  Petitioner,  
ELISEO F. SORIANO,   G.R. No.
  164785  
Petitioner,   - versus -  
  Present:
   
- versus -   MOVIE AND TELEVISION  
  PUNO,REVIEW AND  
MA. CONSOLIZA P. QUISUMBING,
CLASSIFICATION BOARD,  
LAGUARDIA, in her capacity as YNARES-SANTIAGO,
ZOSIMO G. ALEGRE, JACKIE  
Chairperson of the Movie and CARPIO,
AQUINO-GAVINO, NOEL R.  
Television Review and AUSTRIA-MARTINEZ,
DEL PRADO, EMMANUEL  
Classification Board, MOVIE CORONA,
BORLAZA, JOSE E. ROMERO  
AND TELEVISION REVIEW CARPIOIV,MORALES,
and FLORIMONDO C.  
AND CLASSIFICATION TINGA,ROUS, in their capacity as  
BOARD, JESSIE L. GALAPON, CHICO-NAZARIO,
members of the Hearing and  
ANABEL M. DELA CRUZ, VELASCO,
Adjudication
JR., Committee of the  
MANUEL M. HERNANDEZ, NACHURA,
MTRCB, JESSIE L. GALAPON,  
JOSE L. LOPEZ, CRISANTO LEONARDO-DE
ANABEL M. CASTRO,
DELA CRUZ,  
SORIANO, BERNABE S. BRION,MANUEL M. HERNANDEZ,  
YARIA, JR., MICHAEL M. PERALTA,
JOSEand L. LOPEZ, CRISANTO  
SANDOVAL, and ROLDAN A. BERSAMIN,
SORIANO, BERNABE S. Promu
GAVINO,   YARIA, JR., MICHAEL M.  
Respondents. G.R. No.
SANDOVAL,
165636 and ROLDAN A. April 2
x------------------------------------------
GAVINO, in their capacity as  
complainants before
the MTRCB,
Respondents.
x----------------------------------------------------
-------------------------------------x
 
DECISION
VELASCO, JR., J.:
 
In these two petitions for certiorari
and prohibition under Rule 65, petitioner
Eliseo F. Soriano seeks to nullify and set
aside an order and a decision of the Movie
and Television Review and Classification
Board (MTRCB) in connection with certain
utterances he made in his television show,
Ang Dating Daan.
Facts of the Case
On August 10, 2004, at around 10:00 p.m.,
petitioner, as host of the program Ang
Dating Daan, aired on UNTV 37, made the
following remarks:
 
Lehitimong anak ng demonyo; sinungaling;
 
Gago ka talaga Michael, masahol ka pa sa
putang babae o di ba. Yung putang
babae ang gumagana lang doon yung
ibaba, [dito] kay Michael ang
gumagana ang itaas, o di ba! O,
masahol pa sa putang babae yan.
Sabi ng lola ko masahol pa sa putang
babae yan. Sobra ang
kasinungalingan ng mga demonyong
ito.[if !supportFootnotes][1][endif] x x x
Two days after, before the MTRCB,
separate but almost identical affidavit-
complaints were lodged by Jessie L.
Galapon and seven other private
respondents, all members of the Iglesia ni
Cristo (INC),[if !supportFootnotes][2][endif] against
petitioner in connection with the above
broadcast. Respondent Michael
Sandoval, who felt directly alluded to in
petitioners remark, was then a minister of
INC and a regular host of the TV program
Ang Tamang Daan.[if !supportFootnotes][3][endif]
Forthwith, the MTRCB sent petitioner a
notice of the hearing on August 16, 2004 in
relation to the alleged use of some cuss
words in the August 10, 2004 episode of
Ang Dating Daan.[if !supportFootnotes][4][endif]
 
After a preliminary conference in
which petitioner appeared, the MTRCB, by
Order of August 16, 2004, preventively
suspended the showing of Ang Dating Daan
program for 20 days, in accordance with
Section 3(d) of Presidential Decree No. (PD)
1986, creating the MTRCB, in relation to
Sec. 3, Chapter XIII of the 2004
Implementing Rules and Regulations (IRR)
of PD 1986 and Sec. 7, Rule VII of the
MTRCB Rules of Procedure.[if !supportFootnotes][5]
[endif]
The same order also set the case for
preliminary investigation.
M.  
The following day, petitioner sought
reconsideration of the preventive suspension
order, praying that Chairperson Consoliza P.
Laguardia and two other members of the
adjudication board recuse themselves from
hearing the case.[if !supportFootnotes][6][endif] Two
days after, however, petitioner sought to
withdraw[if !supportFootnotes][7][endif] his motion for
reconsideration, followed by the filing with
this Court of a petition for certiorari and
prohibition,[if !supportFootnotes][8][endif] docketed as
G.R. No. 164785, to nullify the preventive
suspension order thus issued.
 
On September 27, 2004, in Adm. Case
No. 01-04, the MTRCB issued a decision,
disposing as follows:
 
WHEREFORE, in view of all
the foregoing, a Decision is hereby
rendered, finding respondent Soriano
liable for his utterances and thereby
imposing on him a penalty of three
(3) months suspension from his
program, Ang Dating Daan.
 
Co-respondents Joselito
Mallari, Luzviminda Cruz and UNTV
Channel 37 and its owner, PBC, are
hereby exonerated for lack of
evidence.
Petitioner then filed this petition for
certiorari and prohibition with prayer for
injunctive relief, docketed as G.R. No.
165636.
In a Resolution dated April 4, 2005,
the Court consolidated G.R. No. 164785
with G.R. No. 165636.
 
In G.R. No. 164785, petitioner raises the
following issues:
 

  THE ORDER OF PREVENTIVE

SUSPENSION PROMULGATED
BY RESPONDENT [MTRCB]
DATED 16 AUGUST 2004
SO ORDERED.[if !supportFootnotes][9] AGAINST THE TELEVISION
[endif]
PROGRAM ANG DATING DAAN x
x x IS NULL AND VOID FOR
BEING ISSUED WITH GRAVE
ABUSE OF DISCRETION
 
AMOUNTING TO LACK OR
EXCESS OF JURISDICTION
  VIOLATIVE OF FREEDOM OF
SPEECH AND EXPRESSION.[if !
supportFootnotes][10][endif]

[if !supportLists](A)       [endif]BY REASON

THAT THE [IRR] IS INVALID
INSOFAR AS IT PROVIDES FOR  
THE ISSUANCE OF PREVENTIVE In G.R. No. 165636, petitioner relies
SUSPENSION ORDERS;
on the following grounds:
 

[if !supportLists](B)       [endif]BY REASON

OF LACK OF DUE HEARING IN
SECTION 3(C) OF [PD] 1986, IS
THE CASE AT BENCH;
PATENTLY
UNCONSTITUTIONAL AND
ENACTED WITHOUT OR IN
[if !supportLists](C)       [endif]FOR BEING EXCESS OF JURISDICTION x x x
VIOLATIVE OF EQUAL CONSIDERING THAT:
PROTECTION UNDER THE LAW;

 
[if !supportLists](D)       [endif]FOR BEING
VIOLATIVE OF FREEDOM OF
RELIGION; AND
I

[if !supportLists](E)        [endif]FOR BEING

    

SECTION 3(C) OF [PD] 1986, AS  

APPLIED TO PETITIONER,
UNDULY INFRINGES ON THE
CONSTITUTIONAL GUARANTEE
OF FREEDOM OF RELIGION, II
SPEECH, AND EXPRESSION AS
IT PARTAKES OF THE NATURE
OF A SUBSEQUENT  
PUNISHMENT CURTAILING THE
SAME; CONSEQUENTLY, THE
IMPLEMENTING RULES AND
REGULATIONS, RULES OF SECTION 3(C) OF [PD] 1986, AS
PROCEDURE, AND OFFICIAL APPLIED TO PETITIONER,
ACTS OF THE MTRCB UNDULY INFRINGES ON THE
PURSUANT THERETO, I.E. CONSTITUTIONAL GUARANTEE
DECISION DATED 27 OF DUE PROCESS OF LAW AND
SEPTEMBER 2004 AND ORDER EQUAL PROTECTION UNDER
DATED 19 OCTOBER 2004, ARE THE LAW; CONSEQUENTLY,
LIKEWISE CONSTITUTIONALLY THE [IRR], RULES OF
INFIRM AS APPLIED IN THE PROCEDURE, AND OFFICIAL
CASE AT BENCH; ACTS OF THE MTRCB
PURSUANT THERETO, I.E.,
DECISION DATED 27
SEPTEMBER 2004 AND ORDER
  DATED 19 OCTOBER 2004, ARE
 LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE
CASE AT BENCH; AND
 
III
 
[PD] 1986 IS NOT COMPLETE IN ITSELF
AND DOES NOT PROVIDE FOR A
SUFFICIENT STANDARD FOR ITS
IMPLEMENTATION THEREBY
RESULTING IN AN UNDUE
DELEGATION OF LEGISLATIVE
POWER BY REASON THAT IT
DOES NOT PROVIDE FOR THE
PENALTIES FOR VIOLATIONS OF
ITS PROVISIONS.
CONSEQUENTLY, THE [IRR],
RULES OF PROCEDURE, AND
OFFICIAL ACTS OF THE MTRCB
PURSUANT THERETO, I.E.
DECISION DATED 27
SEPTEMBER 2004 AND ORDER
DATED 19 OCTOBER 2004, ARE
LIKEWISE CONSTITUTIONALLY
INFIRM AS APPLIED IN THE
CASE AT BENCH[if !supportFootnotes][11]
[endif]
G.R. No. 164785
We shall first dispose of the issues in
G.R. No. 164785, regarding the assailed
order of preventive suspension, although its
implementability had already been
overtaken and veritably been rendered moot
by the equally assailed September 27, 2004
decision.
 
It is petitioners threshold posture that
the preventive suspension imposed against
him and the relevant IRR provision
authorizing it are invalid inasmuch as PD
1986 does not expressly authorize the
MTRCB to issue preventive suspension.
 
Petitioners contention is untenable.
Administrative agencies have powers
and functions which may be administrative,
investigatory, regulatory, quasi-legislative,
or quasi-judicial, or a mix of the five, as
may be conferred by the Constitution or by
statute.[if !supportFootnotes][12][endif] They have in fine
only such powers or authority as are granted
or delegated, expressly or impliedly, by law.
[if !supportFootnotes][13][endif]
And in determining
whether an agency has certain powers, the
inquiry should be from the law itself. But
once ascertained as existing, the authority
given should be liberally construed.[if !
supportFootnotes][14][endif]
 
A perusal of the MTRCBs basic
mandate under PD 1986 reveals the
possession by the agency of the authority,
albeit impliedly, to issue the challenged
order of preventive suspension. And this
authority stems naturally from, and is
necessary for the exercise of, its power of
regulation and supervision.
Sec. 3 of PD 1986 pertinently
provides the following:
 
Section 3. Powers and Functions. The
BOARD shall have the following
functions, powers and duties
xxxx
c)    To approve or disapprove, delete objectionable
portions from and/or prohibit the x x x production, x
x x exhibition and/or television broadcast of the
motion pictures, television programs and publicity
materials subject of the preceding paragraph, which,
in the judgment of the board applying contemporary
Filipino cultural values as standard, are objectionable
for being immoral, indecent, contrary to law and/or
good customs, injurious to the prestige of the
Republic of the Philippines or its people, or with a
dangerous tendency to encourage the commission of
violence or of wrong or crime such as but not limited
to:
 
xxxx
vi) Those which are libelous or defamatory to the
good name and reputation of any person, whether
living or dead;
xxxx
(d) To supervise, regulate, and grant, deny or
cancel, permits for the x x x production, copying,
distribution, sale, lease, exhibition, and/or
television broadcast of all motion pictures,
television programs and publicity materials, to the
end that no such pictures, programs and
materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c)
hereof shall be x x x produced, copied, reproduced,
distributed, sold, leased, exhibited and/or
broadcast by television; [if !
supportLineBreakNewLine][endif]
xxxx
k)    To exercise such powers and functions as may
be necessary or incidental to the attainment of the
purposes and objectives of this Act x x x. (Emphasis
added.)
 
The issuance of a preventive
suspension comes well within the scope of
the MTRCBs authority and functions
expressly set forth in PD 1986, more
particularly under its Sec. 3(d), as quoted
above, which empowers the MTRCB to
supervise, regulate, and grant, deny or
cancel, permits for the x x x exhibition,
and/or television broadcast of all motion
pictures, television programs and publicity
materials, to the end that no such pictures,
programs and materials as are determined by
the BOARD to be objectionable in
accordance with paragraph (c) hereof shall
be x x x exhibited and/or broadcast by
television.
 
Surely, the power to issue preventive
suspension forms part of the MTRCBs
express regulatory and supervisory statutory
mandate and its investigatory and
disciplinary authority subsumed in or
implied from such mandate. Any other
construal would render its power to regulate,
supervise, or discipline illusory.
 
Preventive suspension, it ought to be
noted, is not a penalty by itself, being
merely a preliminary step in an
administrative investigation.[if !supportFootnotes][15]
[endif]
And the power to discipline and impose
penalties, if granted, carries with it the
power to investigate administrative
complaints and, during such investigation, to
preventively suspend the person subject of
the complaint.[if !supportFootnotes][16][endif]
 
To reiterate, preventive suspension
authority of the MTRCB springs from its
powers conferred under PD 1986. The
MTRCB did not, as petitioner insinuates,
empower itself to impose preventive
suspension through the medium of the IRR
of PD 1986. It is true that the matter of
imposing preventive suspension is embodied
only in the IRR of PD 1986. Sec. 3, Chapter
XIII of the IRR provides:
Sec. 3. PREVENTION SUSPENSION
ORDER.Any time during the pendency of the case,
and in order to prevent or stop further violations or
for the interest and welfare of the public, the
Chairman of the Board may issue a Preventive
Suspension Order mandating the preventive x x x
suspension of the permit/permits involved, and/or
closure of the x x x television network, cable TV
station x x x provided that the temporary/preventive
order thus issued shall have a life of not more than
twenty (20) days from the date of issuance.
 
But the mere absence of a provision
on preventive suspension in PD 1986,
without more, would not work to deprive the
MTRCB a basic disciplinary tool, such as
preventive suspension. Recall that the
MTRCB is expressly empowered by statute
to regulate and supervise television
programs to obviate the exhibition or
broadcast of, among others, indecent or
immoral materials and to impose sanctions
for violations and, corollarily, to prevent
further violations as it investigates. Contrary
to petitioners assertion, the aforequoted Sec.
3 of the IRR neither amended PD 1986 nor
extended the effect of the law. Neither did
the MTRCB, by imposing the assailed
preventive suspension, outrun its authority
under the law. Far from it. The preventive
suspension was actually done in furtherance
of the law, imposed pursuant, to repeat, to
the MTRCBs duty of regulating or
supervising television programs, pending a
determination of whether or not there has
actually been a violation. In the final
analysis, Sec. 3, Chapter XIII of the 2004
IRR merely formalized a power which PD
1986 bestowed, albeit impliedly, on
MTRCB.
 
Sec. 3(c) and (d) of PD 1986 finds
application to the present case, sufficient to
authorize the MTRCBs assailed action.
Petitioners restrictive reading of PD 1986,
limiting the MTRCB to functions within the
literal confines of the law, would give the
agency little leeway to operate, stifling and
rendering it inutile, when Sec. 3(k) of PD
1986 clearly intends to grant the MTRCB a
wide room for flexibility in its operation.
Sec. 3(k), we reiterate, provides, To exercise
such powers and functions as may be
necessary or incidental to the attainment of
the purposes and objectives of this Act x x x.
Indeed, the power to impose preventive
suspension is one of the implied powers of
MTRCB. As distinguished from express
powers, implied powers are those that can be
inferred or are implicit in the wordings or
conferred by necessary or fair implication of
the enabling act.[if !supportFootnotes][17][endif] As we
held in Angara v. Electoral Commission,
when a general grant of power is conferred
or a duty enjoined, every particular power
necessary for the exercise of one or the
performance of the other is also conferred
by necessary implication.[if !supportFootnotes][18][endif]
Clearly, the power to impose preventive
suspension pending investigation is one of
the implied or inherent powers of MTRCB.
 
We cannot agree with petitioners
assertion that the aforequoted IRR provision
on preventive suspension is applicable only
to motion pictures and publicity materials.
The scope of the MTRCBs authority extends
beyond motion pictures. What the acronym
MTRCB stands for would suggest as much.
And while the law makes specific reference
to the closure of a television network, the
suspension of a television program is a far
less punitive measure that can be
undertaken, with the purpose of stopping
further violations of PD 1986. Again, the
MTRCB would regretfully be rendered
ineffective should it be subject to the
restrictions petitioner envisages.
 
Just as untenable is petitioners
argument on the nullity of the preventive
suspension order on the ground of lack of
hearing. As it were, the MTRCB handed out
the assailed order after petitioner, in
response to a written notice, appeared before
that Board for a hearing on private
respondents complaint. No less than
petitioner admitted that the order was issued
after the adjournment of the hearing,[if !
supportFootnotes][19][endif]
proving that he had already
appeared before the MTRCB. Under Sec. 3,
Chapter XIII of the IRR of PD 1986,
preventive suspension shall issue [a]ny time
during the pendency of the case. In this
particular case, it was done after MTRCB
duly apprised petitioner of his having
possibly violated PD 1986[if !supportFootnotes][20]
[endif]
and of administrative complaints that
had been filed against him for such
violation.[if !supportFootnotes][21][endif]
 
At any event, that preventive
suspension can validly be meted out even
without a hearing.[if !supportFootnotes][22][endif]
Petitioner next faults the MTRCB for
denying him his right to the equal protection
of the law, arguing that, owing to the
preventive suspension order, he was unable
to answer the criticisms coming from the
INC ministers.
 
Petitioners position does not persuade.
The equal protection clause demands that all
persons subject to legislation should be
treated alike, under like circumstances and
conditions both in the privileges conferred
and liabilities imposed.[if !supportFootnotes][23][endif] It
guards against undue favor and individual
privilege as well as hostile discrimination.[if !
supportFootnotes][24][endif]
Surely, petitioner cannot,
under the premises, place himself in the
same shoes as the INC ministers, who, for
one, are not facing administrative
complaints before the MTRCB. For another,
he offers no proof that the said ministers, in
their TV programs, use language similar to
that which he used in his own, necessitating
the MTRCBs disciplinary action. If the
immediate result of the preventive
suspension order is that petitioner remains
temporarily gagged and is unable to answer
his critics, this does not become a
deprivation of the equal protection
guarantee. The Court need not belabor the
fact that the circumstances of petitioner, as
host of Ang Dating Daan, on one hand, and
the INC ministers, as hosts of Ang Tamang
Daan, on the other, are, within the purview
of this case, simply too different to even
consider whether or not there is a prima
facie indication of oppressive inequality.
Petitioner next injects the notion of
religious freedom, submitting that what he
uttered was religious speech, adding that
words like putang babae were said in
exercise of his religious freedom.
 
The argument has no merit.
 
The Court is at a loss to understand
how petitioners utterances in question can
come within the pale of Sec. 5, Article III of
the 1987 Constitution on religious freedom.
The section reads as follows:
 
No law shall be made respecting the establishment of
a religion, or prohibiting the free exercise thereof.
The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed. No religious
test shall be required for the exercise of civil or
political rights.
 
There is nothing in petitioners
statements subject of the complaints
expressing any particular religious belief,
nothing furthering his avowed evangelical
mission. The fact that he came out with his
statements in a televised bible exposition
program does not automatically accord them
the character of a religious discourse. Plain
and simple insults directed at another person
cannot be elevated to the status of religious
speech. Even petitioners attempts to place
his words in context show that he was
moved by anger and the need to seek
retribution, not by any religious conviction.
His claim, assuming its veracity, that some
INC ministers distorted his statements
respecting amounts Ang Dating Daan owed
to a TV station does not convert the foul
language used in retaliation as religious
speech. We cannot accept that petitioner
made his statements in defense of his
reputation and religion, as they constitute no
intelligible defense or refutation of the
alleged lies being spread by a rival religious
group. They simply illustrate that petitioner
had descended to the level of name-calling
and foul-language discourse. Petitioner
could have chosen to contradict and
disprove his detractors, but opted for the low
road. speech and expression guaranteed under
  Sec. 4, Art. III of the Constitution, which
Petitioner, as a final point in G.R. No. reads:
164785, would have the Court nullify the  
20-day preventive suspension order, being,
as insisted, an unconstitutional abridgement
of the freedom of speech and expression and No law shall be passed
an impermissible prior restraint. The main abridging the freedom of speech, of
expression, or of the press, or the
issue tendered respecting the adverted right of the people peaceably to
violation and the arguments holding such assemble and petition the government
issue dovetails with those challenging the for redress of grievance.
three-month suspension imposed under the
assailed September 27, 2004 MTRCB
decision subject of review under G.R. No.  
165636. Both overlapping issues and
arguments shall be jointly addressed.
   
G.R. No. 165636
 
Petitioner urges the striking down of He would also have the Court declare
the decision suspending him from hosting PD 1986, its Sec. 3(c) in particular,
Ang Dating Daan for three months on the unconstitutional for reasons articulated in
main ground that the decision violates, apart this petition.
from his religious freedom, his freedom of  
 We are not persuaded as shall be
explained shortly. But first, we restate
certain general concepts and principles
underlying the freedom of speech and
expression.
 
It is settled that expressions by means
of newspapers, radio, television, and motion
pictures come within the broad protection of
the free speech and expression clause.[if !
supportFootnotes][25][endif]
Each method though,
because of its dissimilar presence in the
lives of people and accessibility to children,
tends to present its own problems in the area
of free speech protection, with broadcast
media, of all forms of communication,
enjoying a lesser degree of protection.[if !
supportFootnotes][26][endif]
Just as settled is the rule
that restrictions, be it in the form of prior
restraint, e.g., judicial injunction against
publication or threat of cancellation of
license/franchise, or subsequent liability,
whether in libel and damage suits,
prosecution for sedition, or contempt
proceedings, are anathema to the freedom of
expression. Prior restraint means official
government restrictions on the press or other
forms of expression in advance of actual
publication or dissemination.[if !supportFootnotes][27]
[endif]
The freedom of expression, as with the
other freedoms encased in the Bill of Rights,
is, however, not absolute. It may be
regulated to some extent to serve important
public interests, some forms of speech not
being protected. As has been held, the limits
of the freedom of expression are reached
when the expression touches upon matters of
essentially private concern.[if !supportFootnotes][28]
[endif]
In the oft-quoted expression of Justice
Holmes, the constitutional guarantee
obviously was not intended to give
immunity for every possible use of
language.[if !supportFootnotes][29][endif] From Lucas v.
Royo comes this line: [T]he freedom to
express ones sentiments and belief does not
grant one the license to vilify in public the
honor and integrity of another. Any
sentiments must be expressed within the
proper forum and with proper regard for the
rights of others.[if !supportFootnotes][30][endif]
 
Indeed, as noted in Chaplinsky v.
State of New Hampshire,[if !supportFootnotes][31][endif]
there are certain well-defined and narrowly
limited classes of speech that are harmful,
the prevention and punishment of which has
never been thought to raise any
Constitutional problems. In net effect, some
forms of speech are not protected by the
Constitution, meaning that restrictions on
unprotected speech may be decreed without
running afoul of the freedom of speech
clause.[if !supportFootnotes][32][endif] A speech would
fall under the unprotected type if the
utterances involved are no essential part of
any exposition of ideas, and are of such
slight social value as a step of truth that any
benefit that may be derived from them is
clearly outweighed by the social interest in
order and morality.[if !supportFootnotes][33][endif] Being
of little or no value, there is, in dealing with
or regulating them, no imperative call for the
application of the clear and present danger
rule or the balancing-of-interest test, they
being essentially modes of weighing
competing values,[if !supportFootnotes][34][endif] or,
with like effect, determining which of the
clashing interests should be advanced.
 
