CITIZENSHIP
best of my knowledge and belief.7
Maquiling vs. COMELEC (G.R. No. 195649, April 16, 2013
THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction with Rule 65 of
the Rules of Court to review the Resolutions of the Commission on Elections
(COMELEC). The Resolution1 in SPA No. 10-1 09(DC) of the COMELEC
First Division dated 5 October 201 0 is being assailed for applying Section 44
of the Local Government Code while the Resolution2 of the COMELEC En
Banc dated 2 February 2011 is being questioned for finding that respondent
Rommel Arnado y Cagoco (respondent Arnado/Arnado) is solely a Filipino
citizen qualified to run for public office despite his continued use of a U.S.
passport.
FACTS
Respondent Arnado is a natural born Filipino citizen.3 However, as a
consequence of his subsequent naturalization as a citizen of the United
States of America, he lost his Filipino citizenship. Arnado applied for
repatriation under Republic Act (R.A.) No. 9225 before the Consulate
General of the Philippines in San Franciso, USA and took the Oath of
Allegiance to the Republic of the Philippines on 10 July 2008.4 On the same
day an Order of Approval of his Citizenship Retention and Re-acquisition was
issued in his favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal
orders promulgated by the duly constituted authorities of the Philippines and I
hereby declare that I recognize and accept the supreme authority of the
Philippines and will maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily without mental reservation or
purpose of evasion.6
On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic
and executed an Affidavit of Renunciation of his foreign citizenship, which
states:
I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and
perpetually renounce all allegiance and fidelity to the UNITED STATES OF
AMERICA of which I am a citizen, and I divest myself of full employment of
all civil and political rights and privileges of the United States of America.
I solemnly swear that all the foregoing statement is true and correct to the
On 30 November 2009, Arnado filed his Certificate of Candidacy for Mayor of
Kauswagan, Lanao del Norte, which contains, among others, the following
statements:
I am a natural born Filipino citizen / naturalized Filipino citizen.
I am not a permanent resident of, or immigrant to, a foreign country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of the Philippines
and will maintain true faith and allegiance thereto. I will obey the laws, legal
orders and decrees promulgated by the duly constituted authorities.
I impose this obligation upon myself voluntarily without mental reservation or
purpose of evasion.8
On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty
candidate, filed a petition to disqualify Arnado and/or to cancel his certificate
of candidacy for municipal mayor of Kauswagan, Lanao del Norte in
connection with the 10 May 2010 local and national elections.9
Respondent Balua contended that Arnado is not a resident of Kauswagan,
Lanao del Norte and that he is a foreigner, attaching thereto a certification
issued by the Bureau of Immigration dated 23 April 2010 indicating the
nationality of Arnado as "USA-American."10To further bolster his claim of
Arnado’s US citizenship, Balua presented in his Memorandum a computer-
generated travel record11 dated 03 December 2009 indicating that Arnado
has been using his US Passport No. 057782700 in entering and departing
the Philippines. The said record shows that Arnado left the country on 14
April 2009 and returned on 25 June 2009, and again departed on 29 July
2009, arriving back in the Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of Immigration dated
23 April 2010, certifying that the name "Arnado, Rommel Cagoco" appears in
the available Computer Database/Passenger manifest/IBM listing on file as
of 21 April 2010, with the following pertinent travel records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700

DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012
On 30 April 2010, the COMELEC (First Division) issued an Order13 requiring
the respondent to personally file his answer and memorandum within three
(3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to declare him in
default and to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by the 2010 elections
where Arnado garnered the highest number of votes and was subsequently
proclaimed as the winning candidate for Mayor of Kauswagan, Lanao del
Norte.
It was only after his proclamation that Arnado filed his verified answer,
submitting the following documents as evidence:14
1. Affidavit of Renunciation and Oath of Allegiance to the Republic of the
Philippines dated 03 April 2009;
2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil Seno, Virginia Branzuela,
Leoncio Daligdig, and Jessy Corpin, all neighbors of Arnado, attesting that
Arnado is a long-time resident of Kauswagan and that he has been
conspicuously and continuously residing in his family’s ancestral house in
Kauswagan;
3. Certification from the Punong Barangay of Poblacion, Kauswagan, Lanao
del Norte dated 03 June 2010 stating that Arnado is a bona fide resident of
his barangay and that Arnado went to the United States in 1985 to work and
returned to the Philippines in 2009;
4. Certification dated 31 May 2010 from the Municipal Local Government
Operations Office of Kauswagan stating that Dr. Maximo P. Arnado, Sr.
served as Mayor of Kauswagan, from January 1964 to June 1974 and from
15 February 1979 to 15 April 1986; and
5. Voter Certification issued by the Election Officer of Kauswagan certifying
that Arnado has been a registered voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the cancellation of a certificate
of candidacy based on misrepresentation,15 the COMELEC First Division
considered it as one for disqualification. Balua’s contention that Arnado is a
resident of the United States was dismissed upon the finding that "Balua
failed to present any evidence to support his contention,"16 whereas the First
Division still could "not conclude that Arnado failed to meet the one-year
residency requirement under the Local Government Code."17
In the matter of the issue of citizenship, however, the First Division disagreed
with Arnado’s claim that he is a Filipino citizen.18
We find that although Arnado appears to have substantially complied with the
requirements of R.A. No. 9225, Arnado’s act of consistently using his US
passport after renouncing his US citizenship on 03 April 2009 effectively
negated his Affidavit of Renunciation.
xxxx
Arnado’s continued use of his US passport is a strong indication that Arnado
had no real intention to renounce his US citizenship and that he only
executed an Affidavit of Renunciation to enable him to run for office. We
cannot turn a blind eye to the glaring inconsistency between Arnado’s
unexplained use of a US passport six times and his claim that he re-acquired
his Philippine citizenship and renounced his US citizenship. As noted by the
Supreme Court in the Yu case, "a passport is defined as an official document
of identity and nationality issued to a person intending to travel or sojourn in
foreign countries." Surely, one who truly divested himself of US citizenship
would not continue to avail of privileges reserved solely for US nationals.19
The dispositive portion of the Resolution rendered by the COMELEC
First Division reads:
WHEREFORE, in view of the foregoing, the petition for disqualification and/or
to cancel the certificate of candidacy of Rommel C. Arnado is hereby
GRANTED. Rommel C. Arnado’s proclamation as the winning candidate for
Municipal Mayor of Kauswagan, Lanao del Nore is hereby ANNULLED. Let
the order of succession under Section 44 of the Local Government Code of
1991 take effect.20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the COMELEC En
Banc on the ground that "the evidence is insufficient to justify the Resolution
and that the said Resolution is contrary to law."21 He raised the following
contentions:22
1. The finding that he is not a Filipino citizen is not supported by the evidence
consisting of his Oath of Allegiance and the Affidavit of Renunciation, which
show that he has substantially complied with the requirements of R.A. No.
9225;
2. The use of his US passport subsequent to his renunciation of his American
citizenship is not tantamount to a repudiation of his Filipino citizenship, as he
did not perform any act to swear allegiance to a country other than the
Philippines;
3. He used his US passport only because he was not informed of the
issuance of his Philippine passport, and that he used his Philippine passport
after he obtained it;
4. Balua’s petition to cancel the certificate of candidacy of Arnado was filed
out of time, and the First Division’s treatment of the petition as one for
disqualification constitutes grave abuse of discretion amounting to excess of
jurisdiction;23
5. He is undoubtedly the people’s choice as indicated by his winning the
elections;
6. His proclamation as the winning candidate ousted the COMELEC from
jurisdiction over the case; and
7. The proper remedy to question his citizenship is through a petition for quo
warranto, which should have been filed within ten days from his
proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another candidate for mayor
of Kauswagan, and who garnered the second highest number of votes in the
2010 elections, intervened in the case and filed before the COMELEC En
Banc a Motion for Reconsideration together with an Opposition to Arnado’s
Amended Motion for Reconsideration. Maquiling argued that while the First
Division correctly disqualified Arnado, the order of succession under Section
44 of the Local Government Code is not applicable in this case.
Consequently, he claimed that the cancellation of Arnado’s candidacy and
the nullification of his proclamation, Maquiling, as the legitimate candidate
who obtained the highest number of lawful votes, should be proclaimed as
the winner.
Maquiling simultaneously filed his Memorandum with his Motion for
Intervention and his Motion for Reconsideration. Arnado opposed all motions
filed by Maquiling, claiming that intervention is prohibited after a decision has
already been rendered, and that as a second-placer, Maquiling undoubtedly
lost the elections and thus does not stand to be prejudiced or benefitted by
the final adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En Banc held that
under Section 6 of Republic Act No. 6646, the Commission "shall continue
with the trial and hearing of the action, inquiry or protest even after the
proclamation of the candidate whose qualifications for office is questioned."
As to Maquiling’s intervention, the COMELEC En Banc also cited Section 6
of R.A. No. 6646 which allows intervention in proceedings for disqualification
even after elections if no final judgment has been rendered, but went on
further to say that Maquiling, as the second placer, would not be prejudiced
by the outcome of the case as it agrees with the dispositive portion of the
Resolution of the First Division allowing the order of succession under
Section 44 of the Local Government Code to take effect.
The COMELEC En Banc agreed with the treatment by the First Division of
the petition as one for disqualification, and ruled that the petition was filed
well within the period prescribed by law,24 having been filed on 28 April
2010, which is not later than 11 May 2010, the date of proclamation.
However, the COMELEC En Banc reversed and set aside the ruling of the
First Division and granted Arnado’s Motion for Reconsideration, on the
following premises:
First:
By renouncing his US citizenship as imposed by R.A. No. 9225, the
respondent embraced his Philippine citizenship as though he never became
a citizen of another country. It was at that time, April 3, 2009, that the
respondent became a pure Philippine Citizen again.
xxxx
The use of a US passport … does not operate to revert back his status as a
dual citizen prior to his renunciation as there is no law saying such. More
succinctly, the use of a US passport does not operate to "un-renounce" what
he has earlier on renounced. The First Division’s reliance in the case of In
Re: Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is
misplaced. The petitioner in the said case is a naturalized citizen who, after
taking his oath as a naturalized Filipino, applied for the renewal of his
Portuguese passport. Strict policy is maintained in the conduct of citizens
who are not natural born, who acquire their citizenship by choice, thus
discarding their original citizenship. The Philippine State expects strict
conduct of allegiance to those who choose to be its citizens. In the present
case, respondent is not a naturalized citizen but a natural born citizen who
chose greener pastures by working abroad and then decided to repatriate to
supposedly help in the progress of Kauswagan. He did not apply for a US
passport after his renunciation. Thus the mentioned case is not on all fours
with the case at bar.
xxxx
The respondent presented a plausible explanation as to the use of his US
passport. Although he applied for a Philippine passport, the passport was
only issued on June 18, 2009. However, he was not notified of the issuance
of his Philippine passport so that he was actually able to get it about three (3)
months later. Yet as soon as he was in possession of his Philippine passport,
the respondent already used the same in his subsequent travels abroad. This
fact is proven by the respondent’s submission of a certified true copy of his
passport showing that he used the same for his travels on the following
dates: January 31, 2010, April 16, 2010, May 20, 2010, January 12, 2010,
March 31, 2010 and June 4, 2010. This then shows that the use of the US
passport was because to his knowledge, his Philippine passport was not yet
issued to him for his use. As probably pressing needs might be undertaken,
the respondent used whatever is within his control during that time.25
In his Separate Concurring Opinion, COMELEC Chairman Sixto Brillantes
cited that the use of foreign passport is not one of the grounds provided for
under Section 1 of Commonwealth Act No. 63 through which Philippine
citizenship may be lost.
"The application of the more assimilative principle of continuity of citizenship
is more appropriate in this case. Under said principle, once a person
becomes a citizen, either by birth or naturalization, it is assumed that he
desires to continue to be a citizen, and this assumption stands until he
voluntarily denationalizes or expatriates himself. Thus, in the instant case
respondent after reacquiring his Philippine citizenship should be presumed to
have remained a Filipino despite his use of his American passport in the
absence of clear, unequivocal and competent proof of expatriation.
Accordingly, all doubts should be resolved in favor of retention of
citizenship."26
On the other hand, Commissioner Rene V. Sarmiento dissented, thus:
Respondent evidently failed to prove that he truly and wholeheartedly
abandoned his allegiance to the United States. The latter’s continued use of
his US passport and enjoyment of all the privileges of a US citizen despite
his previous renunciation of the afore-mentioned citizenship runs contrary to
his declaration that he chose to retain only his Philippine citizenship.
Respondent’s submission with the twin requirements was obviously only for
the purpose of complying with the requirements for running for the mayoralty
post in connection with the May 10, 2010 Automated National and Local
Elections.
Qualifications for elective office, such as citizenship, are continuing
requirements; once any of them is lost during his incumbency, title to the
office itself is deemed forfeited. If a candidate is not a citizen at the time he
ran for office or if he lost his citizenship after his election to office, he is
disqualified to serve as such. Neither does the fact that respondent obtained
the plurality of votes for the mayoralty post cure the latter’s failure to comply
with the qualification requirements regarding his citizenship.
Since a disqualified candidate is no candidate at all in the eyes of the law, his
having received the highest number of votes does not validate his election. It
has been held that where a petition for disqualification was filed before
election against a candidate but was adversely resolved against him after
election, his having obtained the highest number of votes did not make his
election valid. His ouster from office does not violate the principle of vox
populi suprema est lex because the application of the constitutional and
statutory provisions on disqualification is not a matter of popularity. To apply
it is to breath[e] life to the sovereign will of the people who expressed it when
they ratified the Constitution and when they elected their representatives who
enacted the law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety of declaring
Arnado qualified to run for public office despite his continued use of a US
passport, and praying that Maquiling be proclaimed as the winner in the 2010
mayoralty race in Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error on the part of
the COMELEC En Banc for ruling that Arnado is a Filipino citizen despite his
continued use of a US passport, Maquiling now seeks to reverse the finding
of the COMELEC En Banc that Arnado is qualified to run for public office.
Corollary to his plea to reverse the ruling of the COMELEC En Banc or to
affirm the First Division’s disqualification of Arnado, Maquiling also seeks the
review of the applicability of Section 44 of the Local Government Code,
claiming that the COMELEC committed reversible error in ruling that "the
succession of the vice mayor in case the respondent is disqualified is in
order."

There are three questions posed by the parties before this Court which will
be addressed seriatim as the subsequent questions hinge on the result of the
first.
The first question is whether or not intervention is allowed in a disqualification
case.
The second question is whether or not the use of a foreign passport after
renouncing foreign citizenship amounts to undoing a renunciation earlier
made.
A better framing of the question though should be whether or not the use of a
foreign passport after renouncing foreign citizenship affects one’s
qualifications to run for public office.
The third question is whether or not the rule on succession in the Local
Government Code is applicable to this case.
OUR RULING
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage when respondent
Arnado filed a Motion for Reconsideration of the First Division Resolution
before the COMELEC En Banc. As the candidate who garnered the second
highest number of votes, Maquiling contends that he has an interest in the
disqualification case filed against Arnado, considering that in the event the
latter is disqualified, the votes cast for him should be considered stray and
the second-placer should be proclaimed as the winner in the elections.
It must be emphasized that while the original petition before the COMELEC
is one for cancellation of the certificate of candidacy and / or disqualification,
the COMELEC First Division and the COMELEC En Banc correctly treated
the petition as one for disqualification.
The effect of a disqualification case is enunciated in Section 6 of R.A. No.
6646:
Sec. 6. Effect of Disqualification Case. - Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In that case, the
Court said:
That petitioner had a right to intervene at that stage of the proceedings for
the disqualification against private respondent is clear from Section 6 of R.A.
No. 6646, otherwise known as the Electoral Reforms Law of 1987, which
provides: Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or Commission shall
continue with the trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong. Under this provision, intervention
may be allowed in proceedings for disqualification even after election if there
has yet been no final judgment rendered.29
Clearly then, Maquiling has the right to intervene in the case. The fact that
the COMELEC En Banc has already ruled that Maquiling has not shown that
the requisites for the exemption to the second-placer rule set forth in Sinsuat
v. COMELEC30 are present and therefore would not be prejudiced by the
outcome of the case, does not deprive Maquiling of the right to elevate the
matter before this Court.
Arnado’s claim that the main case has attained finality as the original
petitioner and respondents therein have not appealed the decision of the
COMELEC En Banc, cannot be sustained. The elevation of the case by the
intervenor prevents it from attaining finality. It is only after this Court has
ruled upon the issues raised in this instant petition that the disqualification
case originally filed by Balua against Arnado will attain finality.
The use of foreign passport after renouncing one’s foreign citizenship is a
positive and voluntary act of representation as to one’s nationality and
citizenship; it does not divest Filipino citizenship regained by repatriation but
it recants the Oath of Renunciation required to qualify one to run for an
elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition Act of 2003
provides:
Those who retain or re-acquire Philippine citizenship under this Act shall
enjoy full civil and political rights and be subject to all attendant liabilities and
responsibilities under existing laws of the Philippines and the following
conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet the qualification
for holding such public office as required by the Constitution and existing
laws and, at the time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign before any public
officer authorized to administer an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run for a public
office. He took the Oath of Allegiance and renounced his foreign citizenship.
There is no question that after performing these twin requirements required
under Section 5(2) of R.A. No. 9225 or the Citizenship Retention and Re-
acquisition Act of 2003, he became eligible to run for public office.
Indeed, Arnado took the Oath of Allegiance not just only once but twice: first,
on 10 July 2008 when he applied for repatriation before the Consulate
General of the Philippines in San Francisco, USA, and again on 03 April
2009 simultaneous with the execution of his Affidavit of Renunciation. By
taking the Oath of Allegiance to the Republic, Arnado re-acquired his
Philippine citizenship. At the time, however, he likewise possessed American
citizenship. Arnado had therefore become a dual citizen.
After reacquiring his Philippine citizenship, Arnado renounced his American
citizenship by executing an Affidavit of Renunciation, thus completing the
requirements for eligibility to run for public office.
By renouncing his foreign citizenship, he was deemed to be solely a Filipino
citizen, regardless of the effect of such renunciation under the laws of the
foreign country.32
However, this legal presumption does not operate permanently and is open
to attack when, after renouncing the foreign citizenship, the citizen performs
positive acts showing his continued possession of a foreign citizenship.33
Arnado himself subjected the issue of his citizenship to attack when, after
renouncing his foreign citizenship, he continued to use his US passport to
travel in and out of the country before filing his certificate of candidacy on 30
November 2009. The pivotal question to determine is whether he was solely
and exclusively a Filipino citizen at the time he filed his certificate of
candidacy, thereby rendering him eligible to run for public office.
Between 03 April 2009, the date he renounced his foreign citizenship, and 30
November 2009, the date he filed his COC, he used his US passport four
times, actions that run counter to the affidavit of renunciation he had earlier
executed. By using his foreign passport, Arnado positively and voluntarily
represented himself as an American, in effect declaring before immigration
authorities of both countries that he is an American citizen, with all attendant
rights and privileges granted by the United States of America.
The renunciation of foreign citizenship is not a hollow oath that can simply be
professed at any time, only to be violated the next day. It requires an
absolute and perpetual renunciation of the foreign citizenship and a full
divestment of all civil and political rights granted by the foreign country which
granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when the Court
declared:
His declarations will be taken upon the faith that he will fulfill his undertaking
made under oath. Should he betray that trust, there are enough sanctions for
declaring the loss of his Philippine citizenship through expatriation in
appropriate proceedings. In Yu v. Defensor-Santiago, we sustained the
denial of entry into the country of petitioner on the ground that, after taking
his oath as a naturalized citizen, he applied for the renewal of his Portuguese
passport and declared in commercial documents executed abroad that he
was a Portuguese national. A similar sanction can be taken against anyone
who, in electing Philippine citizenship, renounces his foreign nationality, but
subsequently does some act constituting renunciation of his Philippine
citizenship.
While the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine
citizenship,35 it is nevertheless an act which repudiates the very oath of
renunciation required for a former Filipino citizen who is also a citizen of
another country to be qualified to run for a local elective position.
When Arnado used his US passport on 14 April 2009, or just eleven days
after he renounced his American citizenship, he recanted his Oath of
Renunciation36 that he "absolutely and perpetually renounce(s) all allegiance
and fidelity to the UNITED STATES OF AMERICA"37 and that he "divest(s)
himself of full employment of all civil and political rights and privileges of the
United States of America."38

We agree with the COMELEC En Banc that such act of using a foreign
passport does not divest Arnado of his Filipino citizenship, which he acquired
by repatriation. However, by representing himself as an American citizen,
Arnado voluntarily and effectively reverted to his earlier status as a dual
citizen. Such reversion was not retroactive; it took place the instant Arnado
represented himself as an American citizen by using his US passport.
This act of using a foreign passport after renouncing one’s foreign citizenship
is fatal to Arnado’s bid for public office, as it effectively imposed on him a
disqualification to run for an elective local position.
Arnado’s category of dual citizenship is that by which foreign citizenship is
acquired through a positive act of applying for naturalization. This is distinct
from those considered dual citizens by virtue of birth, who are not required by
law to take the oath of renunciation as the mere filing of the certificate of
candidacy already carries with it an implied renunciation of foreign
citizenship.39 Dual citizens by naturalization, on the other hand, are required
to take not only the Oath of Allegiance to the Republic of the Philippines but
also to personally renounce foreign citizenship in order to qualify as a
candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009,
Arnado was a dual citizen enjoying the rights and privileges of Filipino and
American citizenship. He was qualified to vote, but by the express
disqualification under Section 40(d) of the Local Government Code,40 he
was not qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen only for a period
of eleven days, or from 3 April 2009 until 14 April 2009, on which date he first
used his American passport after renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements and must be
possessed not only at the time of appointment or election or assumption of
office but during the officer's entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged. x x x.41
The citizenship requirement for elective public office is a continuing one. It
must be possessed not just at the time of the renunciation of the foreign
citizenship but continuously. Any act which violates the oath of renunciation
opens the citizenship issue to attack.
We agree with the pronouncement of the COMELEC First Division that
"Arnado’s act of consistently using his US passport effectively negated his
"Affidavit of Renunciation."42 This does not mean, that he failed to comply
with the twin requirements under R.A. No. 9225, for he in fact did.
It was after complying with the requirements that he performed positive acts
which effectively disqualified him from running for an elective public office
pursuant to Section 40(d) of the Local Government Code of 1991.
The purpose of the Local Government Code in disqualifying dual citizens
from running for any elective public office would be thwarted if we were to
allow a person who has earlier renounced his foreign citizenship, but who
subsequently represents himself as a foreign citizen, to hold any public
office.
Arnado justifies the continued use of his US passport with the explanation
that he was not notified of the issuance of his Philippine passport on 18 June
2009, as a result of which he was only able to obtain his Philippine passport
three (3) months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu, the Portuguese
national who sought naturalization as a Filipino citizen and later applied for
the renewal of his Portuguese passport. That Arnado did not apply for a US
passport after his renunciation does not make his use of a US passport less
of an act that violated the Oath of Renunciation he took. It was still a positive
act of representation as a US citizen before the immigration officials of this
country.
The COMELEC, in ruling favorably for Arnado, stated "Yet, as soon as he
was in possession of his Philippine passport, the respondent already used
the same in his subsequent travels abroad."44 We cannot agree with the
COMELEC. Three months from June is September. If indeed, Arnado used
his Philippine passport as soon as he was in possession of it, he would not
have used his US passport on 24 November 2009.
Besides, Arnado’s subsequent use of his Philippine passport does not
correct the fact that after he renounced his foreign citizenship and prior to
filing his certificate of candidacy, he used his US passport. In the same way
that the use of his foreign passport does not undo his Oath of Renunciation,
his subsequent use of his Philippine passport does not undo his earlier use
of his US passport.
Citizenship is not a matter of convenience. It is a badge of identity that
comes with attendant civil and political rights accorded by the state to its
citizens. It likewise demands the concomitant duty to maintain allegiance to
one’s flag and country. While those who acquire dual citizenship by choice
are afforded the right of suffrage, those who seek election or appointment to
public office are required to renounce their foreign citizenship to be deserving
of the public trust. Holding public office demands full and undivided
allegiance to the Republic and to no other.
We therefore hold that Arnado, by using his US passport after renouncing his
American citizenship, has recanted the same Oath of Renunciation he took.
Section 40(d) of the Local Government Code applies to his situation. He is
disqualified not only from holding the public office but even from becoming a
candidate in the May 2010 elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v. Paredes45 which
is the jurisprudential spring of the principle that a second-placer cannot be
proclaimed as the winner in an election contest. This doctrine must be re-
examined and its soundness once again put to the test to address the ever-
recurring issue that a second-placer who loses to an ineligible candidate
cannot be proclaimed as the winner in the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of Imus, Province
of Cavite, to fill the office of municipal president. The petitioner, Felipe
Topacio, and the respondent, Maximo Abad, were opposing candidates for
that office. Topacio received 430 votes, and Abad 281. Abad contested the
election upon the sole ground that Topacio was ineligible in that he was
reelected the second time to the office of the municipal president on June 4,
1912, without the four years required by Act No. 2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the basis of a statutory
prohibition for seeking a second re-election absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the wreath of victory
cannot be transferred from an ineligible candidate to any other candidate
when the sole question is the eligibility of the one receiving a plurality of the
legally cast ballots."47
This phrase is not even the ratio decidendi; it is a mere obiter dictum. The
Court was comparing "the effect of a decision that a candidate is not entitled
to the office because of fraud or irregularities in the elections x x x with that
produced by declaring a person ineligible to hold such an office."
The complete sentence where the phrase is found is part of a comparison
and contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled to the office
because of fraud or irregularities in the elections is quite different from that
produced by declaring a person ineligible to hold such an office. In the former
case the court, after an examination of the ballots may find that some other
person than the candidate declared to have received a plurality by the board
of canvassers actually received the greater number of votes, in which case
the court issues its mandamus to the board of canvassers to correct the
returns accordingly; or it may find that the manner of holding the election and
the returns are so tainted with fraud or illegality that it cannot be determined
who received a plurality of the legally cast ballots. In the latter case, no
question as to the correctness of the returns or the manner of casting and
counting the ballots is before the deciding power, and generally the only
result can be that the election fails entirely. In the former, we have a contest
in the strict sense of the word, because of the opposing parties are striving
for supremacy. If it be found that the successful candidate (according to the
board of canvassers) obtained a plurality in an illegal manner, and that
another candidate was the real victor, the former must retire in favor of the
latter. In the other case, there is not, strictly speaking, a contest, as the
wreath of victory cannot be transferred from an ineligible candidate to any
other candidate when the sole question is the eligibility of the one receiving a
plurality of the legally cast ballots. In the one case the question is as to who
received a plurality of the legally cast ballots; in the other, the question is
confined to the personal character and circumstances of a single
individual.48 (Emphasis supplied)
Note that the sentence where the phrase is found starts with "In the other
case, there is not, strictly speaking, a contest" in contrast to the earlier
statement, "In the former, we have a contest in the strict sense of the word,
because of the opposing parties are striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held that "the wreath
of victory cannot be transferred from an ineligible candidate to any other
candidate when the sole question is the eligibility of the one receiving a
plurality of the legally cast ballots."
A proper reading of the case reveals that the ruling therein is that since the
Court of First Instance is without jurisdiction to try a disqualification case
based on the eligibility of the person who obtained the highest number of
votes in the election, its jurisdiction being confined "to determine which of the
contestants has been duly elected" the judge exceeded his jurisdiction when
he "declared that no one had been legally elected president of the
municipality of Imus at the general election held in that town on 4 June 1912"
where "the only question raised was whether or not Topacio was eligible to
be elected and to hold the office of municipal president."
The Court did not rule that Topacio was disqualified and that Abad as the
second placer cannot be proclaimed in his stead. The Court therein ruled:
For the foregoing reasons, we are of the opinion and so hold that the
respondent judge exceeded his jurisdiction in declaring in those proceedings
that no one was elected municipal president of the municipality of Imus at the
last general election; and that said order and all subsequent proceedings
based thereon are null and void and of no effect; and, although this decision
is rendered on respondents' answer to the order to show cause, unless
respondents raised some new and additional issues, let judgment be entered
accordingly in 5 days, without costs. So ordered.49
On closer scrutiny, the phrase relied upon by a host of decisions does not
even have a legal basis to stand on. It was a mere pronouncement of the
Court comparing one process with another and explaining the effects thereof.
As an independent statement, it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an ineligible candidate
to any other candidate when the sole question is the eligibility of the one
receiving a plurality of the legally cast ballots."
What prevents the transfer of the wreath of victory from the ineligible
candidate to another candidate?
When the issue being decided upon by the Court is the eligibility of the one
receiving a plurality of the legally cast ballots and ineligibility is thereafter
established, what stops the Court from adjudging another eligible candidate
who received the next highest number of votes as the winner and bestowing
upon him that "wreath?"