Petitioner asserts that his utterance in
question is a protected form of speech.
 
The Court rules otherwise. It has been
established in this jurisdiction that
unprotected speech or low-value expression
refers to libelous statements, obscenity or
pornography, false or misleading
advertisement, insulting or fighting words,
i.e., those which by their very utterance
inflict injury or tend to incite an immediate
breach of peace and expression endangering
national security.
 
The Court finds that petitioners
statement can be treated as obscene, at least
with respect to the average child. Hence, it
is, in that context, unprotected speech. In
Fernando v. Court of Appeals, the Court
expressed difficulty in formulating a
definition of obscenity that would apply to
all cases, but nonetheless stated the ensuing
observations on the matter:
 
There is no perfect definition of obscenity but
the latest word is that of Miller v. California which
established basic guidelines, to wit: (a) whether to
the average person, applying contemporary standards
would find the work, taken as a whole, appeals to the
prurient interest; (b) whether the work depicts or
describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific
value. But, it would be a serious misreading of
Miller to conclude that the trier of facts has the
unbridled discretion in determining what is patently
offensive. x x x What remains clear is that obscenity
is an issue proper for judicial determination and
should be treated on a case to case basis and on the
judges sound discretion.[if !supportFootnotes][35][endif]
 
 
Following the contextual lessons of
the cited case of Miller v. California,[if !
supportFootnotes][36][endif]
a patently offensive
utterance would come within the pale of the
term obscenity should it appeal to the
prurient interest of an average listener
applying contemporary standards.
A cursory examination of the utterances
complained of and the circumstances of the
case reveal that to an average adult, the
utterances Gago ka talaga x x x, masahol ka
pa sa putang babae x x x. Yung putang
babae ang gumagana lang doon yung ibaba,
[dito] kay Michael ang gumagana ang itaas,
o di ba! may not constitute obscene but
merely indecent utterances. They can be
viewed as figures of speech or merely a play
on words. In the context they were used,
they may not appeal to the prurient interests
of an adult. The problem with the challenged
statements is that they were uttered in a TV
program that is rated G or for general
viewership, and in a time slot that would
likely reach even the eyes and ears of
children.
 
While adults may have understood
that the terms thus used were not to be taken
literally, children could hardly be expected
to have the same discernment. Without
parental guidance, the unbridled use of such
language as that of petitioner in a television
broadcast could corrupt impressionable
young minds. The term putang babae means
a female prostitute, a term wholly
inappropriate for children, who could look it
up in a dictionary and just get the literal
meaning, missing the context within which
it was used. Petitioner further used the
terms, ang gumagana lang doon yung ibaba,
making reference to the female sexual organ
and how a female prostitute uses it in her
trade, then stating that Sandoval was worse
than that by using his mouth in a similar
manner. Children could be motivated by
curiosity and ask the meaning of what
petitioner said, also without placing the
phrase in context. They may be inquisitive
as to why Sandoval is different from a
female prostitute and the reasons for the
dissimilarity. And upon learning the
meanings of the words used, young minds,
without the guidance of an adult, may, from
their end, view this kind of indecent speech
as obscene, if they take these words literally
and use them in their own speech or form
their own ideas on the matter. In this
particular case, where children had the
opportunity to hear petitioners words, when
speaking of the average person in the test for
obscenity, we are speaking of the average
child, not the average adult. The average
child may not have the adults grasp of
figures of speech, and may lack the
understanding that language may be
colorful, and words may convey more than
the literal meaning. Undeniably the subject
speech is very suggestive of a female sexual
organ and its function as such. In this sense,
we find petitioners utterances obscene and
not entitled to protection under the umbrella
of freedom of speech.
 
Even if we concede that petitioners remarks
are not obscene but merely indecent speech,
still the Court rules that petitioner cannot
avail himself of the constitutional protection
of free speech. Said statements were made in
a medium easily accessible to children. With
respect to the young minds, said utterances
are to be treated as unprotected speech.
 
No doubt what petitioner said constitutes
indecent or offensive utterances. But while a
jurisprudential pattern involving certain
offensive utterances conveyed in different
mediums has emerged, this case is veritably
one of first impression, it being the first time
that indecent speech communicated via
television and the applicable norm for its
regulation are, in this jurisdiction, made the
focal point. Federal Communications
Commission (FCC) v. Pacifica Foundation,
[if !supportFootnotes][37][endif]
a 1978 American
landmark case cited in Eastern
Broadcasting Corporation v. Dans, Jr.[if !
supportFootnotes][38][endif]
and Chavez v. Gonzales,[if !
supportFootnotes][39][endif]
is a rich source of
persuasive lessons. Foremost of these relates
to indecent speech without prurient appeal
component coming under the category of
protected speech depending on the context
within which it was made, irresistibly
suggesting that, within a particular context,
such indecent speech may validly be
categorized as unprotected, ergo, susceptible
to restriction.
 
In FCC, seven of what were considered
filthy words[if !supportFootnotes][40][endif] earlier
recorded in a monologue by a satiric
humorist later aired in the afternoon over a
radio station owned by Pacifica Foundation.
Upon the complaint of a man who heard the
pre-recorded monologue while driving with
his son, FCC declared the language used as
patently offensive and indecent under a
prohibiting law, though not necessarily
obscene. FCC added, however, that its
declaratory order was issued in a special
factual context, referring, in gist, to an
afternoon radio broadcast when children
were undoubtedly in the audience. Acting on
the question of whether the FCC could
regulate the subject utterance, the US
Supreme Court ruled in the affirmative,
owing to two special features of the
broadcast medium, to wit: (1) radio is a
pervasive medium and (2) broadcasting is
uniquely accessible to children. The US
Court, however, hastened to add that the
monologue would be protected speech in
other contexts, albeit it did not expound and
identify a compelling state interest in putting
FCCs content-based regulatory action under
scrutiny.
 
The Court in Chavez[if !supportFootnotes][41][endif]
elucidated on the distinction between
regulation or restriction of protected speech
that is content-based and that which is
content-neutral. A content-based restraint is
aimed at the contents or idea of the
expression, whereas a content-neutral
restraint intends to regulate the time, place,
and manner of the expression under well-
defined standards tailored to serve a
compelling state interest, without restraint
on the message of the expression. Courts
subject content-based restraint to strict
scrutiny.
 
With the view we take of the case, the
suspension MTRCB imposed under the
premises was, in one perspective,
permissible restriction. We make this
disposition against the backdrop of the
following interplaying factors: First, the
indecent speech was made via television, a
pervasive medium that, to borrow from
Gonzales v. Kalaw Katigbak,[if !supportFootnotes][42]
[endif]
easily reaches every home where there
is a set [and where] [c]hildren will likely be
among the avid viewers of the programs
therein shown; second, the broadcast was
aired at the time of the day when there was a
reasonable risk that children might be in the
audience; and third, petitioner uttered his
speech on a G or for general patronage rated
program. Under Sec. 2(A) of Chapter IV of
the IRR of the MTRCB, a show for general
patronage is [s]uitable for all ages, meaning
that the material for television x x x in the
judgment of the BOARD, does not contain
anything unsuitable for children and minors,
and may be viewed without adult guidance
or supervision. The words petitioner used
were, by any civilized norm, clearly not
suitable for children. Where a language is
categorized as indecent, as in petitioners
utterances on a general-patronage rated TV
program, it may be readily proscribed as
unprotected speech.
 
A view has been advanced that unprotected
speech refers only to pornography,[if !
supportFootnotes][43][endif]
false or misleading
advertisement,[if !supportFootnotes][44][endif] advocacy
of imminent lawless action, and expression
endangering national security. But this list is
not, as some members of the Court would
submit, exclusive or carved in stone.
Without going into specifics, it may be
stated without fear of contradiction that US
decisional law goes beyond the aforesaid
general exceptions. As the Court has been
impelled to recognize exceptions to the rule
against censorship in the past, this particular
case constitutes yet another exception,
another instance of unprotected speech,
created by the necessity of protecting the
welfare of our children. As unprotected
speech, petitioners utterances can be
subjected to restraint or regulation.
 
Despite the settled ruling in FCC which has
remained undisturbed since 1978, petitioner
asserts that his utterances must present a
clear and present danger of bringing about a
substantive evil the State has a right and
duty to prevent and such danger must be
grave and imminent.[if !supportFootnotes][45][endif]
 
Petitioners invocation of the clear and
present danger doctrine, arguably the most
permissive of speech tests, would not avail
him any relief, for the application of said
test is uncalled for under the premises. The
doctrine, first formulated by Justice Holmes,
accords protection for utterances so that the
printed or spoken words may not be subject
to prior restraint or subsequent punishment
unless its expression creates a clear and
present danger of bringing about a
substantial evil which the government has
the power to prohibit.[if !supportFootnotes][46][endif]
Under the doctrine, freedom of speech and
of press is susceptible of restriction when
and only when necessary to prevent grave
and immediate danger to interests which the
government may lawfully protect. As it
were, said doctrine evolved in the context of
prosecutions for rebellion and other crimes
involving the overthrow of government.[if !
supportFootnotes][47][endif]
It was originally designed
to determine the latitude which should be
given to speech that espouses anti-
government action, or to have serious and
substantial deleterious consequences on the
security and public order of the community.
[if !supportFootnotes][48][endif]
The clear and present
danger rule has been applied to this
jurisdiction.[if !supportFootnotes][49][endif] As a
standard of limitation on free speech and
press, however, the clear and present danger
test is not a magic incantation that wipes out
all problems and does away with analysis
and judgment in the testing of the legitimacy
of claims to free speech and which compels
a court to release a defendant from liability
the moment the doctrine is invoked, absent
proof of imminent catastrophic disaster.[if !
supportFootnotes][50][endif]
As we observed in Eastern
Broadcasting Corporation, the clear and
present danger test does not lend itself to a
simplistic and all embracing interpretation
applicable to all utterances in all forums.[if !
supportFootnotes][51][endif]
 
To be sure, the clear and present danger
doctrine is not the only test which has been
applied by the courts. Generally, said
doctrine is applied to cases involving the
overthrow of the government and even other
evils which do not clearly undermine
national security. Since not all evils can be
measured in terms of proximity and degree
the Court, however, in several casesAyer
Productions v. Capulong[if !supportFootnotes][52][endif]
and Gonzales v. COMELEC,[if !supportFootnotes][53]
[endif]
applied the balancing of interests test.
Former Chief Justice Fred Ruiz Castro, in
Gonzales v. COMELEC, elucidated in his
Separate Opinion that where the legislation
under constitutional attack interferes with
the freedom of speech and assembly in a
more generalized way and where the effect
of the speech and assembly in terms of the
probability of realization of a specific
danger is not susceptible even of
impressionistic calculation,[if !supportFootnotes][54]
[endif]
then the balancing of interests test can
be applied.
 
The Court explained also in Gonzales v.
COMELEC the balancing of interests test:
When particular conduct is regulated in the interest
of public order, and the regulation results in an
indirect, conditional, partial abridgment of speech,
the duty of the courts is to determine which of the
two conflicting interests demands the greater
protection under the particular circumstances
presented. x x x We must, therefore, undertake the
delicate and difficult task x x x to weigh the
circumstances and to appraise the substantiality of
the reasons advanced in support of the regulation of
the free enjoyment of rights x x x.
 
In enunciating standard premised on a
judicial balancing of the
conflicting social values and
individual interests competing for
ascendancy in legislation which
restricts expression, the court in
Douds laid the basis for what has
been called the balancing-of-
interests test which has found
application in more recent
decisions of the U.S. Supreme
Court. Briefly stated, the
 balancing test requires a court to
take conscious and detailed
consideration of the interplay of
interests observable in a given
situation or type of situation.
 
xxxx
 
Although the urgency of the public
interest sought to be secured by
Congressional power restricting
the individuals freedom, and the
social importance and value of the
freedom so restricted, are to be
judged in the concrete, not on the
basis of abstractions, a wide range
of factors are necessarily relevant
in ascertaining the point or line of
equilibrium. Among these are (a)
the social value and importance of
the specific aspect of the
particular freedom restricted by
the legislation; (b) the specific
thrust of the restriction, i.e.,
whether the restriction is direct or
indirect, whether or not the
persons affected are few; (c) the
value and importance of the
public interest sought to be
secured by the legislationthe
reference here is to the nature and
gravity of the evil which Congress
seeks to prevent; (d) whether the
specific restriction decreed by
Congress is reasonably
appropriate and necessary for the
protection of such public interest;
and (e) whether the necessary
safeguarding of the public interest
involved may be achieved by
some other measure less
restrictive of the protected
 freedom.[if !supportFootnotes][55][endif]
 
 
This balancing of interest test, to borrow
from Professor Kauper,[if !supportFootnotes][56][endif]
rests on the theory that it is the courts
function in a case before it when it finds
public interests served by legislation, on the
one hand, and the free expression clause
affected by it, on the other, to balance one
against the other and arrive at a judgment
where the greater weight shall be placed. If,
on balance, it appears that the public interest
served by restrictive legislation is of such
nature that it outweighs the abridgment of
freedom, then the court will find the
legislation valid. In short, the balance-of-
interests theory rests on the basis that
constitutional freedoms are not absolute, not
even those stated in the free speech and
expression clause, and that they may be
abridged to some extent to serve appropriate
and important interests.[if !supportFootnotes][57][endif]
To the mind of the Court, the balancing of
interest doctrine is the more appropriate test
to follow.
In the case at bar, petitioner used indecent
and obscene language and a three (3)-month
suspension was slapped on him for breach of
MTRCB rules. In this setting, the assertion
by petitioner of his enjoyment of his
freedom of speech is ranged against the duty
of the government to protect and promote
the development and welfare of the youth.
 
After a careful examination of the factual
milieu and the arguments raised by
petitioner in support of his claim to free
speech, the Court rules that the governments
interest to protect and promote the interests
and welfare of the children adequately
buttresses the reasonable curtailment and
valid restraint on petitioners prayer to
continue as program host of Ang Dating
Daan during the suspension period.
 
No doubt, one of the fundamental and most
vital rights granted to citizens of a State is
the freedom of speech or expression, for
without the enjoyment of such right, a free,
stable, effective, and progressive democratic
state would be difficult to attain. Arrayed
against the freedom of speech is the right of
the youth to their moral, spiritual,
intellectual, and social being which the State
is constitutionally tasked to promote and
protect. Moreover, the State is also
mandated to recognize and support the vital
role of the youth in nation building as laid
down in Sec. 13, Art. II of the 1987
Constitution.
 
The Constitution has, therefore, imposed the
sacred obligation and responsibility on the
State to provide protection to the youth
against illegal or improper activities which
may prejudice their general well-being. The
Article on youth, approved on second
reading by the Constitutional Commission,
explained that the State shall extend social
protection to minors against all forms of
neglect, cruelty, exploitation, immorality,
and practices which may foster racial,
religious or other forms of discrimination.[if !
supportFootnotes][58][endif]
 
Indisputably, the State has a compelling
interest in extending social protection to
minors against all forms of neglect,
exploitation, and immorality which may
pollute innocent minds. It has a compelling
interest in helping parents, through
regulatory mechanisms, protect their
childrens minds from exposure to
undesirable materials and corrupting
experiences. The Constitution, no less, in
fact enjoins the State, as earlier indicated, to
promote and protect the physical, moral,
spiritual, intellectual, and social well-being
of the youth to better prepare them fulfill
their role in the field of nation-building.[if !
supportFootnotes][59][endif]
In the same way, the State
is mandated to support parents in the rearing
of the youth for civic efficiency and the
development of moral character.[if !
supportFootnotes][60][endif]
Petitioners offensive and obscene language
uttered in a television broadcast, without
doubt, was easily accessible to the children.
His statements could have exposed children
to a language that is unacceptable in
everyday use. As such, the welfare of
children and the States mandate to protect
and care for them, as parens patriae,[if !
supportFootnotes][61][endif]
constitute a substantial and
compelling government interest in
regulating petitioners utterances in TV
broadcast as provided in PD 1986.
 
FCC explains the duty of the government to
act as parens patriae to protect the children
who, because of age or interest capacity, are
susceptible of being corrupted or prejudiced
by offensive language, thus:
 
[B]roadcasting is uniquely accessible to
children, even those too young to
read. Although Cohens written
message, [Fuck the Draft], might have
been incomprehensible to a first
grader, Pacificas broadcast could have
enlarged a childs vocabulary in an
instant. Other forms of offensive
expression may be withheld from the
young without restricting the
expression at its source. Bookstores
and motion picture theaters, for
example, may be prohibited from
making indecent material available to
children. We held in Ginsberg v. New
York that the governments interest in
the well-being of its youth and in
supporting parents claim to authority
in their own household justified the
regulation of otherwise protected
 expression. The ease with which
children may obtain access to
broadcast material, coupled with the
concerns recognized in Ginsberg,
amply justify special treatment of
indecent broadcasting.
 
Moreover, Gonzales v. Kalaw Katigbak
likewise stressed the duty of the State to
attend to the welfare of the young:
 
x x x It is the consensus of this Court that where
television is concerned, a less liberal approach calls
for observance. This is so because unlike motion
pictures where the patrons have to pay their way,
television reaches every home where there is a set.
Children then will likely will be among the avid
viewers of the programs therein shown. As was
observed by Circuit Court of Appeals Judge Jerome
Frank, it is hardly the concern of the law to deal with
the sexual fantasies of the adult population. It cannot
be denied though that the State as parens patriae is
called upon to manifest an attitude of caring for the
welfare of the young.[if !supportFootnotes][62][endif]
 
The compelling need to protect the young
impels us to sustain the regulatory action
MTRCB took in the narrow confines of the
case. To reiterate, FCC justified the restraint
on the TV broadcast grounded on the
following considerations: (1) the use of
television with its unique accessibility to
children, as a medium of broadcast of a
patently offensive speech; (2) the time of
broadcast; and (3) the G rating of the Ang
Dating Daan program. And in agreeing with
MTRCB, the court takes stock of and cites
with approval the following excerpts from
FCC:
 
It is appropriate, in conclusion, to emphasize the
narrowness of our holding. This case does not
involve a two-way radio conversation between a cab
driver and a dispatcher, or a telecast of an
Elizabethan comedy. We have not decided that an
occasional expletive in either setting would justify
any sanction. x x x The [FFCs] decision rested
entirely on a nuisance rationale under which context
is all important. The concept requires consideration
of a host of variables. The time of day was
emphasized by the [FFC]. The content of the
program in which the language is used will affect the
composition of the audience x x x. As Mr. Justice
Sutherland wrote a nuisance may be merely a right
thing in the wrong place, like a pig in the parlor
instead of the barnyard. We simply hold that when
the [FCC] finds that a pig has entered the parlor, the
exercise of its regulatory power does not depend on
proof that the pig is obscene. (Citation omitted.)
 
There can be no quibbling that the remarks
in question petitioner uttered on prime-time
television are blatantly indecent if not
outright obscene. It is the kind of speech that
PD 1986 proscribes necessitating the
exercise by MTRCB of statutory
disciplinary powers. It is the kind of speech
that the State has the inherent prerogative,
nay duty, to regulate and prevent should
such action served and further compelling
state interests. One who utters indecent,
insulting, or offensive words on television
when unsuspecting children are in the
audience is, in the graphic language of FCC,
a pig in the parlor. Public interest would be
served if the pig is reasonably restrained or
even removed from the parlor.
 
Ergo, petitioners offensive and indecent
language can be subjected to prior restraint.
 
Petitioner theorizes that the three (3)-month
suspension is either prior restraint or
subsequent punishment that, however,
includes prior restraint, albeit indirectly.
 
After a review of the facts, the Court finds
that what MTRCB imposed on petitioner is
an administrative sanction or subsequent
punishment for his offensive and obscene
language in Ang Dating Daan.
 
To clarify, statutes imposing prior restraints
on speech are generally illegal and presumed
unconstitutional breaches of the freedom of
speech. The exceptions to prior restraint are
movies, television, and radio broadcast
censorship in view of its access to numerous
people, including the young who must be
insulated from the prejudicial effects of
unprotected speech. PD 1986 was passed
creating the Board of Review for Motion
Pictures and Television (now MTRCB) and
which requires prior permit or license before
showing a motion picture or broadcasting a
TV program. The Board can classify movies
and television programs and can cancel
permits for exhibition of films or television
broadcast.
The power of MTRCB to regulate and even
impose some prior restraint on radio and
television shows, even religious programs,
was upheld in Iglesia Ni Cristo v. Court of
Appeals. Speaking through Chief Justice
Reynato S. Puno, the Court wrote:
 
We thus reject petitioners postulate that its
religious program is per se beyond
review by the respondent Board. Its
public broadcast on TV of its
religious program brings it out of the
bosom of internal belief. Television is
a medium that reaches even the eyes
and ears of children. The Court
iterates the rule that the exercise of
religious freedom can be regulated by
the State when it will bring about the
clear and present danger of some
substantive evil which the State is
duty bound to prevent, i.e., serious
detriment to the more overriding
interest of public health, public
morals, or public welfare. x x x
xxxx
 
 While the thesis has a lot to commend
itself, we are not ready to hold that [PD 1986]
is unconstitutional for Congress to grant an
administrative body quasi-judicial power to
preview and classify TV programs and
enforce its decision subject to review by our
courts. As far back as 1921, we upheld this
setup in Sotto vs. Ruiz, viz:
 
The use of the mails by private persons is in
the nature of a privilege which can be
regulated in order to avoid its abuse.
Persons possess no absolute right to
put into the mail anything they please,
regardless of its character.[if !
supportFootnotes][63][endif]
Bernas adds:
Under the decree a movie
classification board is made the
arbiter of what movies and television
programs or parts of either are fit for
public consumption. It decides what
movies are immoral, indecent,
contrary to law and/or good customs,
injurious to the prestige of the
Republic of the Philippines or its
people, and what tend to incite
subversion, insurrection, rebellion or
sedition, or tend to undermine the
faith and confidence of the people in
their government and/or duly
constituted authorities, etc. Moreover,
its decisions are executory unless
stopped by a court.[if !supportFootnotes][64][endif]
Moreover, in MTRCB v. ABS-CBN
Broadcasting Corporation,[if !supportFootnotes][65]
[endif]
it was held that the power of review and
prior approval of MTRCB extends to all
television programs and is valid despite the
freedom of speech guaranteed by the
Constitution. Thus, all broadcast networks
are regulated by the MTRCB since they are
required to get a permit before they air their
television programs. Consequently, their
right to enjoy their freedom of speech is
subject to that requirement. As lucidly
explained by Justice Dante O. Tinga,
government regulations through the
MTRCB became a necessary evil with the
government taking the role of assigning
bandwidth to individual broadcasters. The
stations explicitly agreed to this regulatory
scheme; otherwise, chaos would result in the
television broadcast industry as competing
broadcasters will interfere or co-opt each
others signals. In this scheme, station
owners and broadcasters in effect waived
their right to the full enjoyment of their right
to freedom of speech in radio and television
programs and impliedly agreed that said
right may be subject to prior restraintdenial
of permit or subsequent punishment, like
suspension or cancellation of permit, among
others.
 
The three (3) months suspension in this case
is not a prior restraint on the right of
petitioner to continue with the broadcast of
Ang Dating Daan as a permit was already
issued to him by MTRCB for such
broadcast. Rather, the suspension is in the
form of permissible administrative sanction
or subsequent punishment for the offensive
and obscene remarks he uttered on the
evening of August 10, 2004 in his television
program, Ang Dating Daan. It is a sanction
that the MTRCB may validly impose under
its charter without running afoul of the free
speech clause. And the imposition is
separate and distinct from the criminal
action the Board may take pursuant to Sec.
3(i) of PD 1986 and the remedies that may
be availed of by the aggrieved private party
under the provisions on libel or tort, if
applicable. As FCC teaches, the imposition
of sanctions on broadcasters who indulge in
profane or indecent broadcasting does not
constitute forbidden censorship. Lest it be
overlooked, the sanction imposed is not per
se for petitioners exercise of his freedom of
speech via television, but for the indecent
contents of his utterances in a G rated TV
program.
 
More importantly, petitioner is deemed to
have yielded his right to his full enjoyment
of his freedom of speech to regulation under
PD 1986 and its IRR as television station
owners, program producers, and hosts have
impliedly accepted the power of MTRCB to
regulate the broadcast industry.
Neither can petitioners virtual inability to
speak in his program during the period of
suspension be plausibly treated as prior
restraint on future speech. For viewed in its
proper perspective, the suspension is in the
nature of an intermediate penalty for uttering
an unprotected form of speech. It is
definitely a lesser punishment than the
permissible cancellation of exhibition or
broadcast permit or license. In fine, the
suspension meted was simply part of the
duties of the MTRCB in the enforcement
and administration of the law which it is
tasked to implement. Viewed in its proper
context, the suspension sought to penalize
past speech made on prime-time G rated TV
program; it does not bar future speech of
petitioner in other television programs; it is
a permissible subsequent administrative
sanction; it should not be confused with a
prior restraint on speech. While not on all
fours, the Court, in MTRCB,[if !supportFootnotes][66]
[endif]
sustained the power of the MTRCB to
penalize a broadcast company for
exhibiting/airing a pre-taped TV episode
without Board authorization in violation of
Sec. 7 of PD 1986.
 
Any simplistic suggestion, however, that the
MTRCB would be crossing the limits of its
authority were it to regulate and even
restrain the prime-time television broadcast
of indecent or obscene speech in a G rated
program is not acceptable. As made clear in
Eastern Broadcasting Corporation, the
freedom of television and radio broadcasting
is somewhat lesser in scope than the
freedom accorded to newspaper and print
media. The MTRCB, as a regulatory agency,
must have the wherewithal to enforce its
mandate, which would not be effective if its
punitive actions would be limited to mere
fines. Television broadcasts should be
subject to some form of regulation,
considering the ease with which they can be
accessed, and violations of the regulations
must be met with appropriate and
proportional disciplinary action. The
suspension of a violating television program
would be a sufficient punishment and serve
as a deterrent for those responsible. The
prevention of the broadcast of petitioners
television program is justified, and does not
constitute prohibited prior restraint. It
behooves the Court to respond to the needs
of the changing times, and craft
jurisprudence to reflect these times.
 
Petitioner, in questioning the three-month
suspension, also tags as unconstitutional the
very law creating the MTRCB, arguing that
PD 1986, as applied to him, infringes also
upon his freedom of religion. The Court has
earlier adequately explained why petitioners
undue reliance on the religious freedom
cannot lend justification, let alone an
exempting dimension to his licentious
utterances in his program. The Court sees no
need to address anew the repetitive
arguments on religious freedom. As earlier
discussed in the disposition of the petition in
G.R. No. 164785, what was uttered was in
no way a religious speech. Parenthetically,
petitioners attempt to characterize his speech
as a legitimate defense of his religion fails
miserably. He tries to place his words in
perspective, arguing evidently as an
afterthought that this was his method of
refuting the alleged distortion of his
statements by the INC hosts of Ang Tamang
Daan. But on the night he uttered them in
his television program, the word simply
came out as profane language, without any
warning or guidance for undiscerning ears.
 
As to petitioners other argument about
having been denied due process and equal
protection of the law, suffice it to state that
we have at length debunked similar
arguments in G.R. No. 164785. There is no
need to further delve into the fact that
petitioner was afforded due process when he
attended the hearing of the MTRCB, and
that he was unable to demonstrate that he
was unjustly discriminated against in the
MTRCB proceedings.
 
Finally, petitioner argues that there has been
undue delegation of legislative power, as PD
1986 does not provide for the range of
imposable penalties that may be applied
with respect to violations of the provisions
of the law.
 
The argument is without merit.
 
In Edu v. Ericta, the Court discussed
the matter of undue delegation of legislative
power in the following wise:
 
It is a fundamental principle
flowing from the doctrine of
separation of powers that Congress
may not delegate its legislative power
to the two other branches of the
government, subject to the exception
that local governments may over local
affairs participate in its exercise.
What cannot be delegated is the
authority under the Constitution to
make laws and to alter and repeal
them; the test is the completeness of
the statute in all its term and
provisions when it leaves the hands of
the legislature. To determine whether
or not there is an undue delegation of
legislative power, the inquiry must be
directed to the scope and definiteness
of the measure enacted. The
legislature does not abdicate its
functions when it describes what job
must be done, who is to do it, and
what is the scope of his authority. For
a complex economy, that may indeed
be the only way in which the
legislative process can go forward. A
distinction has rightfully been made
between delegation of power to make
laws which necessarily involves a
discretion as to what it shall be, which
constitutionally may not be done, and
delegation of authority or discretion
as to its execution to be exercised
under and in pursuance of the law, to
which no valid objection can be
made. The Constitution is thus not to
be regarded as denying the legislature
the necessary resources of flexibility
and practicability.
To avoid the taint of unlawful
delegation, there must be a standard,
which implies at the very least that
the legislature itself determines
matters of principle and lays down
fundamental policy. Otherwise, the
charge of complete abdication may be
hard to repel. A standard thus defines
legislative policy, marks its limits,
maps out its boundaries and specifies
the public agency to apply it. It
indicates the circumstances under
which the legislative command is to
be effected. It is the criterion by
which legislative purpose may be
carried out. Thereafter, the executive
or administrative office designated
may in pursuance of the above
guidelines promulgate supplemental
rules and regulations.[if !supportFootnotes][67]
[endif]
Based on the foregoing
pronouncements and analyzing the law in
question, petitioners protestation about
undue delegation of legislative power for the
sole reason that PD 1986 does not provide
for a range of penalties for violation of the
law is untenable. His thesis is that MTRCB,
in promulgating the IRR of PD 1986,
prescribing a schedule of penalties for
violation of the provisions of the decree,
went beyond the terms of the law.
 
Petitioners posture is flawed by the
erroneous assumptions holding it together,
the first assumption being that PD 1986 does
not prescribe the imposition of, or authorize
the MTRCB to impose, penalties for
violators of PD 1986. As earlier indicated,
however, the MTRCB, by express and direct
conferment of power and functions, is
charged with supervising and regulating,
granting, denying, or canceling permits for
the exhibition and/or television broadcast of
all motion pictures, television programs, and
publicity materials to the end that no such
objectionable pictures, programs, and
materials shall be exhibited and/or broadcast
by television. Complementing this provision
is Sec. 3(k) of the decree authorizing the
MTRCB to exercise such powers and
functions as may be necessary or incidental
to the attainment of the purpose and
objectives of [the law]. As earlier explained,
the investiture of supervisory, regulatory,
and disciplinary power would surely be a
meaningless grant if it did not carry with it
the power to penalize the supervised or the
regulated as may be proportionate to the
offense committed, charged, and proved. As
the Court said in Chavez v. National
Housing Authority:
 
x x x [W]hen a general grant of power is conferred
or duty enjoined, every particular power necessary
for the exercise of the one or the performance of the
other is also conferred. x x x [W]hen the statute does
not specify the particular method to be followed or
used by a government agency in the exercise of the
power vested in it by law, said agency has the
authority to adopt any reasonable method to carry
out its function.[if !supportFootnotes][68][endif]
  
 
Given the foregoing perspective, it stands to
reason that the power of the MTRCB to
regulate and supervise the exhibition of TV
programs carries with it or necessarily
implies the authority to take effective
punitive action for violation of the law
sought to be enforced. And would it not be
logical too to say that the power to deny or
cancel a permit for the exhibition of a TV
program or broadcast necessarily includes
the lesser power to suspend?
 
The MTRCB promulgated the IRR of PD
1986 in accordance with Sec. 3(a) which, for
reference, provides that agency with the
power [to] promulgate such rules and
regulations as are necessary or proper for the
implementation of this Act, and the
accomplishment of its purposes and
objectives x x x. And Chapter XIII, Sec. 1 of
the IRR providing:
Section 1. VIOLATIONS AND
ADMINISTRATIVE SANCTIONS.Without
prejudice to the immediate filing of the appropriate
criminal action and the immediate seizure of the
pertinent articles pursuant to Section 13, any
violation of PD 1986 and its Implementing Rules
and Regulations governing motion pictures,
television programs, and related promotional
materials shall be penalized with suspension or
cancellation of permits and/or licenses issued by
the Board and/or with the imposition of fines and
other administrative penalty/penalties. The Board
recognizes the existing Table of Administrative
Penalties attached without prejudice to the power of
the Board to amend it when the need arises. In the
meantime the existing revised Table of
Administrative Penalties shall be enforced.
(Emphasis added.)
 
 
This is, in the final analysis, no more than a
measure to specifically implement the
aforequoted provisions of Sec. 3(d) and (k).
Contrary to what petitioner implies, the IRR
does not expand the mandate of the MTRCB
under the law or partake of the nature of an
unauthorized administrative legislation. The
MTRCB cannot shirk its responsibility to
regulate the public airwaves and employ
such means as it can as a guardian of the
public.
In Sec. 3(c), one can already find the
permissible actions of the MTRCB, along
with the standards to be applied to determine
whether there have been statutory breaches.
The MTRCB may evaluate motion pictures,
television programs, and publicity materials
applying contemporary Filipino cultural
values as standard, and, from there,
determine whether these audio and video
materials are objectionable for being
immoral, indecent, contrary to law and/or
good customs, [etc.] x x x and apply the
sanctions it deems proper. The lawmaking
body cannot possibly provide for all the
details in the enforcement of a particular
statute.[if !supportFootnotes][69][endif] The grant of the
rule-making power to administrative
agencies is a relaxation of the principle of
separation of powers and is an exception to
the non-delegation of legislative powers.[if !
supportFootnotes][70][endif]
Administrative regulations
or subordinate legislation calculated to
promote the public interest are necessary
because of the growing complexity of
modern life, the multiplication of the
subjects of governmental regulations, and
the increased difficulty of administering the
law.[if !supportFootnotes][71][endif] Allowing the
MTRCB some reasonable elbow-room in its
operations and, in the exercise of its
statutory disciplinary functions, according it
ample latitude in fixing, by way of an
appropriate issuance, administrative
penalties with due regard for the severity of
the offense and attending mitigating or
aggravating circumstances, as the case may
be, would be consistent with its mandate to
effectively and efficiently regulate the
movie and television industry.
 
But even as we uphold the power of
the MTRCB to review and impose sanctions
for violations of PD 1986, its decision to
suspend petitioner must be modified, for
nowhere in that issuance, particularly the
power-defining Sec. 3 nor in the MTRCB
Schedule of Administrative Penalties
effective January 1, 1999 is the Board
empowered to suspend the program host or
even to prevent certain people from
appearing in television programs. The
MTRCB, to be sure, may prohibit the
broadcast of such television programs or
cancel permits for exhibition, but it may not
suspend television personalities, for such
would be beyond its jurisdiction. The
MTRCB cannot extend its exercise of
regulation beyond what the law provides.
Only persons, offenses, and penalties clearly
falling clearly within the letter and spirit of
PD 1986 will be considered to be within the
decrees penal or disciplinary operation. And
when it exists, the reasonable doubt must be
resolved in favor of the person charged with
violating the statute and for whom the
penalty is sought. Thus, the MTRCBs
decision in Administrative Case No. 01-04
dated September 27, 2004 and the
subsequent order issued pursuant to said
decision must be modified. The suspension
should cover only the television program on
which petitioner appeared and uttered the
offensive and obscene language, which
sanction is what the law and the facts
obtaining call for.
 
In ending, what petitioner obviously
advocates is an unrestricted speech
paradigm in which absolute permissiveness
is the norm. Petitioners flawed belief that he
may simply utter gutter profanity on
television without adverse consequences,
under the guise of free speech, does not lend
itself to acceptance in this jurisdiction. We
repeat: freedoms of speech and expression Co-respondents Joselito
are not absolute freedoms. To say any act Mallari, Luzviminda Cruz, and
UNTV Channel 37 and its owner,
that restrains speech should be greeted with PBC, are hereby exonerated for lack
furrowed brows is not to say that any act of evidence.
that restrains or regulates speech or
expression is per se invalid. This only
recognizes the importance of freedoms of  
speech and expression, and indicates the
necessity to carefully scrutinize acts that
may restrain or regulate speech.  
 
WHEREFORE, the decision of the
MTRCB in Adm. Case No. 01-04 dated
Costs against petitioner.
September 27, 2004 is hereby AFFIRMED
with the MODIFICATION of limiting the SO ORDERED.
suspension to the program Ang Dating  
Daan. As thus modified, the fallo of the  
MTRCB shall read as follows:  
  PRESBITERO J. VELASCO, JR.
WHEREFORE, in view of all the foregoing, a
Decision is hereby rendered, imposing a penalty of
Associate Justice
THREE (3) MONTHS SUSPENSION on the  
television program, Ang Dating Daan, subject of  
the instant petition.  
   

 
 
WE CONCUR:
REYNATO S. PUNO
Chief Justice
 
 
 
LEONARDO A. QUISUMBING
CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice
 
 
 
ANTONIO T. CARPIO MA. ALICIA
AUSTRIA-MARTINEZ
Associate Justice Associate Justice
RENATO C. CORONA CONCHITA
CARPIO MORALES
Associate Justice Associate Justice
 
 
DANTE O. TINGA MINITA V. CHICO-
NAZARIO
Associate Justice Associate Justice
 
ANTONIO EDUARDO B. NACHURA
TERESITA J. LEONARDO-DE
Associate Justice CASTRO
Associate Justice
 
 
ARTURO D. BRION DIOSDADO M.
PERALTA
Associate Justice Associate Justice
 
 
LUCAS P. BERSAMIN
Associate Justice
 
 
 
 
 
CERTIFICATION
 
 
Pursuant to Section 13, Article VIII of the
Constitution, it is hereby certified that the
conclusions in the above Decision were
reached in consultation before the case was
assigned to the writer of the opinion of the
Court.
 