An ineligible candidate who receives the highest number of votes is a
wrongful winner. By express legal mandate, he could not even have been a
candidate in the first place, but by virtue of the lack of material time or any
other intervening circumstances, his ineligibility might not have been passed
upon prior to election date. Consequently, he may have had the opportunity
to hold himself out to the electorate as a legitimate and duly qualified
candidate. However, notwithstanding the outcome of the elections, his
ineligibility as a candidate remains unchanged. Ineligibility does not only
pertain to his qualifications as a candidate but necessarily affects his right to
hold public office. The number of ballots cast in his favor cannot cure the
defect of failure to qualify with the substantive legal requirements of eligibility
to run for public office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory requirements for
qualifications and disqualifications of candidates. When the law requires
certain qualifications to be possessed or that certain disqualifications be not
possessed by persons desiring to serve as elective public officials, those
qualifications must be met before one even becomes a candidate. When a
person who is not qualified is voted for and eventually garners the highest
number of votes, even the will of the electorate expressed through the ballot
cannot cure the defect in the qualifications of the candidate. To rule
otherwise is to trample upon and rent asunder the very law that sets forth the
qualifications and disqualifications of candidates. We might as well write off
our election laws if the voice of the electorate is the sole determinant of who
should be proclaimed worthy to occupy elective positions in our republic.
This has been, in fact, already laid down by the Court in Frivaldo v.
COMELEC50 when we pronounced:
x x x. The fact that he was elected by the people of Sorsogon does not
excuse this patent violation of the salutary rule limiting public office and
employment only to the citizens of this country. The qualifications prescribed
for elective office cannot be erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of
ineligibility, especially if they mistakenly believed, as in this case, that the
candidate was qualified. Obviously, this rule requires strict application when
the deficiency is lack of citizenship. If a person seeks to serve in the Republic
of the Philippines, he must owe his total loyalty to this country only, abjuring
and renouncing all fealty and fidelity to any other state.51 (Emphasis
supplied)
This issue has also been jurisprudentially clarified in Velasco v.
COMELEC52 where the Court ruled that the ruling in Quizon and Saya-ang
cannot be interpreted without qualifications lest "Election victory x x x
becomes a magic formula to bypass election eligibility requirements."53
We have ruled in the past that a candidate’s victory in the election may be
considered a sufficient basis to rule in favor of the candidate sought to be
disqualified if the main issue involves defects in the candidate’s certificate of
candidacy. We said that while provisions relating to certificates of candidacy
are mandatory in terms, it is an established rule of interpretation as regards
election laws, that mandatory provisions requiring certain steps before
elections will be construed as directory after the elections, to give effect to
the will of the people. We so ruled in Quizon v. COMELEC and Saya-ang v.
COMELEC:
The present case perhaps presents the proper time and opportunity to fine-
tune our above ruling. We say this with the realization that a blanket and
unqualified reading and application of this ruling can be fraught with
dangerous significance for the rule of law and the integrity of our elections.
For one, such blanket/unqualified reading may provide a way around the law
that effectively negates election requirements aimed at providing the
electorate with the basic information to make an informed choice about a
candidate’s eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is
Section 39 of the LGC which specifies the basic qualifications of local
government officials. Equally susceptive of being rendered toothless is
Section 74 of the OEC that sets out what should be stated in a COC. Section
78 may likewise be emasculated as mere delay in the resolution of the
petition to cancel or deny due course to a COC can render a Section 78
petition useless if a candidate with false COC data wins. To state the
obvious, candidates may risk falsifying their COC qualifications if they know
that an election victory will cure any defect that their COCs may have.
Election victory then becomes a magic formula to bypass election eligibility
requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing a seemingly
valid COC, concealing any disqualification, and employing every strategy to
delay any disqualification case filed against him so he can submit himself to
the electorate and win, if winning the election will guarantee a disregard of
constitutional and statutory provisions on qualifications and disqualifications
of candidates?
It is imperative to safeguard the expression of the sovereign voice through
the ballot by ensuring that its exercise respects the rule of law. To allow the
sovereign voice spoken through the ballot to trump constitutional and
statutory provisions on qualifications and disqualifications of candidates is
not democracy or republicanism. It is electoral anarchy. When set rules are
disregarded and only the electorate’s voice spoken through the ballot is
made to matter in the end, it precisely serves as an open invitation for
electoral anarchy to set in.1âwphi1
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnado’s disqualification, Maquiling then becomes the winner in the
election as he obtained the highest number of votes from among the qualified
candidates.
We have ruled in the recent cases of Aratea v. COMELEC54 and Jalosjos v.
COMELEC55 that a void COC cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are not considered at
all in determining the winner of an election.
Even when the votes for the ineligible candidate are disregarded, the will of
the electorate is still respected, and even more so. The votes cast in favor of
an ineligible candidate do not constitute the sole and total expression of the
sovereign voice. The votes cast in favor of eligible and legitimate candidates
form part of that voice and must also be respected.
As in any contest, elections are governed by rules that determine the
qualifications and disqualifications of those who are allowed to participate as
players. When there are participants who turn out to be ineligible, their victory
is voided and the laurel is awarded to the next in rank who does not possess
any of the disqualifications nor lacks any of the qualifications set in the rules
to be eligible as candidates.
There is no need to apply the rule cited in Labo v. COMELEC56 that when
the voters are well aware within the realm of notoriety of a candidate’s
disqualification and still cast their votes in favor said candidate, then the
eligible candidate obtaining the next higher number of votes may be deemed
elected. That rule is also a mere obiter that further complicated the rules
affecting qualified candidates who placed second to ineligible ones.
The electorate’s awareness of the candidate’s disqualification is not a
prerequisite for the disqualification to attach to the candidate. The very
existence of a disqualifying circumstance makes the candidate ineligible.
Knowledge by the electorate of a candidate’s disqualification is not
necessary before a qualified candidate who placed second to a disqualified
one can be proclaimed as the winner. The second-placer in the vote count is
actually the first-placer among the qualified candidates.
That the disqualified candidate has already been proclaimed and has
assumed office is of no moment. The subsequent disqualification based on a
substantive ground that existed prior to the filing of the certificate of
candidacy voids not only the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. - Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong.
There was no chance for Arnado’s proclamation to be suspended under this
rule because Arnado failed to file his answer to the petition seeking his
disqualification. Arnado only filed his Answer on 15 June 2010, long after the
elections and after he was already proclaimed as the winner.
The disqualifying circumstance surrounding Arnado’s candidacy involves his
citizenship. It does not involve the commission of election offenses as
provided for in the first sentence of Section 68 of the Omnibus Election Code,
the effect of which is to disqualify the individual from continuing as a
candidate, or if he has already been elected, from holding the office.
The disqualifying circumstance affecting Arnado is his citizenship. As earlier
discussed, Arnado was both a Filipino and an American citizen when he filed
his certificate of candidacy. He was a dual citizen disqualified to run for public
office based on Section 40(d) of the Local Government Code.
Section 40 starts with the statement "The following persons are disqualified
from running for any elective local position." The prohibition serves as a bar
against the individuals who fall under any of the enumeration from
participating as candidates in the election.
With Arnado being barred from even becoming a candidate, his certificate of
candidacy is thus rendered void from the beginning. It could not have
produced any other legal effect except that Arnado rendered it impossible to
effect his disqualification prior to the elections because he filed his answer to
the petition when the elections were conducted already and he was already
proclaimed the winner.
To hold that such proclamation is valid is to negate the prohibitory character
of the disqualification which Arnado possessed even prior to the filing of the
certificate of candidacy. The affirmation of Arnado's disqualification, although
made long after the elections, reaches back to the filing of the certificate of
candidacy. Arnado is declared to be not a candidate at all in the May 201 0
elections.
Arnado being a non-candidate, the votes cast in his favor should not have
been counted. This leaves Maquiling as the qualified candidate who obtained
the highest number of votes. Therefore, the rule on succession under the
Local Government Code will not apply.
WHEREFORE, premises considered, the Petition is GRANTED. The
Resolution of the COMELEC En Bane dated 2 February 2011 is hereby
ANNULLED and SET ASIDE. Respondent ROMMEL ARNADO y CAGOCO
is disqualified from running for any local elective position. CASAN MACODE
MAQUILING is hereby DECLARED the duly elected Mayor of Kauswagan,
Lanao del Norte in the 10 May 2010 elections.
This Decision is immediately executory.
Let a copy of this Decision be served personally upon the parties and the
Commission on Elections.
No pronouncement as to costs.
SO ORDERED.
Reyes vs. COMELEC (G.R. No. 207264, June 25, 2013)
This is a Motion for Reconsideration of the En Bane Resolution of 25 June
2013 which stated that: IN VIEW OF THE FOREGOING, the instant petition
is DISMISSED, finding no grave abuse of discretion on the part of the
Commission on Elections. The 14 May 2013 Resolution of the COMELEC En
Banc affirming the 27 March 2013 Resolution of the COMELEC First Division
is upheld."
In her Motion for Reconsideration, petitioner summarizes her submission,
thus:
"81. Stated differently, the Petitioner x x x is not asking the Honorable Court
to make a determination as regards her qualifications, she is merely asking
the Honorable Court to affirm the jurisdiction of the HRET to solely and
exclusively pass upon such qualifications and to set aside the COMELEC
Resolutions for having denied Petitioner her right to due process and for
unconstitutionally adding a qualification not otherwise required by the
constitution."1 (as originally underscored)
The first part of the summary refers to the issue raised in the petition, which
is:
"31. Whether or not Respondent Comelec is without jurisdiction over
Petitioner who is duly proclaimed winner and who has already taken her oath
of office for the position of Member of the House of Representatives for the
lone congressional district of Marinduque."2
Tied up and neatened the propositions on the COMELEC-or-HRET
jurisdiction go thus: petitioner is a duly proclaimed winner and having taken
her oath of office as member of the House of Representatives, all questions
regarding her qualifications are outside the jurisdiction of the COMELEC and
are within the HRET exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness of
petitioner's submission. The crucial question is whether or not petitioner
could be proclaimed on 18 May 2013. Differently stated, was there basis for
the proclamation of petitioner on 18 May 2013?
Dates and events indicate that there was no basis for the proclamation of
petitioner on 18 May 2013. Without the proclamation, the petitioner's oath of
office is likewise baseless, and without a precedent oath of office, there can
be no valid and effective assumption of office.
We have clearly stated in our Resolution of 5 June 2013 that:
"More importantly, we cannot disregard a fact basic in this controversy – that
before the proclamation of petitioner on 18 May 2013, the COMELEC En
Banc had already finally disposed of the issue of petitioner's lack of Filipino
citizenship and residency via its Resolution dated 14 May 2013. After 14 May
2013, there was, before the COMELEC, no longer any pending case on
petitioner's qualifications to run for the position of Member of the House of
Representatives. x x x As the point has obviously been missed by the
petitioner who continues to argue on the basis of her due proclamation, the
instant motion gives us the opportunity to highlight the undeniable fact we
here repeat that the proclamation which petitioner secured on 18 May 2013
was WITHOUT ANY BASIS.
1. Four (4) days BEFORE the 18 May 2013 proclamation, or on 14 May
2013, the COMELEC En Banc has already denied for lack o merit the
petitioner's motion to reconsider the decision o the COMELEC First Division
that CANCELLED petitioner's certificate of candidacy.
2. On 18 May 2013, there was already a standing and unquestioned
cancellation of petitioner's certificate o candidacy which cancellation is a
definite bar to her proclamation. On 18 May 2003, that bar has not been
removed, there was not even any attempt to remove it.
3. The COMELEC Rules indicate the manner by which the impediment to
proclamation may be removed. Rule 18, Section 13 (b) provides:
"(b) In Special Actions and Special Cases a decision or resolution of the
Commission En Bane shall become final and executory after five (5) days
from its promulgation unless restrained by the Supreme Court."
Within that five (5 days, petitioner had the opportunity to go to the Supreme
Court for a restraining order that will remove the immediate effect of the En
Banc cancellation of her certificate of candidacy. Within the five (5) days the
Supreme Court may remove the barrier to, and thus allow, the proclamation
of petitioner. That did not happen. Petitioner did not move to have it happen.
It is error to argue that the five days should pass before the petitioner is
barred from being proclaimed. Petitioner lost in the COMELEC as of
respondent. Her certificate of candidacy has been ordered cancelled. She
could not be proclaimed because there was a final finding against her by the
COMELEC.3 She needed a restraining order from the Supreme Court to
avoid the final finding. After the five days when the decision adverse to her
became executory, the need for Supreme Court intervention became even
more imperative. She would have to base her recourse on the position that
the COMELEC committed grave abuse of discretion in cancelling her
certificate of candidacy and that a restraining order, which would allow her
proclamation, will have to be based on irreparable injury and demonstrated
possibility of grave abuse of discretion on the part of the COMELEC. In this
case, before and after the 18 May 2013 proclamation, there was not even an
attempt at the legal remedy, clearly available to her, to permit her
proclamation. What petitioner did was to "take the law into her hands" and
secure a proclamation in complete disregard of the COMELEC En Bane
decision that was final on 14 May 2013 and final and executory five days
thereafter.
4. There is a reason why no mention about notice was made in Section 13(b)
of Rule 18 in the provision that the COMELEC En Bane or decision "SHALL
become FINAL AND EXECUTORY after five days from its promulgation
unless restrained by the Supreme Court." On its own the COMELEC En
Bane decision, unrestrained, moves from promulgation into becoming final
and executory. This is so because in Section 5 of Rule 18 it is stated:
Section 5. Promulgation. -The promulgation of a decision or resolutions of
the Commission or a division shall be made on a date previously fixed, of
which notice shall be served in advance upon the parties or their attorneys
personally or by registered mail or by telegram.
5. Apart from the presumed notice of the COMELEC En Bane decision on
the very date of its promulgation on 14 May 2013, petitioner admitted in her
petition before us that she in fact received a copy of the decision on 16 May
20 13.4 On that date, she had absolutely no reason why she would disregard
the available legal way to remove the restraint on her proclamation, and,
more than that, to in fact secure a proclamation two days thereafter. The
utter disregard of a final COMELEC En Bane decision and of the Rule stating
that her proclamation at that point MUST be on permission by the Supreme
Court is even indicative of bad faith on the part of the petitioner.
6. The indicant is magnified by the fact that petitioner would use her tainted
proclamation as the very reason to support her argument that she could no
longer be reached by the jurisdiction of the COMELEC; and that it is the
HRET that has exclusive jurisdiction over the issue of her qualifications for
office.
7. The suggestions of bad faith aside, petitioner is in error in the conclusion
at which she directs, as well as in her objective quite obvious from such
conclusion. It is with her procured proclamation that petitioner nullifies the
COMELEC's decision, by Division and then En Banc and pre-empts any
Supreme Court action on the COMELEC decision. In other words, petitioner
repudiates by her proclamation all administrative and judicial actions thereon,
past and present. And by her proclamation, she claims as acquired the
congressional seat that she sought to be a candidate for. As already shown,
the reasons that lead to the impermissibility of the objective are clear. She
cannot sit as Member of the House of Representatives by virtue of a
baseless proclamation knowingly taken, with knowledge of the existing legal
impediment.
8. Petitioner, therefore, is in error when she posits that at present it is the
HRET which has exclusive jurisdiction over her qualifications as a Member of
the House of Representatives. That the HRET is the sole judge of all
contests relating to the election, returns and qualifications of the Members of
the House of Representatives is a written constitutional provision. It is,
however unavailable to petitioner because she is NOT a Member of the
House at present. The COMELEC never ordered her proclamation as the
rightful winner in the election for such membership.5 Indeed, the action for
cancellation of petitioner's certificate of candidacy, the decision in which is
the indispensable determinant of the right of petitioner to proclamation, was
correctly lodged in the COMELEC, was completely and fully litigated in the
COMELEC and was finally decided by the COMELEC. On and after 14 May
2013, there was nothing left for the COMELEC to do to decide the case. The
decision sealed the proceedings in the COMELEC regarding petitioner's
ineligibility as a candidate for Representative of Marinduque. The decision
erected the bar to petitioner's proclamation. The bar remained when no
restraining order was obtained by petitioner from the Supreme Court within
five days from 14 May 2013.
9. When petitioner finally went to the Supreme Court on 10 June 2013
questioning the COMELEC First Division ruling and the 14 May 2013
COMELEC En Bane decision, her baseless proclamation on 18 May 2013
did not by that fact of promulgation alone become valid and legal. A decision
favorable to her by the Supreme Court regarding the decision of the
COMELEC En Bane on her certificate of candidacy was indispensably
needed, not to legalize her proclamation on 18 May 2013 but to authorize a
proclamation with the Supreme Court decision as basis.
10. The recourse taken on 25 June 2013 in the form of an original and
special civil action for a writ of Certiorari through Rule 64 of the Rules of
Court is circumscribed by set rules and principles.
a) The special action before the COMELEC which was a Petition to Cancel
Certificate of Candidacy was a SUMMARY PROCEEDING or one heard
summarily. The nature of the proceedings is best indicated by the COMELEC
Rule on Special Actions, Rule 23, Section 4 of which states that the
Commission may designate any of its officials who are members of the
Philippine Bar to hear the case and to receive evidence. COMELEC Rule 17
further provides in Section 3 that when the proceedings are authorized to be
summary, in lieu of oral testimonies, the parties may, after due notice, be
required to submit their position paper together with affidavits, counter-
affidavits and other documentary evidence; x x x and that this provision shall
likewise apply to cases where the hearing and reception of evidence are
delegated by the Commission or the Division to any of its officials x x x.
b) The special and civil action of Certiorari is defined in the Rules of Court
thus:
When any tribunal, board or officer exercising judicial or quasi-judicial
functions has acted without or in excess of its or his jurisdiction, or with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course
of law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require.
The accepted definition of grave abuse of discretion is: a capricious and
whimsical exercise of judgment so patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by
law, as where the power is exercised in an arbitrary and despotic manner
because of passion or hostility.6
It is the category of the special action below providing the procedural leeway
in the exercise of the COMELEC summary jurisdiction over the case, in
conjunction with the limits of the Supreme Court's authority over the FINAL
COMELEC ruling that is brought before it, that defines the way petitioner's
submission before the Court should be adjudicated. Thus further explained,
the disposition of 25 June 2013 is here repeated for affirmation:
Petitioner alleges that the COMELEC gravely abused its discretion when it
took cognizance of "newly-discovered evidence" without the same having
been testified on and offered and admitted in evidence. She assails the
admission of the blog article of Eli Obligacion as hearsay and the photocopy
of the Certification from the Bureau of Immigration. She likewise contends
that there was a violation of her right to due process of law because she was
not given the opportunity to question and present controverting evidence.
Her contentions are incorrect.
It must be emphasized that the COMELEC is not bound to strictly adhere to
the technical rules of procedure in the presentation of evidence. Under
Section 2 of Rule I the COMELEC Rules of Procedure shall be liberally
construed in order x x x to achieve just, expeditious and inexpensive
determination and disposition of every action and proceeding brought before
the Commission. In view of the fact that the proceedings in a petition to deny
due course or to cancel certificate of candidacy are summary in nature, then
the newly discovered evidence was properly admitted by respondent
COMELEC.
Furthermore, there was no denial of due process in the case at bar as
petitioner was given every opportunity to argue her case before the
COMELEC. From 10 October 2012 when Tan's petition was filed up to 27
March 2013 when the First Division rendered its resolution, petitioner had a
period of five (5) months to adduce evidence. Unfortunately, she did not avail
herself of the opportunity given her.
Also, in administrative proceedings, procedural due process only requires
that the party be given the opportunity or right to be heard. As held in the
case of Sahali v. COMELEC:
The petitioners should be reminded that due process does not necessarily
mean or require a hearing, but simply an opportunity or right to be heard.
One may be heard, not solely by verbal presentation but also, and perhaps
many times more creditably and predictable than oral argument, through
pleadings. In administrative proceedings moreover, technical rules of
procedure and evidence are not strictly applied; administrative process
cannot be fully equated with due process in its strict judicial sense. Indeed,
deprivation of due process cannot be successfully invoked where a party was
given the chance to be he rd on his motion for reconsideration. (Emphasis
supplied)
As to the ruling that petitioner s ineligible to run for office on the ground of
citizenship, the COMELEC First Division, discoursed as follows:
"x x x for respondent to reacquire her Filipino citizenship and become eligible
for public office the law requires that she must have accomplished the
following acts: (1) take the oath of allegiance to the Republic of the
Philippines before the Consul-General of the Philippine Consulate in the
USA; and (2) make a personal and sworn renunciation of her American
citizenship before any public officer authorized to administer an oath.
In the case at bar, there s no showing that respondent complied with the
aforesaid requirements. Early on in the proceeding, respondent hammered
on petitioner's lack of proof regarding her American citizenship, contending
that it is petitioner's burden to present a case. She, however, specifically
denied that she has become either a permanent resident or naturalized
citizen of the USA.
Due to petitioner's submission of newly-discovered evidence thru a
Manifestation dated February 7, 2013, however, establishing the fact that
respondent is a holder of an American passport which she continues to use
until June 30 2012 petitioner was able to substantiate his allegations. The
burden now shifts to respondent to present substantial evidence to prove
otherwise. This, the respondent utterly failed to do, leading to the conclusion
inevitable that respondent falsely misrepresented in her COC that she is a
natural-born Filipino citizen. Unless and until she can establish that she had
availed of the privileges of RA 9225 by becoming a dual Filipino-American
citizen, and thereafter, made a valid sworn renunciation of her American
citizenship, she remains to be an American citizen and is, therefore, ineligible
to run for and hold any elective public office in the Philippines." (Emphasis in
the original.)
Let us look into the events that led to this petition: In moving for the
cancellation of petitioner's COC, respondent submitted records of the Bureau
of Immigration showing that petitioner is a holder of a US passport, and that
her status is that of a balikbayan. At this point, the burden of proof shifted to
petitioner, imposing upon her the duty to prove that she is a natural-born
Filipino citizen and has not lost the same, or that she has re-acquired such
status in accordance with the provisions of R.A. No. 9225. Aside from the
bare allegation that she is a natural-born citizen, however, petitioner
submitted no proof to support such contention. Neither did she submit any
proof as to the inapplicability of R.A. No. 9225 to her.
Notably, in her Motion for Reconsideration before the COMELEC En Bane,
petitioner admitted that she is a holder of a US passport, but she averred that
she is only a dual Filipino-American citizen, thus the requirements of R.A.
No. 9225 do not apply to her. Still, attached to the said motion is an Affidavit
of Renunciation of Foreign Citizenship dated 24 September 2012. Petitioner
explains that she attached said Affidavit if only to show her desire and zeal to
serve the people and to comply with rules, even as a superfluity. We cannot,
however, subscribe to petitioner's explanation. If petitioner executed said
Affidavit if only to comply with the rules, then it is an admission that R.A. No.
9225 applies to her. Petitioner cannot claim that she executed it to address
the observations by the COMELEC as the assailed Resolutions were
promulgated only in 2013, while the Affidavit was executed in September
2012.1âwphi1
Moreover, in the present petition, petitioner added a footnote to her oath of
office as Provincial Administrator, to this effect: This does not mean that
Petitioner did not, prior to her taking her oath of office as Provincial
Administrator, take her oath of allegiance for purposes of re-acquisition of
natural-born Filipino status, which she reserves to present in the proper
proceeding. The reference to the taking of oath of office is in order to make
reference to what is already part of the records and evidence in the present
case and to avoid injecting into the records evidence on matters of fact that
was not previously passed upon by Respondent COMELEC. This statement
raises a lot of questions -Did petitioner execute an oath of allegiance for re-
acquisition of natural-born Filipino status? If she did, why did she not present
it at the earliest opportunity before the COMELEC? And is this an admission
that she has indeed lost her natural-born Filipino status?
To cover-up her apparent lack of an oath of allegiance as required by R.A.
No. 9225, petitioner contends that, since she took her oath of allegiance in
connection with her appointment as Provincial Administrator of Marinduque,
she is deemed to have reacquired her status as a natural-born Filipino
citizen.
This contention is misplaced. For one, this issue is being presented for the
first time before this Court, as it was never raised before the COMELEC. For
another, said oath of allegiance cannot be considered compliance with Sec.
3 of R.A. No. 9225 as certain requirements have to be met as prescribed by
Memorandum Circular No. AFF-04-01, otherwise known as the Rules
Governing Philippine Citizenship under R.A. No. 9225 and Memorandum
Circular No. AFF-05-002 (Revised Rules) and Administrative Order No. 91,
Series of 2004 issued by the Bureau of Immigration. Thus, petitioner s oath
of office as Provincial Administrator cannot be considered as the oath of
allegiance in compliance with R.A. No. 9225.
These circumstances, taken together, show that a doubt was clearly cast on
petitioner s citizenship. Petitioner, however, failed to clear such doubt.7
11. It may need pointing out that there is no conflict between the COMELEC
and the HRET insofar as the petitioner s being a Representative of
Marinduque is concerned. The COMELEC covers the matter of petitioner s
certificate of candidacy, and its due course or its cancellation, which are the
pivotal conclusions that determines who can be legally proclaimed. The
matter can go to the Supreme Court but not as a continuation of the
proceedings in the COMELEC, which has in fact ended, but on an original
action before the Court grounded on more than mere error of judgment but
on error of jurisdiction for grave abuse of discretion. At and after the
COMELEC En Bane decision, there is no longer any certificate cancellation
matter than can go to the HRET. In that sense, the HRET s constitutional
authority opens, over the qualification of its MEMBER, who becomes so only
upon a duly and legally based proclamation, the first and unavoidable step
towards such membership. The HRET jurisdiction over the qualification of the
Member of the House of Representatives is original and exclusive, and as
such, proceeds de novo unhampered by the proceedings in the COMELEC
which, as just stated has been terminated. The HRET proceedings is a
regular, not summary, proceeding. It will determine who should be the
Member of the House. It must be made clear though, at the risk of
repetitiveness, that no hiatus occurs in the representation of Marinduque in
the House because there is such a representative who shall sit as the HRET
proceedings are had till termination. Such representative is the duly
proclaimed winner resulting from the terminated case of cancellation of
certificate of candidacy of petitioner. The petitioner is not, cannot, be that
representative. And this, all in all, is the crux of the dispute between the
parties: who shall sit in the House in representation of Marinduque, while
there is yet no HRET decision on the qualifications of the Member.
12. As finale, and as explained in the discussion just done, no unwarranted
haste can be attributed, as the dissent does so, to the resolution of this
petition promulgated on 25 June 2013. It was not done to prevent the
exercise by the HRET of its constitutional duty. Quite the contrary, the
speedy resolution of the petition was done to pave the way for the
unimpeded performance by the HRET of its constitutional role. The petitioner
can very well invoke the authority of the HRET, but not as a sitting member
of the House of Representatives.8
The inhibition of this ponente was moved for. The reason for the denial of the
motion was contained in a letter to the members of the Court on the
understanding that the matter was internal to the Court. The ponente now
seeks the Courts approval to have the explanation published as it is now
appended to this Resolution.
The motion to withdraw petition filed AFTER the Court has acted thereon, is
noted. It may well be in order to remind petitioner that jurisdiction, once
acquired, is not lost upon the instance of the parties, but continues until the
case is terminated.9 When petitioner filed her Petition for Certiorari
jurisdiction vested in the Court and, in fact, the Court exercised such
jurisdiction when it acted on the petition. Such jurisdiction cannot be lost by
the unilateral withdrawal of the petition by petitioner.
More importantly, the Resolution dated 25 June 2013, being a valid court
issuance, undoubtedly has legal consequences. Petitioner cannot, by the
mere expediency of withdrawing the petition, negative and nullify the Court's
Resolution and its legal effects. At this point, we counsel petitioner against
trifling with court processes. Having sought the jurisdiction of the Supreme
Court, petitioner cannot withdraw her petition to erase the ruling adverse to
her interests. Obviously, she cannot, as she designed below, subject to her
predilections the supremacy of the law.
WHEREFORE, The Motion for Reconsideration is DENIED. The dismissal of
the petition is affirmed. Entry of Judgment is ordered.
SO ORDERED.
Arnado vs. COMELEC (G.R. No. 210164, August 18, 2015)
In Moy Ya Lim Yao v. Commissioner of Immigration, 1 we emphasized the
variable nature of a person's citizenship, which cannot be determined with
finality or become the basis of rules that can be applied to any and all
proceedings thereafter. We said:
Everytime the citizenship of a person is material or indispensable in a judicial
or administrative case, whatever the corresponding court or administrative
authority decides therein as to such citizenship is generally not considered as
res adjudicata, hence it has to be threshed out again and again as the
occasion may demand. 2
In election contests, this pronouncement gains significance, as elective local
officials are constitutionally allowed to run and serve for three consecutive
terms. 3 While citizenship is a continuing requirement that must be
possessed not only at the time of election or assumption of office, but also
during the entire tenure of the official,4 it is not a continuing disqualification to
run for and hold public office.5
As such, each case involving the question of an elective official's citizenship
must be treated anew in accordance with the surrounding relevant facts and
applicable laws.
In this regard, I agree with some of the statements of J Brion in his
Dissenting Opinion. Indeed, the Court's ruling in Maquiling v. COMELEc6
went only so far as to determine whether Rommel C. Arnado (Amado) was
qualified to run for public office in the 2010 elections. It did not operate as,
nor was it intended to be, a final determination of Amado's citizenship that
would forever derail his career as a public official.
In Maquiling, we reiterated that natural-born citizens of the Philippines who
have lost their citizenship by reason of their naturalization as citizens of a
foreign country may qualify to run for public office upon taking the Oath of
Allegiance 7 and making a sworn renunciation of their foreign citizenship.8
Arnado subjected his citizenship to attack when he continued to use his
United States (US) passport to travel in and out of the country despite
previously renouncing his US citizenship. The Court ruled that his use of his
US passport nullified the effect of his previous renunciation of US citizenship.
While he did not lose his Philippine citizenship in the process, he reverted to
his status as a dual citizen and remained as such at the time that he filed his
Certificate of Candidacy for the position of mayor of Kauswagan, Lanao del
Norte in the 2010 elections. Under Section 40(d) of the Local Government
Code, those with dual citizenship are disqualified from running for any
elective local position.
Considering that the Court had pinpointed the defect in Amado's oath of
renunciation, the simple act of taking the oath anew would have been
enough compliance with the requirement of the law.
The Decision found that from the time Amado used his US passport to travel
in and out of the country up to the filing of his Certificate of Candidacy for the
succeeding elections in 2013, there had been no change in his
circumstances. 9 He still had not made a sworn renunciation of his US
citizenship. Thus, the ruling in Maquiling still applies: that Arnado had dual
citizenship when he filed for his candidacy on 1 October 2012.
It did not matter that Maquiling was promulgated months after Arnado had
filed for candidacy. Since he was not totally unaware that the use of his US
passport might have adverse consequences on his candidacy for the 2013
elections, the Decision concludes that he should have been prudent enough
to remedy whatever defect there might have been in his citizenship.10
Even J. Brion concedes that Amado could have been more circumspect in
order to secure his qualification to run for public office. 11 However, it is
insisted that the members of this Court should remove the present case from
the shadow of Maquiling and arrive at its resolution based merely on the
attendant factual and legal considerations specific to it.12
It cannot be denied that by virtue of its being a decision of the Court that joins
the country's body of laws as jurisprudence, Maquiling serves as a "legal
consideration" in the resolution of the present case. Maquiling' s application
cannot be helped, especially since the Decision therein hinged not only on
relevant laws, but largely on the facts then presented before the Court. Thus,
while the legal conclusion in Maquiling was not a final determination of
Amado's citizenship - as it applied only for purposes of the 2010 elections -
the facts on which its legal conclusion was founded cannot be totally ignored.
A person's citizenship may be "threshed out again and again"13 in every
proceeding as long as it becomes relevant and necessary. Except for some
clearly unmeritorious cases, it is always a good idea to decide on the merits,
especially in election controversies in which the law is sometimes placed at
odds with the will of the people. At the same time, the Court puts a premium
on economy, and where previous declarations of one's citizenship become
pertinent, those cases may be used as a take-off point if only to emphasize
the differences and similarities, as well as the measures that were taken in
the interim.
One point of contention between the Decision and the Dissenting Opinion is
the finding that Arnado used his US passport for his travels in and out of the
country on 12 January 2010 and 23 March 2010.
One point of contention between the Decision and the Dissenting Opinion is
the finding that Arnado used his US passport for his travels in and out of the
country on 12 January 2010 and 23 March 2010.
Maquiling indeed made a finding that Arnado used his US passport for travel
on those dates. In the Court Resolution dated 2 July 2013, we said:
Well-settled is the rule that findings of fact of administrative bodies will not be
interfered with by the courts in the absence of grave abuse of discretion on
the part of said agencies, or unless the aforementioned findings are not
supported by substantial evidence.1âwphi1 They are accorded not only great
respect but even finality, and are binding upon this Court, unless it is shown
that the administrative body had arbitrarily disregarded or misapprehended
evidence before it to such an extent as to compel a contrary conclusion had
such evidence been properly appreciated.
Nevertheless, it must be emphasized that COMELEC First
Division found that Arnado used his U.S. Passport at least six times after he
renounced his American citizenship. This was debunked by the COMELEC
En Banc, which found that Arnado only used his U.S. passport four times,
and which agreed with Amado's claim that he only used his U.S. passport on
those occasions because his Philippine passport was not yet issued. The
COMELEC En Banc argued that Amado was able to prove that he used his
Philippine passport for his travels on the following dates: 12 January 2010,
31 January 2010, 31 March 2010, 16 April 2010, 20 May 2010, and 4 June
2010.
None of these dates coincide with the two other dates indicated in the
certification issued by the Bureau of Immigration showing that on 21 January
2010 and on 23 March 2010, Arnado arrived in the Philippines using his U.S.
Passport No. 057782700 which also indicated therein that his nationality is
USA-American. Adding these two travel dates to the travel record provided
by the Bureau of Immigration showing that Arnado also presented his U.S.
passport four times (upon departure on 14 April 2009, upon arrival on 25
June 2009, upon departure on 29 July 2009 and upon arrival on 24
November 2009), these incidents sum up to six.
The COMELEC En Banc concluded that "the use of the US passport was
because to his knowledge, his Philippine passport was not yet issued to him
for his use." This conclusion, however, is not supported by the facts. Arnado
claims that his Philippine passport was issued on 18 June 2009. The records
show that he continued to use his U.S. passport even after he already
received his Philippine passport. Arnado's travel records show that he
presented his U.S. passport on 24 November 2009, on 21 January 2010, and
on 23 March 2010. These facts were never refuted by Arnado.
Thus, the ruling of the COMELEC En Banc is based on a misapprehension of
the facts that the use of the U.S. passport was discontinued when Amado
obtained his Philippine passport.14 (Emphases supplied)
It is important to clarify that the certification from the Bureau of Immigration
indicated that Amado arrived in the country using his US passport on 12
January 2010 and 23 March 2010.15 The Court gave full credence to the
certification, not only because it carried with it the presumption of regularity,
but more important, Arnado never bothered to refute the contents thereof.
On the basis of this finding, the Court rejected the claim that Amado's use of
his US passport several times were mere isolated acts that were done only
because he was not yet issued his Philippine passport.16
To my mind, this is the turning point of Maquiling that regrettably still applies
in this case: that whatever professions of faith and allegiance to the Republic
that Amado claims when his citizenship is in question, the fact remains that
during the instances that he used his US passport despite having a
Philippine passport in his possession, those same professions became
hollow. And, that up to the filing of Amado's Certificate of Candidacy for the
2013 elections, he failed to remedy the fatal blow that such repeated use of
his US passport dealt on his electoral qualifications.
I therefore concur with the DISMISSAL of the PETITION.
Poe-Llamanzares vs. COMELEC (G.R. No. 221697, March 8, 2016)
Before the Court are two consolidated petitions under Rule 64 in relation to
Rule 65 of the Rules of Court with extremely urgent application for an ex
parte issuance of temporary restraining order/status quo ante order and/or
writ of preliminary injunction assailing the following: (1) 1 December 2015
Resolution of the Commission on Elections (COMELEC) Second Division; (2)
23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-
001 (DC); (3) 11 December 2015 Resolution of the COMELEC First Division;
and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA
No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC) for having
been issued without jurisdiction or with grave abuse of discretion amounting
to lack or excess of jurisdiction.
The Facts
Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned
as a newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo
Militar (Edgardo) on 3 September 1968. Parental care and custody over
petitioner was passed on by Edgardo to his relatives, Emiliano Militar
(Emiliano) and his wife. Three days after, 6 September 1968, Emiliano
reported and registered petitioner as a foundling with the Office of the Civil
Registrar of Iloilo City (OCR-Iloilo). In her Foundling Certificate and
Certificate of Live Birth, the petitioner was given the name "Mary Grace
Natividad Contreras Militar." 1
When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley
Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces)
filed a petition for her adoption with the Municipal Trial Court (MTC) of San
Juan City. On 13 May 1974, the trial court granted their petition and ordered
that petitioner's name be changed from "Mary Grace Natividad Contreras
Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations
were made by OCR-Iloilo on petitioner's foundling certificate reflecting the
court decreed adoption,2 the petitioner's adoptive mother discovered only
sometime in the second half of 2005 that the lawyer who handled petitioner's
adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth
indicating petitioner's new name and the name of her adoptive parents. 3
Without delay, petitioner's mother executed an affidavit attesting to the
lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006,
OCR-Iloilo issued a new Certificate of Live Birth in the name of Mary Grace
Natividad Sonora Poe.4
Having reached the age of eighteen (18) years in 1986, petitioner registered
as a voter with the local COMELEC Office in San Juan City. On 13
December 1986, she received her COMELEC Voter's Identification Card for
Precinct No. 196 in Greenhills, San Juan, Metro Manila.5
On 4 April 1988, petitioner applied for and was issued Philippine Passport
No. F9272876 by the Department of Foreign Affairs (DFA). Subsequently, on
5 April 1993 and 19 May 1998, she renewed her Philippine passport and
respectively secured Philippine Passport Nos. L881511 and DD156616.7
Initially, the petitioner enrolled and pursued a degree in Development Studies
at the University of the Philippines8 but she opted to continue her studies
abroad and left for the United States of America (U.S.) in 1988. Petitioner
graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts
where she earned her Bachelor of Arts degree in Political Studies.9
On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares
(Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario
de San Jose Parish in San Juan City. 10 Desirous of being with her husband
who was then based in the U.S., the couple flew back to the U.S. two days
after the wedding ceremony or on 29 July 1991. 11
While in the U.S., the petitioner gave birth to her eldest child Brian Daniel
(Brian) on 16 April 1992.12 Her two daughters Hanna MacKenzie (Hanna)
and Jesusa Anika (Anika) were both born in the Philippines on 10 July 1998
and 5 June 2004, respectively. 13
On 18 October 2001, petitioner became a naturalized American citizen. 14
She obtained U.S. Passport No. 017037793 on 19 December 2001. 15
On 8 April 2004, the petitioner came back to the Philippines together with
Hanna to support her father's candidacy for President in the May 2004
elections. It was during this time that she gave birth to her youngest daughter
Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16
After a few months, specifically on 13 December 2004, petitioner rushed
back to the Philippines upon learning of her father's deteriorating medical
condition. 17 Her father slipped into a coma and eventually expired. The
petitioner stayed in the country until 3 February 2005 to take care of her
father's funeral arrangements as well as to assist in the settlement of his
estate.18
According to the petitioner, the untimely demise of her father was a severe
blow to her entire family. In her earnest desire to be with her grieving mother,
the petitioner and her husband decided to move and reside permanently in
the Philippines sometime in the first quarter of 2005.19 The couple began
preparing for their resettlement including notification of their children's
schools that they will be transferring to Philippine schools for the next
semester;20 coordination with property movers for the relocation of their
household goods, furniture and cars from the U.S. to the Philippines;21 and
inquiry with Philippine authorities as to the proper procedure to be followed in
bringing their pet dog into the country.22 As early as 2004, the petitioner
already quit her job in the U.S.23
Finally, petitioner came home to the Philippines on 24 May 200524 and
without delay, secured a Tax Identification Number from the Bureau of
Internal Revenue. Her three (3) children immediately followed25 while her
husband was forced to stay in the U.S. to complete pending projects as well
as to arrange the sale of their family home there.26

The petitioner and her children briefly stayed at her mother's place until she
and her husband purchased a condominium unit with a parking slot at One
Wilson Place Condominium in San Juan City in the second half of 2005.27
The corresponding Condominium Certificates of Title covering the unit and
parking slot were issued by the Register of Deeds of San Juan City to
petitioner and her husband on 20 February 2006.28 Meanwhile, her children
of school age began attending Philippine private schools.
On 14 February 2006, the petitioner made a quick trip to the U.S. to
supervise the disposal of some of the family's remaining household
belongings.29 She travelled back to the Philippines on 11 March 2006.30
In late March 2006, petitioner's husband officially informed the U.S. Postal
Service of the family's change and abandonment of their address in the
U.S.31 The family home was eventually sold on 27 April 2006.32 Petitioner's
husband resigned from his job in the U.S. in April 2006, arrived in the country
on 4 May 2006 and started working for a major Philippine company in July
2006.33
In early 2006, petitioner and her husband acquired a 509-square meter lot in
Corinthian Hills, Quezon City where they built their family home34 and to this
day, is where the couple and their children have been residing.35 A Transfer
Certificate of Title covering said property was issued in the couple's name by
the Register of Deeds of Quezon City on 1June 2006.
On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the
Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship
Retention and Re-acquisition Act of 2003.36 Under the same Act, she filed
with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine
citizenship together with petitions for derivative citizenship on behalf of her
three minor children on 10 July 2006.37 As can be gathered from its 18 July
2006 Order, the BI acted favorably on petitioner's petitions and declared that
she is deemed to have reacquired her Philippine citizenship while her
children are considered as citizens of the Philippines.38 Consequently, the BI
issued Identification Certificates (ICs) in petitioner's name and in the names
of her three (3) children. 39
Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan
City on 31 August 2006.40 She also secured from the DFA a new Philippine
Passport bearing the No. XX4731999.41 This passport was renewed on 18
March 2014 and she was issued Philippine Passport No. EC0588861 by the
DFA.42
On 6 October 2010, President Benigno S. Aquino III appointed petitioner as
Chairperson of the Movie and Television Review and Classification Board
(MTRCB).43 Before assuming her post, petitioner executed an "Affidavit of
Renunciation of Allegiance to the United States of America and Renunciation
of American Citizenship" before a notary public in Pasig City on 20 October
2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No.
9225.45 The following day, 21 October 2010 petitioner submitted the said
affidavit to the BI46 and took her oath of office as Chairperson of the
MTRCB.47 From then on, petitioner stopped using her American passport.48
On 12 July 2011, the petitioner executed before the Vice Consul of the U.S.
Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of the
United States."49 On that day, she accomplished a sworn questionnaire
before the U.S. Vice Consul wherein she stated that she had taken her oath
as MTRCB Chairperson on 21 October 2010 with the intent, among others,
of relinquishing her American citizenship.50 In the same questionnaire, the
petitioner stated that she had resided outside of the U.S., specifically in the
Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to
present.51
On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate
of Loss of Nationality of the United States" effective 21 October 2010.52
On 2 October 2012, the petitioner filed with the COMELEC her Certificate of
Candidacy (COC) for Senator for the 2013 Elections wherein she answered
"6 years and 6 months" to the question "Period of residence in the
Philippines before May 13, 2013."53 Petitioner obtained the highest number
of votes and was proclaimed Senator on 16 May 2013. 54
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport
No. DE0004530. 55
On 15 October 2015, petitioner filed her COC for the Presidency for the May
2016 Elections. 56 In her COC, the petitioner declared that she is a natural-
born citizen and that her residence in the Philippines up to the day before 9
May 2016 would be ten (10) years and eleven (11) months counted from 24
May 2005.57 The petitioner attached to her COC an "Affidavit Affirming
Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary
public in Quezon City on 14 October 2015. 58
Petitioner's filing of her COC for President in the upcoming elections
triggered the filing of several COMELEC cases against her which were the
subject of these consolidated cases.
Origin of Petition for Certiorari in G.R. No. 221697
A day after petitioner filed her COC for President, Estrella Elamparo
(Elamparo) filed a petition to deny due course or cancel said COC which was
docketed as SPA No. 15-001 (DC) and raffled to the COMELEC Second
Division.59 She is convinced that the COMELEC has jurisdiction over her
petition.60 Essentially, Elamparo's contention is that petitioner committed
material misrepresentation when she stated in her COC that she is a natural-
born Filipino citizen and that she is a resident of the Philippines for at least
ten (10) years and eleven (11) months up to the day before the 9 May 2016
Elections.61
On the issue of citizenship, Elamparo argued that petitioner cannot be
considered as a natural-born Filipino on account of the fact that she was a
foundling.62 Elamparo claimed that international law does not confer natural-
born status and Filipino citizenship on foundlings.63 Following this line of
reasoning, petitioner is not qualified to apply for reacquisition of Filipino
citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen
to begin with.64 Even assuming arguendo that petitioner was a natural-born
Filipino, she is deemed to have lost that status when she became a
naturalized American citizen.65 According to Elamparo, natural-born
citizenship must be continuous from birth.66
On the matter of petitioner's residency, Elamparo pointed out that petitioner
was bound by the sworn declaration she made in her 2012 COC for Senator
wherein she indicated that she had resided in the country for only six ( 6)
years and six ( 6) months as of May 2013 Elections. Elamparo likewise
insisted that assuming arguendo that petitioner is qualified to regain her
natural-born status under R.A. No. 9225, she still fell short of the ten-year
residency requirement of the Constitution as her residence could only be
counted at the earliest from July 2006, when she reacquired Philippine
citizenship under the said Act. Also on the assumption that petitioner is
qualified to reacquire lost Philippine Citizenship, Elamparo is of the belief that
she failed to reestablish her domicile in the Philippines.67
Petitioner seasonably filed her Answer wherein she countered that:
(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was
actually a petition for quo warranto which could only be filed if Grace Poe
wins in the Presidential elections, and that the Department of Justice (DOJ)
has primary jurisdiction to revoke the BI's July 18, 2006 Order;
(2) the petition failed to state a cause of action because it did not contain
allegations which, if hypothetically admitted, would make false the statement
in her COC that she is a natural-born Filipino citizen nor was there any
allegation that there was a willful or deliberate intent to misrepresent on her
part;
(3) she did not make any material misrepresentation in the COC regarding
her citizenship and residency qualifications for:
a. the 1934 Constitutional Convention deliberations show that foundlings
were considered citizens;
b. foundlings are presumed under international law to have been born of
citizens of the place where they are found;
c. she reacquired her natural-born Philippine citizenship under the provisions
of R.A. No. 9225;
d. she executed a sworn renunciation of her American citizenship prior to the
filing of her COC for President in the May 9, 2016 Elections and that the
same is in full force and effect and has not been withdrawn or recanted;
e. the burden was on Elamparo in proving that she did not possess natural-
born status;
f. residence is a matter of evidence and that she reestablished her domicile
in the Philippines as early as May 24, 2005;
g. she could reestablish residence even before she reacquired natural-born
citizenship under R.A. No. 9225;
h. statement regarding the period of residence in her 2012 COC for Senator
was an honest mistake, not binding and should give way to evidence on her
true date of reacquisition of domicile;
i. Elamparo's petition is merely an action to usurp the sovereign right of the
Filipino people to decide a purely political question, that is, should she serve
as the country's next leader.68
After the parties submitted their respective Memoranda, the petition was
deemed submitted for resolution.
On 1 December 2015, the COMELEC Second Division promulgated a
Resolution finding that petitioner's COC, filed for the purpose of running for
the President of the Republic of the Philippines in the 9 May 2016 National
and Local Elections, contained material representations which are false. The
fallo of the aforesaid Resolution reads:
WHEREFORE, in view of all the foregoing considerations, the instant Petition
to Deny Due Course to or Cancel Certificate of Candidacy is hereby
GRANTED. Accordingly, the Certificate of Candidacy for President of the
Republic of the Philippines in the May 9, 2016 National and Local Elections
filed by respondent Mary Grace Natividad Sonora Poe Llamanzares is
hereby CANCELLED.69
Motion for Reconsideration of the 1 December 2015 Resolution was filed by
petitioner which the COMELEC En Banc resolved in its 23 December 2015
Resolution by denying the same.70
Origin of Petition for Certiorari in G.R. Nos. 221698-700
This case stemmed from three (3) separate petitions filed by Francisco S.
Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez
(Valdez) against petitioner before the COMELEC which were consolidated
and raffled to its First Division.
In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules
of Procedure,71 docketed as SPA No. 15-002 (DC), Tatad alleged that
petitioner lacks the requisite residency and citizenship to qualify her for the
Presidency.72
Tatad theorized that since the Philippines adheres to the principle of jus
sanguinis, persons of unknown parentage, particularly foundlings, cannot be
considered natural-born Filipino citizens since blood relationship is
determinative of natural-born status.73 Tatad invoked the rule of statutory
construction that what is not included is excluded. He averred that the fact
that foundlings were not expressly included in the categories of citizens in the
193 5 Constitution is indicative of the framers' intent to exclude them.74
Therefore, the burden lies on petitioner to prove that she is a natural-born
citizen.75
Neither can petitioner seek refuge under international conventions or treaties
to support her claim that foundlings have a nationality.76 According to Tatad,
international conventions and treaties are not self-executory and that local
legislations are necessary in order to give effect to treaty obligations
assumed by the Philippines.77 He also stressed that there is no standard
state practice that automatically confers natural-born status to foundlings.78
Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of
the option to reacquire Philippine citizenship under R.A. No. 9225 because it
only applies to former natural-born citizens and petitioner was not as she was
a foundling.79
Referring to petitioner's COC for Senator, Tatad concluded that she did not
comply with the ten (10) year residency requirement.80 Tatad opined that
petitioner acquired her domicile in Quezon City only from the time she
renounced her American citizenship which was sometime in 2010 or 2011.81
Additionally, Tatad questioned petitioner's lack of intention to abandon her
U.S. domicile as evinced by the fact that her husband stayed thereat and her
frequent trips to the U.S.82
In support of his petition to deny due course or cancel the COC of petitioner,
docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation under
R.A. No. 9225 did not bestow upon her the status of a natural-born citizen.83
He advanced the view that former natural-born citizens who are repatriated
under the said Act reacquires only their Philippine citizenship and will not
revert to their original status as natural-born citizens.84
He further argued that petitioner's own admission in her COC for Senator that
she had only been a resident of the Philippines for at least six (6) years and
six (6) months prior to the 13 May 2013 Elections operates against her.
Valdez rejected petitioner's claim that she could have validly reestablished
her domicile in the Philippines prior to her reacquisition of Philippine
citizenship. In effect, his position was that petitioner did not meet the ten (10)
year residency requirement for President.
Unlike the previous COMELEC cases filed against petitioner, Contreras'
petition,85 docketed as SPA No. 15-007 (DC), limited the attack to the
residency issue. He claimed that petitioner's 2015 COC for President should
be cancelled on the ground that she did not possess the ten-year period of
residency required for said candidacy and that she made false entry in her
COC when she stated that she is a legal resident of the Philippines for ten
(10) years and eleven (11) months by 9 May 2016.86 Contreras contended
that the reckoning period for computing petitioner's residency in the
Philippines should be from 18 July 2006, the date when her petition to
reacquire Philippine citizenship was approved by the BI.87 He asserted that
petitioner's physical presence in the country before 18 July 2006 could not be
valid evidence of reacquisition of her Philippine domicile since she was then
living here as an American citizen and as such, she was governed by the
Philippine immigration laws.88
In her defense, petitioner raised the following arguments:
First, Tatad's petition should be dismissed outright for failure to state a cause
of action. His petition did not invoke grounds proper for a disqualification
case as enumerated under Sections 12 and 68 of the Omnibus Election
Code.89 Instead, Tatad completely relied on the alleged lack of residency
and natural-born status of petitioner which are not among the recognized
grounds for the disqualification of a candidate to an elective office.90
Second, the petitions filed against her are basically petitions for quo warranto
as they focus on establishing her ineligibility for the Presidency.91 A petition
for quo warranto falls within the exclusive jurisdiction of the Presidential
Electoral Tribunal (PET) and not the COMELEC.92
Third, the burden to prove that she is not a natural-born Filipino citizen is on
the respondents.93 Otherwise stated, she has a presumption in her favor
that she is a natural-born citizen of this country.
Fourth, customary international law dictates that foundlings are entitled to a
nationality and are presumed to be citizens of the country where they are
found.94 Consequently, the petitioner is considered as a natural-born citizen
of the Philippines.95
Fifth, she claimed that as a natural-born citizen, she has every right to be
repatriated under R.A. No. 9225 or the right to reacquire her natural-born
status.96 Moreover, the official acts of the Philippine Government enjoy the
presumption of regularity, to wit: the issuance of the 18 July 2006 Order of
the BI declaring her as natural-born citizen, her appointment as MTRCB
Chair and the issuance of the decree of adoption of San Juan RTC.97 She
believed that all these acts reinforced her position that she is a natural-born
citizen of the Philippines.98
Sixth, she maintained that as early as the first quarter of 2005, she started
reestablishing her domicile of choice in the Philippines as demonstrated by
her children's resettlement and schooling in the country, purchase of a
condominium unit in San Juan City and the construction of their family home
in Corinthian Hills.99
Seventh, she insisted that she could legally reestablish her domicile of choice
in the Philippines even before she renounced her American citizenship as
long as the three determinants for a change of domicile are complied
with.100 She reasoned out that there was no requirement that renunciation
of foreign citizenship is a prerequisite for the acquisition of a new domicile of
choice.101
Eighth, she reiterated that the period appearing in the residency portion of
her COC for Senator was a mistake made in good faith.102
In a Resolution103 promulgated on 11 December 2015, the COMELEC First
Division ruled that petitioner is not a natural-born citizen, that she failed to
complete the ten (10) year residency requirement, and that she committed
material misrepresentation in her COC when she declared therein that she
has been a resident of the Philippines for a period of ten (10) years and
eleven (11) months as of the day of the elections on 9 May 2016. The
COMELEC First Division concluded that she is not qualified for the elective
position of President of the Republic of the Philippines. The dispositive
portion of said Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
for the elective position of President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized Local and National Elections.
Petitioner filed a motion for reconsideration seeking a reversal of the
COMELEC First Division's Resolution. On 23 December 2015, the
COMELEC En Banc issued a Resolution denying petitioner's motion for
reconsideration.
Alarmed by the adverse rulings of the COMELEC, petitioner instituted the
present petitions for certiorari with urgent prayer for the issuance of an ex
parte temporary restraining order/status quo ante order and/or writ of
preliminary injunction. On 28 December 2015, temporary restraining orders
were issued by the Court enjoining the COMELEC and its representatives
from implementing the assailed COMELEC Resolutions until further orders
from the Court. The Court also ordered the consolidation of the two petitions
filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral
arguments were held in these cases.
The Court GRANTS the petition of Mary Grace Natividad S. Poe-
Llamanzares and to ANNUL and SET ASIDE the:
1. Resolution dated 1 December 2015 rendered through its Second Division,
in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares.
2. Resolution dated 11 December 2015, rendered through its First Division,
in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent;
SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent.
3. Resolution dated 23 December 2015 of the Commission En Banc,
upholding the 1 December 2015 Resolution of the Second Division.
4. Resolution dated 23 December 2015 of the Commission En Banc,
upholding the 11 December 2015 Resolution of the First Division.
The procedure and the conclusions from which the questioned Resolutions
emanated are tainted with grave abuse of discretion amounting to lack of
jurisdiction. The petitioner is a QUALIFIED CANDIDATE for President in the
9 May 2016 National Elections.
The issue before the COMELEC is whether or not the COC of petitioner
should be denied due course or cancelled "on the exclusive ground" that she
made in the certificate a false material representation. The exclusivity of the
ground should hedge in the discretion of the COMELEC and restrain it from
going into the issue of the qualifications of the candidate for the position, if,
as in this case, such issue is yet undecided or undetermined by the proper
authority. The COMELEC cannot itself, in the same cancellation case, decide
the qualification or lack thereof of the candidate.
We rely, first of all, on the Constitution of our Republic, particularly its
provisions in Article IX, C, Section 2:
Section 2. The Commission on Elections shall exercise the following powers
and functions:
(1) Enforce and administer all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory,
and not appealable.
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling
places, appointment of election officials and inspectors, and registration of
voters.
(4) Deputize, with the concurrence of the President, law enforcement
agencies and instrumentalities of the Government, including the Armed
Forces of the Philippines, for the exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political parties, organizations, or
coalitions which, in addition to other requirements, must present their
platform or program of government; and accredit citizens' arms of the
Commission on Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through violence or
unlawful means, or refuse to uphold and adhere to this Constitution, or which
are supported by any foreign government shall likewise be refused
registration.
Financial contributions from foreign governments and their agencies to
political parties, organizations, coalitions, or candidates related to elections
constitute interference in national affairs, and, when accepted, shall be an
additional ground for the cancellation of their registration with the
Commission, in addition to other penalties that may be prescribed by law.
(6) File, upon a verified complaint, or on its own initiative, petitions in court for
inclusion or exclusion of voters; investigate and, where appropriate,
prosecute cases of violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
(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 candidacies.
(8) Recommend to the President the removal of any officer or employee it
has deputized, or the imposition of any other disciplinary action, for violation
or disregard of, or disobedience to its directive, order, or decision.
(9) Submit to the President and the Congress a comprehensive report on the
conduct of each election, plebiscite, initiative, referendum, or recall.
Not any one of the enumerated powers approximate the exactitude of the
provisions of Article VI, Section 17 of the same basic law stating that:
The Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election,
returns, and qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The
senior Justice in the Electoral Tribunal shall be its Chairman.
or of the last paragraph of Article VII, Section 4 which provides that:
The Supreme Court, sitting en banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.
The tribunals which have jurisdiction over the question of the qualifications of
the President, the Vice-President, Senators and the Members of the House
of Representatives was made clear by the Constitution. There is no such
provision for candidates for these positions.
Can the COMELEC be such judge?
The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v.
Commission on Elections,104 which was affirmatively cited in the En Banc
decision in Fermin v. COMELEC105 is our guide. The citation in Fermin
reads:
Apparently realizing the lack of an authorized proceeding for declaring the
ineligibility of candidates, the COMELEC amended its rules on February 15,
1993 so as to provide in Rule 25 § 1, the following:
Grounds for disqualification. - Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however,
cannot be supplied by a mere rule. Such an act is equivalent to the creation
of a cause of action which is a substantive matter which the COMELEC, in
the exercise of its rule-making power under Art. IX, A, §6 of the Constitution,
cannot do it. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to vote, which
essentially involves an inquiry into qualifications based on age, residence
and citizenship of voters. [Art. IX, C, §2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility
into grounds for disqualification is contrary to the evident intention of the law.