 
REYNATO S. PUNO
Chief Justice
 
[if !supportFootnotes]
[endif]
[if !supportFootnotes][1][endif]
Rollo (G.R. No. 165636), p. 375.
[if !supportFootnotes][2][endif]
Id. at 923.
[if !supportFootnotes][3][endif]
Id. at 924, Private Respondents Memorandum.
[if !supportFootnotes][4][endif]
Id. at 110.
[if !supportFootnotes][5][endif]
Id. at 112-113, Rules of Procedure in the
Conduct of Hearing for Violations of PD 1986 and the IRR.
[if !supportFootnotes][6][endif]
[if !supportFootnotes][7][endif]
Id. at 141-151.
Id. at 152-154.
[if !supportFootnotes][8][endif]
Id. at 166-252.
[if !supportFootnotes][9][endif]
[if !supportFootnotes][10][endif]
Id. at 378.
Id. at 182.
[if !supportFootnotes][11][endif]
Id. at 46.
[if !supportFootnotes][12][endif]
Azarcon v. Sandiganbayan, G.R. No. 116033,
February 26, 1997, 268 SCRA 747.
[if !supportFootnotes][13][endif]
Pimentel v. COMELEC, Nos. L-53581-83,
December 19, 1980, 101 SCRA 769.
[if !supportFootnotes][14][endif]
Agpalo, ADMINISTRATIVE LAW (2005);
citing Matienzon v. Abellera, G.R. No. 77632, June 8, 1988, 162
SCRA 1.
[if !supportFootnotes][15][endif]
Lastimoso v. Vasquez, G.R. No. 116801,
April 6, 1995, 243 SCRA 497.
[if !supportFootnotes][16][endif] [if !supportFootnotes][32][endif]
Alonzo v. Capulong, G.R. No. 110590, May Agpalo, PHILIPPINE
10, 1995, 244 SCRA 80; Beja v. Court of Appeals, G.R. No. CONSTITUTIONAL LAW 358 (2006).
[if !supportFootnotes][33][endif]
97149, March 31, 1992, 207 SCRA 689. Chaplinsky, supra note 31; cited in
[if !supportFootnotes][17][endif]
Chavez v. National Housing Authority, G.R. Bernas, supra note 27, at 248.
[if !supportFootnotes][34][endif]
No. 164527, August 15, 2007, 530 SCRA 235, 295-296; citing Bernas, supra note 27, at 248.
[if !supportFootnotes][35][endif]
Azarcon, supra note 12, at 761; Radio Communications of the G.R. No. 159751, December 6, 2006, 510
Philippines, Inc. v. Santiago, Nos. L-29236 & 29247, August 21, SCRA 351, 360-361.
[if !supportFootnotes][36][endif]
1974, 58 SCRA 493, 497. 413 U.S. 15.
[if !supportFootnotes][18][endif] [if !supportFootnotes][37][endif]
63 Phil. 139, 177 (1936). 438 U.S. 726.
[if !supportFootnotes][19][endif] [if !supportFootnotes][38][endif]
Rollo (G.R. No. 164785), p. 12. Supra note 25.
[if !supportFootnotes][20][endif] [if !supportFootnotes][39][endif]
Id. at 94. G.R. No. 168338, February 15, 2008, 545
[if !supportFootnotes][21][endif]
Id. at 95. SCRA 441.
[if !supportFootnotes][22][endif] [if !supportFootnotes][40][endif]
Beja, supra note 16; Espiritu v. Melgar, G.R. Shit, piss, fuck, tits, etc.
[if !supportFootnotes][41][endif]
No. 100874, February 13, 1992, 206 SCRA 256. Supra note 39.
[if !supportFootnotes][23][endif] [if !supportFootnotes][42][endif]
1 De Leon, PHILIPPINE Supra note 26.
[if !supportFootnotes][43][endif]
CONSTITUTIONAL LAW 274 (2003). Gonzales v. Kalaw Katigbak, supra.
[if !supportFootnotes][24][endif] [if !supportFootnotes][44][endif]
Tiu v. Guingona, G.R. No. 127410, January Pharmaceutical and Health Care
20, 1999, 301 SCRA 278; citing Ichong v. Hernandez, 101 Phil. Association of the Philippines v. Health Secretary Francisco T.
1155 (1957) and other cases. Duque III, G.R. No. 173034, October 9, 2007, 535 SCRA 265.
[if !supportFootnotes][25][endif] [if !supportFootnotes][45][endif]
US v. Paramount Pictures, 334 U.S. Bayan v. Ermita, G.R. No. 169838, April 25,
131; Eastern Broadcasting Corporation v. Dans, Jr., No. L- 2006, 488 SCRA 226.
[if !supportFootnotes][46][endif]
59329, July 19, 1985, 137 SCRA 628. 16A Am Jur. 2d Constitutional Law
[if !supportFootnotes][26][endif]
Eastern Broadcasting Corporation v. Dans, Sec. 493; Schenck v. United States, 249 U.S. 47.
[if !supportFootnotes][47][endif]
Jr., supra note 25; citing FCC v. Pacifica Foundation, 438 U.S. Bernas, supra note 27, at 219-220.
[if !supportFootnotes][48][endif]
726; Gonzales v. Kalaw Katigbak, No. L-69500, July 22, 1985, Gonzales v. COMELEC, No. L-
137 SCRA 717. 27833, April 18, 1969, 27 SCRA 835.
[if !supportFootnotes][27][endif] [if !supportFootnotes][49][endif]
J.G. Bernas, S.J., THE CONSTITUTION OF ABS-CBN Broadcasting Corp. v.
THE REPUBLIC OF THE PHILIPPINES: A COMMENTARY COMELEC, G.R. No. 133486, January 28, 2000, 323 SCRA 811;
205 (1996). Adiong v. COMELEC, G.R. No. 103956, March 31, 1992, 207
[if !supportFootnotes][28][endif]
Lagunsad v. Soto vda. De Gonzales, No. L- SCRA 712.
[if !supportFootnotes][50][endif]
32066, August 6, 1979, 92 SCRA 476. Zaldivar v. Sandiganbayan, G.R.
[if !supportFootnotes][29][endif]
Trohwerk v. United States, 249 U.S. 204 Nos. 79690-707 & 80578, February 1, 1989, 170 SCRA 1.
[if !supportFootnotes][51][endif]
(1919); cited in Bernas, supra at 218. Supra note 25, at 635.
[if !supportFootnotes][30][endif] [if !supportFootnotes][52][endif]
G.R. No. 136185, October 30, 2000, 344 No. L-82380, April 29, 1988, 160
SCRA 481, 490. SCRA 861.
[if !supportFootnotes][31][endif] [if !supportFootnotes][53][endif]
315 U.S. 568 (1942). Supra note 48.
[if !supportFootnotes][54][endif]
Supra at 898.
[if !supportFootnotes][55][endif]
Supra at 899-900.
[if !supportFootnotes][56][endif]
Kauper, CIVIL LIBERTIES AND
THE CONSTITUTION 113 (1966); cited in Gonzales v.
COMELEC, supra note 48; also cited in J.G. Bernas, S.J., THE
1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY (2003).
[if !supportFootnotes][57][endif]
Id.
[if !supportFootnotes][58][endif]
Bernas, supra note 27, at 81.
[if !supportFootnotes][59][endif]
CONSTITUTION, Art. II, Sec. 13.
[if !supportFootnotes][60][endif]
Id., id., Sec. 12.
[if !supportFootnotes][61][endif]
Id.
[if !supportFootnotes][62][endif]
Supra note 26, at 729.
[if !supportFootnotes][63][endif]
G.R. No. 119673, July 26, 1996, 259 SCRA
529, 544, 552.
[if !supportFootnotes][64][endif]
Supra note 56, at 235.
[if !supportFootnotes][65][endif]
G.R. No. 155282, January 17, 2005, 448
SCRA 575.
[if !supportFootnotes][66][endif]
Supra note 65.
[if !supportFootnotes][67][endif]
No. L-32096, October 24, 1970, 35 SCRA
481, 496-497.
[if !supportFootnotes][68][endif]
Supra note 17; citing Angara v. Electoral
Commission, 63 Phil. 139 (1936); Provident Tree Farms, Inc. v.
Batario, Jr., G.R. No. 92285, March 28, 1994, 231 SCRA 463.
[if !supportFootnotes][69][endif]
People v. Maceren, No. L-32166, October 18,
1977, 79 SCRA 450, 458.
[if !supportFootnotes][70][endif]
Id.
[if !supportFootnotes][71][endif]
Id. FIRST DIVISION
G.R. No. 151908            August 12, 2003
SMART COMMUNICATIONS, INC. (SMART) and
PILIPINO TELEPHONE CORPORATION (PILTEL),
petitioners,
vs.
NATIONAL TELECOMMUNICATIONS COMMISSION
(NTC), respondent.
x---------------------------------------------------------x
G.R. No. 152063 August 12, 2003
GLOBE TELECOM, INC. (GLOBE) and ISLA
COMMUNICATIONS CO., INC. (ISLACOM),
petitioners,
vs.
COURT OF APPEALS (The Former 6th Division)
and the NATIONAL TELECOMMUNICATIONS
COMMISSION, respondents.
YNARES-SANTIAGO, J.:
Pursuant to its rule-making and regulatory powers, the
National Telecommunications Commission (NTC)
issued on June 16, 2000 Memorandum Circular No.
13-6-2000, promulgating rules and regulations on the
billing of telecommunications services. Among its
pertinent provisions are the following:
(1) The billing statements shall be received by the
subscriber of the telephone service not later than 30
days from the end of each billing cycle. In case the
statement is received beyond this period, the
subscriber shall have a specified grace period within
which to pay the bill and the public telecommunications
entity (PTEs) shall not be allowed to disconnect the
service within the grace period.
(2) There shall be no charge for calls that are diverted
to a voice mailbox, voice prompt, recorded message or
similar facility excluding the customer's own
equipment.
(3) PTEs shall verify the identification and address of
each purchaser of prepaid SIM cards. Prepaid call
cards and SIM cards shall be valid for at least 2 years
from the date of first use. Holders of prepaid SIM cards
shall be given 45 days from the date the prepaid SIM
card is fully consumed but not beyond 2 years and 45
days from date of first use to replenish the SIM card,
otherwise the SIM card shall be rendered invalid. The
validity of an invalid SIM card, however, shall be
installed upon request of the customer at no additional
charge except the presentation of a valid prepaid call
card.
(4) Subscribers shall be updated of the remaining
value of their cards before the start of every call using
the cards.
(5) The unit of billing for the cellular mobile telephone
service whether postpaid or prepaid shall be reduced
from 1 minute per pulse to 6 seconds per pulse. The
authorized rates per minute shall thus be divided by
10.1
The Memorandum Circular provided that it shall take
effect 15 days after its publication in a newspaper of
general circulation and three certified true copies
thereof furnished the UP Law Center. It was published
in the newspaper, The Philippine Star, on June 22,
2000.2 Meanwhile, the provisions of the Memorandum
Circular pertaining to the sale and use of prepaid cards
and the unit of billing for cellular mobile telephone
service took effect 90 days from the effectivity of the
Memorandum Circular.
On August 30, 2000, the NTC issued a Memorandum
to all cellular mobile telephone service (CMTS)
operators which contained measures to minimize if not
totally eliminate the incidence of stealing of cellular
phone units. The Memorandum directed CMTS
operators to:
a. strictly comply with Section B(1) of MC 13-6-2000
requiring the presentation and verification of the
identity and addresses of prepaid SIM card customers;
b. require all your respective prepaid SIM cards
dealers to comply with Section B(1) of MC 13-6-2000;
c. deny acceptance to your respective networks
prepaid and/or postpaid customers using stolen
cellphone units or cellphone units registered to
somebody other than the applicant when properly
informed of all information relative to the stolen
cellphone units;
d. share all necessary information of stolen cellphone
units to all other CMTS operators in order to prevent
the use of stolen cellphone units; and
e. require all your existing prepaid SIM card customers
to register and present valid identification cards. 3
This was followed by another Memorandum dated
October 6, 2000 addressed to all public
telecommunications entities, which reads:
This is to remind you that the validity of all prepaid
cards sold on 07 October 2000 and beyond shall be
valid for at least two (2) years from date of first use
pursuant to MC 13-6-2000.
In addition, all CMTS operators are reminded that all
SIM packs used by subscribers of prepaid cards sold
on 07 October 2000 and beyond shall be valid for at
least two (2) years from date of first use. Also, the
billing unit shall be on a six (6) seconds pulse effective
07 October 2000.
For strict compliance.4
On October 20, 2000, petitioners Isla Communications
Co., Inc. and Pilipino Telephone Corporation filed
against the National Telecommunications Commission,
Commissioner Joseph A. Santiago, Deputy
Commissioner Aurelio M. Umali and Deputy
Commissioner Nestor C. Dacanay, an action for
declaration of nullity of NTC Memorandum Circular No.
13-6-2000 (the Billing Circular) and the NTC
Memorandum dated October 6, 2000, with prayer for
the issuance of a writ of preliminary injunction and
temporary restraining order. The complaint was
docketed as Civil Case No. Q-00-42221 at the
Regional Trial Court of Quezon City, Branch 77. 5
Petitioners Islacom and Piltel alleged, inter alia, that
the NTC has no jurisdiction to regulate the sale of
consumer goods such as the prepaid call cards since
such jurisdiction belongs to the Department of Trade
and Industry under the Consumer Act of the
Philippines; that the Billing Circular is oppressive,
confiscatory and violative of the constitutional
prohibition against deprivation of property without due
process of law; that the Circular will result in the
impairment of the viability of the prepaid cellular
service by unduly prolonging the validity and expiration
of the prepaid SIM and call cards; and that the
requirements of identification of prepaid card buyers
and call balance announcement are unreasonable.
Hence, they prayed that the Billing Circular be
declared null and void ab initio.
Soon thereafter, petitioners Globe Telecom, Inc and
Smart Communications, Inc. filed a joint Motion for
Leave to Intervene and to Admit Complaint-in-
Intervention.6 This was granted by the trial court.
On October 27, 2000, the trial court issued a
temporary restraining order enjoining the NTC from
implementing Memorandum Circular No. 13-6-2000
and the Memorandum dated October 6, 2000. 7
In the meantime, respondent NTC and its co-
defendants filed a motion to dismiss the case on the
ground of petitioners' failure to exhaust administrative
remedies.
Subsequently, after hearing petitioners' application for
preliminary injunction as well as respondent's motion to
dismiss, the trial court issued on November 20, 2000
an Order, the dispositive portion of which reads:
WHEREFORE, premises considered, the defendants'
motion to dismiss is hereby denied for lack of merit.
The plaintiffs' application for the issuance of a writ of
preliminary injunction is hereby granted. Accordingly,
the defendants are hereby enjoined from implementing
NTC Memorandum Circular 13-6-2000 and the NTC
Memorandum, dated October 6, 2000, pending the
issuance and finality of the decision in this case. The
plaintiffs and intervenors are, however, required to file
a bond in the sum of FIVE HUNDRED THOUSAND
PESOS (P500,000.00), Philippine currency.
SO ORDERED.8
Defendants filed a motion for reconsideration, which
was denied in an Order dated February 1, 2001. 9
Respondent NTC thus filed a special civil action for
certiorari and prohibition with the Court of Appeals,
which was docketed as CA-G.R. SP. No. 64274. On
October 9, 2001, a decision was rendered, the decretal
portion of which reads:
WHEREFORE, premises considered, the instant
petition for certiorari and prohibition is GRANTED, in
that, the order of the court a quo denying the
petitioner's motion to dismiss as well as the order of
the court a quo granting the private respondents'
prayer for a writ of preliminary injunction, and the writ
of preliminary injunction issued thereby, are hereby
ANNULLED and SET ASIDE. The private respondents'
complaint and complaint-in-intervention below are
hereby DISMISSED, without prejudice to the referral of
the private respondents' grievances and disputes on
the assailed issuances of the NTC with the said
agency.
SO ORDERED.10
Petitioners' motions for reconsideration were denied in
a Resolution dated January 10, 2002 for lack of merit. 11
Hence, the instant petition for review filed by Smart
and Piltel, which was docketed as G.R. No. 151908,
anchored on the following grounds:
A.
THE HONORABLE COURT OF APPEALS GRAVELY
ERRED IN HOLDING THAT THE NATIONAL
TELECOMMUNICATIONS COMMISSION (NTC) AND
NOT THE REGULAR COURTS HAS JURISDICTION
OVER THE CASE.
B.
THE HONORABLE COURT OF APPEALS ALSO
GRAVELY ERRED IN HOLDING THAT THE PRIVATE
RESPONDENTS FAILED TO EXHAUST AN
AVAILABLE ADMINISTRATIVE REMEDY.
C.
THE HONORABLE COURT OF APPEALS ERRED IN
NOT HOLDING THAT THE BILLING CIRCULAR
ISSUED BY THE RESPONDENT NTC IS
UNCONSTITUTIONAL AND CONTRARY TO LAW
AND PUBLIC POLICY.
D.
THE HONORABLE COURT OF APPEALS ERRED IN
HOLDING THAT THE PRIVATE RESPONDENTS
FAILED TO SHOW THEIR CLEAR POSITIVE RIGHT
TO WARRANT THE ISSUANCE OF A WRIT OF
PRELIMINARY INJUNCTION.12
Likewise, Globe and Islacom filed a petition for review,
docketed as G.R. No. 152063, assigning the following
errors:
1. THE HONORABLE COURT OF APPEALS SO
GRAVELY ERRED BECAUSE THE DOCTRINES OF
PRIMARY JURISDICTION AND EXHAUSTION OF
ADMINISTRATIVE REMEDIES DO NOT APPLY
SINCE THE INSTANT CASE IS FOR LEGAL
NULLIFICATION (BECAUSE OF LEGAL INFIRMITIES
AND VIOLATIONS OF LAW) OF A PURELY
ADMINISTRATIVE REGULATION PROMULGATED
BY AN AGENCY IN THE EXERCISE OF ITS RULE
MAKING POWERS AND INVOLVES ONLY
QUESTIONS OF LAW.
2. THE HONORABLE COURT OF APPEALS SO
GRAVELY ERRED BECAUSE THE DOCTRINE ON
EXHAUSTION OF ADMINISTRATIVE REMEDIES
DOES NOT APPLY WHEN THE QUESTIONS
RAISED ARE PURELY LEGAL QUESTIONS.
3. THE HONORABLE COURT OF APPEALS SO
GRAVELY ERRED BECAUSE THE DOCTRINE OF
EXHAUSTION OF ADMINISTRATIVE REMEDIES
DOES NOT APPLY WHERE THE ADMINISTRATIVE
ACTION IS COMPLETE AND EFFECTIVE, WHEN
THERE IS NO OTHER REMEDY, AND THE
PETITIONER STANDS TO SUFFER GRAVE AND
IRREPARABLE INJURY.
4. THE HONORABLE COURT OF APPEALS SO
GRAVELY ERRED BECAUSE PETITIONERS IN
FACT EXHAUSTED ALL ADMINISTRATIVE
REMEDIES AVAILABLE TO THEM.
5. THE HONORABLE COURT OF APPEALS SO
GRAVELY ERRED IN ISSUING ITS QUESTIONED
RULINGS IN THIS CASE BECAUSE GLOBE AND
ISLA HAVE A CLEAR RIGHT TO AN INJUNCTION.13
The two petitions were consolidated in a Resolution
dated February 17, 2003.14
On March 24, 2003, the petitions were given due
course and the parties were required to submit their
respective memoranda.15
We find merit in the petitions.
Administrative agencies possess quasi-legislative or
rule-making powers and quasi-judicial or administrative
adjudicatory powers. Quasi-legislative or rule-making
power is the power to make rules and regulations
which results in delegated legislation that is within the
confines of the granting statute and the doctrine of
non-delegability and separability of powers. 16
The rules and regulations that administrative agencies
promulgate, which are the product of a delegated
legislative power to create new and additional legal
provisions that have the effect of law, should be within
the scope of the statutory authority granted by the
legislature to the administrative agency. It is required
that the regulation be germane to the objects and
purposes of the law, and be not in contradiction to, but
in conformity with, the standards prescribed by law. 17
They must conform to and be consistent with the
provisions of the enabling statute in order for such rule
or regulation to be valid. Constitutional and statutory
provisions control with respect to what rules and
regulations may be promulgated by an administrative
body, as well as with respect to what fields are subject
to regulation by it. It may not make rules and
regulations which are inconsistent with the provisions
of the Constitution or a statute, particularly the statute
it is administering or which created it, or which are in
derogation of, or defeat, the purpose of a statute. In
case of conflict between a statute and an
administrative order, the former must prevail.18
Not to be confused with the quasi-legislative or rule-
making power of an administrative agency is its quasi-
judicial or administrative adjudicatory power. This is the
power to hear and determine questions of fact to which
the legislative policy is to apply and to decide in
accordance with the standards laid down by the law
itself in enforcing and administering the same law. The
administrative body exercises its quasi-judicial power
when it performs in a judicial manner an act which is
essentially of an executive or administrative nature,
where the power to act in such manner is incidental to
or reasonably necessary for the performance of the
executive or administrative duty entrusted to it. In
carrying out their quasi-judicial functions, the
administrative officers or bodies are required to
investigate facts or ascertain the existence of facts,
hold hearings, weigh evidence, and draw conclusions
from them as basis for their official action and exercise
of discretion in a judicial nature.19
In questioning the validity or constitutionality of a rule
or regulation issued by an administrative agency, a
party need not exhaust administrative remedies before
going to court. This principle applies only where the act
of the administrative agency concerned was performed
pursuant to its quasi-judicial function, and not when the
assailed act pertained to its rule-making or quasi-
legislative power. In Association of Philippine Coconut
Dessicators v. Philippine Coconut Authority,20 it was
held:
The rule of requiring exhaustion of administrative
remedies before a party may seek judicial review, so
strenuously urged by the Solicitor General on behalf of
respondent, has obviously no application here. The
resolution in question was issued by the PCA in the
exercise of its rule- making or legislative power.
However, only judicial review of decisions of
administrative agencies made in the exercise of their
quasi-judicial function is subject to the exhaustion
doctrine.
Even assuming arguendo that the principle of
exhaustion of administrative remedies apply in this
case, the records reveal that petitioners sufficiently
complied with this requirement. Even during the
drafting and deliberation stages leading to the
issuance of Memorandum Circular No. 13-6-2000,
petitioners were able to register their protests to the
proposed billing guidelines. They submitted their
respective position papers setting forth their objections
and submitting proposed schemes for the billing
circular.21 After the same was issued, petitioners wrote
successive letters dated July 3, 2000 22 and July 5,
2000,23 asking for the suspension and reconsideration
of the so-called Billing Circular. These letters were not
acted upon until October 6, 2000, when respondent
NTC issued the second assailed Memorandum
implementing certain provisions of the Billing Circular.
This was taken by petitioners as a clear denial of the
requests contained in their previous letters, thus
prompting them to seek judicial relief.
In like manner, the doctrine of primary jurisdiction
applies only where the administrative agency exercises
its quasi-judicial or adjudicatory function. Thus, in
cases involving specialized disputes, the practice has
been to refer the same to an administrative agency of
special competence pursuant to the doctrine of primary
jurisdiction. The courts will not determine a controversy
involving a question which is within the jurisdiction of
the administrative tribunal prior to the resolution of that
question by the administrative tribunal, where the
question demands the exercise of sound administrative
discretion requiring the special knowledge, experience
and services of the administrative tribunal to determine
technical and intricate matters of fact, and a uniformity
of ruling is essential to comply with the premises of the
regulatory statute administered. The objective of the
doctrine of primary jurisdiction is to guide a court in
determining whether it should refrain from exercising
its jurisdiction until after an administrative agency has
determined some question or some aspect of some
question arising in the proceeding before the court. It
applies where the claim is originally cognizable in the
courts and comes into play whenever enforcement of
the claim requires the resolution of issues which, under
a regulatory scheme, has been placed within the
special competence of an administrative body; in such
case, the judicial process is suspended pending
referral of such issues to the administrative body for its
view.24
However, where what is assailed is the validity or
constitutionality of a rule or regulation issued by the
administrative agency in the performance of its quasi-
legislative function, the regular courts have jurisdiction
to pass upon the same. The determination of whether
a specific rule or set of rules issued by an
administrative agency contravenes the law or the
constitution is within the jurisdiction of the regular
courts. Indeed, the Constitution vests the power of
judicial review or the power to declare a law, treaty,
international or executive agreement, presidential
decree, order, instruction, ordinance, or regulation in
the courts, including the regional trial courts. 25 This is
within the scope of judicial power, which includes the
authority of the courts to determine in an appropriate
action the validity of the acts of the political
departments.26 Judicial power includes the duty of the
courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable,
and to determine whether or not there has been a
grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or
instrumentality of the Government.27
In the case at bar, the issuance by the NTC of
Memorandum Circular No. 13-6-2000 and its
Memorandum dated October 6, 2000 was pursuant to
its quasi-legislative or rule-making power. As such,
petitioners were justified in invoking the judicial power
of the Regional Trial Court to assail the constitutionality
and validity of the said issuances. In Drilon v. Lim,28 it
was held:
We stress at the outset that the lower court had
jurisdiction to consider the constitutionality of Section
187, this authority being embraced in the general
definition of the judicial power to determine what are
the valid and binding laws by the criterion of their
conformity to the fundamental law. Specifically, B.P.
129 vests in the regional trial courts jurisdiction over all
civil cases in which the subject of the litigation is consolidated petitions are GRANTED. The decision of
incapable of pecuniary estimation, even as the the Court of Appeals in CA-G.R. SP No. 64274 dated
accused in a criminal action has the right to question in October 9, 2001 and its Resolution dated January 10,
his defense the constitutionality of a law he is charged 2002 are REVERSED and SET ASIDE. The Order
with violating and of the proceedings taken against dated November 20, 2000 of the Regional Trial Court
him, particularly as they contravene the Bill of Rights. of Quezon City, Branch 77, in Civil Case No. Q-00-
Moreover, Article X, Section 5(2), of the Constitution 42221 is REINSTATED. This case is REMANDED to
vests in the Supreme Court appellate jurisdiction over the court a quo for continuation of the proceedings.
final judgments and orders of lower courts in all cases SO ORDERED.
in which the constitutionality or validity of any treaty, Davide, Jr., C.J., Vitug, and Carpio, JJ., concur.
international or executive agreement, law, presidential Azcuna, J., took no part.
decree, proclamation, order, instruction, ordinance, or
regulation is in question.29 Footnotes
In their complaint before the Regional Trial Court, 1
Rollo, G.R. No. 151908, pp. 225-228.
petitioners averred that the Circular contravened Civil 2
Rollo, G.R. No. 152063, p. 112.
Code provisions on sales and violated the 3
Rollo, G.R. No. 151908, p. 229.
constitutional prohibition against the deprivation of 4
Id., p. 230.
property without due process of law. These are within 5
Id., pp. 231-247.
the competence of the trial judge. Contrary to the 6
Id., pp. 248-270.
finding of the Court of Appeals, the issues raised in the 7
Id., pp. 271-273, at 273; penned by Judge Vivencio S.
complaint do not entail highly technical matters. Baclig.
Rather, what is required of the judge who will resolve 8
Id., pp. 274-277.
this issue is a basic familiarity with the workings of the 9
Id., p. 278.
cellular telephone service, including prepaid SIM and 10
Id., pp. 123-132, at 131-132; penned by Associate
call cards – and this is judicially known to be within the Justice Rodrigo V. Cosico, concurred in by Associate
knowledge of a good percentage of our population – Justices Ramon A. Barcelona and Alicia L. Santos.
and expertise in fundamental principles of civil law and 11
Id., pp. 134-136.
the Constitution. 12
Id., pp. 23-24.
Hence, the Regional Trial Court has jurisdiction to hear 13
Rollo, G.R. No. 152063, pp. 14-15.
and decide Civil Case No. Q-00-42221. The Court of 14
Id., pp. 389-390.
Appeals erred in setting aside the orders of the trial 15
Id., pp. 391-392.
court and in dismissing the case. 16
Bellosillo, J., Separate Opinion, Commissioner of
WHEREFORE, in view of the foregoing, the Internal Revenue v. Court of Appeals, 329 Phil. 987,
1017 [1996].
17
Romulo, Mabanta, Buenaventura, Sayoc and De Los
Angeles v. Home Development Mutual Fund, G.R. No.
131082, 19 June 2000, 333 SCRA 777, 785-786.
18
Conte, et al. v. Commission on Audit, 332 Phil. 20,
36 [1996].
19
Bellosillo, J., Separate Opinion, Commissioner of
Internal Revenue, G.R. No. 119761, 29 August 1996,
supra.
20
G.R. No. 110526, 10 February 1998, 286 SCRA 109,
117.
21
Rollo, G.R. No. 152063, pp. 57-78.
22
Id., pp. 79-86.
23
Id., pp. 87-89.
24
Fabia v. Court of Appeals, G.R. No. 132684, 11
September 2002.
25
Spouses Mirasol v. Court of Appeals, G.R. No.
128448, 1 February 2001, 351 SCRA 44, 51.
26
Santiago v. Guingona, Jr., G.R. No. 134577, 18
November 1998, 298 SCRA 756, 774.
27
CONSTITUTION, Art. VIII, Sec. 1, second
paragraph.
28
G.R. No. 112497, 4 August 1994, 235 SCRA 135.
29
Id., at 139-140.

THIRD DIVISION
 
G.R. No. 110193 January 27, 1994
THE REGIONAL DIRECTOR, REGION VII OF THE
DEPARTMENT OF EDUCATION, CULTURE AND
SPORTS (DECS), MARCELO BALCASO, NUEVAS
MONTES AND GENEROSO CAPUYAN, petitioners,
vs.
THE HON. COURT OF APPEALS, HON. JESUS L.
TABILON, in his capacity as Presiding Judge of
RTC Branch 42, Dumaguete City, and CONSEJO
CATACUTAN, ANECIA LABE, EVELYN
TAMPARONG, VIOLETA CELIS, ANAVILLA G. TIZO,
ANATOLIO DELVO, JESSICA DELVO, EMILY
ABERDE, AURELIO PARPAN, LUTHGARDA ABLIR,
BEMBO TANGERES, AIDA CATAN, ISABELITA
CALUNSAG, MARIPOSA MENDOLA, JOSEPHINE
BELLO, GEREMIA UMBAC, ARCELA
GORDONCILLO, NESTOR GONZALES, GAUDIOSA
MARTINEZ, ELEUTERIO MERCADO, GENOVEVA
CORNELIA, DALISAY B. PINILI, BETSY FEROLINO,
FRANCO MANANQUIL, RUBEN A. OMANA, JAMES
B. CARAMPATANA, NENITA B. PALARPALAR,
ILUMINADO KABRISTANTE, ERLINDA MOLETA,
DINAH SARSAGA, PERLA HERNANDEZ, ROWENA
VAILOCES, GREGORIA CADALLO, AGRIPINA
LIBRADO, ZENAIDA TULABING, AND ELVIRA
LINGCONG, respondents.
The Solicitor General for petitioners.
Francisco D. Yap for private respondents.
RESOLUTION
 
VITUG, J.:
Ascribing grave abuse of discretion on the part of
respondent Court of Appeals, in its decision 1 of 06 May
1993, the petitioners have come to this Court in a petition
for certiorari, prohibition and mandamus. The appealed
decision has turned down herein petitioners' petition for
certiorari assailing the Order, 2 dated 24 June 1991, of the
court a quo that, in turn, denied petitioners' motion to
dismiss the complaint in Civil Case No. 9884 of the
Regional Trial Court of Negros Oriental.
We state at the outset that this particular case is also
an offshoot of the same factual incidents that have
given rise to the consolidated cases of "Vidad, et al. vs.
RTC of Negros Oriental, et al.," etc., in G.R. Nos.
98084-98922 and 100300-03, already decided by this
Court on 18 October 1993.
The facts may be recalled, thus:
The private respondents, together with other Negros
Oriental public school teachers, held, starting 19
September 1990 and lasting until 21 September 1990,
a mass action, or a strike from their school classes, to
demand the release of their salaries by the Department
of Budget.
A return-to-work order was promptly issued by one of
the petitioners, Regional Director Teofilo Gomez of the
Department of Education, Culture and Sports
("DECS"), with a warning that if the "striking" school
teachers were not to resume their classes within
twenty-four hours, administrative charges would be
filed. Since the order was not heeded, administrative
complaints against the teachers concerned were
thereupon filed. The teachers were each given five
days from receipt of said complaints within which to
submit their respective answers and supporting
documents. An investigation panel, composed of three
DECS lawyers (the other petitioners herein), namely,
Marcelo Baclaso, Nieva Montes and Generoso
Capuyan, was constituted to look into the case.
Prior to the start of the hearings by the DECS
Investigating Team, the private respondents filed with
the Regional Trial Court of Negros Oriental, Branch 42,
Dumaguete City, a complaint for injunction, prohibition
and damages with prayer for preliminary injunction. On
26 March 1991, the court a quo issued the writ of
preliminary injunction.
The petitioners filed their answer, later followed by a
motion to dismiss. On 24 June 1991, the trial court
denied the motion to dismiss and set the case for pre-
trial hearing, holding that the complaint stated a cause
of action and that the court had jurisdiction thereover. 3
The pre-trail, however, was pre-empted by the
petitioners when they filed with this Court a petition for
certiorari, prohibition and mandamus on 25 July 1991
and so docketed as G.R. No. 100781. 4 In a resolution,
dated 5 August 1991, the Court referred the petition to the
Court of Appeals.
On 6 May 1993, the Court of Appeals promulgated its
assailed
decision, 5 denying the petition.
In the instant appeal, the petitioners raise the same
issues that have heretofore been resolved by us in the
now decided case of "Vidad, et al. vs. RTC of Negros
Oriental, et al." and companion cases aforementioned.
There, we have ruled that it has indeed been
precipitate for the DECS officials to seek the dismissal
of the complaints filed in court by the school teachers
even as no restraining order could lawfully issue
against the continuation of the administrative
investigations. This Court has rationalized, thus —
(1) There being no dispute that the root of the cases
filed before the court a quo deals on the performance
of official functions by the DECS officials, there cannot
be a full determination on whether the actions taken by
them have been proper or improper, or whether they
have acted in good faith or bad faith, pending a full
hearing that would give all the parties a chance to
ventilate their respective claims;
(2) Public officials are not necessarily immune from
damages in their personal capacities arising from acts
done in bad faith, for if malice is indeed established,
public officials can no longer be said to have acted
within the scope of official authority so as to still find
protection under the mantle of immunity for official
actions;
(3) The issuance, however, of the restraining orders by
the lower court against further proceedings of the
administrative complaints is inappropriate inasmuch as
the authority of the DECS Regional Director to issue
the return to work memorandum, to initiate the
administrative charges, as well as to constitute the
investigating panel, can hardly be disputed; and
(4) The court cases and the administrative matters
being closely interrelated, if not interlinked, it behooves
the court, in the interest of good order and conformably
with the doctrine of primary jurisdiction, to suspend its
action on the cases before it pending the final outcome
of the administrative charges.
Accordingly, we here reiterate that the court a quo did
not err in denying petitioners' motion to dismiss the
complaint in Civil Case No. 9884 although it did not
commit error in issuing its restraining further
proceedings on the administrative investigation being
conducted by DECS.
WHEREFORE, the decision of 6 May 1993 of the
Court of Appeals is AFFIRMED insofar as it, in effect,
denied the dismissal of the complaint in Civil Case No.
9884. The writ of preliminary injunction issued by the
Regional Trial Court of Negros Oriental, Branch 42,
however, is hereby ordered DISSOLVED and its is
DIRECTED to suspend further hearings in said Civil
Case No. 9884, until after a final determination on the
administrative proceedings would have been made. No
costs.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
 
#Footnotes
1 Penned by Justice Justo Torres, Jr., concurred in by
Justices Reynato Puno and Pacita Cañizares-Nye.
2 Per Judge Jesus Tabilon.
3 Rollo, pp. 41-45.
4 Rollo, pp. 55-73.
5 Rollo, pp. 36-40.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 205357               September 2, 2014
GMA NETWORK, INC., Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
SENATOR ALAN PETER "COMPAÑERO" S. drawn balance in the incessant conflicts between rights
CAYETANO,Petitioner-Intervenor. and regulations, liberties and limitations, and
competing demands of the different segments of
x-----------------------x society. Here, we are confronted with the need to strike
G.R. No. 205374 a workable and viable equilibrium between a
ABC DEVELOPMENT CORPORATION, Petitioner, constitutional mandate to maintain free, orderly,
vs. honest, peaceful and credible elections, together with
COMMISSION ON ELECTIONS, Respondent. the aim of ensuring equal opportunity, time and space,
x-----------------------x and the right to reply, including reasonable, equal rates
G.R. No. 205592 therefor, for public information campaigns and forums
MANILA BROADCASTING COMPANY, INC. and among candidates, on one hand, and the imperatives
2

NEWSOUNDS BROADCASTING NETWORK, INC., of a republican and democratic state, together with its
3

Petitioner, guaranteed rights of suffrage, freedom of speech and

4

vs. of the press, and the people's right to information, on

5 6

COMMISSION ON ELECTIONS, Respondent. the other.