For not only in their grounds but also in their consequences are proceedings
for "disqualification" different from those for a declaration of "ineligibility."
"Disqualification" proceedings, as already stated, are based on grounds
specified in § 12 and §68 of the Omnibus Election Code and in §40 of the
Local Government Code and are for the purpose of barring an individual from
becoming a candidate or from continuing as a candidate for public office. In a
word, their purpose is to eliminate a candidate from the race either from the
start or during its progress. "Ineligibility," on the other hand, refers to the lack
of the qualifications prescribed in the Constitution or the statutes for holding
public office and the purpose of the proceedings for declaration of ineligibility
is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public
office does not imply that he is not disqualified from becoming a candidate or
continuing as a candidate for a public office and vice versa. We have this sort
of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in §2 of the Law does not imply that he does not
suffer from any of [the] disqualifications provided in §4.
Before we get derailed by the distinction as to grounds and the
consequences of the respective proceedings, the importance of the opinion
is in its statement that "the lack of provision for declaring the ineligibility of
candidates, however, cannot be supplied by a mere rule". Justice Mendoza
lectured in Romualdez-Marcos that:
Three reasons may be cited to explain the absence of an authorized
proceeding for determining before election the qualifications of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there
is no necessity for determining his eligibility for the office. In contrast,
whether an individual should be disqualified as a candidate for acts
constituting election offenses (e.g., vote buying, over spending, commission
of prohibited acts) is a prejudicial question which should be determined lest
he wins because of the very acts for which his disqualification is being
sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the
votes in his favor will not be counted; and if for some reason he has been
voted for and he has won, either he will not be proclaimed or his
proclamation will be set aside.
Second is the fact that the determination of a candidates' eligibility, e.g., his
citizenship or, as in this case, his domicile, may take a long time to make,
extending beyond the beginning of the term of the office. This is amply
demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v.
COMELEC) where the determination of Aquino's residence was still pending
in the COMELEC even after the elections of May 8, 1995. This is contrary to
the summary character proceedings relating to certificates of candidacy. That
is why the law makes the receipt of certificates of candidacy a ministerial
duty of the COMELEC and its officers. The law is satisfied if candidates state
in their certificates of candidacy that they are eligible for the position which
they seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases
involving charges of false representations made in certificates of candidacy is
the COMELEC given jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases
in elections for President, Vice President, Senators and members of the
House of Representatives. (R.A. No. 7166, § 15) The purpose is to preserve
the prerogatives of the House of Representatives Electoral Tribunal and the
other Tribunals as "sole judges" under the Constitution of the election,
returns and qualifications of members of Congress of the President and Vice
President, as the case may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as
reiterated in Fermin, led to the amendment through COMELEC Resolution
No. 9523, on 25 September 2012 of its Rule 25. This, the 15 February1993
version of Rule 25, which states that:
Grounds for disqualification. -Any candidate who does not possess all the
qualifications of a candidate as provided for by the Constitution or by existing
law or who commits any act declared by law to be grounds for disqualification
may be disqualified from continuing as a candidate.107
was in the 2012 rendition, drastically changed to:
Grounds. - Any candidate who, in action or protest in which he is a party, is
declared by final decision of a competent court, guilty of, or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution.
A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny
to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as
a Nuisance Candidate, or a combination thereof, shall be summarily
dismissed.
Clearly, the amendment done in 2012 is an acceptance of the reality of
absence of an authorized proceeding for determining before election the
qualifications of candidate. Such that, as presently required, to disqualify a
candidate there must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of or found by the
Commission to be suffering from any disqualification provided by law or the
Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23
are flipsides of one to the other. Both do not allow, are not authorizations, are
not vestment of jurisdiction, for the COMELEC to determine the qualification
of a candidate. The facts of qualification must beforehand be established in a
prior proceeding before an authority properly vested with jurisdiction. The
prior determination of qualification may be by statute, by executive order or
by a judgment of a competent court or tribunal.
If a candidate cannot be disqualified without a prior finding that he or she is
suffering from a disqualification "provided by law or the Constitution," neither
can the certificate of candidacy be cancelled or denied due course on
grounds of false representations regarding his or her qualifications, without a
prior authoritative finding that he or she is not qualified, such prior authority
being the necessary measure by which the falsity of the representation can
be found. The only exception that can be conceded are self-evident facts of
unquestioned or unquestionable veracity and judicial confessions. Such are,
anyway, bases equivalent to prior decisions against which the falsity of
representation can be determined.
The need for a predicate finding or final pronouncement in a proceeding
under Rule 23 that deals with, as in this case, alleged false representations
regarding the candidate's citizenship and residence, forced the COMELEC to
rule essentially that since foundlings108 are not mentioned in the
enumeration of citizens under the 1935 Constitution,109 they then cannot be
citizens. As the COMELEC stated in oral arguments, when petitioner
admitted that she is a foundling, she said it all. This borders on bigotry.
Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot
rule that herein petitioner possesses blood relationship with a Filipino citizen
when "it is certain that such relationship is indemonstrable," proceeded to
say that "she now has the burden to present evidence to prove her natural
filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is
DEMONSTRABLE.
At the outset, it must be noted that presumptions regarding paternity is
neither unknown nor unaccepted in Philippine Law. The Family Code of the
Philippines has a whole chapter on Paternity and Filiation.110 That said,
there is more than sufficient evider1ce that petitioner has Filipino parents and
is therefore a natural-born Filipino. Parenthetically, the burden of proof was
on private respondents to show that petitioner is not a Filipino citizen. The
private respondents should have shown that both of petitioner's parents were
aliens. Her admission that she is a foundling did not shift the burden to her
because such status did not exclude the possibility that her parents were
Filipinos, especially as in this case where there is a high probability, if not
certainty, that her parents are Filipinos.
The factual issue is not who the parents of petitioner are, as their identities
are unknown, but whether such parents are Filipinos. Under Section 4, Rule
128:
Sect. 4. Relevancy, collateral matters - Evidence must have such a relation
to the fact in issue as to induce belief in its existence or no-existence.
Evidence on collateral matters shall not be allowed, except when it tends in
any reasonable degree to establish the probability of improbability of the fact
in issue.
The Solicitor General offered official statistics from the Philippine Statistics
Authority (PSA)111 that from 1965 to 1975, the total number of foreigners
born in the Philippines was 15,986 while the total number of Filipinos born in
the country was 10,558,278. The statistical probability that any child born in
the Philippines in that decade is natural-born Filipino was 99.83%. For her
part, petitioner presented census statistics for Iloilo Province for 1960 and
1970, also from the PSA. In 1960, there were 962,532 Filipinos and 4,734
foreigners in the province; 99.62% of the population were Filipinos. In 1970,
the figures were 1,162,669 Filipinos and 5,304 foreigners, or 99.55%. Also
presented were figures for the child producing ages (15-49). In 1960, there
were 230,528 female Filipinos as against 730 female foreigners or 99.68%.
In the same year, there were 210,349 Filipino males and 886 male aliens, or
99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female
aliens, or 99.56%. That same year, there were 245,740 Filipino males as
against only 1,165 male aliens or 99.53%. COMELEC did not dispute these
figures. Notably, Commissioner Arthur Lim admitted, during the oral
arguments, that at the time petitioner was found in 1968, the majority of the
population in Iloilo was Filipino.112
Other circumstantial evidence of the nationality of petitioner's parents are the
fact that she was abandoned as an infant in a Roman Catholic Church in
Iloilo City.1âwphi1 She also has typical Filipino features: height, flat nasal
bridge, straight black hair, almond shaped eyes and an oval face.
There is a disputable presumption that things have happened according to
the ordinary course of nature and the ordinary habits of life.113 All of the
foregoing evidence, that a person with typical Filipino features is abandoned
in Catholic Church in a municipality where the population of the Philippines is
overwhelmingly Filipinos such that there would be more than a 99% chance
that a child born in the province would be a Filipino, would indicate more than
ample probability if not statistical certainty, that petitioner's parents are
Filipinos. That probability and the evidence on which it is based are
admissible under Rule 128, Section 4 of the Revised Rules on Evidence.
To assume otherwise is to accept the absurd, if not the virtually impossible,
as the norm. In the words of the Solicitor General:
Second. It is contrary to common sense because foreigners do not come to
the Philippines so they can get pregnant and leave their newborn babies
behind. We do not face a situation where the probability is such that every
foundling would have a 50% chance of being a Filipino and a 50% chance of
being a foreigner. We need to frame our questions properly. What are the
chances that the parents of anyone born in the Philippines would be
foreigners? Almost zero. What are the chances that the parents of anyone
born in the Philippines would be Filipinos? 99.9%.
According to the Philippine Statistics Authority, from 2010 to 2014, on a
yearly average, there were 1,766,046 children born in the Philippines to
Filipino parents, as opposed to 1,301 children in the Philippines of foreign
parents. Thus, for that sample period, the ratio of non-Filipino children to
natural born Filipino children is 1:1357. This means that the statistical
probability that any child born in the Philippines would be a natural born
Filipino is 99.93%.
From 1965 to 1975, the total number of foreigners born in the Philippines is
15,986 while the total number of Filipinos born in the Philippines is
15,558,278. For this period, the ratio of non-Filipino children is 1:661. This
means that the statistical probability that any child born in the Philippines on
that decade would be a natural born Filipino is 99.83%.
We can invite statisticians and social anthropologists to crunch the numbers
for us, but I am confident that the statistical probability that a child born in the
Philippines would be a natural born Filipino will not be affected by whether or
not the parents are known. If at all, the likelihood that a foundling would have
a Filipino parent might even be higher than 99.9%. Filipinos abandon their
children out of poverty or perhaps, shame. We do not imagine foreigners
abandoning their children here in the Philippines thinking those infants would
have better economic opportunities or believing that this country is a tropical
paradise suitable for raising abandoned children. I certainly doubt whether a
foreign couple has ever considered their child excess baggage that is best
left behind.
To deny full Filipino citizenship to all foundlings and render them stateless
just because there may be a theoretical chance that one among the
thousands of these foundlings might be the child of not just one, but two,
foreigners is downright discriminatory, irrational, and unjust. It just doesn't
make any sense. Given the statistical certainty - 99.9% - that any child born
in the Philippines would be a natural born citizen, a decision denying
foundlings such status is effectively a denial of their birthright. There is no
reason why this Honorable Court should use an improbable hypothetical to
sacrifice the fundamental political rights of an entire class of human beings.
Your Honor, constitutional interpretation and the use of common sense are
not separate disciplines.
As a matter of law, foundlings are as a class, natural-born citizens. While the
1935 Constitution's enumeration is silent as to foundlings, there is no
restrictive language which would definitely exclude foundlings either.
Because of silence and ambiguity in the enumeration with respect to
foundlings, there is a need to examine the intent of the framers. In Nitafan v.
Commissioner of Internal Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the fundamental
principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary
task in constitutional construction is to ascertain and thereafter assure the
realization of the purpose of the framers and of the people in the adoption of
the Constitution. It may also be safely assumed that the people in ratifying
the Constitution were guided mainly by the explanation offered by the
framers.115
As pointed out by petitioner as well as the Solicitor General, the deliberations
of the 1934 Constitutional Convention show that the framers intended
foundlings to be covered by the enumeration. The following exchange is
recorded:
Sr. Rafols: For an amendment. I propose that after subsection 2, the
following is inserted: "The natural children of a foreign father and a Filipino
mother not recognized by the father.
xxxx
President:
[We] would like to request a clarification from the proponent of the
amendment. The gentleman refers to natural children or to any kind of
illegitimate children?
Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of
unknown parentage, natural or illegitimate children of unknown parents.
Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes
consider them Filipino, that is, I refer to the Spanish Code wherein all
children of unknown parentage born in Spanish territory are considered
Spaniards, because the presumption is that a child of unknown parentage is
the son of a Spaniard. This may be applied in the Philippines in that a child of
unknown parentage born in the Philippines is deemed to be Filipino, and
there is no need ...
Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to
be Filipino.
Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for
amendment.
Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by
one, or the children of unknown parentage."
Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown
parentage.
Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not
recognize the child, is not unknown.
President:
Does the gentleman accept the amendment or not?
Sr. Rafols:
I do not accept the amendment because the amendment would exclude the
children of a Filipina with a foreigner who does not recognize the child. Their
parentage is not unknown and I think those of overseas Filipino mother and
father [whom the latter] does not recognize, should also be considered as
Filipinos.
President:
The question in order is the amendment to the amendment from the
Gentleman from Cebu, Mr. Briones.
Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the
hands of the Legislature?
Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in
between, that the constitution need [not] refer to them. By international law
the principle that children or people born in a country of unknown parents are
citizens in this nation is recognized, and it is not necessary to include a
provision on the subject exhaustively.116
Though the Rafols amendment was not carried out, it was not because there
was any objection to the notion that persons of "unknown parentage" are not
citizens but only because their number was not enough to merit specific
mention. Such was the account,117 cited by petitioner, of delegate and
constitution law author Jose Aruego who said:
During the debates on this provision, Delegate Rafols presented an
amendment to include as Filipino citizens the illegitimate children with a
foreign father of a mother who was a citizen of the Philippines, and also
foundlings; but this amendment was defeated primarily because the
Convention believed that the cases, being too few to warrant the inclusion of
a provision in the Constitution to apply to them, should be governed by
statutory legislation. Moreover, it was believed that the rules of international
law were already clear to the effect that illegitimate children followed the
citizenship of the mother, and that foundlings followed the nationality of the
place where they were found, thereby making unnecessary the inclusion in
the Constitution of the proposed amendment.
This explanation was likewise the position of the Solicitor General during the
16 February 2016 Oral Arguments:
We all know that the Rafols proposal was rejected. But note that what was
declined was the proposal for a textual and explicit recognition of foundlings
as Filipinos. And so, the way to explain the constitutional silence is by saying
that it was the view of Montinola and Roxas which prevailed that there is no
more need to expressly declare foundlings as Filipinos.
Obviously, it doesn't matter whether Montinola's or Roxas' views were legally
correct. Framers of a constitution can constitutionalize rules based on
assumptions that are imperfect or even wrong. They can even overturn
existing rules. This is basic. What matters here is that Montinola and Roxas
were able to convince their colleagues in the convention that there is no
more need to expressly declare foundlings as Filipinos because they are
already impliedly so recognized.
In other words, the constitutional silence is fully explained in terms of
linguistic efficiency and the avoidance of redundancy. The policy is clear: it is
to recognize foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of
the 1935 Constitution. This inclusive policy is carried over into the 1973 and
1987 Constitution. It is appropriate to invoke a famous scholar as he was
paraphrased by Chief Justice Fernando: the constitution is not silently silent,
it is silently vocal. 118
The Solicitor General makes the further point that the framers "worked to
create a just and humane society," that "they were reasonable patriots and
that it would be unfair to impute upon them a discriminatory intent against
foundlings." He exhorts that, given the grave implications of the argument
that foundlings are not natural-born Filipinos, the Court must search the
records of the 1935, 1973 and 1987 Constitutions "for an express intention to
deny foundlings the status of Filipinos. The burden is on those who wish to
use the constitution to discriminate against foundlings to show that the
constitution really intended to take this path to the dark side and inflict this
across the board marginalization."
We find no such intent or language permitting discrimination against
foundlings. On the contrary, all three Constitutions guarantee the basic right
to equal protection of the laws. All exhort the State to render social justice. Of
special consideration are several provisions in the present charter: Article II,
Section 11 which provides that the "State values the dignity of every human
person and guarantees full respect for human rights," Article XIII, Section 1
which mandates Congress to "give highest priority to the enactment of
measures that protect and enhance the right of all the people to human
dignity, reduce social, economic, and political inequalities x x x" and Article
XV, Section 3 which requires the State to defend the "right of children to
assistance, including proper care and nutrition, and special protection from
all forms of neglect, abuse, cruelty, exploitation, and other conditions
prejudicial to their development." Certainly, these provisions contradict an
intent to discriminate against foundlings on account of their unfortunate
status.
Domestic laws on adoption also support the principle that foundlings are
Filipinos. These laws do not provide that adoption confers citizenship upon
the adoptee. Rather, the adoptee must be a Filipino in the first place to be
adopted. The most basic of such laws is Article 15 of the Civil Code which
provides that "[l]aws relating to family rights, duties, status, conditions, legal
capacity of persons are binding on citizens of the Philippines even though
living abroad." Adoption deals with status, and a Philippine adoption court will
have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v.
Republic,119 a child left by an unidentified mother was sought to be adopted
by aliens. This Court said:
In this connection, it should be noted that this is a proceedings in rem, which
no court may entertain unless it has jurisdiction, not only over the subject
matter of the case and over the parties, but also over the res, which is the
personal status of Baby Rose as well as that of petitioners herein. Our Civil
Code (Art. 15) adheres to the theory that jurisdiction over the status of a
natural person is determined by the latter's nationality. Pursuant to this
theory, we have jurisdiction over the status of Baby Rose, she being a citizen
of the Philippines, but not over the status of the petitioners, who are
foreigners.120 (Underlining supplied)
Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing
the Rules to Govern the Inter-Country Adoption of Filipino Children and For
Other Purposes" (otherwise known as the "Inter-Country Adoption Act of
1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies
on the Adoption of Filipino Children and For Other Purposes" (otherwise
known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-
02-SC or the "Rule on Adoption," all expressly refer to "Filipino children" and
include foundlings as among Filipino children who may be adopted.
It has been argued that the process to determine that the child is a foundling
leading to the issuance of a foundling certificate under these laws and the
issuance of said certificate are acts to acquire or perfect Philippine
citizenship which make the foundling a naturalized Filipino at best. This is
erroneous. Under Article IV, Section 2 "Natural-born citizens are those who
are citizens of the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship." In the first place, "having to
perform an act" means that the act must be personally done by the citizen. In
this instance, the determination of foundling status is done not by the child
but by the authorities.121 Secondly, the object of the process is the
determination of the whereabouts of the parents, not the citizenship of the
child. Lastly, the process is certainly not analogous to naturalization
proceedings to acquire Philippine citizenship, or the election of such
citizenship by one born of an alien father and a Filipino mother under the
1935 Constitution, which is an act to perfect it.
In this instance, such issue is moot because there is no dispute that
petitioner is a foundling, as evidenced by a Foundling Certificate issued in
her favor.122 The Decree of Adoption issued on 13 May 1974, which
approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan
Kelley Poe, expressly refers to Emiliano and his wife, Rosario Militar, as her
"foundling parents," hence effectively affirming petitioner's status as a
foundling.123
Foundlings are likewise citizens under international law. Under the 1987
Constitution, an international law can become part of the sphere of domestic
law either by transformation or incorporation. The transformation method
requires that an international law be transformed into a domestic law through
a constitutional mechanism such as local legislation.124 On the other hand,
generally accepted principles of international law, by virtue of the
incorporation clause of the Constitution, form part of the laws of the land
even if they do not derive from treaty obligations. Generally accepted
principles of international law include international custom as evidence of a
general practice accepted as law, and general principles of law recognized
by civilized nations.125 International customary rules are accepted as
binding as a result from the combination of two elements: the established,
widespread, and consistent practice on the part of States; and a
psychological element known as the opinionjuris sive necessitates (opinion
as to law or necessity). Implicit in the latter element is a belief that the
practice in question is rendered obligatory by the existence of a rule of law
requiring it.126 "General principles of law recognized by civilized nations" are
principles "established by a process of reasoning" or judicial logic, based on
principles which are "basic to legal systems generally,"127 such as "general
principles of equity, i.e., the general principles of fairness and justice," and
the "general principle against discrimination" which is embodied in the
"Universal Declaration of Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Convention on the
Elimination of All Forms of Racial Discrimination, the Convention Against
Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation."128 These are
the same core principles which underlie the Philippine Constitution itself, as
embodied in the due process and equal protection clauses of the Bill of
Rights.129
Universal Declaration of Human Rights ("UDHR") has been interpreted by
this Court as part of the generally accepted principles of international law and
binding on the State.130 Article 15 thereof states:
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
The Philippines has also ratified the UN Convention on the Rights of the
Child (UNCRC). Article 7 of the UNCRC imposes the following obligations on
our country:
Article 7
1. The child shall be registered immediately after birth and shall have the
right from birth to a name, the right to acquire a nationality and as far as
possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in
accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would
otherwise be stateless.
In 1986, the country also ratified the 1966 International Covenant on Civil
and Political Rights (ICCPR). Article 24 thereof provide for the right of every
child "to acquire a nationality:"
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex,
language, religion, national or social origin, property or birth, the right, to
such measures of protection as are required by his status as a minor, on the
part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a
name.
3. Every child has the right to acquire a nationality.
The common thread of the UDHR, UNCRC and ICCPR is to obligate the
Philippines to grant nationality from birth and ensure that no child is
stateless. This grant of nationality must be at the time of birth, and it cannot
be accomplished by the application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and R.A. No. 9139, both of which
require the applicant to be at least eighteen (18) years old.
The principles found in two conventions, while yet unratified by the
Philippines, are generally accepted principles of international law. The first is
Article 14 of the 1930 Hague Convention on Certain Questions Relating to
the Conflict of Nationality Laws under which a foundling is presumed to have
the "nationality of the country of birth," to wit:
Article 14
A child whose parents are both unknown shall have the nationality of the
country of birth. If the child's parentage is established, its nationality shall be
determined by the rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on
the territory of the State in which it was found. (Underlining supplied)
The second is the principle that a foundling is presumed born of citizens of
the country where he is found, contained in Article 2 of the 1961 United
Nations Convention on the Reduction of Statelessness:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence
of proof to the contrary, be considered to have been born within the territory
of parents possessing the nationality of that State.
That the Philippines is not a party to the 1930 Hague Convention nor to the
1961 Convention on the Reduction of Statelessness does not mean that their
principles are not binding. While the Philippines is not a party to the 1930
Hague Convention, it is a signatory to the Universal Declaration on Human
Rights, Article 15(1) ofwhich131 effectively affirms Article 14 of the 1930
Hague Convention. Article 2 of the 1961 "United Nations Convention on the
Reduction of Statelessness" merely "gives effect" to Article 15(1) of the
UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had
not signed or ratified the "International Convention for the Protection of All
Persons from Enforced Disappearance." Yet, we ruled that the proscription
against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v.
Tagitis is likewise notable for declaring the ban as a generally accepted
principle of international law although the convention had been ratified by
only sixteen states and had not even come into force and which needed the
ratification of a minimum of twenty states. Additionally, as petitioner points
out, the Court was content with the practice of international and regional
state organs, regional state practice in Latin America, and State Practice in
the United States.
Another case where the number of ratifying countries was not determinative
is Mijares v. Ranada, 134 where only four countries had "either ratified or
acceded to"135 the 1966 "Convention on the Recognition and Enforcement
of Foreign Judgments in Civil and Commercial Matters" when the case was
decided in 2005. The Court also pointed out that that nine member countries
of the European Common Market had acceded to the Judgments
Convention. The Court also cited U.S. laws and jurisprudence on recognition
of foreign judgments. In all, only the practices of fourteen countries were
considered and yet, there was pronouncement that recognition of foreign
judgments was widespread practice.
Our approach in Razon and Mijares effectively takes into account the fact
that "generally accepted principles of international law" are based not only on
international custom, but also on "general principles of law recognized by
civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of
the ICJ Statute. Justice, fairness, equity and the policy against discrimination,
which are fundamental principles underlying the Bill of Rights and which are
"basic to legal systems generally,"136 support the notion that the right
against enforced disappearances and the recognition of foreign judgments,
were correctly considered as "generally accepted principles of international
law" under the incorporation clause.
Petitioner's evidence137 shows that at least sixty countries in Asia, North
and South America, and Europe have passed legislation recognizing
foundlings as its citizen. Forty-two (42) of those countries follow the jus
sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961
Convention on Statelessness; twenty-six (26) are not signatories to the
Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments
pointed out that in 166 out of 189 countries surveyed (or 87.83%), foundlings
are recognized as citizens. These circumstances, including the practice of jus
sanguinis countries, show that it is a generally accepted principle of
international law to presume foundlings as having been born of nationals of
the country in which the foundling is found.
Current legislation reveals the adherence of the Philippines to this generally
accepted principle of international law. In particular, R.A. No. 8552, R.A. No.
8042 and this Court's Rules on Adoption, expressly refer to "Filipino
children." In all of them, foundlings are among the Filipino children who could
be adopted. Likewise, it has been pointed that the DFA issues passports to
foundlings. Passports are by law, issued only to citizens. This shows that
even the executive department, acting through the DFA, considers foundlings
as Philippine citizens.
Adopting these legal principles from the 1930 Hague Convention and the
1961 Convention on Statelessness is rational and reasonable and consistent
with the jus sanguinis regime in our Constitution. The presumption of natural-
born citizenship of foundlings stems from the presumption that their parents
are nationals of the Philippines. As the empirical data provided by the PSA
show, that presumption is at more than 99% and is a virtual certainty.
In sum, all of the international law conventions and instruments on the matter
of nationality of foundlings were designed to address the plight of a
defenseless class which suffers from a misfortune not of their own making.
We cannot be restrictive as to their application if we are a country which calls
itself civilized and a member of the community of nations. The Solicitor
General's warning in his opening statement is relevant:
.... the total effect of those documents is to signify to this Honorable Court
that those treaties and conventions were drafted because the world
community is concerned that the situation of foundlings renders them legally
invisible. It would be tragically ironic if this Honorable Court ended up using
the international instruments which seek to protect and uplift foundlings a tool
to deny them political status or to accord them second-class citizenship.138
The COMELEC also ruled139 that petitioner's repatriation in July 2006 under
the provisions of R.A. No. 9225 did not result in the reacquisition of natural-
born citizenship. The COMELEC reasoned that since the applicant must
perform an act, what is reacquired is not "natural-born" citizenship but only
plain "Philippine citizenship."
The COMELEC's rule arrogantly disregards consistent jurisprudence on the
matter of repatriation statutes in general and of R.A. No. 9225 in particular.
In the seminal case of Bengson Ill v. HRET, 140 repatriation was explained
as follows:
Moreover, repatriation results in the recovery of the original nationality. This
means that a naturalized Filipino who lost his citizenship will be restored to
his prior status as a naturalized Filipino citizen. On the other hand, if he was
originally a natural-born citizen before he lost his Philippine citizenship, he
will be restored to his former status as a natural-born Filipino.
R.A. No. 9225 is a repatriation statute and has been described as such in
several cases. They include Sobejana-Condon v. COMELEC141 where we
described it as an "abbreviated repatriation process that restores one's
Filipino citizenship x x x." Also included is Parreno v. Commission on
Audit,142 which cited Tabasa v. Court of Appeals,143 where we said that
"[t]he repatriation of the former Filipino will allow him to recover his natural-
born citizenship. Parreno v. Commission on Audit144 is categorical that "if
petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ...
recover his natural-born citizenship."
The COMELEC construed the phrase "from birth" in the definition of natural
citizens as implying "that natural-born citizenship must begin at birth and
remain uninterrupted and continuous from birth." R.A. No. 9225 was
obviously passed in line with Congress' sole prerogative to determine how
citizenship may be lost or reacquired. Congress saw it fit to decree that
natural-born citizenship may be reacquired even if it had been once lost. It is
not for the COMELEC to disagree with the Congress' determination.
More importantly, COMELEC's position that natural-born status must be
continuous was already rejected in Bengson III v. HRET145 where the
phrase "from birth" was clarified to mean at the time of birth: "A person who
at the time of his birth, is a citizen of a particular country, is a natural-born
citizen thereof." Neither is "repatriation" an act to "acquire or perfect" one's
citizenship. In Bengson III v. HRET, this Court pointed out that there are only
two types of citizens under the 1987 Constitution: natural-born citizen and
naturalized, and that there is no third category for repatriated citizens:
It is apparent from the enumeration of who are citizens under the present
Constitution that there are only two classes of citizens: (1) those who are
natural-born and (2) those who are naturalized in accordance with law. A
citizen who is not a naturalized Filipino, ie., did not have to undergo the
process of naturalization to obtain Philippine citizenship, necessarily is a
natural-born Filipino. Noteworthy is the absence in said enumeration of a
separate category for persons who, after losing Philippine citizenship,
subsequently reacquire it. The reason therefor is clear: as to such persons,
they would either be natural-born or naturalized depending on the reasons
for the loss of their citizenship and the mode prescribed by the applicable law
for the reacquisition thereof. As respondent Cruz was not required by law to
go through naturalization proceedings in order to reacquire his citizenship, he
is perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives.146
The COMELEC cannot reverse a judicial precedent. That is reserved to this
Court. And while we may always revisit a doctrine, a new rule reversing
standing doctrine cannot be retroactively applied. In Morales v. Court of
Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the
condonation doctrine, we cautioned that it "should be prospective in
application for the reason that judicial decisions applying or interpreting the
laws of the Constitution, until reversed, shall form part of the legal system of
the Philippines." This Court also said that "while the future may ultimately
uncover a doctrine's error, it should be, as a general rule, recognized as
good law prior to its abandonment. Consequently, the people's reliance
thereupon should be respected."148
Lastly, it was repeatedly pointed out during the oral arguments that petitioner
committed a falsehood when she put in the spaces for "born to" in her
application for repatriation under R.A. No. 9225 the names of her adoptive
parents, and this misled the BI to presume that she was a natural-born
Filipino. It has been contended that the data required were the names of her
biological parents which are precisely unknown.