x-----------------------x In a nutshell, the present petitions may be seen as in
G.R. No. 205852 search of the answer to the question - how does the
KAPISANAN NG MGA BRODKASTER NG Charter of a republican and democratic State achieve
PILIPINAS (KBP) and ABS-CBN CORPORATION, a viable and acceptable balance between liberty,
Petitioners, without which, government becomes an unbearable
vs. tyrant, and authority, without which, society becomes
COMMISSION ON ELECTIONS, Respondent. an intolerable and dangerous arrangement?
x-----------------------x Assailed in these petitions are certain regulations
G.R. No. 206360 promulgated by the Commission on Elections
RADIO MINDANAO NETWORK, INC., Petitioner, (COMELEC) relative to the conduct of the 2013
vs. national and local elections dealing with political
COMMISSION ON ELECTIONS, Respondent. advertisements. Specifically, the petitions question the
DECISION constitutionality of the limitations placed on aggregate
PERALTA, J.: airtime allowed to candidates and political parties, as
"The clash of rights demands a delicate balancing of well as the requirements incident thereto, such as the
interests approach which is a 'fundamental postulate of need to report the same, and the sanctions imposed
constitutional law.'"
1
for violations.
Once again the Court is asked to draw a carefully The five (5) petitions before the Court put in issue the
alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 (Resolution) limiting
the broadcast and radio advertisements of candidates
and political parties for national election positions to an
aggregate total of one hundred twenty (120) minutes
and one hundred eighty (180) minutes, respectively.
They contend that such restrictive regulation on
allowable broadcast time violates freedom of the press,
impairs the people's right to suffrage as well as their
right to information relative to the exercise of their right
to choose who to elect during the forth coming
elections.
The heart of the controversy revolves upon the proper
interpretation of the limitation on the number of
minutes that candidates may use for television and
radio advertisements, as provided in Section 6 of
Republic Act No. 9006 (R.A. No. 9006), otherwise
known as the Fair Election Act. Pertinent portions of
said provision state, thus:
Sec. 6. Equal Access to Media Time and Space. - All
registered parties and bona fide candidates shall have
equal access to media time and space. The following
guidelines may be amplified on by the COMELEC:
xxxx
6.2 (a) Each bona fide candidate or registered political
party for a nationally elective office shall be entitled to
not more than one hundred twenty (120) minutes of
television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or
donation.
b. Each bona fide candidate or registered political party
for a locally elective office shall be entitled to not more
than sixty ( 60) minutes of television advertisement and
ninety (90) minutes of radio advertisement whether by
purchase or donation.
For this purpose, the COMELEC shall require any
broadcast station or entity to submit to the COMELEC
a copy of its broadcast logs and certificates of
performance for the review and verification of the
frequency, date, time and duration of advertisements
broadcast for any candidate or political party.
During the previous elections of May 14, 2007 and
May 10, 2010, COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A. No.
9006, regarding airtime limitations, to mean that a
candidate is entitled to the aforestated number of
minutes "per station." For the May 2013 elections,
7
however, respondent COMELEC promulgated
Resolution No. 9615 dated January 15, 2013,
changing the interpretation of said candidates' and
political parties' airtime limitation for political
campaigns or advertisements from a "per station"
basis, to a "total aggregate" basis.
Petitioners ABS-CBN Corporation (ABS-CBN), ABC
Development Corporation (ABC), GMA Network,
Incorporated ( GMA), Manila Broadcasting Company,
Inc. (MBC), Newsounds Broadcasting Network, Inc.
(NBN), and Radio Mindanao Network, Inc. (RMN) are
owners/operators of radio and television networks in
the Philippines, while petitioner Kapisanan ng mga
Brodkaster ng Pilipinas (KBP) is the national
organization of broadcasting companies in the
Philippines representing operators of radio and
television stations and said stations themselves. They
sent their respective letters to the COMELEC
questioning the provisions of the aforementioned
Resolution, thus, the COMELEC held public hearings.
Thereafter, on February 1, 2013, respondent issued
Resolution No. 9631 amending provisions of
Resolution No. 9615. Nevertheless, petitioners still
found the provisions objectionable and oppressive,
hence, the present petitions.
All of the petitioners assail the following provisions of
the Resolution:
a) Section 7 (d), which provides for a penalty of
8
suspension or revocation of an offender's franchise or
permit, imposes criminal liability against broadcasting
entities and their officers in the event they sell airtime
in excess of the size, duration, or frequency authorized
in the new rules;
b) Section 9 (a), which provides for an "aggregate
9
total" airtime instead of the previous "per station"
airtime for political campaigns or dvertisements, and
also required prior COMELEC approval for candidates'
television and radio guestings and appearances; and
c) Section 14, which provides for a candidate's "right
10
to reply."
In addition, petitioner ABC also questions Section 1 (4)
11
thereof, which defines the term "political
advertisement" or "election propaganda," while
petitioner GMA further assails Section 35, which
12
states that any violation of said Rules shall constitute
an election offense.
On March 15, 2013, Senator Alan Peter S. Cayetano
(Petitioner-Intervenor) filed a Motion for Leave to
Intervene and to File and Admit the Petition-in-
Intervention, which was granted by the Court per its
Resolution dated March 19, 2013. Petitioner-Intervenor
also assails Section 9 (a) of the Resolution changing
the interpretation of candidates' and political parties'
airtime limitation for political campaigns or
advertisements from a "per station" basis, to a "total
aggregate" basis. Petitioners allege that Resolutions
No. 9615 and 9631, amending the earlier Resolution,
are unconstitutional and issued without jurisdiction or
with grave abuse of discretion amounting to lack or
excess of jurisdiction, for the reasons set forth
hereunder.
Petitioners posit that Section 9 (a) of the assailed
Resolution provides for a very restrictive aggregate
airtime limit and a vague meaning for a proper
computation of "aggregate total" airtime, and violates
the equal protection guarantee, thereby defeating the
intent and purpose of R.A. No. 9006.
Petitioners contend that Section 9 (a), which imposes a
notice requirement, is vague and infringes on the
constitutionally protected freedom of speech, of the
press and of expression, and on the right of people to
be informed on matters of public concern
Also, Section 9 (a) is a cruel and oppressive regulation
as it imposes an unreasonable and almost impossible
burden on broadcast mass media of monitoring a
candidate's or political party's aggregate airtime,
otherwise, it may incur administrative and criminal
liability.
Further, petitioners claim that Section 7 (d) is null and
void for unlawfully criminalizing acts not prohibited and
penalized as criminal offenses by R.A. No. 9006.
Section 14 of Resolution No. 9615, providing for a
candidate's or political party's "right to reply," is
likewise assailed to be unconstitutional for being an
improper exercise of the COMELEC's regulatory
powers; for constituting prior restraint and infringing
petitioners' freedom of expression, speech and the
press; and for being violative of the equal protection
guarantee. In addition to the foregoing, petitioner GMA
further argues that the Resolution was promulgated
without public consultations, in violation of petitioners'
right to due process. Petitioner ABC also avers that the
Resolution's definition of the terms "political
advertisement" and "election propaganda" suffers from
overbreadth, thereby producing a "chilling effect,"
constituting prior restraint.
On the other hand, respondent posits in its Comment
and Opposition dated March 8, 2013, that the petition
13
should be denied based on the following reasons:
Respondent contends that the remedies of certiorari
and prohibition are not available to petitioners,
because the writ of certiorari is only available against
the COMELEC's adjudicatory or quasi-judicial powers,
while the writ of prohibition only lies against the
exercise of judicial, quasijudicial or ministerial
functions. Said writs do not lie against the COMELEC's
administrative or rule-making powers.
Respondent likewise alleges that petitioners do not
have locus standi, as the constitutional rights and
freedoms they enumerate are not personal to them,
rather, they belong to candidates, political parties and
the Filipino electorate in general, as the limitations are
imposed on candidates, not on media outlets. It argues
that petitioners' alleged risk of exposure to criminal
liability is insufficient to give them legal standing as
said "fear of injury" is highly speculative and contingent
on a future act.
Respondent then parries petitioners' attack on the
alleged infirmities of the Resolution's provisions.
Respondent maintains that the per candidate rule or
total aggregate airtime limit is in accordance with R.A.
No. 9006 as this would truly give life to the
constitutional objective to equalize access to media
during elections. It sees this as a more effective way of
levelling the playing field between candidates/political
parties with enormous resources and those without
much. Moreover, the COMELEC's issuance of the
assailed Resolution is pursuant to Section 4, Article IX
(C) of the Constitution which vests on the COMELEC
the power to supervise and regulate, during election
periods, transportation and other public utilities, as well
as mass media, to wit:
Sec. 4. The Commission may, during the election
period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation
of transportation and other public utilities, media of
communication or information, all grants, special
privileges, or concessions granted by the Government
or any subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, and
equal rates therefor, for public information campaigns
and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and
credible elections.
This being the case, then the Resolutions cannot be
said to have been issued with grave abuse of
discretion amounting to lack of jurisdiction.
Next, respondent claims that the provisions are not
vague because the assailed Resolutions have given
clear and adequate mechanisms to protect broadcast
stations from potential liability arising from a
candidate's or party's violation of airtime limits by
putting in the proviso that the station "may require
buyer to warrant under oath that such purchase [of
airtime] is not in excess of size, duration or frequency
authorized by law or these rules." Furthermore, words
should be understood in the sense that they have in
common usage, and should be given their ordinary
meaning. Thus, in the provision for the right to reply,
"charges" against candidates or parties must be
understood in the ordinary sense, referring to
accusations or criticisms.
Respondent also sees no prior restraint in the
provisions requiring notice to the COMELEC for
appearances or guestings of candidates in bona fide
news broadcasts. It points out that the fact that notice
may be given 24 hours after first broadcast only proves
that the mechanism is for monitoring purposes only,
not for censorship. Further, respondent argues, that for
there to be prior restraint, official governmental
restrictions on the press or other forms of expression
must be done in advance of actual publication or
dissemination. Moreover, petitioners are only required
to inform the COMELEC of candidates'/parties'
guestings, but there is no regulation as to the content
of the news or the expressions in news interviews or
news documentaries. Respondent then emphasized
that the Supreme Court has held that freedom of
speech and the press may be limited in light of the duty
of the COMELEC to ensure equal access to
opportunities for public service.
With regard to the right to reply provision, respondent
also does not consider it as restrictive of the airing of
bona fide news broadcasts. More importantly, it
stressed, the right to reply is enshrined in the
Constitution, and the assailed Resolutions provide that
said right can only be had after going through
administrative due process. The provision was also
merely lifted from Section 10 of R.A. No. 9006, hence,
petitioner ABC is actually attacking the constitutionality
of R.A. No. 9006, which cannot be done through a
collateral attack.
Next, respondent counters that there is no merit to
ABC's claim that the Resolutions' definition of "political
advertisement" or "election propaganda" suffers from
overbreadth, as the extent or scope of what falls under
said terms is clearly stated in Section 1 (4) of
Resolution No. 9615.
It is also respondent's view that the nationwide
aggregate total airtime does not violate the equal
protection clause, because it does not make any
substantial distinctions between national and regional
and/or local broadcast stations, and even without the
aggregate total airtime rule, candidates and parties are
likely to be more inclined to advertise in national
broadcast stations. Respondent likewise sees no merit
in petitioners' claim that the Resolutions amount to
taking of private property without just compensation.
Respondent emphasizes that radio and television
broadcasting companies do not own the airwaves and
frequencies through which they transmit broadcast
signals; they are merely given the temporary privilege
to use the same. Since they are merely enjoying a
privilege, the same may be reasonably burdened with
some form of public service, in this case, to provide
candidates with the opportunity to reply to charges
aired against them.
Lastly, respondent contends that the public
consultation requirement does not apply to
constitutional commissions such as the COMELEC,
pursuant to Section 1, Chapter I, Book VII of the
Administrative Code of 1987. Indeed, Section 9,
Chapter II, Book VII of said Code provides, thus:
Section 9. Public Participation. - (1) If not otherwise
required by law, an agency shall, as far as practicable,
publish or circulate notices of proposed rules and
afford interested parties the opportunity to submit their
views prior to the adoption of any rule.
However, Section 1, Chapter 1, Book VII of said Code
clearly provides:
Section 1. Scope. -This Book shall be applicable to all
agencies as defined in the next succeeding section,
except the Congress, the Judiciary, the Constitutional
Commissions, military establishments in all matters
relating exclusively to Armed Forces personnel, the
Board of Pardons and Parole, and state universities
and colleges.
Nevertheless, even if public participation is not
required, respondent still conducted a meeting with
representatives of the KBP and various media outfits
on December 26, 2012, almost a month before the
issuance of Resolution No. 9615.
On April 2, 2013, petitioner GMA filed its Reply, where
14
it advanced the following counter-arguments:
According to GMA, a petition for certiorari is the proper
remedy to question the herein assailed Resolutions,
which should be considered as a "decision, order or
ruling of the Commission" as mentioned in Section 1,
Rule 37 of the COMELEC Rules of Procedure which
provides:
Section 1. Petition for Certiorari,· and Time to File. -
Unless otherwise provided by law, or by any specific
provisions in these Rules, any decision, order or ruling
of the Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty
(30) days from its promulgation.
GMA further stressed that this case involves national
interest, and the urgency of the matter justifies its
resort to the remedy of a petition for certiorari.
Therefore, GMA disagrees with the COMELEC's
position that the proper remedy is a petition for
declaratory relief because such action only asks the
court to make a proper interpretation of the rights of
parties under a statute or regulation. Such a petition
does not nullify the assailed statute or regulation, or
grant injunctive relief, which petitioners are praying for
in their petition. Thus, GMA maintains that a petition for
certiorari is the proper remedy.
GMA further denies that it is making a collateral attack
on the Fair Election Act, as it is not attacking said law.
GMA points out that it has stated in its petition that the
law in fact allows the sale or donation of airtime for
political advertisements and does not impose criminal
liability against radio and television stations. What it is
assailing is the COMELEC's erroneous interpretation
of the law's provisions by declaring such sale and/or
donation of airtime unlawful, which is contrary to the
purpose of the Fair Election Act.
GMA then claims that it has legal standing to bring the
present suit because:
x x x First, it has personally suffered a threatened
injury in the form of risk of criminal liability because of
the alleged unconstitutional and unlawful conduct of
respondent COMELEC in expanding what was
provided for in R.A. No. 9006. Second, the injury is
traceable to the challenged action of respondent
COMELEC, that is, the issuance of the assailed
Resolutions. Third, the injury is likely to be redressed
by the remedy sought in petitioner GMA's Petition,
among others, for the Honorable Court to nullify the
challenged pertinent provisions of the assailed
Resolutions. 15
On substantive issues, GMA first argues that the
questioned Resolutions are contrary to the objective
and purpose of the Fair Election Act. It points out that
the Fair Election Act even repealed the political ad ban
found in the earlier law, R.A. No. 6646. The Fair
Election Act also speaks of "equal opportunity" and
"equal access,'' but said law never mentioned
equalizing the economic station of the rich and the
poor, as a declared policy. Furthermore, in its opinion,
the supposed correlation between candidates'
expenditures for TV ads and actually winning the
elections, is a mere illusion, as there are other various
factors responsible for a candidate's winning the
election. GMA then cites portions of the deliberations
of the Bicameral Conference Committee on the bills
that led to the enactment of the Fair Election Act, and
alleges that this shows the legislative intent that airtime
allocation should be on a "per station" basis. Thus,
GMA claims it was arbitrary and a grave abuse of
discretion for the COMELEC to issue the present
Resolutions imposing airtime limitations on an
"aggregate total" basis.
It is likewise insisted by GMA that the assailed
Resolutions impose an unconstitutional burden on
them, because their failure to strictly monitor the
duration of total airtime that each candidate has
purchased even from other stations would expose their
officials to criminal liability and risk losing the station's
good reputation and goodwill, as well as its franchise.
It argues that the wordings of the Resolutions belie the
COMELEC's claim that petitioners would only incur
liability if they "knowingly" sell airtime beyond the limits
imposed by the Resolutions, because the element of
knowledge is clearly absent from the provisions
thereof. This makes the provisions have the nature of
malum prohibitum.
Next, GMA also says that the application of the
aggregate airtime limit constitutes prior restraint and is
unconstitutional, opining that "[t]he reviewing power of
respondent COMELEC and its sole judgment of a
news event as a political advertisement are so
pervasive under the assailed Resolutions, and provoke
the distastes or chilling effect of prior restraint" as
16
even a legitimate exercise of a constitutional right
might expose it to legal sanction. Thus, the
governmental interest of leveling the playing field
between rich and poor candidates cannot justify the
restriction on the freedoms of expression, speech and
of the press.
On the issue of lack of prior public participation, GMA
cites Section 82 of the Omnibus Election Code,
pertinent portions of which provide, thus:
Section 82. Lawful election propaganda. - Lawful
election propaganda shall include:
xxxx
All other forms of election propaganda not prohibited
by this Code as the Commission may authorize after
due notice to all interested parties and hearing where
all the interested parties were given an equal
opportunity to be heard: Provided, That the
Commission's authorization shall be published in two
newspapers of general circulation throughout the
nation for at least twice within one week after the
authorization has been granted.
There having been no prior public consultation held,
GMA contends that the COMELEC is guilty of
depriving petitioners of its right to due process of law.
GMA then concludes that it is also entitled to a
temporary restraining order, because the
implementation of the Resolutions in question will
cause grave and irreparable damage to it by disrupting
and emasculating its mandate to provide television and
radio services to the public, and by exposing it to the
risk of incurring criminal and administrative liability by
requiring it to perform the impossible task of
surveillance and monitoring, or the broadcasts of other
radio and television stations.
Thereafter, on April 4, 2013, the COMELEC, through
the Office of the Solicitor General (OSG), filed a
Supplemental Comment and Opposition where it
17
further expounded on the legislative intent behind the
Fair Election Act, also quoting portions of the
deliberations of the Bicameral Conference Committee,
allegedly adopting the Senate Bill version setting the
computation of airtime limits on a per candidate, not
per station, basis. Thus, as enacted into law, the
wordings of Section 6 of the Fair Election Act shows
that the airtime limit is imposed on a per candidate
basis, rather than on a per station basis. Furthermore,
the COMELEC states that petitioner intervenor Senator
Cayetano is wrong in arguing that there should be
empirical data to support the need to change the
computation of airtime limits from a per station basis to
a per candidate basis, because nothing in law
obligates the COMELEC to support its Resolutions
with empirical data, as said airtime limit was a policy
decision dictated by the legislature itself, which had the
necessary empirical and other data upon which to
base said policy decision.
The COMELEC then points out that Section 2 (7), 18
Article IX (C) of the Constitution empowers it to
recommend to Congress effective measures to
minimize election spending and in furtherance of such
constitutional power, the COMELEC issued the
questioned Resolutions, in faithful implementation of
the legislative intent and objectives of the Fair Election
Act.
The COMELEC also dismisses Senator Cayetano's
fears that unauthorized or inadvertent inclusion of his
name, initial, image, brand, logo, insignia and/or
symbol in tandem advertisements will be charged
against his airtime limits by pointing out that what will
be counted against a candidate's airtime and
expenditures are those advertisements that have been
paid for or donated to them to which the candidate has
given consent.
With regard to the attack that the total aggregate
airtime limit constitutes prior restraint or undue
abridgement of the freedom of speech and expression,
the COMELEC counters that "the Resolutions enjoy
constitutional and congressional imprimatur. It is the
Constitution itself that imposes the restriction on the
freedoms of speech and expression, during election
period, to promote an important and significant
governmental interest, which is to equalize, as far as
practicable, the situation of rich and poor candidates
by preventing the former from enjoying the undue
advantage offered by huge campaign 'war chests."' 19
Lastly, the COMELEC also emphasizes that there is no
impairment of the people's right to information on
matters of public concern, because in this case, the
COMELEC is not withholding access to any public
record.
On April 16, 2013, this Court issued a Temporary
Restraining Order (TRO) in view of the urgency
20
involved and to prevent irreparable injury that may be
caused to the petitioners if respondent COMELEC is
not enjoined from implementing Resolution No. 9615.
On April 19, 2013 respondent filed an Urgent Motion to
Lift Temporary Restraining Order and Motion for Early
Resolution of the Consolidated Petitions.21
On May 8, 2013, petitioners ABS-CBN and the KBP
filed its Opposition/Comment to the said Motion. Not
22
long after, ABC followed suit and filed its own
Opposition to the Motion filed by the respondent.
23
In the interim, respondent filed a Second Supplemental
Comment and Opposition dated April 8, 2013.
24
In the Second Supplemental Comment and
Opposition, respondent delved on points which were
not previously discussed in its earlier Comment and
Supplemental Comment, particularly those raised in
the petition filed by petitioner ABS-CBN and KBP.
Respondent maintains that certiorari in not the proper
remedy to question the Constitutionality of the assailed
Resolutions and that petitioners ABS-CBN and KBP
have no locus standi to file the present petition.
Respondent posits that contrary to the contention of
petitioners, the legislative history of R.A. No. 9006
conclusively shows that congress intended the airtime
limits to be computed on a "per candidate" and not on
a "per station" basis. In addition, the legal duty of
monitoring lies with the COMELEC. Broadcast stations
are merely required to submit certain documents to aid
the COMELEC in ensuring that candidates are not sold
airtime in excess of the allowed limits.
Also, as discussed in the earlier Comment, the prior
notice requirement is a mechanism designed to inform
the COMELEC of the appearances or guesting of
candidates in bona fide news broadcasts. It is for
monitoring purposes only, not censorship. It does not
control the subject matter of news broadcasts in
anyway. Neither does it prevent media outlets from
covering candidates in news interviews, news events,
and news documentaries, nor prevent the candidates
from appearing thereon.
As for the right to reply, respondent insists that the
right to reply provision cannot be considered a prior
restraint on the freedoms of expression, speech and
the press, as it does not in any way restrict the airing of
bona fide new broadcasts. Media entities are free to
report any news event, even if it should turn out to be
unfavourable to a candidate or party. The assailed
Resolutions merely give the candidate or party the
right to reply to such charges published or aired
against them in news broadcasts.
Moreover, respondent contends that the imposition of
the penalty of suspension and revocation of franchise
or permit for the sale or donation of airtime beyond the
allowable limits is sanctioned by the Omnibus Election
Code.
Meanwhile, RMN filed its Petition on April 8, 2013. On
June 4, 2013, the Court issued a Resolution 25
consolidating the case with the rest of the petitions and
requiring respondent to comment thereon.
On October 10, 2013, respondent filed its Third
Supplemental Comment and Opposition. Therein,
26
respondent stated that the petition filed by RMN
repeats the issues that were raised in the previous
petitions. Respondent, likewise, reiterated its
arguments that certiorari in not the proper remedy to
question the assailed resolutions and that RMN has no
locus standi to file the present petition. Respondent
maintains that the arguments raised by RMN, like
those raised by the other petitioners are without merit
and that RMN is not entitled to the injunctive relief
sought.
The petition is partly meritorious.
At the outset, although the subject of the present
petit10ns are Resolutions promulgated by the
COMELEC relative to the conduct of the 2013 national
and local elections, nevertheless the issues raised by
the petitioners have not been rendered moot and
academic by the conclusion of the 2013 elections.
Considering that the matters elevated to the Court for
resolution are susceptible to repetition in the conduct
of future electoral exercises, these issues will be
resolved in the present action.
PROCEDURAL ASPECTS
Matters of procedure and technicalities normally take a
backseat when issues of substantial and
transcendental importance are presented before the
Court. So the Court does again in this particular case.
Proper Remedy
Respondent claims that certiorari and prohibition are
not the proper remedies that petitioners have taken to
question the assailed Resolutions of the COMELEC.
Technically, respondent may have a point. However,
considering the very important and pivotal issues
raised, and the limited time, such technicality should
not deter the Court from having to make the final and
definitive pronouncement that everyone else depends
for enlightenment and guidance. "[T]his Court has in
the past seen fit to step in and resolve petitions despite
their being the subject of an improper remedy, in view
of the public importance of the tile issues raised
therein.
27
It has been in the past, we do so again.
Locus Standi
Every time a constitutional issue is brought before the
Court, the issue of locus standi is raised to question
the personality of the parties invoking the Court's
jurisdiction. The Court has routinely made reference to
a liberalized stance when it comes to petitions raising
issues of transcendental importance to the country.
Invariably, after some discussions, the Court would
eventually grant standing. 28
In this particular case, respondent also questions the
standing of the petitioners. We rule for the petitioners.
For petitioner-intervenor Senator Cayetano, he
undoubtedly has standing since he is a candidate
whose ability to reach out to the electorate is impacted
by the assailed Resolutions.
For the broadcast companies, they similarly have the
standing in view of the direct injury they may suffer
relative to their ability to carry out their tasks of
disseminating information because of the burdens
imposed on them. Nevertheless, even in regard to the
broadcast companies invoking the injury that may be
caused to their customers or the public - those who
buy advertisements and the people who rely on their
broadcasts - what the Court said in White Light
Corporation v. City of Manila may dispose of the
29
question. In that case, there was an issue as to
whether owners of establishments offering "wash-up"
rates may have the requisite standing on behalf of their
patrons' equal protection claims relative to an
ordinance of the City of Manila which prohibited "short-
time" or "wash-up" accommodation in motels and
similar establishments. The Court essentially
condensed the issue in this manner: "[T]he crux of the
matter is whether or not these establishments have the
requisite standing to plead for protection of their
patrons' equal protection rights." The Court then went
30
on to hold:
Standing or locus standi is the ability of a party to
demonstrate to the court sufficient connection to and
harm from the law or action challenged to support that
party's participation in the case. More importantly, the
doctrine of standing is built on the principle of
separation of powers, sparing as it does unnecessary
interference or invalidation by the judicial branch of the
actions rendered by its co-equal branches of
government.
The requirement of standing is a core component of
the judicial system derived directly from the
Constitution. The constitutional component of standing
doctrine incorporates concepts which concededly are
not susceptible of precise definition. In this jurisdiction,
the extancy of "a direct and personal interest" presents
the most obvious cause, as well as the standard test
for a petitioner's standing. In a similar vein, the United
States Supreme Court reviewed and elaborated on the
meaning of the three constitutional standing
requirements of injury, causation, and redressability in
Allen v. Wright.
Nonetheless, the general rules on standing admit of
several exceptions such as the overbreadth doctrine,
taxpayer suits, third party standing and, especially in
the Philippines, the doctrine of transcendental
importance.
For this particular set of facts, the concept of third party
standing as an exception and the overbreadth doctrine
are appropriate. x x x
xxxx
American jurisprudence is replete with examples where
parties-ininterest were allowed standing to advocate or
invoke the fundamental due process or equal
protection claims of other persons or classes of
persons injured by state action. x x x
xxxx
Assuming arguendo that petitioners do not have a
relationship with their patrons for the former to assert
the rights of the latter, the overbreadth doctrine comes
into play. In overbreadth analysis, challengers to
government action are in effect permitted to raise the
rights of third parties. Generally applied to statutes
infringing on the freedom of speech, the overbreadth
doctrine applies when a statute needlessly restrains
even constitutionally guaranteed rights. In this case,
the petitioners claim that the Ordinance makes a
sweeping intrusion into the right to liberty of their
clients. We can see that based on the allegations in
the petition, the Ordinance suffers from overbreadth.
We thus recognize that the petitioners have a right to
assert the constitutional rights of their clients to
patronize their establishments for a "wash-rate" time
frame.31
If in regard to commercial undertakings, the owners
may have the right to assert a constitutional right of
their clients, with more reason should establishments
which publish and broadcast have the standing to
assert the constitutional freedom of speech of
candidates and of the right to information of the public,
not to speak of their own freedom of the press. So, we
uphold the standing of petitioners on that basis.
SUBSTANTIVE ASPECTS
Aggregate Time Limits
COMELEC Resolution No. 9615 introduced a radical
departure from the previous COMELEC resolutions
relative to the airtime limitations on political
advertisements. This essentially consists in computing
the airtime on an aggregate basis involving all the
media of broadcast communications compared to the
past where it was done on a per station basis. Thus, it
becomes immediately obvious that there was effected
a drastic reduction of the allowable minutes within
which candidates and political parties would be able to
campaign through the air. The question is accordingly
whether this is within the power of the COMELEC to do
or not. The Court holds that it is not within the power of
the COMELEC to do so.
a. Past elections and airtime limits
The authority of the COMELEC to impose airtime limits
directly flows from the Fair Election Act (R.A. No. 9006
[2001]) - one hundred (120) minutes of television
32
advertisement and one-hundred· eighty (180) minutes
for radio advertisement. For the 2004 elections, the
respondent COMELEC promulgated Resolution No.
6520 implementing the airtime limits by applying said
33
limitation on a per station basis. Such manner of
34
determining airtime limits was likewise adopted for the
2007 elections, through Resolution No. 7767. In the 35
2010 elections, under Resolution No. 8758, the same
36
was again adopted. But for the 2013 elections, the
COMELEC, through Resolution No. 9615, as amended
by Resolution No. 9631, chose to aggregate the total
broadcast time among the different broadcast media,
thus: Section 9. Requirements and/or Limitations on
the Use of Election Propaganda through Mass Media. -
All parties and bona fide candidates shall have equal
access to media time and space for their election
propaganda during the campaign period subject to the
following requirements and/or limitations:
a. Broadcast Election Propaganda
The duration of an air time that a candidate, or party
may use for their broadcast advertisements or election
propaganda shall be, as follows:
For Not more than an aggregate total of o
Candidates/Registere (120) minutes of television advertising
d Political parties for a appearing on national, regional, or loc
National Elective television, and one hundred eighty (1
Position radio advertising, whether airing on n
or local radio, whether by purchase o
For Not more than an aggregate total of s
Candidates/Registere of television advertising, whether appearing particularizing
d Political parties for a national, regional, or local, free or cable
Local Elective Position ninety (90) minutes of radio advertising, the whether
on national, regional, or local radio, whether
purchase or donation.
In cases where two or more candidates or parties
whose names, initials, images, brands, logos,
insignias, color motifs, symbols, or forms of graphical
representations are displayed, exhibited, used, or
mentioned together in the broadcast election
propaganda or advertisements, the length of time
during which they appear or are being mentioned or
promoted will be counted against the airtime limits
allotted for the said candidates or parties and the cost
of the said advertisement will likewise be considered
as their expenditures, regardless of whoever paid for
the advertisements or to whom the said
advertisements were donated.
xxxx 37
Corollarily, petitioner-intervenor, Senator Cayetano,
alleges:
6.15. The change in the implementation of Section 6 of
R.A. 9006 was undertaken by respondent Comelec
without consultation with the candidates for the 2013
elections, affected parties such as media
organizations, as well as the general public. Worse,
said change was put into effect without explaining the
basis therefor and without showing any data in support
of such change. Respondent Comelec merely
maintained that such action "is meant to level the
playing field between the moneyed candidates and
those who don i have enough resources," without
on the empirical data upon which such a
sweeping
statement
television, and was based. This was evident in
public hearing
airing held on 31 January 2013 where
petitioner
byGMA, thru counsel, explained that no
empirical data on he excesses or abuses of broadcast
media were brought to the attention of the public by
respondent Comelec, or even stated in the Comelec
Resolution No. 9615. Thus –
xxxx
Chairman Brillantes
So if we can regulate and amplify, we may amplify
meaning we can expand if we want to. But the
authority of the Commission is if we do not want to
amplify and we think that the 120 or 180 is okay we
cannot be compelled to amplify. We think that 120 or
180 is okay, is enough.
Atty. Lucila
But with due respect Your Honor, I think the basis of
the resolution is found in the law and the law has been
enterpreted (sic) before in 2010 to be 120 per station,
so why the change, your Honor?
Chairman Brillantes
No, the change is not there, the right to amplify is with
the Commission on Elections. Nobody can encroach in
our right to amplify. Now, if in 2010 the Commission
felt that per station or per network is the rule then that
is the prerogative of the Commission then they could
amplify it to expand it. If the current Commission feels
that 120 is enough for the particular medium like TV
and 180 for radio, that is our prerogative. How can you
encroach and what is unconstitutional about it?
Atty. Lucila
We are not questioning the authority of the Honorable
Commission to regulate Your Honor, we are just
raising our concern on the manner of regulation
because as it is right now, there is a changing mode or
sentiments of the Commission and the public has the
right to know, was there rampant overspending on
political ads in 2010, we were not informed Your
Honor. Was there abuse of the media in 2010, we
were not informed Your Honor. So we would like to
know what is the basis of the sudden change in this
limitation, Your Honor .. And law must have a
consistent interpretation that [is]our position, Your
Honor.
Chairman Brillantes
But my initial interpretation, this is personal to this
representation counsel, is that if the Constitution allows
us to regulate and then it gives us the prerogative to
amplify then the prerogative to amplify you should
leave this to the discretion of the Commission. Which
means if previous Commissions felt that expanding it
should be part of our authority that was a valid
exercise if we reduce it to what is provided for by law
which is 120-180 per medium, TV, radio, that is also
within the law and that is still within our prerogative as
provided for by the Constitution. If you say we have to
expose the candidates to the public then I think the
reaction should come, the negative reaction should
come from the candidates not from the media, unless
you have some interest to protect directly. Is there any
interest on the part of the media to expand it?
Atty. Lucila
Well, our interest Your Honor is to participate in this
election Your Honor and we have been constantly (sic)
as the resolution says and even in the part involved
because you will be getting some affirmative action
time coming from the media itself and Comelec time
coming from the media itself. So we could like to be
both involved in the whole process of the exercise of
the freedom of suffrage Your Honor.
Chairman Brillantes
Yes, but the very essence of the Constitutional
provision as well as the provision of 9006 is actually to
level the playing field. That should be the paramount
consideration. If we allow everybody to make use of all
their time and all radio time and TV time then there will
be practically unlimited use of the mass media ....
Atty. Lucila
Was there in 2010 Your Honor, was there any data to
support that there was an unlimited and abuse of a
(sic) political ads in the mass media that became the
basis of this change in interpretation Your Honor? We
would like to know about it Your Honor.
Chairman Brillantes
What do you think there was no abuse in 201 O?
Atty. Lucila
As far as the network is concern, there was none Your
Honor.
Chairman Brillantes
There was none ..... .
Atty. Lucila
I'm sorry, Your Honor ...
Chairman Brillantes
Yes, there was no abuse, okay, but there was some
advantage given to those who took ... who had the
more moneyed candidates took advantage of it.
Atty. Lucila
But that is the fact in life, Your Honor there are poor
candidates, there are rich candidates. No amount of
law or regulation can even level the playing filed (sic)
as far as the economic station in life of the candidates
are concern (sic) our Honor. 38
Given the foregoing observations about what
happened during the hearing, Petitioner-Intervenor
went on to allege that:
6.16. Without any empirical data upon which to base
the regulatory measures in Section 9 (a), respondent
Comelec arbitrarily changed the rule from per station
basis to aggregate airtime basis. Indeed, no credence
should be given to the cliched explanation of
respondent Comelec (i.e. leveling the playing field) in
its published statements which in itself is a mere
reiteration of the rationale for the enactment of the
political ad ban of Republic Act No. 6646, and which
has likewise been foisted when said political ad ban
was lifted by R.A. 9006.39
From the foregoing, it does appear that the COMELEC
did not have any other basis for coming up with a new
manner of determining allowable time limits except its
own idea as to what should be the maximum number
of minutes based on its exercise of discretion as to
how to level the playing field. The same could be
encapsulized in the remark of the COMELEC
Chairman that "if the Constitution allows us to regulate
and then it gives us the prerogative to amplify then the
prerogative to amplify you should leave this to the
discretion of the Commission." 40
The Court could not agree with what appears as a
nonchalant exercise of discretion, as expounded anon.
b. COMELEC is duty bound to come up with
reasonable basis for changing the interpretation and
implementation of the airtime limits
There is no question that the COMELEC is the office
constitutionally and statutorily authorized to enforce
election laws but it cannot exercise its powers without
limitations - or reasonable basis. It could not simply
adopt measures or regulations just because it feels
that it is the right thing to do, in so far as it might be
concerned. It does have discretion, but such discretion
is something that must be exercised within the bounds
and intent of the law. The COMELEC is not free to
simply change the rules especially if it has consistently
interpreted a legal provision in a particular manner in
the past. If ever it has to change the rules, the same
must be properly explained with sufficient basis.
Based on the transcripts of the hearing conducted by
the COMELEC after it had already promulgated the
Resolution, the respondent did not fully explain or
justify the change in computing the airtime allowed
candidates and political parties, except to make
reference to the need to "level the playing field." If the
"per station" basis was deemed enough to comply with
that objective in the past, why should it now be
suddenly inadequate? And, the short answer to that
from the respondent, in a manner which smacks of
overbearing exercise of discretion, is that it is within
the discretion of the COMELEC. As quoted in the
transcript, "the right to amplify is with the COMELEC.
Nobody can encroach in our right to amplify. Now, if in
2010 the Commission felt that per station or per
network is the rule then that is the prerogative of the
Commission then they could amplify it to expand it. If
the current Commission feels that 120 is enough for
the particular medium like TV and 180 for radio, that is
our prerogative. How can you encroach and what is
unconstitutional about it?"
41
There is something basically wrong with that manner of
explaining changes in administrative rules. For one, it
does not really provide a good basis for change. For
another, those affected by such rules must be given a
better explanation why the previous rules are no longer
good enough. As the Court has said in one case:
While stability in the law, particularly in the business
field, is desirable, there is no demand that the NTC
slavishly follow precedent. However, we think it
essential, for the sake of clarity and intellectual
honesty, that if an administrative agency decides
inconsistently with previous action, that it explain
thoroughly why a different result is warranted, or ?f
need be, why the previous standards should no longer
apply or should be overturned. Such explanation is
warranted in order to sufficiently establish a decision
as having rational basis. Any inconsistent decision
lacking thorough, ratiocination in support may be
struck down as being arbitrary. And any decision with
absolutely nothing to support it is a nullity.
42
What the COMELEC came up with does not measure
up to that level of requirement and accountability which
elevates administrative rules to the level of
respectability and acceptability. Those governed by
administrative regulations are entitled to a reasonable
and rational basis for any changes in those rules by
which they are supposed to live by, especially if there
is a radical departure from the previous ones.
c. The COMELEC went beyond the authority granted it
by the law in adopting "aggregate" basis in the
determination of allowable airtime
The law, which is the basis of the regulation subject of
these petitions, pertinently provides:
6.2. (a) Each bona fide candidate or registered political
party for a nationally elective office shall be entitled to
not more than one hundred twenty (120) minutes of
television advertisement and one hundred eighty (180)
minutes of radio advertisement whether by purchase or
donation.
(b) Each bona fide candidate or registered political
party for a locally elective office shall be entitled to not
more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation; x x x
The law, on its face, does not justify a conclusion that
the maximum allowable airtime should be based on the
totality of possible broadcast in all television or radio
stations. Senator Cayetano has called our attention to
the legislative intent relative to the airtime allowed -
that it should be on a "per station" basis.43
This is further buttressed by the fact that the Fair
Election Act (R.A. No. 9006) actually repealed the
previous provision, Section ll(b) of Republic Act No.
6646, which prohibited direct political advertisements
44
-the so-called "political ad ban." If under the previous
law, no candidate was allowed to directly buy or
procure on his own his broadcast or print campaign
advertisements, and that he must get it through the
COMELEC Time or COMELEC Space, R.A. No. 9006
relieved him or her from that restriction and allowed
him or her to broadcast time or print space subject to
the limitations set out in the law. Congress, in enacting
R.A. No. 9006, felt that the previous law was not an
effective and efficient way of giving voice to the people.
Noting the debilitating effects of the previous law on
the right of suffrage and Philippine democracy,
Congress decided to repeal such rule by enacting the
Fair Election Act.
In regard to the enactment of the new law, taken in the
context of the restrictive nature of the previous law, the
sponsorship speech of Senator Raul Roco is
enlightening:
The bill seeks to repeal Section 85 of the Omnibus
Election Code and Sections 10 and 11 of RA 6646. In
view of the importance of their appeal in connection
with the thrusts of the bill, I hereby quote these
sections in full:
"SEC. 85. Prohibited forms of election propaganda. - It
shall be unlawful:
"(a) To print, publish, post or distribute any poster,
pamphlet, circular, handbill, or printed matter urging
voters to vote for or against any candidate unless they
hear the names and addresses of the printed and
payor as required in Section 84 hereof;
"(b) To erect, put up, make use of, attach, float or
display any billboard, tinplate-poster, balloons and the
like, of whatever size, shape, form or kind, advertising
for or against any candidate or political party;
"(c) To purchase, manufacture, request, distribute or
accept electoral propaganda gadgets, such as pens,
lighters, fans of whatever nature, flashlights, athletic
goods or materials, wallets, shirts, hats, bandannas,
matches, cigarettes and the like, except that campaign
supporters accompanying a candidate shall be allowed
to wear hats and/or shirts or T-shirts advertising a
candidate;
"(d) To show or display publicly any advertisement or
propaganda for or against any candidate by means of
cinematography, audio-visual units or other screen
projections except telecasts which may be allowed as
hereinafter provided; and
"(e) For any radio broadcasting or television station to
sell or give free of charge airtime for campaign and
other political purposes except as authorized in this
Code under the rules and regulations promulgated by
the Commission pursuant thereto;
"Any prohibited election propaganda gadget or
advertisement shall be stopped, confiscated or tom
down by the representative of the Commission upon
specific authority of the Commission." "SEC. 10.
Common Poster Areas. - The Commission shall
designate common poster areas in strategic public
places such as markets, barangay centers and the like
wherein candidates can post, display or exhibit election
propaganda to announce or further their candidacy.
"Whenever feasible, common billboards may be
installed by the Commission and/or non-partisan
private or civic organizations which the Commission
may authorize whenever available, after due notice
and hearing, in strategic areas where it may readily be
seen or read, with the heaviest pedestrian and/or
vehicular traffic in the city or municipality.
The space in such common poster areas or billboards
shall be allocated free of charge, if feasible, equitably
and impartially among the candidates in the province,
city or municipality. "SEC. 11. Prohibite,d Forms of
Election Propaganda. - In addition to the forms of
election propaganda prohibited under Section 85 of
Batas Pambansa Blg. 881, it shall be unlawful: (a) to
draw, paint, inscribe, write, post, display or puolicly
exhibit any election propaganda in any place, whether
private or public, except in common poster areas
and/or billboards provided in the immediately
preceding section, at the candidate's own residence, or
at the campaign headquarters of the candidate or
political party: Provided, That such posters or election
propaganda shall in no case exceed two (2) feet by
three (3) feet in area; Provided, further, That at the site
of and on the occasion of a public meeting or rally,
streamers, not more than two (2) feet and not
exceeding three (3) feet by eight (8) each may be
displayed five (5) days before the date of the meeting
or rally, and shall be removed within twenty-four (24)
hours after said meeting or rally; and
"(b) For any newspapers, radio broadcasting or
television station, or other mass media, or any person
making use of the mass media to sell or give for free of
charge print space or air time for campaign or other
political purposes except to the Commission as
provided under Section 90 and 92 of Batas Pambansa
Big. 881. Any mass media columnist, commentator,
announcer or personality who is a candidate for any
elective public office shall take a leave of absence from
his work as such during the campaign."
The repeal of the provision on the Common Poster
Area implements the strong recommendations of the
Commission on Elections during the hearings. It also
seeks to apply the doctrine enunciated by the Supreme
Court in the case of Blo Umpar Adiong vs. Commission
on Elections, 207 SCRA 712, 31 March 1992. Here a
unanimous Supreme Court ruled: The COMELEC's
prohibition on the posting of decals and stickers on
"mobile" places whether public or private except [in]
designated areas provided for by the COMELEC itself
is null and void on constitutional grounds.
For the foregoing reasons, we commend to our
colleagues the early passage of Senate Bill No. 1742.
In so doing, we move one step towards further
ensuring "free, orderly, honest, peaceful and credible
elections" as mandated by the Constitution. 45
Given the foregoing background, it is therefore
ineluctable to conclude that Congress intended to
provide a more expansive and liberal means by which
the candidates, political parties, citizens and other
stake holders in the periodic electoral exercise may be
given a chance to fully explain and expound on their
candidacies and platforms of governance, and for the
electorate to be given a chance to know better the
personalities behind the candidates. In this regard, the
media is also given a very important part in that
undertaking of providing the means by which the
political exercise becomes an interactive process. All
of these would be undermined and frustrated with the
kind of regulation that the respondent came up with.
The respondent gave its own understanding of the
import of the legislative deliberations on the adoption
of R.A. No. 9006 as follows:
The legislative history of R.A. 9006 clearly shows that
Congress intended to impose the per candidate or
political party aggregate total airtime limits on political
advertisements and election propaganda. This is
evidenced by the dropping of the "per day per station"
language embodied in both versions of the House of
Representatives and Senate bills in favour of the "each
candidate" and "not more than" limitations now found
in Section 6 of R.A. 9006.
The pertinent portions of House Bill No. 9000 and
Senate Bill No. 1742 read as follows:
House Bill No. 9000:
SEC. 4. Section 86 of the same Batas is hereby
amended to read as follows:
Sec. 86. Regulation of Election Propaganda Through
Mass Media.
x x x           x x x          x x x
A) The total airtime available to the candidate and
political party, whether by purchase or by donation,
shall be limited to five (5) minutes per day in each
television, cable television and radio stations during
the applicable campaign period.
Senate Bill No. 1742:
SEC. 5. Equal Access to Media Space and Time. -All
registered parties and bona fide candidates shall have
equal access to media space and time. The following
guidelines may be amplified by the COMELEC.
x x x           x x x          x x x
2. The total airtime available for each registered party
and bona fide candidate whether by purchase or
donation shall not exceed a total of one (1) minute per
day per television or radio station. (Emphasis
supplied.)
As Section 6 of R.A. 9006 is presently worded, it can
be clearly seen that the legislature intended the
aggregate airtime limits to be computed on per
candidate or party basis. Otherwise, if the legislature
intended the computation to be on per station basis, it
could have left the original "per day per station"
formulation.46
The Court does not agree. It cannot bring itself to read
the changes in the bill as disclosing an intent that the
COMELEC wants this Court to put on the final
language of the law. If anything, the change in
language meant that the computation must not be
based on a "per day" basis for each television or radio
station. The same could not therefore lend itself to an
understanding that the total allowable time is to be
done on an aggregate basis for all television or radio
stations. Clearly, the respondent in this instance went
beyond its legal mandate when it provided for rules
beyond what was contemplated by the law it is
supposed to implement. As we held in Lakin, Jr. v.
Commission on Elections: 47
The COMELEC, despite its role as the implementing
arm of the Government in the enforcement and
administration of all laws and regulations relative to the
conduct of an election, has neither the authority nor the
license to expand, extend, or add anything to the law it
seeks to implement thereby. The IRRs the COMELEC
issued for that purpose should always be in accord
with the law to be implemented, and should not
override, supplant, or modify the law. It is basic that the
IRRs should remain consistent with the law they intend
to carry out.
Indeed, administrative IRRs adopted by a particular
department of the Government under legislative
authority must be in harmony with the provisions of the
law, and should be for the sole purpose of carrying the
law's general provisions into effect. The law itself
cannot be expanded by such IRRs, because an
administrative agency cannot amend an act of
Congress. 48
In the case of Lakin, Jr., the COMELEC's explanation
that the Resolution then in question did not add
anything but merely reworded and rephrased the
statutory provision did not persuade the Court. With
more reason here since the COMELEC not only
reworded or rephrased the statutory provision - it
practically replaced it with its own idea of what the law
should be, a matter that certainly is not within its
authority. As the Court said in Villegas v. Subido:
49
One last word. Nothing is better settled in the law than
that a public official exercises power, not rights. The
government itself is merely an agency through which
the will of the state is expressed and enforced. Its
officers therefore are likewise agents entrusted with
the responsibility of discharging its functions. As such
there is no presumption that they are empowered to
act. There must be a delegation of such authority,
either express or implied. In the absence of a valid
grant, they are devoid of power. What they do suffers
from a fatal infirmity. That principle cannot be
sufficiently stressed. In the appropriate language of
Chief Justice Hughes: "It must be conceded that
departmental zeal may not be permitted to outrun the
authority conferred by statute." Neither the high dignity
of the office nor the righteousness of the motive then is
an acceptable substitute. Otherwise the rule of law
becomes a myth. Such an eventuality, we must take all
pains to avoid.50
So it was then. So does the rule still remains the same.
d. Section 9 (a) of COMELEC Resolution No. 9615 on
airtime limits also goes against the constitutional
guaranty of freedom of expression, of speech and of
the press
The guaranty of freedom to speak is useless without
the ability to communicate and disseminate what is
said. And where there is a need to reach a large
audience, the need to access the means and media for
such dissemination becomes critical. This is where the
press and broadcast media come along. At the same
time, the right to speak and to reach out would not be
meaningful if it is just a token ability to be heard by a
few. It must be coupled with substantially reasonable
means by which the communicator and the audience
could effectively interact. Section 9 (a) of COMELEC
Resolution No. 9615, with its adoption of the
"aggregate-based" airtime limits unreasonably restricts
the guaranteed freedom of speech and of the press.
Political speech is one of the most important
expressions protected by the Fundamental Law.
"[F]reedom of speech, of expression, and of the press
are at the core of civil liberties and have to be
protected at all costs for the sake of democracy."51
Accordingly, the same must remain unfettered unless
otherwise justified by a compelling state interest.
In regard to limitations on political speech relative to
other state interests, an American case observed:
A restriction on the amount of money a person or
group can spend on political communication during a
campaign necessarily reduces the quantity of
expression by restricting the number of issues
discussed, the depth of their exploration, and the size
of the audience reached. This is because virtually
every means of communicating ideas in today's mass
society requires the expenditure of money. The
distribution of the humblest handbill or leaflet entails
printing, paper, and circulation costs. Speeches and
rallies generally necessitate hiring a hall and
publicizing the event. The electorate's increasing
dependence on television, radio, and other mass
media for news and information has made these
expensive modes of communication indispensable
instruments of effective political speech.
The expenditure limitations contained in the Act
represent substantial, rather than merely theoretical
restraints on the quantity and diversity of political
speech. The $1,000 ceiling on spending "relative to a
clearly identified candidate," 18 U.S.C. § 608(e)(l)
(1970 ed., Supp. IV), would appear to exclude all
citizens and groups except candidates, political parties,
and the institutional press from any significant use of
the most effective modes of communication. Although
the Act's limitations on expenditures by campaign
organizations and political parties provide substantially
greater room for discussion and debate, they would
have required restrictions in the scope of a number of
past congressional and Presidential campaigns and
would operate to constrain campaigning by candidates
who raise sums in excess of the spending ceiling. 52
Section 9 (a) ofCOMELEC Resolution No. 9615 comes
up with what is challenged as being an unreasonable
basis for determining the allowable air time that
candidates and political parties may avail of. Petitioner
GMA came up with its analysis of the practical effects
of such a regulation:
5.8. Given the reduction of a candidate's airtime
minutes in the New Rules, petitioner GMA estimates
that a national candidate will only have 120 minutes to
utilize for his political advertisements in television
during the whole campaign period of 88 days, or will
only have 81.81 seconds per day TV exposure
allotment. If he chooses to place his political
advertisements in the 3 major TV networks in equal
allocation, he will only have 27.27 seconds of airtime
per network per day. This barely translates to 1
advertisement spot on a 30-second spot basis in
television.
5.9. With a 20-hour programming per day and
considering the limits of a station's coverage, it will be
difficult for 1 advertising spot to make a sensible and
feasible communication to the public, or in political
propaganda, to "make known [a candidate's]
qualifications and stand on public issues".
5.10 If a candidate loads all of his 81.81 seconds per
day in one network, this will translate to barely three
30-second advertising spots in television on a daily
basis using the same assumptions above.
5.11 Based on the data from the 2012 Nielsen TV
audience measurement in Mega Manila, the
commercial advertisements in television are viewed by
only 39.2% of the average total day household
audience if such advertisements are placed with
petitioner GMA, the leading television network
nationwide and in Mega Manila. In effect, under the
restrictive aggregate airtime limits in the New Rules,
the three 30-second political advertisements of a
candidate in petitioner GMA will only be communicated
to barely 40% of the viewing audience, not even the
voting population, but only in Mega Manila, which is
defined by AGB Nielsen Philippines to cover Metro
Manila and certain urban areas in the provinces of
Bulacan, Cavite, Laguna, Rizal, Batangas and
Pampanga. Consequently, given the voting population
distribution and the drastically reduced supply of
airtime as a result of the New Rules' aggregate airtime
limits, a national candidate will be forced to use all of
his airtime for political advertisements in television only
in urban areas such as Mega Manila as a political
campaign tool to achieve maximum exposure.
5.12 To be sure, the people outside of Mega Manila or
other urban areas deserve to be informed of the
candidates in the national elections, and the said
candidates also enjoy the right to be voted upon by
these informed populace. 53
The Court agrees. The assailed rule on "aggregate-
based" airtime limits is unreasonable and arbitrary as it
unduly restricts and constrains the ability of candidates
and political parties to reach out and communicate with
the people. Here, the adverted reason for imposing the
"aggregate-based" airtime limits - leveling the playing
field - does not constitute a compelling state interest
which would justify such a substantial restriction on the
freedom of candidates and political parties to
communicate their ideas, philosophies, platforms and
programs of government. And, this is specially so in
the absence of a clear-cut basis for the imposition of
such a prohibitive measure. In this particular instance,
what the COMELEC has done is analogous to letting a
bird fly after one has clipped its wings.
It is also particularly unreasonable and whimsical to
adopt the aggregate-based time limits on broadcast
time when we consider that the Philippines is not only
composed of so many islands. There are also a lot of
languages and dialects spoken among the citizens
across the country. Accordingly, for a national
candidate to really reach out to as many of the
electorates as possible, then it might also be
necessary that he conveys his message through his
advertisements in languages and dialects that the
people may more readily understand and relate to. To
add all of these airtimes in different dialects would
greatly hamper the ability of such candidate to express
himself - a form of suppression of his political speech.
Respondent itself states that "[t]elevision is arguably
the most costeffective medium of dissemination. Even
a slight increase in television exposure can
significantly boost a candidate's popularity, name recall
and electability." If that be so, then drastically
54
curtailing the ability of a candidate to effectively reach
out to the electorate would unjustifiably curtail his
freedom to speak as a means of connecting with the
people.
Finally on this matter, it is pertinent to quote what
Justice Black wrote in his concurring opinion in the
landmark Pentagon Papers case: "In the First
Amendment, the Founding Fathers gave the free press
the protection it must have to fulfill its essential role in
our democracy. The press was to serve the governed,
not the governors. The Government's power to censor
the press was abolished so that the press would
remain forever free to censure the Government. The
press was protected so that it could bare the secrets of
government and inform the people. Only a free and
unrestrained press can effectively expose deception in
government." 55
In the ultimate analysis, when the press is silenced, or
otherwise muffled in its undertaking of acting as a
sounding board, the people ultimately would be the
victims.
e. Section 9 (a) of Resolution 9615 is violative of the
people's right to suffrage
Fundamental to the idea of a democratic and
republican state is the right of the people to determine
their own destiny through the choice of leaders they
may have in government. Thus, the primordial
importance of suffrage and the concomitant right of the
people to be adequately informed for the intelligent
exercise of such birthright. It was said that:
x x x As long as popular government is an end to be
achieved and safeguarded, suffrage, whatever may be
the modality and form devised, must continue to be the
means by which the great reservoir of power must be
emptied into the receptacular agencies wrought by the
people through their Constitution in the interest of good
government and the common weal. Republicanism, in
so far as it implies the adoption of a representative
type of government, necessarily points to the
enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of the
established authority. He has a voice in his
Government and whenever possible it is the solemn
duty of the judiciary, when called upon to act in
justifiable cases, to give it efficacy and not to stifle or
frustrate it. This, fundamentally, is the reason for the
rule that ballots should be read and appreciated, if not
with utmost, with reasonable, liberality. x x x It has
56
also been said that "[ c ]ompetition in ideas and
governmental policies is at the core of our electoral
process and of the First Amendment freedoms." 57
Candidates and political parties need adequate
breathing space - including the means to disseminate
their ideas. This could not be reasonably addressed by
the very restrictive manner by which the respondent
implemented the time limits in regard to political
advertisements in the broadcast media.
f. Resolution No. 9615 needs prior hearing before
adoption
The COMELEC promulgated Resolution No. 9615 on
January 15, 2013 then came up with a public hearing
on January 31, 2013 to explain what it had done,
particularly on the aggregate-based air time limits. This
circumstance also renders the new regulation,
particularly on the adoption of the aggregate-based
airtime limit, questionable. It must not be overlooked
that the new Resolution introduced a radical change in
the manner in which the rules on airtime for political
advertisements are to be reckoned. As such there is a
need for adequate and effective means by which they
may be adopted, disseminated and implemented. In
this regard, it is not enough that they be published - or
explained - after they have been adopted.
While it is true that the COMELEC is an independent
office and not a mere administrative agency under the
Executive Department, rules which apply to the latter
must also be deemed to similarly apply to the former,
not as a matter of administrative convenience but as a
dictate of due process. And this assumes greater
significance considering the important and pivotal role
that the COMELEC plays in the life of the nation. Thus,
whatever might have been said in Commissioner of
Internal Revenue v. Court of Appeals, should also
58
apply mutatis mutandis to the COMELEC when it
comes to promulgating rules and regulations which
adversely affect, or impose a heavy and substantial
burden on, the citizenry in a matter that implicates the
very nature of government we have adopted:
It should be understandable that when an
administrative rule is merely interpretative in nature, its
applicability needs nothing further than its bare
issuance for it gives no real consequence more than
what the law itself has already prescribed. When, upon
the other hand, the administrative rule goes beyond
merely providing for the means that can facilitate or
render least cumbersome the implementation of the
law but substantially adds to or increases the burden of
those governed, it behooves the agency to accord at
least to those directly affected a chance to be heard,
and thereafter to be duly informed, before that new
issuance is given the force and effect of law.
A reading of RMC 37-93, particularly considering the
circumstances under which it has been issued,
convinces us that the circular cannot be viewed simply
as a corrective measure (revoking in the process the
previous holdings of past Commissioners) or merely as
construing Section 142(c)(l) of the NIRC, as amended,
but has, in fact and most importantly, been made in
order to place "Hope Luxury," "Premium More" and
"Champion" within the classification of locally
manufactured cigarettes bearing foreign brands and to
thereby have them covered by RA 7654. Specifically,
the new law would have its amendatory provisions
applied to locally manufactured cigarettes which at the
time of its effectivity were not so classified as bearing
foreign brands. x x x In so doing, the BIR not simply
interpreted the law; verily, it legislated under its quasi-
legislative authority. The due observance of the
requirements of notice, of hearing, and of publication
should not have been then ignored. 59
For failing to conduct prior hearing before coming up
with Resolution No. 9615, said Resolution, specifically
in regard to the new rule on aggregate airtime is
declared defective and ineffectual.
g. Resolution No. 9615 does not impose an
unreasonable burden on the broadcast industry
It is a basic postulate of due process, specifically in
relation to its substantive component, that any
governmental rule or regulation must be reasonable in
its operations and its impositions. Any restrictions, as
well as sanctions, must be reasonably related to the
purpose or objective of the government in a manner
that would not work unnecessary and unjustifiable
burdens on the citizenry. Petitioner GMA assails
certain requirements imposed on broadcast stations as
unreasonable. It explained:
5.40 Petitioner GMA currently operates and monitors
21 FM and AM radio stations nationwide and 8
originating television stations (including its main
transmitter in Quezon City) which are authorized to
dechain national programs for airing and insertion of
local content and advertisements.
5.41 In light of the New Rules wherein a candidate's
airtime minutes are applied on an aggregate basis and
considering that said Rules declare it unlawful in
Section 7( d) thereof for a radio, television station or
other mass media to sell or give for free airtime to a
candidate in excess of that allowed by law or by said
New Rules:
"Section 7. Prohibited Forms of Election Propaganda
-During the campaign period, it is unlawful: x x x x x x x
xx
(d) for any newspaper or publication, radio, television
or cable television station, or other mass media, or any
person making use of the mass media to sell or to give
free of charge print space or air time for campaign or
election propaganda purposes to any candidate or
party in excess of the size, duration or frequency
authorized by law or these rules;
x x x           x x x          x x x
(Emphasis supplied)
petitioner GMA submits that compliance with the New
Rules in order to avoid administrative or criminal
liability would be unfair, cruel and oppressive.
x x x x.
5.43 In the present situation wherein airtime minutes
shall be shared by all television and radio stations,
broadcast mass media organizations would surely
encounter insurmountable difficulties in monitoring the
airtime minutes spent by the numerous candidates for
various elective positions, in real time.
5.44 An inquiry with the National Telecommunications
Commission (NTC) bears out that there are 372
television stations and 398 AM and 800 FM radio
stations nationwide as of June 2012. In addition, there
are 1, 113 cable TV providers authorized by the NTC
to operate within the country as of the said date.
5.45 Given such numbers of broadcast entities and the
necessity to monitor political advertisements pursuant
to the New Rules, petitioner OMA estimates that
monitoring television broadcasts of all authorized
television station would involve 7,440 manhours per
day. To aggravate matters, since a candidate may also
spend his/her broadcasting minutes on cable TV,
additional 281,040 manhours per day would have to be
spent in monitoring the various channels carried by
cable TV throughout the Philippines. As far as radio
broadcasts (both AM and FM stations) are concerned,
around 23,960 manhours per day would have to be
devoted by petitioner OMA to obtain an accurate and
timely determination of a political candidate's
remaining airtime minutes. During the campaign
period, petitioner OMA would have to spend an
estimated 27,494,720 manhours in monitoring the
election campaign commercials of the different
candidates in the country.1âwphi1
5.46 In order to carry-out the obligations imposed by
the New Rules, petitioner OMA further estimates that it
would need to engage and train 39,055 additional
persons on an eight-hour shift, and assign them all
over the country to perform the required monitoring of
radio, television and cable TV broadcasts. In addition,
it would likewise need to allot radio, television,
recording equipment and computers, as well as
telecommunications equipment, for this surveillance
and monitoring exercise, thus imputing additional costs
to the company. Attached herewith are the
computations explaining how the afore-said figures
were derived and the conservative assumptions made
by petitioner OMA in reaching said figures, as Annex
"H".
5.47 Needless to say, such time, manpower
requirements, expense and effort would have to be
replicated by each and every radio station to ensure
that they have properly monitored around 33 national
and more than 40,000 local candidates' airtime
minutes and thus, prevent any risk of administrative
and criminal liability.
60
The Court cannot agree with the contentions of GMA.
The apprehensions of the petitioner appear more to be
the result of a misappreciation of the real import of the
regulation rather than a real and present threat to its
broadcast activities. The Court is more in agreement
with the respondent when it explained that:
The legal duty of monitoring lies with the Comelec.
Broadcast stations are merely required to submit
certain documents to aid the Comelec in ensuring that
candidates are not sold airtime in excess of the
allowed limits. These documents include: (1) certified
true copies of broadcast logs, certificates of
performance, and certificates of acceptance, or other
analogous record on specified dates (Section 9[d][3],
Resolution No. 9615, in relation to Section 6.2, R.A.
9006; and (2) copies of all contract for advertising,
promoting or opposing any political party or the
candidacy of any person for public office within five (5)
days after its signing (Section 6.3, R.A. 9006).
*****
[T]here is absolutely no duty on the broadcast stations
to do monitoring, much less monitoring in real time.
GMA grossly exaggerates when it claims that the non-
existent duty would require them to hire and train an
astounding additional 39,055 personnel working on
eight-hour shifts all over the country.
61
The Court holds, accordingly, that, contrary to
petitioners' contention, the Reporting Requirement for
the COMELEC's monitoring is reasonable.
Further, it is apropos to note that, pursuant to
Resolution No. 9631, the respondent revised the third
62
paragraph of Section 9 (a). As revised, the provision
now reads:
Appearance or guesting by a candidate on any bona
fide newscast, bona fide news interview, bona fide
news documentary, if the appearance of the candidate
is incidental to the presentation of the subject or
subjects covered by the news documentary, or on-the-
spot coverage of bona fide news events, including but
not limited to events sanctioned by the Commission on
Elections, political conventions, and similar activities,
shall not be deemed to be broadcast election
propaganda within the meaning of this provision. For
purposes of monitoring by the COMELEC and
ensuring that parties and candidates were afforded
equal opportunities to promote their candidacy, the
media entity shall give prior notice to the COMELEC,
through the appropriate Regional Election Director
(RED), or in the case of the National Capital Region
(NCR), the Education and Information Department
(EID). If such prior notice is not feasible or practicable,
the notice shall be sent within twenty-four (24) hours
from the first broadcast or publication. Nothing in the
1awp++i1
foregoing sentence shall be construed as relieving
broadcasters, in connection with the presentation of
newscasts, news interviews, news documentaries, and
on-the-spot coverage of news events, from the
obligation imposed upon them under Sections 10 and
14 of these Rules." 63
Further, the petitioner in G.R. No. 205374 assails the
constitutionality of such monitoring requirement,
contending, among others, that it constitutes prior
restraint. The Court finds otherwise. Such a
requirement is a reasonable means adopted by the
COMELEC to ensure that parties and candidates are
afforded equal opportunities to promote their
respective candidacies. Unlike the restrictive
aggregate-based airtime limits, the directive to give
prior notice is not unduly burdensome and
unreasonable, much less could it be characterized as
prior restraint since there is no restriction on
dissemination of information before broadcast.
Additionally, it is relevant to point out that in the original
Resolution No. 9615, the paragraph in issue was
worded in this wise:
Appearance or guesting by a candidate on any bona
fide newscast, bona fide news interview, bona fide
news documentary, if the appearance of the candidate
is incidental to the presentation of the subject or
subjects covered by the news documentary, or on-the-
spot coverage of bona fide news events, including but
not limited to events sanctioned by the Commission on
Elections, political conventions, and similar activities,
shall not be deemed to be broadcast election
propaganda within the meaning of this provision. To
determine whether the appearance or guesting in a
program is bona fide, the broadcast stations or entities
must show that (1) prior approval of the Commission
was secured; and (2) candidates and parties were
afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall be
construed as relieving broadcasters, in connection with
the presentation of newscasts, news interviews, news
documentaries, and on-the-spot coverage of news
events, from the obligation imposed upon them under
Sections 10 and 14 of these Rules. 64
Comparing the original with the revised paragraph, one
could readily appreciate what the COMELEC had done
- to modify the requirement from "prior approval" to
"prior notice." While the former may be suggestive of a
censorial tone, thus inviting a charge of prior restraint,
the latter is more in the nature of a content-neutral
regulation designed to assist the poll body to
undertake its job of ensuring fair elections without
having to undertake any chore of approving or
disapproving certain expressions.
Also, the right to reply provision is reasonable
In the same way that the Court finds the "prior notice"
requirement as not constitutionally infirm, it similarly
concludes that the "right to reply" provision is
reasonable and consistent with the constitutional
mandate.
Section 14 of Resolution No. 9615, as revised by
Resolution No. 9631, provides:
SECTION 14. Right to Reply. - All registered political
parties, party-list groups or coalitions and bona fide
candidates shall have the right to reply to charges
published or aired against them. The reply shall be
given publicity by the newspaper, television, and/or
radio station which first printed or aired the charges
with the same prominence or in the same page or
section or in the same time slot as the first statement.
Registered political parties, party-list groups or
coalitions and bona fide candidates may invoke the
right to reply by submitting within a nonextendible
period of forty-eight hours from first broadcast or
publication, a formal verified claim against the media
outlet to the COMELEC, through the appropriate RED.
The claim shall include a detailed enumeration of the
circumstances and occurrences which warrant the
invocation of the right to reply and must be
accompanied by supporting evidence, such a copy of
the publication or recording of the television or radio
broadcast, as the case may be. If the supporting
evidence is not yet available due to circumstances
beyond the power of the claimant, the latter shall
supplement his claim as soon as the supporting
evidence becomes available, without delay on the part
of the claimant. The claimant must likewise furnish a
copy of the verified claim and its attachments to the
media outlet concerned prior to the filing of the claim
with the COMELEC.
The COMELEC, through the RED, shall view the
verified claim within forty-eight ( 48) hours from receipt
thereof, including supporting evidence, and if
circumstances warrant, give notice to the media outlet
involved for appropriate action, which shall, within
forty-eight ( 48) hours, submit its comment, answer or
response to the RED, explaining the action it has taken
to address the claim. The media outlet must likewise
furnish a copy of the said comment, answer or
response to the claimant invoking the right to reply.
Should the claimant insist that his/her right to reply was
not addressed, he/she may file the appropriate petition
and/or complaint before the Commission on Elections
or its field offices, which shall be endorsed to the Clerk
of Court.
The attack on the validity of the "right to reply"
provision is primarily anchored on the alleged ground
of prior restraint, specifically in so far as such a
requirement may have a chilling effect on speech or of
the freedom of the press.
Petitioner ABC states, inter alia:
5 .14 5. A "conscious and detailed consideration" of the
interplay of the relevant interests - the constitutional
mandate granting candidates the right to reply and the
inviolability of the constitutional freedom of expression,
speech, and the press - will show that the Right to
Reply, as provided for in the Assailed Resolution, is an
impermissible restraint on these fundamental
freedoms.
5.146. An evaluation of the factors set forth in Soriano
(for the balancing of interests test) with respect to the
present controversy will show that the Constitution
does not tilt the balance in favor of the Right to Reply
provision in the Assailed Resolution and the supposed
governmental interest it attempts to further.65
The Constitution itself provides as part of the means to
ensure free, orderly, honest, fair and credible elections,
a task addressed to the COMELEC to provide for a
right to reply. Given that express constitutional
66
mandate, it could be seen that the Fundamental Law
itself has weighed in on the balance to be struck
between the freedom of the press and the right to
reply. Accordingly, one is not merely to see the
equation as purely between the press and the right to
reply. Instead, the constitutionallymandated desiderata
of free, orderly, honest, peaceful, and credible
elections would necessarily have to be factored in
trying to see where the balance lies between press and
the demands of a right-to-reply.
Moreover, as already discussed by the Court in
Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections. 67
In truth, 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 of using them. Since a franchise is
a mere privilege, the exercise of the privilege may
reasonably be burdened with the performance by the
grantee of some form of public service. x x x 68
Relevant to this aspect are these passages from an
American Supreme Court decision with regard to
broadcasting, right to reply requirements, and the
limitations on speech:
We have long recognized that each medium of
expression presents special First Amendment
problems. Joseph Burstyn, Inc. v. Wilson, 343 US 495,
502-503, 96 L Ed 1098, 72 S Ct 777. And of all forms
of communication, it is broadcasting that has received
the most limited First Amendment protection. Thus,
although other speakers cannot be licensed except
under laws that carefully define and narrow official
discretion, a broadcaster may be deprived of his
license and his forum if the Commission decides that
such an action would serve "the public interest,
convenience, and necessity." Similarly, although the
First Amendment protects newspaper publishers from
being required to print the replies of those whom they
criticize, Miami Herald Publishing Co. v. Tornillo, 418
US 241, 41 L Ed 2d 730, 94 S Ct 2831, it affords no
such protection to broadcasters; on the contrary, they
must give free time to the victims of their criticism. Red
Lion Broadcasting Co. v. FCC, 395 US. 367, 23 L Ed
2d 371, 89 S Ct 1794.
The reasons for these distinctions are complex, but
two have relevance to the present case. First, the
broadcast media have established a uniquely
pervasive presence in the lives of all Americans.
Patently offensive, indecent material presented over
the airwaves confronts the citizen not only in public,
but also in the privacy of the home, where the
individual's right to be left alone plainly outweighs the
First Amendment rights of an intruder. Rowan v. Post
Office Dept., 397 US 728, 25 L Ed 2d 736, 90 S Ct
1484. Because the broadcast audience is constantly
tuning in and out, prior warnings cannot completely
protect the listener or viewer from unexpected program
content. To say that one may avoid further offense by
turning off the radio when he hears indecent language
is like saying that the remedy for an assault is to run
away after the first blow. One may hang up on an
indecent phone call, but that option does not give the
caller a constitutional immunity or avoid a harm that
has already taken place.
Second, broadcasting is uniquely accessible to
children, even those too young to read. Although
Cohen's written message might have been
incomprehensible to a first grader, Pacifica's broadcast
could have enlarged a child's vocabulary in an instant.
Other forms of offensive expression may be withheld
from the young without restricting the expression at its
source. Bookstores and motion picture theaters, for
example, may be prohibited from making indecent
material available to children. We held in Ginsberg v.
New York, 390 US 629, that the government's interest
in the "well-being of its youth" and in supporting
"parents' claim to authority in their own household"
justified the regulation of otherwise protected
expression. The ease with which children may obtain
access to broadcast material, coupled with the
concerns recognized in Ginsberg, amply justify special
treatment of indecent broadcasting. 69
Given the foregoing considerations, the traditional
notions of preferring speech and the press over so
many other values of society do not readily lend itself
to this particular matter. Instead, additional weight
should be accorded on the constitutional directive to See Saparate Concurring Opinion
afford a right to reply. If there was no such mandate, ANTONIO T. CARPIO **
P
then the submissions of petitioners may more easily Associate Justice
commend themselves for this Court's acceptance. But Acting Chief Justice
as noted above, this is not the case. Their arguments
simplistically provide minimal importance to that TERESITA J. LEONARDO-DE CASTRO
constitutional command to the point of marginalizing its Associate Justice
importance in the equation.
In fine, when it comes to election and the exercise of LUCAS P. BERSAMIN
freedom of speech, of expression and of the press, the Associate Justice
latter must be properly viewed in context as being
necessarily made to accommodate the imperatives of MARTIN S. VILLARAMA, JR.
fairness by giving teeth and substance to the right to Associate Justice
reply requirement.
WHEREFORE, premises considered, the petitions are
PARTIALLY GRANTED, Section 9 (a) of Resolution JOSE CATRAL MENDOZA ****

No. 9615, as amended by Resolution No. 9631, is Associate Justice

declared UNCONSTITUTIONAL and, therefore, NULL
and VOID. The constitutionality of the remaining S
ESTELA M. PERLAS-BERANBE
provisions of Resolution No. 9615, as amended by MA
Associate Justice
Resolution No. 9631, is upheld and remain in full force
and effect.
On leave
In view of this Decision, the Temporary Restraining
FRANCIS H. JARDELEZA *****

Order issued by the Court on April 16, 2013 is hereby

Associate Justice
made PERMANENT.
CERTIFICATION
SO ORDERED.
Pursuant to Section 13, Article VIII of the Constitution, I
DIOSDADO M. PERALTA
certify that the conclusions in the above Decision had
Associate Justice
been reached in consultation before the case was
WE CONCUR:
assigned to the writer of the opinion of the Court.
On leave
ANTONIO T. CARPIO
MARIA LOURDES P. A. SERENO *

Acting Chief Justice

Chief Justice
Footnotes
*
On official leave.
**
Designated Acting Justice per Special Order No.
1770 dated August 28, 2014.
On official leave.
***
On official leave.
****
On leave.
*****
1
Secretary of Justice v. Lantion, 397 Phil 423, 437
(2000). (Citation omitted)
2
Art. IX (C), Sec. 4 of the CONSTITUTION, provides:
The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
franchises or permits for the operation of transportation
and other public utilities, media of communication or
information, all grants, special privileges, or
concessions granted by the Government or any
subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time
and space, and the right to reply, including reasonable,
equal rates therefor, for public information campaigns
and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and
credible elections.
3
The Philippines is a democratic and republican State.
Sovereignty resides in the people and all government
authority emanates from them. (Art. II, Sec. 1,
CONSTITUTION)
4
Suffrage may be exercised by all citizens of the
Philippines not otherwise disqualified by law, who are
at least eighteen years of age, and who shall have
resided in the Philippines for at least one year and in
the place wherein they propose to vote for at least six
months immediately preceding the election. No
literacy, property, or other substantive requirement
shall be imposed on the exercise of suffrage. (Art. V,
Sec. 1, CONSTITUTION)
5
No law shall be passed abridging the freedom of
speech, of expression, or of the press, or the right of
the people peaceably to assemble and petition the
Government for redress of grievances. (Art. III, Sec. 4,
CONSTITUTION)
6
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 limitations as may be provided by law. (Art. lll.
Sec. 7, CONSTITUTION)
7
Resolution No. 7767 (promulgated on November 30,
2006) and Resolution No. 8758 (promulgated on
February 4, 2010), respectively.
8
SECTION 7. Prohibited Forms of Election
Propaganda.
xxxx
(d) For any newspaper or publication, radio, television
or cable television station, or other mass media, or any
person making use of the mass media to sell or give
free of charge print space or airtime for campaign or
election propaganda purposes to any candidate or
party in excess of the size, duration or frequency
authorized by law or these rules.
xxxx
The printing press, printer, or publisher who prints,
reproduces or publishes said campaign materials, and
the broadcaster, station manager, owner of the radio or
television station, or owner or administrator of any
website who airs or shows the political advertisements,
without the required data or in violation of these rules
shall be criminally liable with the candidate and, if
applicable, further suffer the penalties of suspension or
revocation of franchise or permit in accordance with
law.
9
SECTION 9. Requirements and/or Limitations on the
Use of Election Propaganda through Mass Media. - All
parties and bona fide candidates shall have equal
access to media time and space for their election
propaganda during the campaign period subject to the
following requirements and/or limitations:
a. Broadcast Election Propaganda the duration of air
time that a candidate, or party may use for their
broadcast advertisements or election propaganda shall
be, as follows:
For Candidates/
Registered Political
parties for a
National Elective
Position
Not more than a aggregate total of one hundred (120)
minutes of television advertising, whether appearing on
national, regional, or local, free or cable television, and
one hundred eighty (180) minutes of radio advertising,
whether airing on national, regional, or local radio,
whether by purchase or donation.
For Candidates/
Registered Political
parties for a Local
Elective Position
Not more than an aggregate total of sixty (60) minutes
of television advertising, whether appearing on
national, regional, or local, free or cable television, and
ninety (90) minutes of radio advertising, whether airing
on national, regional, or local radio, whether by
purchase or donation.
In cases where two or more candidates or parties
whose names, initials, images, brands, logos,
insignias, color motifs, symbols, or forms of graphical
representations are displayed, exhibited, used, or
mentioned together in the broadcast election
propaganda or advertisements, the length of time
during which they appear or are being mentioned or
promoted will be counted against the airtime limits
allotted for the said candidates or parties and the cost
of the said advertisement will likewise be considered
as their expenditures, regardless of whoever paid for
the advertisements or to whom the said
advertisements were donated.
Appearance or guesting by a candidate on any bona
fide newscast, bona fide news interview, bona fide
news documentary, if the appearance of the candidate
is incidental to the presentation of the subject or
subjects covered by the news documentary, or on-the-
spot coverage of bona fide news events, including but
not limited to events sanctioned by the Commission on
Elections, political conventions, and similar activities,
shall not be deemed to be broadcast election
propaganda within the meaning of this provision. To
determine whether the appearance or guesting in a
program is bona fide, the broadcast stations or entities
must show that: (I) prior approval of the Commission
was secured; and (2) candidates and paiiies were
afforded equal opportunities to promote their
candidacy. Nothing in the foregoing sentence shall be
construed as relieving broadcasters, in connection with
the presentation of newscasts, news interviews, news
documentaries, and on-the-spot coverage of news
events, from the obligation imposed upon them under
Sections 10 and 14 of these Rules.
Provided, further, that a copy of the broadcast
advertisement contract be furnish to the Commission
thru the Education and Information Department, within
five (5) days from contract signing.
xxxx
10
SECTION 14. Right to Reply. - All registered political
parties, party-list groups or coalitions and bona fide
candidates shall have the right to reply to charges
published, or aired against them. The reply shall be
given publicity, or aired against them. The reply shall
be given publicity by the newspaper, television, and/or
radio station which first printed or aired the charges
with the same prominence or in the same page or
section or in the same time slot as the first statement.
Registered political parties, party-list groups or
coalitions and bona fide candidates may invoke the
right to reply by submitting within a non-extendible
period of forty-eight hours from first broadcast or
publications, a formal verified claim against the media
outlet to the COMELEC through the appropriate RED.
The claim shall include a detailed enumeration of the
circumstances and include a detailed enumeration of
the circumstances and occurrences which warrant the
invocation of the right to reply and must be
accompanied by supporting evidence, such as copy of
the publication or recording of the television or radio
broadcast, as the case may be. If the supporting
evidence is not yet available due to circumstances
beyond the power of the claimant, the latter shall
supplement his claim as soon as the supporting
evidence becomes available, without delay on the part
of the claimant. The claimant must likewise furnish a
copy of the verified claim and its attachments to the
media out let concerned prior to the filing of the claim
with the COMELEC.
The COMELEC, through the RED, shall review the
verified claim within forty-eight (48) hours from receipt
thereof, including supporting evidence, and if
circumstances warrant, give notice to the media outlet
involved for appropriate action, which shall, within
forty-eight ( 48) hours, submit its comment, answer or
response to the RED, explaining the action it has taken
to address the claim. The media outlets must likewise
furnish a copy invoking the right to reply.
Should the claimant insist that his/her reply was not
addressed, he/she may file the appropriate petition
and/or complaint before the commission on Elections
or its field offices, which shall be endorsed to the Clerk
of the Commission.
11
SECTION l. Definitions. -As used in this Resolution:
xxxx
(4) The term "political advertisement" or "election
propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any
medium, which contain the name, image, logo, brand,
insignia, color motif, initials, and other symbol or
graphic representation that is capable of being
associated with a candidate or party, and is intended to
draw the attention of the public or a segment thereof to
promote or oppose, directly or indirectly, the election of
the said candidate or candidates to a public office. In
broadcast media, political advertisements may take the
form of spots, appearances on TV shows and radio
programs, live or taped announcements, teasers, and
other forms of advertising messages or
announcements used by commercial advertisers.
Political advertising includes matters, not falling within
the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social
networks, blogging sites, and micro-blogging sites, in
return for consideration, or otherwise capable of
pecuniary estimation.
12
SECTION 35. Election Offense. - Any violation of RA
9006 and these Rules shall constitute an election
offense punishable under the first and second
paragraph of Section 264 of the Omnibus Election
Code in addition to administrative liability, whenever
applicable. Any aggrieved party may file a verified
complaint for violation of these Rules with the Law
Department of the Commission.
13
Rollo (G.R. No. 205357), pp. 382-426.
14
Id. at 667-710.
15
Id. at 676.
16
Id. at 699.
17
Id. at 917-937.
18
THE COMMISSION ON ELECTIONS
xxxx
Sec. 2. The Commission on Elections shall exercise
the following powers and functions:
xxxx
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of
places where propaganda materials shall be posted,
and to prevent and penalize all forms of election
frauds, offenses, malpractices, and nuisance
candidates.
19
Supplemental Comment and Opposition, p. 17.
20
Rollo (G.R. No. 205357), p. 996
21
Rollo (G..R. No. 205374), pp. 378-385.
22
Id. at 386-395
23
Id. at 352-361.
24
Id. at 362-377.
25
Rollo (G..R. No. 206360), p. 86.
26
Rollo (G .. R. No. 205374), pp. 402-413.
27
Dela Liana v. Chairperson, Commission on Audit,
G.R. No. 180989, February 7, 2012, 665 SCRA 176,
184.
28
De Castro v. Judicial and Bar Council (JBC), G.R.
No. 191032, G.R. No. 191057, A.M. No. 10-2-5-SC,
G.R. No. 191149, March 17, 2010, 615 SCRA 666;
Association of Small landowners in the Philippines, Inc.
v. Sec. of Agrarian Reform, 256 Phil. 777 (1989);
Albano v. Reyes, 256 Phil. 718 (1989); Kapatiran ng
mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan, 246 Phil. 380 (1988); Legaspi v. Civil Service
Commission, 234 Phil. 521 (1987); Tanada v. Tuvera,
220 Phil. 422 (1985).
29
G.R. No. 122846, January 20, 2009, 576 SCRA 416.
30
Id at 429.
31
Id. at 430-432.
32
The pertinent portions of the Fair Election Act (R.A.
No. 9006) provide:
SECTION 6. Equal Access to Media Time and Space.
- All registered parties and bona fide candidates shall
have equal access to media time and space. The
following guidelines may be amplified on by the
COMELEC:
xxxx
6.2. (a) Each bona fide candidate or registered political
party for a nationally elective office shall be entitled to
not more than one hundred twenty (120) minutes of
television advertisement and one hundred eighty ( 180)
minutes of radio advertisement whether by purchase or
donation.
(b) Each bona fide candidate or registered political
party for a locally elective office shall be entitled to not
more than sixty (60) minutes of television
advertisement and ninety (90) minutes of radio
advertisement whether by purchase or donation; or
For this purpose, the COMELEC shall require any
broadcast station or entity to submit to the COMELEC
a copy of its broadcast logs and certificates of
performance for the review and verification of the
frequency, date, time and duration of advertisements
broadcast for any candidate or political party.
6.3. All mass media entities shall furnish the
COMELEC with a copy of all contracts for advertising,
promoting or opposing any political party or the
candidacy of any person for public office within five (5)
days after its signing. In every case, it shall be signed
by the donor, the candidate concerned or by the duly
authorized representative of the political party.
6.4. No franchise or permit to operate a radio or
television stations shall be granted or issued,
suspended or cancelled during the election period.
In all instances, the COMELEC shall supervise the use
and employment of press, radio and television facilities
insofar as the placement of political advertisements is
concerned to ensure that candidates are given equal
opportunities under equal circumstances to make
known their qualifications and their stand on public
issues within the limits set forth in the Omnibus
Election Code and Republic Act No. 7166 on election
spending.
xxxx
33
RULES AND REGULATIONS IMPLEMENTING
REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS
THE "FAIR ELECTION ACT", IN RELATION TO THE
MAY 10, 2004 ELECTIONS AND SUBSEQUENT
ELECTIONS.
34
See Section 13, 1, Resolution No. 6250.
35
RULES AND REGULATIONS IMPLEMENTING
REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS
THE FAIR ELECTION ACT, IN RELATION TO THE
MAY 14, 2007 SYNCHRONIZED NATIONAL AND
LOCAL ELECTIONS; See Section 13, 1.
36
RULES AND REGULATIONS IMPLEMENTING
REPUBLIC ACT NO. 9006, OTHERWISE KNOWN AS
THE FAIR ELECTION PRACTICES ACT, IN
RELATION TO THE MAY IO, 2010 SYNCHRONIZED
NATIONAL AND LOCAL ELECTIONS, AND
SUBSEQUENT ELECTIONS; See Section 11 (a).
37
Emphasis supplied.
38
Motion for Leave to Intervene and to File and Admit
the Herein Attached Petition-in-Intervention, pp. 15-20;
rollo (GR. No. 205357), pp. 347-352, citing TSN of the
Comelec hearing on January 31, 2013, pp. 6-12.
(Emphasis supplied)
39
Id. at 20. (Emphasis and underscoring in the original)
40
TSN, E.M. No.13-001 to 02, January 31, 2013, p. 8.
(Emphasis supplied) 498.
41
Motion for Leave to Intervene and to File and Admit 50
Villegas v. Subido, supra, at 510-511.
the Herein Attached Petition-in-Intervention, p. 18; rollo 51
In the Matter of the Allegations Contained in the
(G.R. No. 205357), p. 350. Columns of Mr. Amado P Macasaet Published in
42
Globe Te!ecom, Inc. v. Natfonal Telecommunictions Malaya Dated September I 8, I 9, 20 and 21, 2007,
Commision, 479 Phil. 1, 33-34 (2004). A.M. No. 07-09-13-SC, August 8, 2008, 561 SCRA
43
Motion for Leave to Intervene and to File and Admit 395, 437.
the Herein Attached Petition-in-Intervention, pp. 21- 52
Buckley v. Valeo, 424 U.S. 1, 19-20 (1976).
24.; rollo (G..R. No. 205357), pp. 353-356. 53
Rollo (G.R. No. 205357), pp. 25-26. (Emphasis in the
44
Sec. 11. Prohibited Forms of Election Propaganda. - original)
In addition to the forms of election propaganda 54
Comment and Opposition, p. 15; id. at 396.
prohibited under Section 85 of Batas Pambansa Big. 55
New York Times Co. v. United States, 403 U.S. 713,
881, it shall be unlawful: 717 (1971).
xxxx 56
Moya v. Del Fierro, 69 Phil. 199, 204 (1939).
b. for any newspaper, radio broadcasting or television 57
Williams v. Rhodes, 393 U.S. 23, 32 (1968).
station, or other mass media, or any person making 58
329 Phil. 987 (1996).
use of the mass media to sell or to give free of charge 59
Commissioner of Internal Revenue v. Court of
print space or air time for campaign or other political Appeals, supra, at 1007-1008. (Italics and boldface
purposes except to the Commission as provided under supplied)
Sections 90 and 92 of Batas Pambansa Big. 881. Any 60
Rollo (G.R. No. 205537), pp. 44-46. (Emphasis in the
mass media columnist, commentator, announcer or original)
personality who is a candidate for any elective public 61
Comment and Opposition, id at 20.
office shall take a leave of absence from his work as 62
Promulgated on February 1, 2013.
such during the campaign period. 63
Emphasis supplied.
45
Journal of Senote, Se«lon No. 92, 22-23 Moy 2000, 64
Emphasis and italics supplied.
rollo, (G.R. No. 205357), pp. 126-127. 65
Rollo (G.R. No. 205374), pp. 67-68.
46
Respondent's Comment and Opposition, pp. 11-12; 66
Art. IX (C), Sec. 4 of the CONSTITUTION, provides
rollo, (G.R. No. 205357), pp. 392/393. in part:
(Emphasis in the original). The Commission may, during the election period,
47
G.R. Nos. 179431-32 and 180445, June 22, 2010, supervise or regulate the enjoyment or utilization of all
621 SCRA 385. franchises or permits for the operation of transportation
48
Id. at 411. (Citations omitted) and other public utilities, media of communication or
49
G.R. No. L-26534, November 28, 1969, 30 SCRA information, all grants, special privileges, or
concessions granted by the Government or any
subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity, time
and space, and the right to reply, including reasonable,
equal rates therefor, for public information campaigns
and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and
credible elections." (Emphasis supplied.)
67
G.R. No. 132922, April 21, 1998, 289 SCRA337.
68
Telecommunications and Broadcast Attorneys of the
Philippines, Inc. v. Commission on Elections, supra, at
349.
69
Fedral Communication Commission v. Pacifica
Foundation, 438 U.S. 726, 748-750 (1978). (Emphasis
supplied)