This position disregards one important fact - petitioner was legally adopted.
One of the effects of adoption is "to sever all legal ties between the biological
parents and the adoptee, except when the biological parent is the spouse of
the adoptee."149 Under R.A. No. 8552, petitioner was also entitled to an
amended birth certificate "attesting to the fact that the adoptee is the child of
the adopter(s)" and which certificate "shall not bear any notation that it is an
amended issue."150 That law also requires that "[a]ll records, books, and
papers relating to the adoption cases in the files of the court, the Department
[of Social Welfare and Development], or any other agency or institution
participating in the adoption proceedings shall be kept strictly
confidential."151 The law therefore allows petitioner to state that her adoptive
parents were her birth parents as that was what would be stated in her birth
certificate anyway. And given the policy of strict confidentiality of adoption
records, petitioner was not obligated to disclose that she was an adoptee.
Clearly, to avoid a direct ruling on the qualifications of petitioner, which it
cannot make in the same case for cancellation of COC, it resorted to
opinionatedness which is, moreover, erroneous. The whole process
undertaken by COMELEC is wrapped in grave abuse of discretion.
On Residence
The tainted process was repeated in disposing of the issue of whether or not
petitioner committed false material representation when she stated in her
COC that she has before and until 9 May 2016 been a resident of the
Philippines for ten (10) years and eleven (11) months.
Petitioner's claim that she will have been a resident for ten (10) years and
eleven (11) months on the day before the 2016 elections, is true.
The Constitution requires presidential candidates to have ten (10) years'
residence in the Philippines before the day of the elections. Since the
forthcoming elections will be held on 9 May 2016, petitioner must have been
a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer
to the requested information of "Period of Residence in the Philippines up to
the day before May 09, 2016," she put in "10 years 11 months" which
according to her pleadings in these cases corresponds to a beginning date of
25 May 2005 when she returned for good from the U.S.
When petitioner immigrated to the U.S. in 1991, she lost her original
domicile, which is the Philippines. There are three requisites to acquire a new
domicile: 1. Residence or bodily presence in a new locality; 2. an intention to
remain there; and 3. an intention to abandon the old domicile.152 To
successfully effect a change of domicile, one must demonstrate an actual
removal or an actual change of domicile; a bona fide intention of abandoning
the former place of residence and establishing a new one and definite acts
which correspond with the purpose. In other words, there must basically be
animus manendi coupled with animus non revertendi. The purpose to remain
in or at the domicile of choice must be for an indefinite period of time; the
change of residence must be voluntary; and the residence at the place
chosen for the new domicile must be actual.153
Petitioner presented voluminous evidence showing that she and her family
abandoned their U.S. domicile and relocated to the Philippines for good.
These evidence include petitioner's former U.S. passport showing her arrival
on 24 May 2005 and her return to the Philippines every time she travelled
abroad; e-mail correspondences starting in March 2005 to September 2006
with a freight company to arrange for the shipment of their household items
weighing about 28,000 pounds to the Philippines; e-mail with the Philippine
Bureau of Animal Industry inquiring how to ship their dog to the Philippines;
school records of her children showing enrollment in Philippine schools
starting June 2005 and for succeeding years; tax identification card for
petitioner issued on July 2005; titles for condominium and parking slot issued
in February 2006 and their corresponding tax declarations issued in April
2006; receipts dated 23 February 2005 from the Salvation Army in the U.S.
acknowledging donation of items from petitioner's family; March 2006 e-mail
to the U.S. Postal Service confirming request for change of address; final
statement from the First American Title Insurance Company showing sale of
their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire
submitted to the U.S. Embassy where petitioner indicated that she had been
a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe
(attesting to the return of petitioner on 24 May 2005 and that she and her
family stayed with affiant until the condominium was purchased); and
Affidavit from petitioner's husband (confirming that the spouses jointly
decided to relocate to the Philippines in 2005 and that he stayed behind in
the U.S. only to finish some work and to sell the family home).
The foregoing evidence were undisputed and the facts were even listed by
the COMELEC, particularly in its Resolution in the Tatad, Contreras and
Valdez cases.
However, the COMELEC refused to consider that petitioner's domicile had
been timely changed as of 24 May 2005. At the oral arguments, COMELEC
Commissioner Arthur Lim conceded the presence of the first two requisites,
namely, physical presence and animus manendi, but maintained there was
no animus non-revertendi.154 The COMELEC disregarded the import of all
the evidence presented by petitioner on the basis of the position that the
earliest date that petitioner could have started residence in the Philippines
was in July 2006 when her application under R.A. No. 9225 was approved by
the BI. In this regard, COMELEC relied on Coquilla v. COMELEC,155
Japzon v. COMELEC156 and Caballero v. COMELEC. 157 During the oral
arguments, the private respondents also added Reyes v. COMELEC.158
Respondents contend that these cases decree that the stay of an alien
former Filipino cannot be counted until he/she obtains a permanent resident
visa or reacquires Philippine citizenship, a visa-free entry under a balikbayan
stamp being insufficient. Since petitioner was still an American (without any
resident visa) until her reacquisition of citizenship under R.A. No. 9225, her
stay from 24 May 2005 to 7 July 2006 cannot be counted.
But as the petitioner pointed out, the facts in these four cases are very
different from her situation. In Coquilla v. COMELEC,159 the only evidence
presented was a community tax certificate secured by the candidate and his
declaration that he would be running in the elections. Japzon v.
COMELEC160 did not involve a candidate who wanted to count residence
prior to his reacquisition of Philippine citizenship. With the Court decreeing
that residence is distinct from citizenship, the issue there was whether the
candidate's acts after reacquisition sufficed to establish residence. In
Caballero v. COMELEC, 161 the candidate admitted that his place of work
was abroad and that he only visited during his frequent vacations. In Reyes
v. COMELEC,162 the candidate was found to be an American citizen who
had not even reacquired Philippine citizenship under R.A. No. 9225 or had
renounced her U.S. citizenship. She was disqualified on the citizenship issue.
On residence, the only proof she offered was a seven-month stint as
provincial officer. The COMELEC, quoted with approval by this Court, said
that "such fact alone is not sufficient to prove her one-year residency."
It is obvious that because of the sparse evidence on residence in the four
cases cited by the respondents, the Court had no choice but to hold that
residence could be counted only from acquisition of a permanent resident
visa or from reacquisition of Philippine citizenship. In contrast, the evidence
of petitioner is overwhelming and taken together leads to no other conclusion
that she decided to permanently abandon her U.S. residence (selling the
house, taking the children from U.S. schools, getting quotes from the freight
company, notifying the U.S. Post Office of the abandonment of their address
in the U.S., donating excess items to the Salvation Army, her husband
resigning from U.S. employment right after selling the U.S. house) and
permanently relocate to the Philippines and actually re-established her
residence here on 24 May 2005 (securing T.I.N, enrolling her children in
Philippine schools, buying property here, constructing a residence here,
returning to the Philippines after all trips abroad, her husband getting
employed here). Indeed, coupled with her eventual application to reacquire
Philippine citizenship and her family's actual continuous stay in the
Philippines over the years, it is clear that when petitioner returned on 24 May
2005 it was for good.
In this connection, the COMELEC also took it against petitioner that she had
entered the Philippines visa-free as a balikbayan. A closer look at R.A. No.
6768 as amended, otherwise known as the "An Act Instituting a Balikbayan
Program," shows that there is no overriding intent to treat balikbayans as
temporary visitors who must leave after one year. Included in the law is a
former Filipino who has been naturalized abroad and "comes or returns to
the Philippines." 163 The law institutes a balikbayan program "providing the
opportunity to avail of the necessary training to enable the balikbayan to
become economically self-reliant members of society upon their return to the
country"164 in line with the government's "reintegration program."165
Obviously, balikbayans are not ordinary transients.
Given the law's express policy to facilitate the return of a balikbayan and help
him reintegrate into society, it would be an unduly harsh conclusion to say in
absolute terms that the balikbayan must leave after one year. That visa-free
period is obviously granted him to allow him to re-establish his life and
reintegrate himself into the community before he attends to the necessary
formal and legal requirements of repatriation. And that is exactly what
petitioner did - she reestablished life here by enrolling her children and
buying property while awaiting the return of her husband and then applying
for repatriation shortly thereafter.
No case similar to petitioner's, where the former Filipino's evidence of
change in domicile is extensive and overwhelming, has as yet been decided
by the Court. Petitioner's evidence of residence is unprecedented. There is
no judicial precedent that comes close to the facts of residence of petitioner.
There is no indication in Coquilla v. COMELEC,166 and the other cases cited
by the respondents that the Court intended to have its rulings there apply to a
situation where the facts are different. Surely, the issue of residence has
been decided particularly on the facts-of-the case basis.
To avoid the logical conclusion pointed out by the evidence of residence of
petitioner, the COMELEC ruled that petitioner's claim of residence of ten (10)
years and eleven (11) months by 9 May 2016 in her 2015 COC was false
because she put six ( 6) years and six ( 6) months as "period of residence
before May 13, 2013" in her 2012 COC for Senator. Thus, according to the
COMELEC, she started being a Philippine resident only in November 2006.
In doing so, the COMELEC automatically assumed as true the statement in
the 2012 COC and the 2015 COC as false.
As explained by petitioner in her verified pleadings, she misunderstood the
date required in the 2013 COC as the period of residence as of the day she
submitted that COC in 2012. She said that she reckoned residency from
April-May 2006 which was the period when the U.S. house was sold and her
husband returned to the Philippines. In that regard, she was advised by her
lawyers in 2015 that residence could be counted from 25 May 2005.
Petitioner's explanation that she misunderstood the query in 2012 (period of
residence before 13 May 2013) as inquiring about residence as of the time
she submitted the COC, is bolstered by the change which the COMELEC
itself introduced in the 2015 COC which is now "period of residence in the
Philippines up to the day before May 09, 2016." The COMELEC would not
have revised the query if it did not acknowledge that the first version was
vague.
That petitioner could have reckoned residence from a date earlier than the
sale of her U.S. house and the return of her husband is plausible given the
evidence that she had returned a year before. Such evidence, to repeat,
would include her passport and the school records of her children.
It was grave abuse of discretion for the COMELEC to treat the 2012 COC as
a binding and conclusive admission against petitioner. It could be given in
evidence against her, yes, but it was by no means conclusive. There is
precedent after all where a candidate's mistake as to period of residence
made in a COC was overcome by evidence. In Romualdez-Marcos v.
COMELEC,167 the candidate mistakenly put seven (7) months as her period
of residence where the required period was a minimum of one year. We said
that "[i]t is the fact of residence, not a statement in a certificate of candidacy
which ought to be decisive in determining whether or not an individual has
satisfied the constitutions residency qualification requirement." The
COMELEC ought to have looked at the evidence presented and see if
petitioner was telling the truth that she was in the Philippines from 24 May
2005. Had the COMELEC done its duty, it would have seen that the 2012
COC and the 2015 COC both correctly stated the pertinent period of
residency.
The COMELEC, by its own admission, disregarded the evidence that
petitioner actually and physically returned here on 24 May 2005 not because
it was false, but only because COMELEC took the position that domicile
could be established only from petitioner's repatriation under R.A. No. 9225
in July 2006. However, it does not take away the fact that in reality, petitioner
had returned from the U.S. and was here to stay permanently, on 24 May
2005. When she claimed to have been a resident for ten (10) years and
eleven (11) months, she could do so in good faith.
For another, it could not be said that petitioner was attempting to hide
anything. As already stated, a petition for quo warranto had been filed
against her with the SET as early as August 2015. The event from which the
COMELEC pegged the commencement of residence, petitioner's repatriation
in July 2006 under R.A. No. 9225, was an established fact to repeat, for
purposes of her senatorial candidacy.
Notably, on the statement of residence of six (6) years and six (6) months in
the 2012 COC, petitioner recounted that this was first brought up in the
media on 2 June 2015 by Rep. Tobias Tiangco of the United Nationalist
Alliance. Petitioner appears to have answered the issue immediately, also in
the press. Respondents have not disputed petitioner's evidence on this point.
From that time therefore when Rep. Tiangco discussed it in the media, the
stated period of residence in the 2012 COC and the circumstances that
surrounded the statement were already matters of public record and were not
hidden.
Petitioner likewise proved that the 2012 COC was also brought up in the SET
petition for quo warranto. Her Verified Answer, which was filed on 1
September 2015, admitted that she made a mistake in the 2012 COC when
she put in six ( 6) years and six ( 6) months as she misunderstood the
question and could have truthfully indicated a longer period. Her answer in
the SET case was a matter of public record. Therefore, when petitioner
accomplished her COC for President on 15 October 2015, she could not be
said to have been attempting to hide her erroneous statement in her 2012
COC for Senator which was expressly mentioned in her Verified Answer.
The facts now, if not stretched to distortion, do not show or even hint at an
intention to hide the 2012 statement and have it covered by the 2015
representation. Petitioner, moreover, has on her side this Court's
pronouncement that:
Concededly, a candidate's disqualification to run for public office does not
necessarily constitute material misrepresentation which is the sole ground for
denying due course to, and for the cancellation of, a COC. Further, as
already discussed, the candidate's misrepresentation in his COC must not
only refer to a material fact (eligibility and qualifications for elective office),
but should evince a deliberate intent to mislead, misinform or hide a fact
which would otherwise render a candidate ineligible. It must be made with an
intention to deceive the electorate as to one's qualifications to run for public
office.168
In sum, the COMELEC, with the same posture of infallibilism, virtually
ignored a good number of evidenced dates all of which can evince animus
manendi to the Philippines and animus non revertedi to the United States of
America. The veracity of the events of coming and staying home was as
much as dismissed as inconsequential, the focus having been fixed at the
petitioner's "sworn declaration in her COC for Senator" which the COMELEC
said "amounts to a declaration and therefore an admission that her residence
in the Philippines only commence sometime in November 2006"; such that
"based on this declaration, [petitioner] fails to meet the residency requirement
for President." This conclusion, as already shown, ignores the standing
jurisprudence that it is the fact of residence, not the statement of the person
that determines residence for purposes of compliance with the constitutional
requirement of residency for election as President. It ignores the easily
researched matter that cases on questions of residency have been decided
favorably for the candidate on the basis of facts of residence far less in
number, weight and substance than that presented by petitioner.169 It
ignores, above all else, what we consider as a primary reason why petitioner
cannot be bound by her declaration in her COC for Senator which declaration
was not even considered by the SET as an issue against her eligibility for
Senator. When petitioner made the declaration in her COC for Senator that
she has been a resident for a period of six (6) years and six (6) months
counted up to the 13 May 2013 Elections, she naturally had as reference the
residency requirements for election as Senator which was satisfied by her
declared years of residence. It was uncontested during the oral arguments
before us that at the time the declaration for Senator was made, petitioner
did not have as yet any intention to vie for the Presidency in 2016 and that
the general public was never made aware by petitioner, by word or action,
that she would run for President in 2016. Presidential candidacy has a
length-of-residence different from that of a senatorial candidacy. There are
facts of residence other than that which was mentioned in the COC for
Senator. Such other facts of residence have never been proven to be false,
and these, to repeat include:
[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband
however stayed in the USA to finish pending projects and arrange the sale of
their family home.
Meanwhile [petitioner] and her children lived with her mother in San Juan
City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and
Hanna in Assumption College in Makati City in 2005. Anika was enrolled in
Learning Connection in San Juan in 2007, when she was already old enough
to go to school.
In the second half of 2005, [petitioner] and her husband acquired Unit 7F of
One Wilson Place Condominium in San Juan. [Petitioner] and her family lived
in Unit 7F until the construction of their family home in Corinthian Hills was
completed.
Sometime in the second half of 2005, [petitioner's] mother discovered that
her former lawyer who handled [petitioner's] adoption in 1974 failed to secure
from the Office of the Civil Registrar of Iloilo a new Certificate of Live Birth
indicating [petitioner's] new name and stating that her parents are "Ronald
Allan K. Poe" and "Jesusa L. Sonora."
In February 2006, [petitioner] travelled briefly to the US in order to supervise
the disposal of some of the family's remaining household
belongings.1a\^/phi1 [Petitioner] returned to the Philippines on 11 March
2006.
In late March 2006, [petitioner's] husband informed the United States Postal
Service of the family's abandonment of their address in the US.
The family home in the US was sole on 27 April 2006.
In April 2006, [petitioner's] husband resigned from his work in the US. He
returned to the Philippines on 4 May 2006 and began working for a Philippine
company in July 2006.
In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian
Hills, where they eventually built their family home.170
In light of all these, it was arbitrary for the COMELEC to satisfy its intention to
let the case fall under the exclusive ground of false representation, to
consider no other date than that mentioned by petitioner in her COC for
Senator.
All put together, in the matter of the citizenship and residence of petitioner for
her candidacy as President of the Republic, the questioned Resolutions of
the COMELEC in Division and En Banc are, one and all, deadly diseased
with grave abuse of discretion from root to fruits.
WHEREFORE, the petition is GRANTED. The Resolutions, to wit:
1. dated 1 December 2015 rendered through the COMELEC Second
Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner,
vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent, stating that:
[T]he Certificate of Candidacy for President of the Republic of the Philippines
in the May 9, 2016 National and Local Elections filed by respondent Mary
Grace Natividad Sonora Poe-Llamanzares is hereby GRANTED.
2. dated 11 December 2015, rendered through the COMELEC First Division,
in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad,
petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent;
SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary
Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139
(DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora
Poe-Llamanzares, respondent; stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to GRANT the petitions and cancel the Certificate of
Candidacy of MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES
for the elective position of President of the Republic of the Philippines in
connection with the 9 May 2016 Synchronized Local and National Elections.
3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1
December 2015 Resolution of the Second Division stating that:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to DENY the Verified Motion for Reconsideration of
SENATOR MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES.
The Resolution dated 11 December 2015 of the Commission First Division is
AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11
December 2015 Resolution of the First Division.
are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE
NATIVIDAD SONORA POE-LLAMANZARES is DECLARED QUALIFIED to
be a candidate for President in the National and Local Elections of 9 May
2016.
SO ORDERED.
Jacot vs. Dal (G.R. No. 179848, November 26, 2008)
Petitioner Nestor A. Jacot assails the Resolution1 dated 28 September 2007
of the Commission on Elections (COMELEC) En Banc in SPA No. 07-361,
affirming the Resolution dated 12 June 2007 of the COMELEC Second
Division2 disqualifying him from running for the position of Vice-Mayor of
Catarman, Camiguin, in the 14 May 2007 National and Local Elections, on
the ground that he failed to make a personal renouncement of his United
States (US) citizenship.
Petitioner was a natural born citizen of the Philippines, who became a
naturalized citizen of the US on 13 December 1989. 3
Petitioner sought to reacquire his Philippine citizenship under Republic Act
No. 9225, otherwise known as the Citizenship Retention and Re-Acquisition
Act. He filed a request for the administration of his Oath of Allegiance to the
Republic of the Philippines with the Philippine Consulate General (PCG) of
Los Angeles, California. The Los Angeles PCG issued on 19 June 2006 an
Order of Approval4 of petitioner’s request, and on the same day, petitioner
took his Oath of Allegiance to the Republic of the Philippines before Vice
Consul Edward C. Yulo. 5 On 27 September 2006, the Bureau of Immigration
issued Identification Certificate No. 06-12019 recognizing petitioner as a
citizen of the Philippines.6
Six months after, on 26 March 2007, petitioner filed his Certificate of
Candidacy for the Position of Vice-Mayor of the Municipality of Catarman,
Camiguin. 7
On 2 May 2007, respondent Rogen T. Dal filed a Petition for Disqualification8
before the COMELEC Provincial Office in Camiguin against petitioner,
arguing that the latter failed to renounce his US citizenship, as required
under Section 5(2) of Republic Act No. 9225, which reads as follows:
Section 5. Civil and Political Rights and Liabilities.–Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and responsibilities under
existing laws of the Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution
and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath.
In his Answer9 dated 6 May 2007 and Position Paper10 dated 8 May 2007,
petitioner countered that his Oath of Allegiance to the Republic of the
Philippines made before the Los Angeles PCG and the oath contained in his
Certificate of Candidacy operated as an effective renunciation of his foreign
citizenship.
In the meantime, the 14 May 2007 National and Local Elections were held.
Petitioner garnered the highest number of votes for the position of Vice
Mayor.
On 12 June 2007, the COMELEC Second Division finally issued its
Resolution11 disqualifying the petitioner from running for the position of Vice-
Mayor of Catarman, Camiguin, for failure to make the requisite renunciation
of his US citizenship. The COMELEC Second Division explained that the
reacquisition of Philippine citizenship under Republic Act No. 9225 does not
automatically bestow upon any person the privilege to run for any elective
public office. It additionally ruled that the filing of a Certificate of Candidacy
cannot be considered as a renunciation of foreign citizenship. The
COMELEC Second Division did not consider Valles v. COMELEC12 and
Mercado v. Manzano13 applicable to the instant case, since Valles and
Mercado were dual citizens since birth, unlike the petitioner who lost his
Filipino citizenship by means of naturalization. The COMELEC, thus, decreed
in the aforementioned Resolution that:
ACCORDINGLY, NESTOR ARES JACOT is DISQUALIFIED to run for the
position of Vice-Mayor of Catarman, Camiguin for the May 14, 2007 National
and Local Elections. If proclaimed, respondent cannot thus assume the
Office of Vice-Mayor of said municipality by virtue of such disqualification.14
Petitioner filed a Motion for Reconsideration on 29 June 2007 reiterating his
position that his Oath of Allegiance to the Republic of the Philippines before
the Los Angeles PCG and his oath in his Certificate of Candidacy sufficed as
an effective renunciation of his US citizenship. Attached to the said Motion
was an "Oath of Renunciation of Allegiance to the United States and
Renunciation of Any and All Foreign Citizenship" dated 27 June 2007,
wherein petitioner explicitly renounced his US citizenship.15 The COMELEC
en banc dismissed petitioner’s Motion in a Resolution16 dated 28 September
2007 for lack of merit.
Petitioner sought remedy from this Court via the present Special Civil Action
for Certiorari under Rule 65 of the Revised Rules of Court, where he
presented for the first time an "Affidavit of Renunciation of Allegiance to the
United States and Any and All Foreign Citizenship"17 dated 7 February
2007. He avers that he executed an act of renunciation of his US citizenship,
separate from the Oath of Allegiance to the Republic of the Philippines he
took before the Los Angeles PCG and his filing of his Certificate of
Candidacy, thereby changing his theory of the case during the appeal. He
attributes the delay in the presentation of the affidavit to his former counsel,
Atty. Marciano Aparte, who allegedly advised him that said piece of evidence
was unnecessary but who, nevertheless, made him execute an identical
document entitled "Oath of Renunciation of Allegiance to the United States
and Renunciation of Any and All Foreign Citizenship" on 27 June 2007 after
he had already filed his Certificate of Candidacy.18
Petitioner raises the following issues for resolution of this Court:
I
WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE
OF DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO
COMPLY WITH THE PROVISIONS OF R.A. 9225, OTHERWISE KNOWN
AS THE "CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF
2003," SPECIFICALLY SECTION 5(2) AS TO THE REQUIREMENTS FOR
THOSE SEEKING ELECTIVE PUBLIC OFFICE;
II
WHETHER OR NOT PUBLIC RESPONDENT EXERCISED GRAVE ABUSE
OF DISCRETION WHEN IT HELD THAT PETITIONER FAILED TO
COMPLY WITH THE PROVISIONS OF THE COMELEC RULES OF
PROCEDURE AS REGARDS THE PAYMENT OF THE NECESSARY
MOTION FEES; AND
III
WHETHER OR NOT UPHOLDING THE DECISION OF PUBLIC
RESPONDENT WOULD RESULT IN THE FRUSTRATION OF THE WILL
OF THE PEOPLE OF CATARMAN, CAMIGUIN.19
The Court determines that the only fundamental issue in this case is whether
petitioner is disqualified from running as a candidate in the 14 May 2007 local
elections for his failure to make a personal and sworn renunciation of his US
citizenship.
This Court finds that petitioner should indeed be disqualified.
Contrary to the assertions made by petitioner, his oath of allegiance to the
Republic of the Philippines made before the Los Angeles PCG and his
Certificate of Candidacy do not substantially comply with the requirement of a
personal and sworn renunciation of foreign citizenship because these are
distinct requirements to be complied with for different purposes.
Section 3 of Republic Act No. 9225 requires that natural-born citizens of the
Philippines, who are already naturalized citizens of a foreign country, must
take the following oath of allegiance to the Republic of the Philippines to
reacquire or retain their Philippine citizenship:
SEC. 3. Retention of Philippine Citizenship.–Any provision of law to the
contrary notwithstanding, natural-born citizens of the Philippines who have
lost their Philippine citizenship by reason of their naturalization as citizens of
a foreign country are hereby deemed to have reacquired Philippine
citizenship upon taking the following oath of allegiance to the Republic:
"I __________ solemnly swear (or affirm) that I will support and defend the
Constitution of the Republic of the Philippines and obey the laws and legal
orders promulgated by the duly constituted authorities of the Philippines; and
I hereby declare that I recognize and accept the supreme authority of the
Philippines and will maintain true faith and allegiance thereto; and that I
impose this obligation upon myself voluntarily, without mental reservation or
purpose of evasion."

Natural-born citizens of the Philippines who, after the effectivity of this Act,
become citizens of a foreign country shall retain their Philippine citizenship
upon taking the aforesaid oath.
By the oath dictated in the afore-quoted provision, the Filipino swears
allegiance to the Philippines, but there is nothing therein on his renunciation
of foreign citizenship. Precisely, a situation might arise under Republic Act
No. 9225 wherein said Filipino has dual citizenship by also reacquiring or
retaining his Philippine citizenship, despite his foreign citizenship.
The afore-quoted oath of allegiance is substantially similar to the one
contained in the Certificate of Candidacy which must be executed by any
person who wishes to run for public office in Philippine elections. Such an
oath reads:
I am eligible for the office I seek to be elected. I will support and defend the
Constitution of the Philippines and will maintain true faith and allegiance
thereto; that I will obey the laws, legal orders and decrees promulgated by
the duly constituted authorities of the Republic of the Philippines; and that I
impose this obligation upon myself voluntarily, without mental reservation or
purpose of evasion. I hereby certify that the facts stated herein are true and
correct of my own personal knowledge.
Now, Section 5(2) of Republic Act No. 9225 specifically provides that:
Section 5. Civil and Political Rights and Liabilities.–Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and responsibilities under
existing laws of the Philippines and the following conditions:
xxxx
(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution
and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath.
The law categorically requires persons seeking elective public office, who
either retained their Philippine citizenship or those who reacquired it, to make
a personal and sworn renunciation of any and all foreign citizenship before a
public officer authorized to administer an oath simultaneous with or before
the filing of the certificate of candidacy.20
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos,
who have been naturalized as citizens of a foreign country, but who
reacquired or retained their Philippine citizenship (1) to take the oath of
allegiance under Section 3 of Republic Act No. 9225, and (2) for those
seeking elective public offices in the Philippines, to additionally execute a
personal and sworn renunciation of any and all foreign citizenship before an
authorized public officer prior or simultaneous to the filing of their certificates
of candidacy, to qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal
and sworn renunciation of any and all foreign citizenship) requires of the
Filipinos availing themselves of the benefits under the said Act to accomplish
an undertaking other than that which they have presumably complied with
under Section 3 thereof (oath of allegiance to the Republic of the
Philippines). This is made clear in the discussion of the Bicameral
Conference Committee on Disagreeing Provisions of House Bill No. 4720
and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic
Act No. 9225), where the Hon. Chairman Franklin Drilon and Hon.
Representative Arthur Defensor explained to Hon. Representative Exequiel
Javier that the oath of allegiance is different from the renunciation of foreign
citizenship:
CHAIRMAN DRILON. Okay. So, No. 2. "Those seeking elective public office
in the Philippines shall meet the qualifications for holding such public office
as required by the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to
administer an oath." I think it’s very good, ha? No problem?
REP. JAVIER. … I think it’s already covered by the oath.
CHAIRMAN DRILON. Renouncing foreign citizenship.
REP. JAVIER. Ah… but he has taken his oath already.
CHAIRMAN DRILON. No…no, renouncing foreign citizenship.
xxxx
CHAIRMAN DRILON. Can I go back to No. 2. What’s your problem, Boy?
Those seeking elective office in the Philippines.
REP. JAVIER. They are trying to make him renounce his citizenship thinking
that ano…
CHAIRMAN DRILON. His American citizenship.

REP. JAVIER. To discourage him from running?
CHAIRMAN DRILON. No.
REP. A.D. DEFENSOR. No. When he runs he will only have one citizenship.
When he runs for office, he will have only one. (Emphasis ours.)
There is little doubt, therefore, that the intent of the legislators was not only
for Filipinos reacquiring or retaining their Philippine citizenship under
Republic Act No. 9225 to take their oath of allegiance to the Republic of the
Philippines, but also to explicitly renounce their foreign citizenship if they
wish to run for elective posts in the Philippines. To qualify as a candidate in
Philippine elections, Filipinos must only have one citizenship, namely,
Philippine citizenship.
By the same token, the oath of allegiance contained in the Certificate of
Candidacy, which is substantially similar to the one contained in Section 3 of
Republic Act No. 9225, does not constitute the personal and sworn
renunciation sought under Section 5(2) of Republic Act No. 9225. It bears to
emphasize that the said oath of allegiance is a general requirement for all
those who wish to run as candidates in Philippine elections; while the
renunciation of foreign citizenship is an additional requisite only for those
who have retained or reacquired Philippine citizenship under Republic Act
No. 9225 and who seek elective public posts, considering their special
circumstance of having more than one citizenship.
Petitioner erroneously invokes the doctrine in Valles21 and Mercado,22
wherein the filing by a person with dual citizenship of a certificate of
candidacy, containing an oath of allegiance, was already considered a
renunciation of foreign citizenship. The ruling of this Court in Valles and
Mercado is not applicable to the present case, which is now specially
governed by Republic Act No. 9225, promulgated on 29 August 2003.
In Mercado, which was cited in Valles, the disqualification of therein private
respondent Manzano was sought under another law, Section 40(d) of the
Local Government Code, which reads:
SECTION 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
xxxx
(d) Those with dual citizenship.
The Court in the aforesaid cases sought to define the term "dual citizenship"
vis-à-vis the concept of "dual allegiance." At the time this Court decided the
cases of Valles and Mercado on 26 May 1999 and 9 August 2000,
respectively, the more explicitly worded requirements of Section 5(2) of
Republic Act No. 9225 were not yet enacted by our legislature.23
Lopez v. Commission on Elections24 is the more fitting precedent for this
case since they both share the same factual milieu. In Lopez, therein
petitioner Lopez was a natural-born Filipino who lost his Philippine citizenship
after he became a naturalized US citizen. He later reacquired his Philippine
citizenship by virtue of Republic Act No. 9225. Thereafter, Lopez filed his
candidacy for a local elective position, but failed to make a personal and
sworn renunciation of his foreign citizenship. This Court unequivocally
declared that despite having garnered the highest number of votes in the
election, Lopez is nonetheless disqualified as a candidate for a local elective
position due to his failure to comply with the requirements of Section 5(2) of
Republic Act No. 9225.
Petitioner presents before this Court for the first time, in the instant Petition
for Certiorari, an "Affidavit of Renunciation of Allegiance to the United States
and Any and All Foreign Citizenship,"25 which he supposedly executed on 7
February 2007, even before he filed his Certificate of Candidacy on 26 March
2007. With the said Affidavit, petitioner puts forward in the Petition at bar a
new theory of his case–that he complied with the requirement of making a
personal and sworn renunciation of his foreign citizenship before filing his
Certificate of Candidacy. This new theory constitutes a radical change from
the earlier position he took before the COMELEC–that he complied with the
requirement of renunciation by his oaths of allegiance to the Republic of the
Philippines made before the Los Angeles PCG and in his Certificate of
Candidacy, and that there was no more need for a separate act of
renunciation.
As a rule, no question will be entertained on appeal unless it has been raised
in the proceedings below. Points of law, theories, issues and arguments not
brought to the attention of the lower court, administrative agency or quasi-
judicial body need not be considered by a reviewing court, as they cannot be
raised for the first time at that late stage. Basic considerations of fairness and
due process impel this rule.26 Courts have neither the time nor the resources
to accommodate parties who chose to go to trial haphazardly.27
Likewise, this Court does not countenance the late submission of
evidence.28 Petitioner should have offered the Affidavit dated 7 February
2007 during the proceedings before the COMELEC.
Section 1 of Rule 43 of the COMELEC Rules of Procedure provides that "In
the absence of any applicable provisions of these Rules, the pertinent
provisions of the Rules of Court in the Philippines shall be applicable by
analogy or in suppletory character and effect." Section 34 of Rule 132 of the
Revised Rules of Court categorically enjoins the admission of evidence not
formally presented:
SEC. 34. Offer of evidence. - The court shall consider no evidence which has
not been formally offered. The purpose for which the evidence is offered
must be specified.
Since the said Affidavit was not formally offered before the COMELEC,
respondent had no opportunity to examine and controvert it. To admit this
document would be contrary to due process. 29 Additionally, the piecemeal
presentation of evidence is not in accord with orderly justice.30
The Court further notes that petitioner had already presented before the
COMELEC an identical document, "Oath of Renunciation of Allegiance to the
United States and Renunciation of Any and All Foreign Citizenship" executed
on 27 June 2007, subsequent to his filing of his Certificate of Candidacy on
26 March 2007. Petitioner attached the said Oath of 27 June 2007 to his
Motion for Reconsideration with the COMELEC en banc. The COMELEC en
banc eventually refused to reconsider said document for being belatedly
executed. What was extremely perplexing, not to mention suspect, was that
petitioner did not submit the Affidavit of 7 February 2007 or mention it at all in
the proceedings before the COMELEC, considering that it could have easily
won his case if it was actually executed on and in existence before the filing
of his Certificate of Candidacy, in compliance with law.
The justification offered by petitioner, that his counsel had advised him
against presenting this crucial piece of evidence, is lame and unconvincing. If
the Affidavit of 7 February 2007 was in existence all along, petitioner’s
counsel, and even petitioner himself, could have easily adduced it to be a
crucial piece of evidence to prove compliance with the requirements of
Section 5(2) of Republic Act No. 9225. There was no apparent danger for
petitioner to submit as much evidence as possible in support of his case,
than the risk of presenting too little for which he could lose.
And even if it were true, petitioner’s excuse for the late presentation of the
Affidavit of 7 February 2007 will not change the outcome of petitioner’s case.
It is a well-settled rule that a client is bound by his counsel’s conduct,
negligence, and mistakes in handling the case, and the client cannot be
heard to complain that the result might have been different had his lawyer
proceeded differently.31 The only exceptions to the general rule -- that a
client is bound by the mistakes of his counsel -- which this Court finds
acceptable are when the reckless or gross negligence of counsel deprives
the client of due process of law, or when the application of the rule results in
the outright deprivation of one’s property through a technicality.32 These
exceptions are not attendant in this case.
The Court cannot sustain petitioner’s averment that his counsel was grossly
negligent in deciding against the presentation of the Affidavit of 7 February
2007 during the proceedings before the COMELEC. Mistakes of attorneys as
to the competency of a witness; the sufficiency, relevancy or irrelevancy of
certain evidence; the proper defense or the burden of proof, failure to
introduce evidence, to summon witnesses and to argue the case -- unless
they prejudice the client and prevent him from properly presenting his case --
do not constitute gross incompetence or negligence, such that clients may no
longer be bound by the acts of their counsel.33
Also belying petitioner’s claim that his former counsel was grossly negligent
was the fact that petitioner continuously used his former counsel’s theory of
the case. Even when the COMELEC already rendered an adverse decision,
he persistently argues even to this Court that his oaths of allegiance to the
Republic of the Philippines before the Los Angeles PCG and in his Certificate
of Candidacy amount to the renunciation of foreign citizenship which the law
requires. Having asserted the same defense in the instant Petition, petitioner
only demonstrates his continued reliance on and complete belief in the
position taken by his former counsel, despite the former’s incongruous
allegations that the latter has been grossly negligent.
Petitioner himself is also guilty of negligence. If indeed he believed that his
counsel was inept, petitioner should have promptly taken action, such as
discharging his counsel earlier and/or insisting on the submission of his
Affidavit of 7 February 2007 to the COMELEC, instead of waiting until a
decision was rendered disqualifying him and a resolution issued dismissing
his motion for reconsideration; and, thereupon, he could have heaped the
blame on his former counsel. Petitioner could not be so easily allowed to
escape the consequences of his former counsel’s acts, because, otherwise,
it would render court proceedings indefinite, tentative, and subject to
reopening at any time by the mere subterfuge of replacing counsel. 34
Petitioner cites De Guzman v. Sandiganbayan,35 where therein petitioner De
Guzman was unable to present a piece of evidence because his lawyer
proceeded to file a demurrer to evidence, despite the Sandiganbayan’s
denial of his prior leave to do so. The wrongful insistence of the lawyer in
filing a demurrer to evidence had totally deprived De Guzman of any chance
to present documentary evidence in his defense. This was certainly not the
case in the Petition at bar.
Herein, petitioner was in no way deprived of due process. His counsel
actively defended his suit by attending the hearings, filing the pleadings, and
presenting evidence on petitioner’s behalf. Moreover, petitioner’s cause was
not defeated by a mere technicality, but because of a mistaken reliance on a
doctrine which is not applicable to his case. A case lost due to an untenable
legal position does not justify a deviation from the rule that clients are bound
by the acts and mistakes of their counsel.36
Petitioner also makes much of the fact that he received the highest number
of votes for the position of Vice-Mayor of Catarman during the 2007 local
elections. The fact that a candidate, who must comply with the election
requirements applicable to dual citizens and failed to do so, received the
highest number of votes for an elective position does not dispense with, or
amount to a waiver of, such requirement.37 The will of the people as
expressed through the ballot cannot cure the vice of ineligibility, especially if
they mistakenly believed that the candidate was qualified. The rules on
citizenship qualifications of a candidate must be strictly applied. If a person
seeks to serve the Republic of the Philippines, he must owe his loyalty to this
country only, abjuring and renouncing all fealty and fidelity to any other
state.38 The application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.39
WHEREFORE, the instant appeal is DISMISSED. The Resolution dated 28
September 2007 of the COMELEC en banc in SPA No. 07-361, affirming the
Resolution dated 12 June 2007 of the COMELEC Second Division, is
AFFIRMED. Petitioner is DISQUALIFIED to run for the position of Vice-
Mayor of Catarman, Camiguin in the 14 May 2007 National and Local
Elections, and if proclaimed, cannot assume the Office of Vice-Mayor of said
municipality by virtue of such disqualification. Costs against petitioner.
SO ORDERED.
Lee vs. COMELEC (G.R. No. 120295, June 28, 1996)
The ultimate question posed before this Court in these twin cases is: Who
should be declared the rightful governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of
votes in three successive elections but who was twice declared by this Court
to be disqualified to hold such office due to his alien citizenship, and who
now claims to have re-assumed his lost Philippine citizenship thru
repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims
that the votes cast in favor of Frivaldo should be considered void; that the
electorate should be deemed to have intentionally thrown away their ballots;
and that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not
voted directly to the position of governor, but who according to prevailing
jurisprudence should take over the said post inasmuch as, by the ineligibility
of Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and
elections, and upholds the superiority of substantial justice over pure
legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of Court for
certiorari and preliminary injunction to review and annul a Resolution of the
respondent Commission on Elections (Comelec), First Division,1
promulgated on December 19, 19952 and another Resolution of the Comelec
en banc promulgated February 23, 19963 denying petitioner's motion for
reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate
of Candidacy for the office of Governor of Sorsogon in the May 8, 1995
elections. On March 23, 1995, petitioner Raul R. Lee, another candidate,
filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that
Frivaldo "be disqualified from seeking or holding any public office or position
by reason of not yet being a citizen of the Philippines", and that his Certificate
of Candidacy be canceled. On May 1, 1995, the Second Division of the
Comelec promulgated a Resolution5 granting the petition with the following
disposition6:
WHEREFORE, this Division resolves to GRANT the petition and declares
that respondent is DISQUALIFIED to run for the Office of Governor of
Sorsogon on the ground that he is NOT a citizen of the Philippines.
Accordingly, respondent's certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until
after the May 8, 1995 elections. So, his candidacy continued and he was
voted for during the elections held on said date. On May 11, 1995, the
Comelec en banc7 affirmed the aforementioned Resolution of the Second
Division.
The Provincial Board of Canvassers completed the canvass of the election
returns and a Certificate of Votes8 dated May 27, 1995 was issued showing
the following votes obtained by the candidates for the position of Governor of
Sorsogon:

Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition9 praying for his proclamation as the duly-elected Governor of
Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the petition
"only on June 29, 1995," the Comelec en banc directed "the Provincial Board
of Canvassers of Sorsogon to reconvene for the purpose of proclaiming
candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June
30, 1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed
as SPC No. 95-317, praying for the annulment of the June 30, 1995
proclamation of Lee and for his own proclamation. He alleged that on June
30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen
of the Philippines after "his petition for repatriation under P.D. 725 which he
filed with the Special Committee on Naturalization in September 1994 had
been granted". As such, when "the said order (dated June 21, 1995) (of the
Comelec) . . . was released and received by Frivaldo on June 30, 1995 at
5:30 o'clock in the evening, there was no more legal impediment to the
proclamation (of Frivaldo) as governor . . ." In the alternative, he averred that
pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor - not
Lee - should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein
assailed Resolution13 holding that Lee, "not having garnered the highest
number of votes," was not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30,
1995 under the provisions of Presidential Decree No. 725 . . . (is) qualified to
hold the office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore
RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul
R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary
to law, he not having garnered the highest number of votes to warrant his
proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and, on
the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as
the duly elected Governor of Sorsogon having garnered the highest number
of votes, and he having reacquired his Filipino citizenship by repatriation on
June 30, 1995 under the provisions of Presidential Decree No. 725 and, thus,
qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881),
the Clerk of the Commission is directed to notify His Excellency the President
of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the
Province of Sorsogon of this resolution immediately upon the due
implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was
denied by the Comelec en banc in its Resolution 14 promulgated on
February 23, 1996. On February 26, 1996, the present petition was filed.
Acting on the prayer for a temporary restraining order, this Court issued on
February 27, 1996 a Resolution which inter alia directed the parties "to
maintain the status quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in
the following propositions"15:
First -- The initiatory petition below was so far insufficient in form and
substance to warrant the exercise by the COMELEC of its jurisdiction with
the result that, in effect, the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;
Second -- The judicially declared disqualification of respondent was a
continuing condition and rendered him ineligible to run for, to be elected to
and to hold the Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the
effect thereof retroactive as to cure his ineligibility and qualify him to hold the
Office of Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the
validity of petitioner's proclamation as duly elected Governor of Sorsogon.
G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the
first two of which are also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995,
disqualifying Frivaldo from running for governor of Sorsogon in the May 8,
1995 elections "on the ground that he is not a citizen of the Philippines";
2. Resolution17 of the Comelec en banc, promulgated on May 11, 1995; and
3. Resolution18 of the Comelec en banc, promulgated also on May 11, 1995
suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755.
However, Frivaldo assails the above-mentioned resolutions on a different
ground: that under Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. --
A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be
decided, after notice and hearing, not later than fifteen days before the
election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were
not rendered "within the period allowed by law" i.e., "not later than fifteen
days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on
the petition for disqualification within the period of fifteen days prior to the
election as provided by law is a jurisdictional defect which renders the said
Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295
and 123755 since they are intimately related in their factual environment and
are identical in the ultimate question raised, viz., who should occupy the
position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and
required them thereafter to file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as
follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably
cure his lack of citizenship as to qualify him to be proclaimed and to hold the
Office of Governor? If not, may it be given retroactive effect? If so, from
when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino
citizenship a continuing bar to his eligibility to run for, be elected to or hold
the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in
SPC No. 95-317 considering that said petition is not "a pre-proclamation
case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in
light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in
promulgating the assailed Resolutions, all of which prevented Frivaldo from
assuming the governorship of Sorsogon, considering that they were not
rendered within the period referred to in Section 78 of the Omnibus Election
Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the
threshold legal issue in this case. All the other matters raised are secondary
to this.
The Local Government Code of 199119 expressly requires Philippine
citizenship as a qualification for elective local officials, including that of
provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be
elected; a resident therein for at least one (1) year immediately preceding the
day of the election; and able to read and write Filipino or any other local
language or dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least twenty-
three (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it
is therefore incumbent upon him to show that he has reacquired citizenship;
in fine, that he possesses the qualifications prescribed under the said statute
(R.A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of
Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R.
No. 10465422 and during the oral argument in this case that he tried to
resume his citizenship by direct act of Congress, but that the bill allowing him
to do so "failed to materialize, notwithstanding the endorsement of several
members of the House of Representatives" due, according to him, to the
"maneuvers of his political rivals." In the same case, his attempt at
naturalization was rejected by this Court because of jurisdictional, substantial
and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly
elected governor by the electorate of Sorsogon, with a margin of 27,000
votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the
same opponent Raul Lee. Twice, he was judicially declared a non-Filipino
and thus twice disqualified from holding and discharging his popular
mandate. Now, he comes to us a third time, with a fresh vote from the people
of Sorsogon and a favorable decision from the Commission on Elections to
boot. Moreover, he now boasts of having successfully passed through the
third and last mode of reacquiring citizenship: by repatriation under P.D. No.
725, with no less than the Solicitor General himself, who was the prime
opposing counsel in the previous cases he lost, this time, as counsel for co-
respondent Comelec, arguing the validity of his cause (in addition to his able
private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance
under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not
disputed. Hence, he insists that he -- not Lee -- should have been proclaimed
as the duly-elected governor of Sorsogon when the Provincial Board of
Canvassers met at 8:30 p.m. on the said date since, clearly and
unquestionably, he garnered the highest number of votes in the elections and
since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious
defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting
that "then President Corazon Aquino exercising legislative powers under the
Transitory Provisions of the 1987 Constitution, forbade the grant of
citizenship by Presidential Decree or Executive Issuances as the same
poses a serious and contentious issue of policy which the present
government, in the exercise of prudence and sound discretion, should best
leave to the judgment of the first Congress under the 1987 Constitution",
adding that in her memorandum dated March 27, 1987 to the members of the
Special Committee on Naturalization constituted for purposes of Presidential
Decree No. 725, President Aquino directed them "to cease and desist from
undertaking any and all proceedings within your functional area of
responsibility as defined under Letter of Instructions (LOI) No. 270 dated
April 11, 1975, as amended."23
This memorandum dated March 27, 198724 cannot by any stretch of legal
hermeneutics be construed as a law sanctioning or authorizing a repeal of
P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal
may be express or implied. It is obvious that no express repeal was made
because then President Aquino in her memorandum -- based on the copy
furnished us by Lee -- did not categorically and/or impliedly state that P.D.
725 was being repealed or was being rendered without any legal effect. In
fact, she did not even mention it specifically by its number or text. On the
other hand, it is a basic rule of statutory construction that repeals by
implication are not favored. An implied repeal will not be allowed "unless it is
convincingly and unambiguously demonstrated that the two laws are clearly
repugnant and patently inconsistent that they cannot co-exist".26
The memorandum of then President Aquino cannot even be regarded as a
legislative enactment, for not every pronouncement of the Chief Executive
even under the Transitory Provisions of the 1987 Constitution can nor should
be regarded as an exercise of her law-making powers. At best, it could be
treated as an executive policy addressed to the Special Committee to halt
the acceptance and processing of applications for repatriation pending
whatever "judgment the first Congress under the 1987 Constitution" might
make. In other words, the former President did not repeal P.D. 725 but left it
to the first Congress -- once created -- to deal with the matter. If she had
intended to repeal such law, she should have unequivocally said so instead
of referring the matter to Congress. The fact is she carefully couched her
presidential issuance in terms that clearly indicated the intention of "the
present government, in the exercise of prudence and sound discretion" to
leave the matter of repeal to the new Congress. Any other interpretation of
the said Presidential Memorandum, such as is now being proffered to the
Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the
repatriation proceedings," asserting that Frivaldo's application therefor was
"filed on June 29, 1995 . . . (and) was approved in just one day or on June
30, 1995 . . .", which "prevented a judicious review and evaluation of the
merits thereof." Frivaldo counters that he filed his application for repatriation
with the Office of the President in Malacañang Palace on August 17, 1994.
This is confirmed by the Solicitor General. However, the Special Committee
was reactivated only on June 8, 1995, when presumably the said Committee
started processing his application. On June 29, 1995, he filled up and re-
submitted the FORM that the Committee required. Under these
circumstances, it could not be said that there was "indecent haste" in the
processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee
on Naturalization was intended solely for the personal interest of
respondent,"27 the Solicitor General explained during the oral argument on
March 19, 1996 that such allegation is simply baseless as there were many
others who applied and were considered for repatriation, a list of whom was
submitted by him to this Court, through a Manifestation28 filed on April 3,
1996.
On the basis of the parties' submissions, we are convinced that the
presumption of regularity in the performance of official duty and the
presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were
speeded up is by itself not a ground to conclude that such proceedings were
necessarily tainted. After all, the requirements of repatriation under P.D. No.
725 are not difficult to comply with, nor are they tedious and cumbersome. In
fact, P.D.
72529 itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special Committee
to promulgate. This is not unusual since, unlike in naturalization where an
alien covets a first-time entry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely seeking to reacquire
his previous citizenship. In the case of Frivaldo, he was undoubtedly a
natural-born citizen who openly and faithfully served his country and his
province prior to his naturalization in the United States -- a naturalization he
insists was made necessary only to escape the iron clutches of a dictatorship
he abhorred and could not in conscience embrace -- and who, after the fall of
the dictator and the re-establishment of democratic space, wasted no time in
returning to his country of birth to offer once more his talent and services to
his people.
So too, the fact that ten other persons, as certified to by the Solicitor General,
were granted repatriation argues convincingly and conclusively against the
existence of favoritism vehemently posited by Raul Lee. At any rate, any
contest on the legality of Frivaldo's repatriation should have been pursued
before the Committee itself, and, failing there, in the Office of the President,
pursuant to the doctrine of exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be
valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995
whereas the citizenship qualification prescribed by the Local Government
Code "must exist on the date of his election, if not when the certificate of
candidacy is filed," citing our decision in G.R. 10465430 which held that "both
the Local Government Code and the Constitution require that only Philippine
citizens can run and be elected to public office." Obviously, however, this
was a mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not -- and NOT the effective date thereof. Since
the Court held his naturalization to be invalid, then the issue of when an
aspirant for public office should be a citizen was NOT resolved at all by the
Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official
must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . . where
he intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of
the election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least
twenty-three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular
date or time when the candidate must possess citizenship, unlike that for
residence (which must consist of at least one year's residency immediately
preceding the day of election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for holding an elective
public office,31 and the purpose of the citizenship qualification is none other
than to ensure that no alien, i.e., no person owing allegiance to another
nation, shall govern our people and our country or a unit of territory thereof.
Now, an official begins to govern or to discharge his functions only upon his
proclamation and on the day the law mandates his term of office to begin.
Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very day32
the term of office of governor (and other elective officials) began -- he was
therefore already qualified to be proclaimed, to hold such office and to
discharge the functions and responsibilities thereof as of said date. In short,
at that time, he was already qualified to govern his native Sorsogon. This is
the liberal interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted.
So too, even from a literal (as distinguished from liberal) construction, it
should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then
should such qualification be required at the time of election or at the time of
the filing of the certificates of candidacies, as Lee insists? Literally, such
qualifications -- unless otherwise expressly conditioned, as in the case of age
and residence -- should thus be possessed when the "elective [or elected]
official" begins to govern, i.e., at the time he is proclaimed and at the start of
his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling in
Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the
citizenship requirement is to ensure that our people and country do not end
up being governed by aliens, i.e., persons owing allegiance to another
nation, that aim or purpose would not be thwarted but instead achieved by
construing the citizenship qualification as applying to the time of proclamation
of the elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral
argument34 to the effect that the citizenship qualification should be
possessed at the time the candidate (or for that matter the elected official)
registered as a voter. After all, Section 39, apart from requiring the official to
be a citizen, also specifies as another item of qualification, that he be a
"registered voter". And, under the law35 a "voter" must be a citizen of the
Philippines. So therefore, Frivaldo could not have been a voter -- much less a
validly registered one -- if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the
requirement. If the law intended the citizenship qualification to be possessed
prior to election consistent with the requirement of being a registered voter,
then it would not have made citizenship a SEPARATE qualification. The law
abhors a redundancy. It therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from being a VOTER, even if
being a voter presumes being a citizen first. It also stands to reason that the
voter requirement was included as another qualification (aside from
"citizenship"), not to reiterate the need for nationality but to require that the
official be registered as a voter IN THE AREA OR TERRITORY he seeks to
govern, i.e., the law states: "a registered voter in the barangay, municipality,
city, or province . . . where he intends to be elected." It should be
emphasized that the Local Government Code requires an elective official to
be a registered voter. It does not require him to vote actually. Hence,
registration -- not the actual voting -- is the core of this "qualification". In other
words, the law's purpose in this second requirement is to ensure that the
prospective official is actually registered in the area he seeks to govern --
and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not
disputed -- that he "was and is a registered voter of Sorsogon, and his
registration as a voter has been sustained as valid by judicial declaration . . .
In fact, he cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel steadfastly maintained that "Mr.
Frivaldo has always been a registered voter of Sorsogon. He has voted in
1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a
voter was questioned, but the court dismissed (sic) his eligibility as a voter
and he was allowed to vote as in fact, he voted in all the previous elections
including on May 8, 1995."3 7
It is thus clear that Frivaldo is a registered voter in the province where he
intended to be elected.
There is yet another reason why the prime issue of citizenship should be
reckoned from the date of proclamation, not necessarily the date of election
or date of filing of the certificate of candidacy. Section 253 of the Omnibus
Election Code 38 gives any voter, presumably including the defeated
candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a
candidate. This is the only provision of the Code that authorizes a remedy on
how to contest before the Comelec an incumbent's ineligibility arising from
failure to meet the qualifications enumerated under Sec. 39 of the Local
Government Code. Such remedy of Quo Warranto can be availed of "within
ten days after proclamation" of the winning candidate. Hence, it is only at
such time that the issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's proclamation (8:30
p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen,
having taken his oath of allegiance earlier in the afternoon of the same day,
then he should have been the candidate proclaimed as he unquestionably
garnered the highest number of votes in the immediately preceding elections
and such oath had already cured his previous "judicially-declared" alienage.
Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the
repatriation of Frivaldo RETROACTED to the date of the filing of his
application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no
retroactive effect, unless the contrary is provided." But there are settled
exceptions40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino,41 curative statutes are those which undertake to
cure errors and irregularities, thereby validating judicial or administrative
proceedings, acts of public officers, or private deeds and contracts which
otherwise would not produce their intended consequences by reason of
some statutory disability or failure to comply with some technical
requirement. They operate on conditions already existing, and are
necessarily retroactive in operation. Agpalo,42 on the other hand, says that
curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing
existing obligations . . . (and) are intended to supply defects, abridge
superfluities in existing laws, and curb certain evils. . . . By their very nature,
curative statutes are retroactive . . . (and) reach back to past events to
correct errors or irregularities and to render valid and effective attempted acts
which would be otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating
to remedies or modes of procedure, which do not create new or take away
vested rights, but only operate in furtherance of the remedy or confirmation of
such rights, ordinarily do not come within the legal meaning of a retrospective
law, nor within the general rule against the retrospective operation of
statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and also
provides for a new remedy, thereby filling certain voids in our laws. Thus, in
its preamble, P.D. 725 expressly recognizes the plight of "many Filipino
women (who) had lost their Philippine citizenship by marriage to aliens" and
who could not, under the existing law (C.A. No. 63, as amended) avail of
repatriation until "after the death of their husbands or the termination of their
marital status" and who could neither be benefitted by the 1973 Constitution's
new provision allowing "a Filipino woman who marries an alien to retain her
Philippine citizenship . . ." because "such provision of the new Constitution
does not apply to Filipino women who had married aliens before said
constitution took effect." Thus, P.D. 725 granted a new right to these women
-- the right to re-acquire Filipino citizenship even during their marital
coverture, which right did not exist prior to P.D. 725. On the other hand, said
statute also provided a new remedy and a new right in favor of other "natural
born Filipinos who (had) lost their Philippine citizenship but now desire to re-
acquire Philippine citizenship", because prior to the promulgation of P.D. 725
such former Filipinos would have had to undergo the tedious and
cumbersome process of naturalization, but with the advent of P.D. 725 they
could now re-acquire their Philippine citizenship under the simplified
procedure of repatriation.
The Solicitor General44 argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA
342), since they are intended to supply defects, abridge superfluities in
existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil.
119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino women
are allowed to repatriate only upon the death of their husbands, and natural-
born Filipinos who lost their citizenship by naturalization and other causes
faced the difficulty of undergoing the rigid procedures of C.A. 63 for
reacquisition of Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of the preamble, it
is unarguable that the legislative intent was precisely to give the statute
retroactive operation. "(A) retrospective operation is given to a statute or
amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof."45 It is
obvious to the Court that the statute was meant to "reach back" to those
persons, events and transactions not otherwise covered by prevailing law
and jurisprudence. And inasmuch as it has been held that citizenship is a
political and civil right equally as important as the freedom of speech, liberty
of abode, the right against unreasonable searches and seizures and other
guarantees enshrined in the Bill of Rights, therefore the legislative intent to
give retrospective operation to P.D. 725 must be given the fullest effect
possible. "(I)t has been said that a remedial statute must be so construed as
to make it effect the evident purpose for which it was enacted, so that if the
reason of the statute extends to past transactions, as well as to those in the
future, then it will be so applied although the statute does not in terms so
direct, unless to do so would impair some vested right or violate some
constitutional guaranty."46 This is all the more true of P.D. 725, which did not
specify any restrictions on or delimit or qualify the right of repatriation granted
therein.
At this point, a valid question may be raised: How can the retroactivity of P.D.
725 benefit Frivaldo considering that said law was enacted on June 5, 1975,
while Frivaldo lost his Filipino citizenship much later, on January 20, 1983,
and applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo
became an American citizen, nevertheless, it is not only the law itself (P.D.
725) which is to be given retroactive effect, but even the repatriation granted
under said law to Frivaldo on June 30, 1995 is to be deemed to have
retroacted to the date of his application therefor, August 17, 1994. The
reason for this is simply that if, as in this case, it was the intent of the
legislative authority that the law should apply to past events -- i.e., situations
and transactions existing even before the law came into being -- in order to
benefit the greatest number of former Filipinos possible thereby enabling
them to enjoy and exercise the constitutionally guaranteed right of
citizenship, and such legislative intention is to be given the fullest effect and
expression, then there is all the more reason to have the law apply in a
retroactive or retrospective manner to situations, events and transactions
subsequent to the passage of such law. That is, the repatriation granted to
Frivaldo on June 30, 1995 can and should be made to take effect as of date
of his application. As earlier mentioned, there is nothing in the law that would
bar this or would show a contrary intention on the part of the legislative
authority; and there is no showing that damage or prejudice to anyone, or
anything unjust or injurious would result from giving retroactivity to his
repatriation. Neither has Lee shown that there will result the impairment of
any contractual obligation, disturbance of any vested right or breach of some
constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo
deserves a liberal interpretation of Philippine laws and whatever defects
there were in his nationality should now be deemed mooted by his
repatriation.
Another argument for retroactivity to the date of filing is that it would prevent
prejudice to applicants. If P.D. 725 were not to be given retroactive effect,
and the Special Committee decides not to act, i.e., to delay the processing of
applications for any substantial length of time, then the former Filipinos who
may be stateless, as Frivaldo -- having already renounced his American
citizenship -- was, may be prejudiced for causes outside their control. This
should not be. In case of doubt in the interpretation or application of laws, it is
to be presumed that the law-making body intended right and justice to
prevail.4 7
And as experience will show, the Special Committee was able to process, act
upon and grant applications for repatriation within relatively short spans of
time after the same were filed.48 The fact that such interregna were relatively
insignificant minimizes the likelihood of prejudice to the government as a
result of giving retroactivity to repatriation. Besides, to the mind of the Court,
direct prejudice to the government is possible only where a person's
repatriation has the effect of wiping out a liability of his to the government
arising in connection with or as a result of his being an alien, and accruing
only during the interregnum between application and approval, a situation
that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice
frustrated, should now prevail. Under the circumstances, there is nothing
unjust or iniquitous in treating Frivaldo's repatriation as having become
effective as of the date of his application, i.e., on August 17, 1994. This being
so, all questions about his possession of the nationality qualification --
whether at the date of proclamation (June 30, 1995) or the date of election
(May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995)
would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a
registered voter would also be deemed settled. Inasmuch as he is
considered as having been repatriated -- i.e., his Filipino citizenship restored
-- as of August 17, 1994, his previous registration as a voter is likewise
deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American.
Would the retroactivity of his repatriation not effectively give him dual
citizenship, which under Sec. 40 of the Local Government Code would
disqualify him "from running for any elective local position?"49 We answer
this question in the negative, as there is cogent reason to hold that Frivaldo
was really STATELESS at the time he took said oath of allegiance and even
before that, when he ran for governor in 1988. In his Comment, Frivaldo
wrote that he "had long renounced and had long abandoned his American
citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the
interim -- when he abandoned and renounced his US citizenship but before
he was repatriated to his Filipino citizenship."50
On this point, we quote from the assailed Resolution dated December 19,
1995:51
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine Government
when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of
candidacy contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before
the elections of 1995 have not been effectively rebutted by Lee. Furthermore,
it is basic that such findings of the Commission are conclusive upon this
Court, absent any showing of capriciousness or arbitrariness or
abuse.52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second
Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its
Resolution of May 11, 1995 "became final and executory after five (5) days or
on May 17, 1995, no restraining order having been issued by this Honorable
Court.54 Hence, before Lee "was proclaimed as the elected governor on
June 30, 1995, there was already a final and executory judgment
disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo
now concedes were legally "correct") declaring Frivaldo an alien have also
become final and executory way before the 1995 elections, and these
"judicial pronouncements of his political status as an American citizen
absolutely and for all time disqualified (him) from running for, and holding any
public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo
was rendered in connection with the 1988 elections while that in G.R. No.
104654 was in connection with the 1992 elections. That he was disqualified
for such elections is final and can no longer be changed. In the words of the
respondent Commission (Second Division) in its assailed Resolution:55
The records show that the Honorable Supreme Court had decided that
Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the
1988 and 1992 elections. However, there is no record of any "final judgment"
of the disqualification of Frivaldo as a candidate for the May 8, 1995
elections. What the Commission said in its Order of June 21, 1995
(implemented on June 30, 1995), directing the proclamation of Raul R. Lee,
was that Frivaldo was not a Filipino citizen "having been declared by the
Supreme Court in its Order dated March 25, 1995, not a citizen of the
Philippines." This declaration of the Supreme Court, however, was in
connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot
govern a person's future status with finality. This is because a person may
subsequently reacquire, or for that matter lose, his citizenship under any of
the modes recognized by law for the purpose. Hence, in Lee vs.
Commissioner of Immigration,56 we held:
Everytime the citizenship of a person is material or indispensable in a judicial
or administrative case, whatever the corresponding court or administrative
authority decides therein as to such citizenship is generally not considered
res judicata, hence it has to be threshed out again and again, as the
occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the
petition in SPC No. 95-317 because the only "possible types of proceedings
that may be entertained by the Comelec are a pre-proclamation case, an
election protest or a quo warranto case". Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317
questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-
day reglementary period." Hence, according to him, Frivaldo's "recourse was
to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution57 has given the Comelec
ample power to "exercise exclusive original jurisdiction over all contests
relating to the elections, returns and qualifications of all elective . . . provincial
. . . officials." Instead of dwelling at length on the various petitions that
Comelec, in the exercise of its constitutional prerogatives, may entertain,
suffice it to say that this Court has invariably recognized the Commission's
authority to hear and decide petitions for annulment of proclamations -- of
which SPC No. 95-317 obviously is one.58 Thus, in Mentang vs.
COMELEC,59 we ruled:
The petitioner argues that after proclamation and assumption of office, a pre-
proclamation controversy is no longer viable. Indeed, we are aware of cases
holding that pre-proclamation controversies may no longer be entertained by
the COMELEC after the winning candidate has been proclaimed. (citing
Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA
513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is
premised on an assumption that the proclamation is no proclamation at all
and the proclaimed candidate's assumption of office cannot deprive the
COMELEC of the power to make such declaration of nullity. (citing Aguam
vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must
"be done within ten (10) days following the proclamation." Inasmuch as
Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is
no question that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the
following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains
that he (Lee) was not the choice of the sovereign will," and in Aquino vs.
COMELEC,61 Lee is "a second placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the
pronouncement of this Court in the aforesaid Labo62 case, as follows:

The rule would have been different if the electorate fully aware in fact and in
law of a candidate's disqualification so as to bring such awareness within the
realm of notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise
or throwing away their votes, in which case, the eligible candidate obtaining
the next higher number of votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been
shown, and none was alleged, that petitioner Labo was notoriously known as
an ineligible candidate, much less the electorate as having known of such
fact. On the contrary, petitioner Labo was even allowed by no less than the
Comelec itself in its resolution dated May 10, 1992 to be voted for the office
of the city Payor as its resolution dated May 9, 1992 denying due course to
petitioner Labo's certificate of candidacy had not yet become final and
subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling
appropriate in this case because Frivaldo was in 1995 in an identical
situation as Labo was in 1992 when the Comelec's cancellation of his
certificate of candidacy was not yet final on election day as there was in both
cases a pending motion for reconsideration, for which reason Comelec
issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and
several others can still be voted for in the May 8, 1995 election, as in fact, he
was.
Furthermore, there has been no sufficient evidence presented to show that
the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's
alleged disqualification as to "bring such awareness within the realm of
notoriety;" in other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was ineligible. If Labo has
any relevance at all, it is that the vice-governor -- and not Lee -- should be
pro- claimed, since in losing the election, Lee was, to paraphrase Labo
again, "obviously not the choice of the people" of Sorsogon. This is the
emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes
does not entitle the eligible candidate receiving the next highest number of
votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired
his citizenship and inasmuch as he obtained the highest number of votes in
the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's
proclamation was patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the
Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc
Resolution of May 11, 1995 disqualifying him for want of citizenship should
be annulled because they were rendered beyond the fifteen (15) day period
prescribed by Section 78, of the Omnibus Election Code which reads as
follows:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. --
A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be
decided after notice and hearing, not later than fifteen days before the
election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are
deemed superseded by the subsequent ones issued by the Commission
(First Division) on December 19, 1995, affirmed en banc63 on February 23,
1996; which both upheld his election. At any rate, it is obvious that Section
78 is merely directory as Section 6 of R.A. No. 6646 authorizes the
Commission to try and decide petitions for disqualifications even after the
elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry or protest and upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. (emphasis
supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr.
argues that President Aquino's memorandum dated March 27, 1987 should
be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But
whether it decrees a suspension or a repeal is a purely academic distinction
because the said issuance is not a statute that can amend or abrogate an
existing law.
The existence and subsistence of P.D. 725 were recognized in the first
Frivaldo case;64 viz., "(u)nder CA No. 63 as amended by CA No. 473 and
P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation".
He also contends that by allowing Frivaldo to register and to remain as a
registered voter, the Comelec and in effect this Court abetted a "mockery" of
our two previous judgments declaring him a non-citizen. We do not see such
abetting or mockery. The retroactivity of his repatriation, as discussed earlier,
legally cured whatever defects there may have been in his registration as a
voter for the purpose of the 1995 elections. Such retroactivity did not change
his disqualifications in 1988 and 1992, which were the subjects of such
previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to
question the ineligibility of a candidate, citing the Comelec's authority under
Section 78 of the Omnibus Election Code allowing the denial of a certificate
of candidacy on the ground of a false material representation therein as
required by Section 74. Citing Loong, he then states his disagreement with
our holding that Section 78 is merely directory. We really have no quarrel.
Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the
Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were
invalid because they were issued "not later than fifteen days before the
election" as prescribed by Section 78. In dismissing the petition in G.R. No.
120295, we hold that the Comelec did not commit grave abuse of discretion
because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide
disqualifications even after the elections." In spite of his disagreement with us
on this point, i.e., that Section 78 "is merely directory", we note that just like
us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295".
One other point. Loong, as quoted in the dissent, teaches that a petition to
deny due course under Section 78 must be filed within the 25-day period
prescribed therein. The present case however deals with the period during
which the Comelec may decide such petition. And we hold that it may be
decided even after the fifteen day period mentioned in Section 78. Here, we
rule that a decision promulgated by the Comelec even after the elections is
valid but Loong held that a petition filed beyond the 25-day period is out of
time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the
unique factual circumstances of Frivaldo, repatriation may be given
retroactive effect. He argues that such retroactivity "dilutes" our holding in the
first Frivaldo case. But the first (and even the second Frivaldo) decision did
not directly involve repatriation as a mode of acquiring citizenship. If we may
repeat, there is no question that Frivaldo was not a Filipino for purposes of
determining his qualifications in the 1988 and 1992 elections. That is settled.
But his supervening repatriation has changed his political status -- not in
1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless
prior to his repatriation, saying that "informal renunciation or abandonment is
not a ground to lose American citizenship". Since our courts are charged only
with the duty of determining who are Philippine nationals, we cannot rule on
the legal question of who are or who are not Americans. It is basic in
international law that a State determines ONLY those who are its own
citizens -- not who are the citizens of other countries.65 The issue here is:
the Comelec made a finding of fact that Frivaldo was stateless and such
finding has not been shown by Lee to be arbitrary or whimsical. Thus,
following settled case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to
Frivaldo in all three previous elections, should be declared winner because
"Frivaldo's ineligibility for being an American was publicly known". First, there
is absolutely no empirical evidence for such "public" knowledge. Second,
even if there is, such knowledge can be true post facto only of the last two
previous elections. Third, even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the 1995 elections.
How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code
refers to the qualifications of elective local officials, i.e., candidates, and not
elected officials, and that the citizenship qualification [under par. (a) of that
section] must be possessed by candidates, not merely at the commencement
of the term, but by election day at the latest. We see it differently. Section 39,
par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to
"candidates". If the qualifications under par. (a) were intended to apply to
"candidates" and not elected officials, the legislature would have said so,
instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should be possessed at
election day or prior thereto, it would have specifically stated such detail, the
same way it did in pars. (b) to (f) far other qualifications of candidates for
governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's
repatriation on the ground, among others, that the law specifically provides
that it is only after taking the oath of allegiance that applicants shall be
deemed to have reacquired Philippine citizenship. We do not question what
the provision states. We hold however that the provision should be
understood thus: that after taking the oath of allegiance the applicant is
deemed to have reacquired Philippine citizenship, which reacquisition (or
repatriation) is deemed for all purposes and intents to have retroacted to the
date of his application therefor.
In any event, our "so too" argument regarding the literal meaning of the word
"elective" in reference to Section 39 of the Local Authority Code, as well as
regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725
suggest non-retroactivity, were already taken up rather extensively earlier in
this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the
first to uphold the Rule of Law." We agree -- we must all follow the rule of
law. But that is NOT the issue here. The issue is how should the law be
interpreted and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and
perception of how to interpret and apply laws relating to elections: literal or
liberal; the letter or the spirit, the naked provision or its ultimate purpose;
legal syllogism or substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voters' obvious choice. In
applying election laws, it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms.
Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon
would constitute unmitigated judicial tyranny and an unacceptable assault
upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government
Code is to be possessed by an elective official at the latest as of the time he
is proclaimed and at the start of the term of office to which he has been
elected. We further hold P.D. No. 725 to be in full force and effect up to the
present, not having been suspended or repealed expressly nor impliedly at
any time, and Frivaldo's repatriation by virtue thereof to have been properly
granted and thus valid and effective. Moreover, by reason of the remedial or
curative nature of the law granting him a new right to resume his political
status and the legislative intent behind it, as well as his unique situation of
having been forced to give up his citizenship and political aspiration as his
means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the
pendency of which he was stateless, he having given up his U.S. nationality.
Thus, in contemplation of law, he possessed the vital requirement of Filipino
citizenship as of the start of the term of office of governor, and should have
been proclaimed instead of Lee. Furthermore, since his reacquisition of
citizenship retroacted to August 17, 1994, his registration as a voter of
Sorsogon is deemed to have been validated as of said date as well. The
foregoing, of course, are precisely consistent with our holding that lack of the
citizenship requirement is not a continuing disability or disqualification to run
for and hold public office. And once again, we emphasize herein our previous
rulings recognizing the Comelec's authority and jurisdiction to hear and
decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral
laws of our country to give fullest effect to the manifest will of our people,66
for in case of doubt, political laws must be interpreted to give life and spirit to
the popular mandate freely expressed through the ballot. Otherwise stated,
legal niceties and technicalities cannot stand in the way of the sovereign will.
Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the end
that the will of the people in the choice of public officials may not be defeated
by mere technical objections (citations omitted).67
The law and the courts must accord Frivaldo every possible protection,
defense and refuge, in deference to the popular will. Indeed, this Court has
repeatedly stressed the importance of giving effect to the sovereign will in
order to ensure the survival of our democracy. In any action involving the
possibility of a reversal of the popular electoral choice, this Court must exert
utmost effort to resolve the issues in a manner that would give effect to the
will of the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the petitioner
must clearly demonstrate that the ineligibility is so patently antagonistic68 to
constitutional and legal principles that overriding such ineligibility and thereby
giving effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic traditions that
our Constitution and laws so zealously protect and promote. In this
undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his
cause. The Court could have refused to grant retroactivity to the effects of his
repatriation and hold him still ineligible due to his failure to show his
citizenship at the time he registered as a voter before the 1995 elections. Or,
it could have disputed the factual findings of the Comelec that he was
stateless at the time of repatriation and thus hold his consequent dual
citizenship as a disqualification "from running for any elective local position."
But the real essence of justice does not emanate from quibblings over
patchwork legal technicality. It proceeds from the spirit's gut consciousness
of the dynamic role of law as a brick in the ultimate development of the social
edifice. Thus, the Court struggled against and eschewed the easy, legalistic,
technical and sometimes harsh anachronisms of the law in order to evoke
substantial justice in the larger social context consistent with Frivaldo's
unique situation approximating venerability in Philippine political life.
Concededly, he sought American citizenship only to escape the clutches of
the dictatorship. At this stage, we cannot seriously entertain any doubt about
his loyalty and dedication to this country. At the first opportunity, he returned
to this land, and sought to serve his people once more. The people of
Sorsogon overwhelmingly voted for him three times. He took an oath of
allegiance to this Republic every time he filed his certificate of candidacy and
during his failed naturalization bid. And let it not be overlooked, his
demonstrated tenacity and sheer determination to re-assume his nationality
of birth despite several legal set-backs speak more loudly, in spirit, in fact
and in truth than any legal technicality, of his consuming intention and
burning desire to re-embrace his native Philippines even now at the ripe old
age of 81 years. Such loyalty to and love of country as well as nobility of
purpose cannot be lost on this Court of justice and equity. Mortals of lesser
mettle would have given up. After all, Frivaldo was assured of a life of ease
and plenty as a citizen of the most powerful country in the world. But he
opted, nay, single-mindedly insisted on returning to and serving once more
his struggling but beloved land of birth. He therefore deserves every liberal
interpretation of the law which can be applied in his favor. And in the final
analysis, over and above Frivaldo himself, the indomitable people of
Sorsogon most certainly deserve to be governed by a leader of their
overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed
Resolutions of the respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and
academic. In any event, it has no merit.
No costs.
SO ORDERED.
Co vs. Electoral Tribunal of the House of Representatives (G.R. Nos.
92191-92, July 40, 1991)
The petitioners come to this Court asking for the setting aside and reversal of
a decision of the House of Representatives Electoral Tribunal (HRET).
The HRET declared that respondent Jose Ong, Jr. is a natural born Filipino
citizen and a resident of Laoang, Northern Samar for voting purposes. The
sole issue before us is whether or not, in making that determination, the
HRET acted with grave abuse of discretion.
On May 11, 1987, the congressional election for the second district of
Northern Samar was held.
Among the candidates who vied for the position of representative in the
second legislative district of Northern Samar are the petitioners, Sixto
Balinquit and Antonio Co and the private respondent, Jose Ong, Jr.
Respondent Ong was proclaimed the duly elected representative of the
second district of Northern Samar.
The petitioners filed election protests against the private respondent
premised on the following grounds:
1) Jose Ong, Jr. is not a natural born citizen of the Philippines; and
2) Jose Ong, Jr. is not a resident of the second district of Northern Samar.
The HRET in its decision dated November 6, 1989, found for the private
respondent.
A motion for reconsideration was filed by the petitioners on November 12,
1989. This was, however, denied by the HRET in its resolution dated
February 22, 1989.
Hence, these petitions for certiorari.
We treat the comments as answers and decide the issues raised in the
petitions.
ON THE ISSUE OF JURISDICTION
The first question which arises refers to our jurisdiction.
The Constitution explicitly provides that the House of Representatives
Electoral Tribunal (HRET) and the Senate Electoral Tribunal (SET) shall be
the sole judges of all contests relating to the election, returns, and
qualifications of their respective members. (See Article VI, Section 17,
Constitution)
The authority conferred upon the Electoral Tribunal is full, clear and
complete. The use of the word sole emphasizes the exclusivity of the
jurisdiction of these Tribunals.
The Supreme Court in the case of Lazatin v. HRET (168 SCRA 391 [1988])
stated that under the 1987 Constitution, the jurisdiction of the Electoral
Tribunal is original and exclusive, viz:

The use of the word "sole" emphasizes the exclusive character of the
jurisdiction conferred (Angara v. Electoral Commission, supra at p. 162). The
exercise of power by the Electoral Commission under the 1935 Constitution
has been described as "intended to be as complete and unimpaired as if it
had originally remained in the legislature." (id., at p. 175) Earlier this grant of
power to the legislature was characterized by Justice Malcolm as "full, clear
and complete; (Veloso v. Board of Canvassers of Leyte and Samar, 39 Phil.
886 [1919]) Under the amended 1935 Constitution, the power was
unqualifiedly reposed upon the Electoral Tribunal and it remained as full,
clear and complete as that previously granted the Legislature and the
Electoral Commission, (Lachica v. Yap, 25 SCRA 140 [1968]) The same may
be said with regard to the jurisdiction of the Electoral Tribunal under the 1987
Constitution. (p. 401)
The Court continued further, ". . . so long as the Constitution grants the
HRET the power to be the sole judge of all contests relating to election,
returns and qualifications of members of the House of Representatives, any
final action taken by the HRET on a matter within its jurisdiction shall, as a
rule, not be reviewed by this Court . . . the power granted to the Electoral
Tribunal is full, clear and complete and excludes the exercise of any authority
on the part of this Court that would in any wise restrict it or curtail it or even
affect the same." (pp. 403-404)
When may the Court inquire into acts of the Electoral Tribunals under our
constitutional grants of power?
In the later case of Robles v. HRET (181 SCRA 780 [1990]) the Supreme
Court stated that the judgments of the Tribunal are beyond judicial
interference save only "in the exercise of this Court's so-called extraordinary
jurisdiction, . . . upon a determination that the Tribunal's decision or
resolution was rendered without or in excess of its jurisdiction, or with grave
abuse of discretion or paraphrasing Morrero, upon a clear showing of such
arbitrary and improvident use by the Tribunal of its power as constitutes a
denial of due process of law, or upon a demonstration of a very clear
unmitigated ERROR, manifestly constituting such GRAVE ABUSE OF
DISCRETION that there has to be a remedy for such abuse." (at pp. 785-
786)
In the leading case of Morrero v. Bocar (66 Phil. 429 [1938]) the Court ruled
that the power of the Electoral Commission "is beyond judicial interference
except, in any event, upon a clear showing of such arbitrary and improvident
use of power as will constitute a denial of due process." The Court does not
venture into the perilous area of trying to correct perceived errors of
independent branches of the Government, It comes in only when it has to
vindicate a denial of due process or correct an abuse of discretion so grave
or glaring that no less than the Constitution calls for remedial action.
The Supreme Court under the 1987 Constitution, has been given an
expanded jurisdiction, so to speak, to review the decisions of the other
branches and agencies of the government to determine whether or not they
have acted within the bounds of the Constitution. (See Article VIII, Section 1,
Constitution)
Yet, in the exercise thereof, the Court is to merely check whether or not the
governmental branch or agency has gone beyond the Constitutional limits of
its jurisdiction, not that it erred or has a different view. In the absence of a
showing that the HRET has committed grave abuse of discretion amounting
to lack of jurisdiction, there is no occasion for the Court to exercise its
corrective power; it will not decide a matter which by its nature is for the
HRET alone to decide. (See Marcos v. Manglapus, 177 SCRA 668 [1989]) It
has no power to look into what it thinks is apparent error.
As constitutional creations invested with necessary power, the Electoral
Tribunals, although not powers in the tripartite scheme of the government,
are, in the exercise of their functions independent organs — independent of
Congress and the Supreme Court. The power granted to HRET by the
Constitution is intended to be as complete and unimpaired as if it had
remained originally in the legislature. (Angara v. Electoral Commission, 63
Phil. 139 [1936])
In passing upon petitions, the Court with its traditional and careful regard for
the balance of powers, must permit this exclusive privilege of the Tribunals to
remain where the Sovereign authority has place it. (See Veloso v. Boards of
Canvassers of Leyte and Samar, 39 Phil. 886 [1919])
It has been argued that under Article VI, Section 17 of the present
Constitution, the situation may exist as it exists today where there is an
unhealthy one-sided political composition of the two Electoral Tribunals.
There is nothing in the Constitution, however, that makes the HRET because
of its composition any less independent from the Court or its constitutional
functions any less exclusive. The degree of judicial intervention should not be
made to depend on how many legislative members of the HRET belong to
this party or that party. The test remains the same-manifest grave abuse of
discretion.
In the case at bar, the Court finds no improvident use of power, no denial of
due process on the part of the HRET which will necessitate the exercise of
the power of judicial review by the Supreme Court.
ON THE ISSUE OF CITIZENSHIP

The records show that in the year 1895, the private respondent's grandfather,
Ong Te, arrived in the Philippines from China. Ong Te established his
residence in the municipality of Laoang, Samar on land which he bought from
the fruits of hard work.
As a resident of Laoang, Ong Te was able to obtain a certificate of residence
from the then Spanish colonial administration.
The father of the private respondent, Jose Ong Chuan was born in China in
1905. He was brought by Ong Te to Samar in the year 1915.
Jose Ong Chuan spent his childhood in the province of Samar. In Laoang, he
was able to establish an enduring relationship with his neighbors, resulting in
his easy assimilation into the community.
As Jose Ong Chuan grew older in the rural and seaside community of
Laoang, he absorbed Filipino cultural values and practices. He was baptized
into Christianity. As the years passed, Jose Ong Chuan met a natural born-
Filipino, Agripina Lao. The two fell in love and, thereafter, got married in 1932
according to Catholic faith and practice.
The couple bore eight children, one of whom is the private respondent who
was born in 1948.
The private respondent's father never emigrated from this country. He
decided to put up a hardware store and shared and survived the vicissitudes
of life in Samar.
The business prospered. Expansion became inevitable. As a result, a branch
was set-up in Binondo, Manila. In the meantime, the father of the private
respondent, unsure of his legal status and in an unequivocal affirmation of
where he cast his life and family, filed with the Court of First Instance of
Samar an application for naturalization on February 15, 1954.
On April 28, 1955, the CFI of Samar, after trial, declared Jose Ong Chuan a
Filipino citizen.
On May 15, 1957, the Court of First Instance of Samar issued an order
declaring the decision of April 28, 1955 as final and executory and that Jose
Ong Chuan may already take his Oath of Allegiance.
Pursuant to said order, Jose Ong Chuan took his Oath of Allegiance;
correspondingly, a certificate of naturalization was issued to him.
At the time Jose Ong Chuan took his oath, the private respondent then a
minor of nine years was finishing his elementary education in the province of
Samar. There is nothing in the records to differentiate him from other
Filipinos insofar as the customs and practices of the local populace were
concerned.
Fortunes changed. The house of the family of the private respondent in
Laoang, Samar was burned to the ground.
Undaunted by the catastrophe, the private respondent's family constructed
another one in place of their ruined house. Again, there is no showing other
than that Laoang was their abode and home.
After completing his elementary education, the private respondent, in search
for better education, went to Manila in order to acquire his secondary and
college education.
In the meantime, another misfortune was suffered by the family in 1975 when
a fire gutted their second house in Laoang, Samar. The respondent's family
constructed still another house, this time a 16-door apartment building, two
doors of which were reserved for the family.
The private respondent graduated from college, and thereafter took and
passed the CPA Board Examinations.
Since employment opportunities were better in Manila, the respondent
looked for work here. He found a job in the Central Bank of the Philippines as
an examiner. Later, however, he worked in the hardware business of his
family in Manila. In 1971, his elder brother, Emil, was elected as a delegate
to the 1971 Constitutional Convention. His status as a natural born citizen
was challenged. Parenthetically, the Convention which in drafting the
Constitution removed the unequal treatment given to derived citizenship on
the basis of the mother's citizenship formally and solemnly declared Emil
Ong, respondent's full brother, as a natural born Filipino. The Constitutional
Convention had to be aware of the meaning of natural born citizenship since
it was precisely amending the article on this subject.
The private respondent frequently went home to Laoang, Samar, where he
grew up and spent his childhood days.
In 1984, the private respondent married a Filipina named Desiree Lim.
For the elections of 1984 and 1986, Jose Ong, Jr. registered himself as a
voter of Laoang, Samar, and correspondingly, voted there during those
elections.
The private respondent after being engaged for several years in the
management of their family business decided to be of greater service to his
province and ran for public office. Hence, when the opportunity came in
1987, he ran in the elections for representative in the second district of
Northern Samar.
Mr. Ong was overwhelmingly voted by the people of Northern Samar as their
representative in Congress. Even if the total votes of the two petitioners are
combined, Ong would still lead the two by more than 7,000 votes.
The pertinent portions of the Constitution found in Article IV read:
SECTION 1, the following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the adoption of the
Constitution;
2. Those whose fathers or mothers are citizens of the Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority; and
4. Those who are naturalized in accordance with law.
SECTION 2, Natural-born Citizens are those who are citizens of the
Philippines from birth without having to perform any act to acquire or perfect
their citizenship. Those who elect Philippine citizenship in accordance with
paragraph 3 hereof shall be deemed natural-born citizens.
The Court interprets Section 1, Paragraph 3 above as applying not only to
those who elect Philippine citizenship after February 2, 1987 but also to
those who, having been born of Filipino mothers, elected citizenship before
that date.
The provision in Paragraph 3 was intended to correct an unfair position which
discriminates against Filipino women. There is no ambiguity in the
deliberations of the Constitutional Commission, viz:
Mr. Azcuna: With respect to the provision of section 4, would this refer only to
those who elect Philippine citizenship after the effectivity of the 1973
Constitution or would it also cover those who elected it under the 1973
Constitution?
Fr. Bernas: It would apply to anybody who elected Philippine citizenship by
virtue of the provision of the 1935 Constitution whether the election was done
before or after January 17, 1973. (Records of the Constitutional Commission,
Vol. 1, p. 228; Emphasis supplied)
xxx xxx xxx
Mr. Trenas: The Committee on Citizenship, Bill of Rights, Political Rights and
Obligations and Human Rights has more or less decided to extend the
interpretation of who is a natural-born citizen as provided in section 4 of the
1973 Constitution by adding that persons who have elected Philippine
Citizenship under the 1935 Constitution shall be natural-born? Am I right Mr.
Presiding Officer?
Fr. Bernas: yes.
xxx xxx xxx
Mr. Nolledo: And I remember very well that in the Reverend Father Bernas'
well written book, he said that the decision was designed merely to
accommodate former delegate Ernesto Ang and that the definition on
natural-born has no retroactive effect. Now it seems that the Reverend
Father Bernas is going against this intention by supporting the amendment?
Fr. Bernas: As the Commissioner can see, there has been an evolution in my
thinking. (Records of the Constitutional Commission, Vol. 1, p. 189)
xxx xxx xxx
Mr. Rodrigo: But this provision becomes very important because his election
of Philippine citizenship makes him not only a Filipino citizen but a natural-
born Filipino citizen entitling him to run for Congress. . .
Fr. Bernas: Correct. We are quite aware of that and for that reason we will
leave it to the body to approve that provision of section 4.
Mr. Rodrigo: I think there is a good basis for the provision because it strikes
me as unfair that the Filipino citizen who was born a day before January 17,
1973 cannot be a Filipino citizen or a natural-born citizen. (Records of the
Constitutional Commission, Vol. 1, p. 231)
xxx xxx xxx
Mr. Rodrigo: The purpose of that provision is to remedy an inequitable
situation.1avvphi1 Between 1935 and 1973 when we were under the 1935
Constitution, those born of Filipino fathers but alien mothers were natural-
born Filipinos. However, those born of Filipino mothers but alien fathers
would have to elect Philippine citizenship upon reaching the age of majority;
and if they do elect, they become Filipino citizens but not natural-born Filipino
citizens. (Records of the Constitutional Commission, Vol. 1, p. 356)
The foregoing significantly reveals the intent of the framers. To make the
provision prospective from February 3, 1987 is to give a narrow interpretation
resulting in an inequitable situation. It must also be retroactive.
It should be noted that in construing the law, the Courts are not always to be
hedged in by the literal meaning of its language. The spirit and intendment
thereof, must prevail over the letter, especially where adherence to the latter
would result in absurdity and injustice. (Casela v. Court of Appeals, 35 SCRA
279 [1970])
A Constitutional provision should be construed so as to give it effective
operation and suppress the mischief at which it is aimed, hence, it is the spirit
of the provision which should prevail over the letter thereof. (Jarrolt v.
Mabberly, 103 U.S. 580)
In the words of the Court in the case of J.M. Tuason v. LTA (31 SCRA 413
[1970]:
To that primordial intent, all else is subordinated. Our Constitution, any
constitution is not to be construed narrowly or pedantically for the
prescriptions therein contained, to paraphrase Justice Holmes, are not
mathematical formulas having their essence in their form but are organic
living institutions, the significance of which is vital not formal. . . . (p. 427)
The provision in question was enacted to correct the anomalous situation
where one born of a Filipino father and an alien mother was automatically
granted the status of a natural-born citizen while one born of a Filipino
mother and an alien father would still have to elect Philippine citizenship. If
one so elected, he was not, under earlier laws, conferred the status of a
natural-born.
Under the 1973 Constitution, those born of Filipino fathers and those born of
Filipino mothers with an alien father were placed on equal footing. They were
both considered as natural-born citizens.
Hence, the bestowment of the status of "natural-born" cannot be made to
depend on the fleeting accident of time or result in two kinds of citizens made
up of essentially the same similarly situated members.
It is for this reason that the amendments were enacted, that is, in order to
remedy this accidental anomaly, and, therefore, treat equally all those born
before the 1973 Constitution and who elected Philippine citizenship either
before or after the effectivity of that Constitution.
The Constitutional provision in question is, therefore curative in nature. The
enactment was meant to correct the inequitable and absurd situation which
then prevailed, and thus, render those acts valid which would have been nil
at the time had it not been for the curative provisions. (See Development
Bank of the Philippines v. Court of Appeals, 96 SCRA 342 [1980])
There is no dispute that the respondent's mother was a natural born Filipina
at the time of her marriage. Crucial to this case is the issue of whether or not
the respondent elected or chose to be a Filipino citizen.
Election becomes material because Section 2 of Article IV of the Constitution
accords natural born status to children born of Filipino mothers before
January 17, 1973, if they elect citizenship upon reaching the age of majority.
To expect the respondent to have formally or in writing elected citizenship
when he came of age is to ask for the unnatural and unnecessary. The
reason is obvious. He was already a citizen. Not only was his mother a
natural born citizen but his father had been naturalized when the respondent
was only nine (9) years old. He could not have divined when he came of age
that in 1973 and 1987 the Constitution would be amended to require him to
have filed a sworn statement in 1969 electing citizenship inspite of his
already having been a citizen since 1957. In 1969, election through a sworn
statement would have been an unusual and unnecessary procedure for one
who had been a citizen since he was nine years old.
We have jurisprudence that defines "election" as both a formal and an
informal process.
In the case of In Re: Florencio Mallare (59 SCRA 45 [1974]), the Court held
that the exercise of the right of suffrage and the participation in election
exercises constitute a positive act of election of Philippine citizenship. In the
exact pronouncement of the Court, we held:
Esteban's exercise of the right of suffrage when he came of age, constitutes
a positive act of election of Philippine citizenship (p. 52; emphasis supplied)
The private respondent did more than merely exercise his right of suffrage.
He has established his life here in the Philippines.
For those in the peculiar situation of the respondent who cannot be expected
to have elected citizenship as they were already citizens, we apply the In Re
Mallare rule.
The respondent was born in an outlying rural town of Samar where there are
no alien enclaves and no racial distinctions. The respondent has lived the life
of a Filipino since birth. His father applied for naturalization when the child
was still a small boy. He is a Roman Catholic. He has worked for a sensitive
government agency. His profession requires citizenship for taking the
examinations and getting a license. He has participated in political exercises
as a Filipino and has always considered himself a Filipino citizen. There is
nothing in the records to show that he does not embrace Philippine customs
and values, nothing to indicate any tinge of alien-ness no acts to show that
this country is not his natural homeland. The mass of voters of Northern
Samar are frilly aware of Mr. Ong's parentage. They should know him better
than any member of this Court will ever know him. They voted by
overwhelming numbers to have him represent them in Congress. Because of
his acts since childhood, they have considered him as a Filipino.
The filing of sworn statement or formal declaration is a requirement for those
who still have to elect citizenship. For those already Filipinos when the time
to elect came up, there are acts of deliberate choice which cannot be less
binding. Entering a profession open only to Filipinos, serving in public office
where citizenship is a qualification, voting during election time, running for
public office, and other categorical acts of similar nature are themselves
formal manifestations of choice for these persons.
An election of Philippine citizenship presupposes that the person electing is
an alien. Or his status is doubtful because he is a national of two countries.
There is no doubt in this case about Mr. Ong's being a Filipino when he
turned twenty-one (21).
We repeat that any election of Philippine citizenship on the part of the private
respondent would not only have been superfluous but it would also have
resulted in an absurdity. How can a Filipino citizen elect Philippine
citizenship?
The respondent HRET has an interesting view as to how Mr. Ong elected
citizenship. It observed that "when protestee was only nine years of age, his
father, Jose Ong Chuan became a naturalized Filipino. Section 15 of the
Revised Naturalization Act squarely applies its benefit to him for he was then
a minor residing in this country. Concededly, it was the law itself that had
already elected Philippine citizenship for protestee by declaring him as such."
(Emphasis supplied)
The petitioners argue that the respondent's father was not, validly, a
naturalized citizen because of his premature taking of the oath of citizenship.
The Court cannot go into the collateral procedure of stripping Mr. Ong's
father of his citizenship after his death and at this very late date just so we
can go after the son.
The petitioners question the citizenship of the father through a collateral
approach. This can not be done. In our jurisdiction, an attack on a person's
citizenship may only be done through a direct action for its nullity. (See
Queto v. Catolico, 31 SCRA 52 [1970])
To ask the Court to declare the grant of Philippine citizenship to Jose Ong
Chuan as null and void would run against the principle of due process. Jose
Ong Chuan has already been laid to rest. How can he be given a fair
opportunity to defend himself. A dead man cannot speak. To quote the words
of the HRET "Ong Chuan's lips have long been muted to perpetuity by his
demise and obviously he could not use beyond where his mortal remains
now lie to defend himself were this matter to be made a central issue in this
case."
The issue before us is not the nullification of the grant of citizenship to Jose
Ong Chuan. Our function is to determine whether or not the HRET committed
abuse of authority in the exercise of its powers. Moreover, the respondent
traces his natural born citizenship through his mother, not through the
citizenship of his father. The citizenship of the father is relevant only to
determine whether or not the respondent "chose" to be a Filipino when he
came of age. At that time and up to the present, both mother and father were
Filipinos. Respondent Ong could not have elected any other citizenship
unless he first formally renounced Philippine citizenship in favor of a foreign
nationality. Unlike other persons faced with a problem of election, there was
no foreign nationality of his father which he could possibly have chosen.
There is another reason why we cannot declare the HRET as having
committed manifest grave abuse of discretion. The same issue of natural-
born citizenship has already been decided by the Constitutional Convention
of 1971 and by the Batasang Pambansa convened by authority of the
Constitution drafted by that Convention. Emil Ong, full blood brother of the
respondent, was declared and accepted as a natural born citizen by both
bodies.
Assuming that our opinion is different from that of the Constitutional
Convention, the Batasang Pambansa, and the respondent HRET, such a
difference could only be characterized as error. There would be no basis to
call the HRET decision so arbitrary and whimsical as to amount to grave
abuse of discretion.
What was the basis for the Constitutional Convention's declaring Emil Ong a
natural born citizen?
Under the Philippine Bill of 1902, inhabitants of the Philippines who were
Spanish subjects on the 11th day of April 1899 and then residing in said
islands and their children born subsequent thereto were conferred the status
of a Filipino citizen.
Was the grandfather of the private respondent a Spanish subject?
Article 17 of the Civil Code of Spain enumerates those who were considered
Spanish Subjects, viz:
ARTICLE 17. The following are Spaniards:
1. Persons born in Spanish territory.
2. Children born of a Spanish father or mother, even though they were born
out of Spain.
3. Foreigners who may have obtained naturalization papers.
4. Those without such papers, who may have acquired domicile in any town
in the Monarchy. (Emphasis supplied)
The domicile of a natural person is the place of his habitual residence. This
domicile, once established is considered to continue and will not be deemed
lost until a new one is established. (Article 50, NCC; Article 40, Civil Code of
Spain; Zuellig v. Republic, 83 Phil. 768 [1949])
As earlier stated, Ong Te became a permanent resident of Laoang, Samar
around 1895. Correspondingly, a certificate of residence was then issued to
him by virtue of his being a resident of Laoang, Samar. (Report of the
Committee on Election Protests and Credentials of the 1971 Constitutional
Convention, September 7, 1972, p. 3)
The domicile that Ong Te established in 1895 continued until April 11, 1899;
it even went beyond the turn of the 19th century. It is also in this place were
Ong Te set-up his business and acquired his real property.
As concluded by the Constitutional Convention, Ong Te falls within the
meaning of sub-paragraph 4 of Article 17 of the Civil Code of Spain.
Although Ong Te made brief visits to China, he, nevertheless, always
returned to the Philippines. The fact that he died in China, during one of his
visits in said country, was of no moment. This will not change the fact that he
already had his domicile fixed in the Philippines and pursuant to the Civil
Code of Spain, he had become a Spanish subject.
If Ong Te became a Spanish subject by virtue of having established his
domicile in a town under the Monarchy of Spain, necessarily, Ong Te was
also an inhabitant of the Philippines for an inhabitant has been defined as
one who has actual fixed residence in a place; one who has a domicile in a
place. (Bouvier's Law Dictionary, Vol. II) A priori, there can be no other
logical conclusion but to educe that Ong Te qualified as a Filipino citizen
under the provisions of section 4 of the Philippine Bill of 1902.
The HRET itself found this fact of absolute verity in concluding that the
private respondent was a natural-born Filipino.
The petitioners' sole ground in disputing this fact is that document presented
to prove it were not in compliance with the best the evidence rule. The
petitioners allege that the private respondent failed to present the original of
the documentary evidence, testimonial evidence and of the transcript of the
proceedings of the body which the aforesaid resolution of the 1971
Constitutional Convention was predicated.
On the contrary, the documents presented by the private respondent fall
under the exceptions to the best evidence rule.
It was established in the proceedings before the HRET that the originals of
the Committee Report No. 12, the minutes of the plenary session of 1971
Constitutional Convention held on November 28, 1972 cannot be found.
This was affirmed by Atty. Ricafrente, Assistant Secretary of the 1971
Constitutional Convention; by Atty. Nolledo, Delegate to the 1971
Constitutional Convention; and by Atty. Antonio Santos, Chief Librarian of the
U.P Law Center, in their respective testimonies given before the HRET to the
effect that there is no governmental agency which is the official custodian of
the records of the 1971 Constitutional Convention. (TSN, December 12,
1988, pp. 30-31; TSN, January 17, 1989, pp. 34-35; TSN, February 1, 1989,
p. 44; TSN, February 6, 1989, pp. 28-29)
The execution of the originals was established by Atty. Ricafrente, who as
the Assistant Secretary of the 1971 Constitutional Convention was the proper
party to testify to such execution. (TSN, December 12, 1989, pp. 11-24)
The inability to produce the originals before the HRET was also testified to as
aforestated by Atty. Ricafrente, Atty. Nolledo, and Atty. Santos. In proving the
inability to produce, the law does not require the degree of proof to be of
sufficient certainty; it is enough that it be shown that after a bona fide diligent
search, the same cannot be found. (see Government of P.I. v. Martinez, 44
Phil. 817 [1918])
Since the execution of the document and the inability to produce were
adequately established, the contents of the questioned documents can be
proven by a copy thereof or by the recollection of witnesses.

Moreover, to erase all doubts as to the authenticity of the documentary
evidence cited in the Committee Report, the former member of the 1971
Constitutional Convention, Atty. Nolledo, when he was presented as a
witness in the hearing of the protest against the private respondent,
categorically stated that he saw the disputed documents presented during
the hearing of the election protest against the brother of the private
respondent. (TSN, February 1, 1989, pp. 8-9)
In his concurring opinion, Mr. Justice Sarmiento, a vice-president of the
Constitutional Convention, states that he was presiding officer of the plenary
session which deliberated on the report on the election protest against
Delegate Emil Ong. He cites a long list of names of delegates present.
Among them are Mr. Chief Justice Fernan, and Mr. Justice Davide, Jr. The
petitioners could have presented any one of the long list of delegates to
refute Mr. Ong's having been declared a natural-born citizen. They did not do
so. Nor did they demur to the contents of the documents presented by the
private respondent. They merely relied on the procedural objections
respecting the admissibility of the evidence presented.
The Constitutional Convention was the sole judge of the qualifications of Emil
Ong to be a member of that body. The HRET by explicit mandate of the
Constitution, is the sole judge of the qualifications of Jose Ong, Jr. to be a
member of Congress. Both bodies deliberated at length on the controversies
over which they were sole judges. Decisions were arrived at only after a full
presentation of all relevant factors which the parties wished to present. Even
assuming that we disagree with their conclusions, we cannot declare their
acts as committed with grave abuse of discretion. We have to keep clear the
line between error and grave abuse.
ON THE ISSUE OF RESIDENCE
The petitioners question the residence qualification of respondent Ong.
The petitioners lose sight of the meaning of "residence" under the
Constitution. The term "residence" has been understood as synonymous with
domicile not only under the previous Constitutions but also under the 1987
Constitution.
The deliberations of the Constitutional Commission reveal that the meaning
of residence vis-a-vis the qualifications of a candidate for Congress
continues to remain the same as that of domicile, to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971
Constitutional Convention, there was an attempt to require residence in the
place not less than one year immediately preceding the day of the elections.
So my question is: What is the Committee's concept of residence of a
candidate for the legislature? Is it actual residence or is it the concept of
domicile or constructive residence?
Mr. Davide: Madame President, in so far as the regular members of the
National Assembly are concerned, the proposed section merely provides,
among others, and a resident thereof, that is, in the district, for a period of not
less than one year preceding the day of the election. This was in effect lifted
from the 1973 Constitution, the interpretation given to it was domicile.
(Records of the 1987 Constitutional Convention, Vol. 11, July 22, 1986. p.
87)
xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think
Commissioner Nolledo has raised the same point that "resident" has been
interpreted at times as a matter of intention rather than actual residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentlemen consider at the proper time
to go back to actual residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially
considering that a provision in the Constitution in the Article on Suffrage says
that Filipinos living abroad may vote as enacted by law. So, we have to stick
to the original concept that it should be by domicile and not physical and
actual residence. (Records of the 1987 Constitutional Commission, Vol. 11,
July 22, 1986, p. 110)
The framers of the Constitution adhered to the earlier definition given to the
word "residence" which regarded it as having the same meaning as domicile.
The term "domicile" denotes a fixed permanent residence to which when
absent for business or pleasure, one intends to return. (Ong Huan Tin v.
Republic, 19 SCRA 966 [1967]) The absence of a person from said
permanent residence, no matter how long, notwithstanding, it continues to be
the domicile of that person. In other words, domicile is characterized by
animus revertendi (Ujano v. Republic, 17 SCRA 147 [1966])
The domicile of origin of the private respondent, which was the domicile of
his parents, is fixed at Laoang, Samar. Contrary to the petitioners' imputation,
Jose Ong, Jr. never abandoned said domicile; it remained fixed therein even
up to the present.
The private respondent, in the proceedings before the HRET sufficiently
established that after the fire that gutted their house in 1961, another one
was constructed.
Likewise, after the second fire which again destroyed their house in 1975, a
sixteen-door apartment was built by their family, two doors of which were
reserved as their family residence. (TSN, Jose Ong, Jr., November 18,1988,
p. 8)
The petitioners' allegation that since the private respondent owns no property
in Laoang, Samar, he cannot, therefore, be a resident of said place is
misplaced.
The properties owned by the Ong Family are in the name of the private
respondent's parents. Upon the demise of his parents, necessarily, the
private respondent, pursuant to the laws of succession, became the co-
owner thereof (as a co- heir), notwithstanding the fact that these were still in
the names of his parents.
Even assuming that the private respondent does not own any property in
Samar, the Supreme Court in the case of De los Reyes v. Solidum (61 Phil.
893 [1935]) held that it is not required that a person should have a house in
order to establish his residence and domicile. It is enough that he should live
in the municipality or in a rented house or in that of a friend or relative.
(Emphasis supplied)
To require the private respondent to own property in order to be eligible to
run for Congress would be tantamount to a property qualification. The
Constitution only requires that the candidate meet the age, citizenship, voting
and residence requirements. Nowhere is it required by the Constitution that
the candidate should also own property in order to be qualified to run. (see
Maquera v. Borra, 122 Phil. 412 [1965])
It has also been settled that absence from residence to pursue studies or
practice a profession or registration as a voter other than in the place where
one is elected, does not constitute loss of residence. (Faypon v. Quirino, 96
Phil. 294 [1954])
As previously stated, the private respondent stayed in Manila for the purpose
of finishing his studies and later to practice his profession, There was no
intention to abandon the residence in Laoang, Samar. On the contrary, the
periodical journeys made to his home province reveal that he always had the
animus revertendi.
The Philippines is made up not only of a single race; it has, rather,
undergone an interracial evolution. Throughout our history, there has been a
continuing influx of Malays, Chinese, Americans, Japanese, Spaniards and
other nationalities. This racial diversity gives strength to our country.
Many great Filipinos have not been whole-blooded nationals, if there is such
a person, for there is none. To mention a few, the great Jose Rizal was part
Chinese, the late Chief Justice Claudio Teehankee was part Chinese, and of
course our own President, Corazon Aquino is also part Chinese. Verily, some
Filipinos of whom we are proud were ethnically more Chinese than the
private respondent.
Our citizens no doubt constitute the country's greatest wealth. Citizenship is
a special privilege which one must forever cherish.
However, in order to truly revere this treasure of citizenship, we do not, on
the basis of too harsh an interpretation, have to unreasonably deny it to
those who qualify to share in its richness.
Under the overly strict jurisprudence surrounding our antiquated
naturalization laws only the very affluent backed by influential patrons, who
were willing to suffer the indignities of a lengthy, sometimes humiliating, and
often corrupt process of clearances by minor bureaucrats and whose lawyers
knew how to overcome so many technical traps of the judicial process were
able to acquire citizenship. It is time for the naturalization law to be revised to
enable a more positive, affirmative, and meaningful examination of an
applicant's suitability to be a Filipino. A more humane, more indubitable and
less technical approach to citizenship problems is essential.
WHEREFORE, the petitions are hereby DISMISSED. The questioned
decision of the House of Representatives Electoral Tribunal is AFFIRMED.
Respondent Jose Ong, Jr. is declared a natural-born citizen of the
Philippines and a resident of Laoang, Northern Samar.
SO ORDERED.
Labo, Jr. vs. COMELEC ([176 SCRA 1 (1989)]
The petitioner asks this Court to restrain the Commission on Elections from
looking into the question of his citizenship as a qualification for his office as
Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the
issue. The issue is whether or not the public respondent has jurisdiction to
conduct any inquiry into this matter, considering that the petition for quo
warranto against him was not filed on time.
It is noteworthy that this argument is based on the alleged tardiness not of
the petition itself but of the payment of the filing fee, which the petitioner
contends was an indispensable requirement. The fee is, curiously enough, all
of P300.00 only. This brings to mind the popular verse that for want of a
horse the kingdom was lost. Still, if it is shown that the petition was indeed
filed beyond the reglementary period, there is no question that this petition
must be granted and the challenge abated.
The petitioner's position is simple. He was proclaimed mayor-elect of Baguio
City, on January 20, 1988. The petition for quo warranto was filed by the
private respondent on January 26, 1988, but no filing fee was paid on that
date. This fee was finally paid on February 10, 1988, or twenty-one days
after his proclamation. As the petition by itself alone was ineffectual without
the filing fee, it should be deemed filed only when the fee was paid. This was
done beyond the reglementary period provided for under Section 253 of the
Omnibus Election Code reading as follows:
SEC. 253. Petition for quo warranto. — Any voter contesting the election of a
Member of the Batasang Pambansa, regional, provincial, or city officer on the
ground of ineligibility or of disloyalty to the Republic of the Philippines shall
file a sworn petition for quo warranto with the Commission within ten days
after the proclamation of the result of the election.
The petitioner adds that the payment of the filing fee is required under Rule
36, Section 5, of the Procedural Rules of the COMELEC providing that —
Sec. 5. No petition for quo warranto shall be given due course without the
payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and
the legal research fee as required by law.
and stresses that there is abundant jurisprudence holding that the payment
of the filing fee is essential to the timeliness of the filling of the petition itself.
He cites many rulings of the Court to this effect, specifically Manchester v.
Court of Appeals. 1
For his part, the private respondent denies that the filing fee was paid out of
time. In fact he says, it was flied ahead of time. His point is that when he filed
his "Petition for Quo Warranto with Prayer for Immediate Annulment of
Proclamation and Restraining Order or Injunction" on January 26, 1988, the
COMELEC treated it as a pre-proclamation controversy and docketed it as
SPC Case No. 88-288. No docket fee was collected although it was offered.
It was only on February 8, 1988, that the COMELEC decided to treat his
petition as solely for quo warranto and re-docketed it as EPC Case No. 88-
19, serving him notice on February 10, 1988. He immediately paid the filing
fee on that date.
The private respondent argues further that during the period when the
COMELEC regarded his petition as a pre-proclamation controversy, the time
for filing an election protest or quo warranto proceeding was deemed
suspended under Section 248 of the Omnibus Election Code. 2 At any rate,
he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by
the petitioner, became effective only on November 15, 1988, seven days
after publication of the said Rules in the Official Gazette pursuant to Section
4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988,
when he filed his petition with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election Code did
not require it, the payment of filing fees was still necessary under Res. No.
1996 and, before that, Res. No. 1450 of the respondent COMELEC,
promulgated on January 12, 1988, and February 26, 1980, respectively. To
this, the private respondent counters that the latter resolution was intended
for the local elections held on January 30, 1980, and did not apply to the
1988 local elections, which were supposed to be governed by the first-
mentioned resolution. However, Res. No. 1996 took effect only on March 3,
1988, following the lapse of seven days after its publication as required by
RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which
became effective on January 5, 1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the Commission. — The
rules and regulations promulgated by the Commission shall take effect on the
seventh day after their publication in the Official Gazette or in at least (2)
daily newspapers of general circulation in the Philippines.
The Court has considered the arguments of the parties and holds that the
petition for quo warranto was filed on time. We agree with the respondents
that the fee was paid during the ten-day period as extended by the pendency
of the petition when it was treated by the COMELEC as a pre-proclamation
proceeding which did not require the payment of a filing fee. At that, we
reach this conclusion only on the assumption that the requirement for the
payment of the fees in quo warranto proceedings was already effective.
There is no record that Res. No. 1450 was even published; and as for Res.
No. 1996, this took effect only on March 3, 1988, seven days after its
publication in the February 25, 1988 issues of the Manila Chronicle and the
Philippine Daily Inquirer, or after the petition was filed.
The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the
resolutions became effective "immediately upon approval" simply because it
was so provided therein. We held in that case that publication was still
necessary under the due process clause despite such effectivity clause.
In any event, what is important is that the filing fee was paid, and whatever
delay there may have been is not imputable to the private respondent's fault
or neglect. It is true that in the Manchester Case, we required the timely
payment of the filing fee as a precondition for the timeliness of the filing of
the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this
Court, taking into account the special circumstances of that case, declared:
This Court reiterates the rule that the trial court acquires jurisdiction over a
case only upon the payment of the prescribed filing fee. However, the court
may allow the payment of the said fee within a reasonable time. In the event
of non-compliance therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules
of Procedure adopted on June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are
not paid, the Commission may refuse to take action thereon until they are
paid and may dismiss the action or the proceeding. (Emphasis supplied.)
The Court notes that while arguing the technical point that the petition for quo
warranto should be dismissed for failure to pay the filing fee on time, the
petitioner would at the same time minimize his alleged lack of citizenship as
"a futile technicality," It is regrettable, to say the least, that the requirement of
citizenship as a qualification for public office can be so demeaned. What is
worse is that it is regarded as an even less important consideration than the
reglementary period the petitioner insists upon.
This matter should normally end here as the sole issue originally raised by
the petitioner is the timeliness of the quo warranto proceedings against him.
However, as his citizenship is the subject of that proceeding, and considering
the necessity for an early resolution of that more important question clearly
and urgently affecting the public interest, we shall directly address it now in
this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant case, it would
appear that our sole function in this proceeding should be to resolve the
single issue of whether or not the Court of Appeals erred in ruling that the
motion for new trial of the GSIS in question should indeed be deemed pro
forma. But going over the extended pleadings of both parties, the Court is
immediately impressed that substantial justice may not be timely achieved, if
we should decide this case upon such a technical ground alone. We have
carefully read all the allegations and arguments of the parties, very ably and
comprehensively expounded by evidently knowledgeable and unusually
competent counsel, and we feel we can better serve the interests of justice
by broadening the scope of our inquiry, for as the record before us stands,
we see that there is enough basis for us to end the basic controversy
between the parties here and now, dispensing, however, with procedural
steps which would not anyway affect substantially the merits of their
respective claims. 6
xxx
While it is the fault of the petitioner for appealing to the wrong court and
thereby allowing the period for appeal to lapse, the more correct procedure
was for the respondent court to forward the case to the proper court which
was the Court of Appeals for appropriate action. Considering, however, the
length of time that this case has been pending, we apply the rule in the case
of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle
enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which
states:
... it is a cherished rule of procedure for this Court to always strive to settle
the entire controversy in a single proceeding leaving no root or branch to
bear the seeds of future litigation. No useful purpose will be served if this
case is remanded to the trial court only to have its decision raised again to
the Intermediate Appellate Court and from there to this Court. (p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al.
(G.R. No. 50141, January 29, 1988), we stated that:
... But all those relevant facts are now before this Court. And those facts
dictate the rendition of a verdict in the petitioner's favor. There is therefore no
point in referring the case back to the Court of Appeals. The facts and the
legal propositions involved will not change, nor should the ultimate judgment.
Considerable time has already elapsed and, to serve the ends of justice, it is
time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA
733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber
Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v.
City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil.
162).lâwphî1.ñèt Sound practice seeks to accommodate the theory which
avoids waste of time, effort and expense, both to the parties and the
government, not to speak of delay in the disposal of the case (cf. Fernandez
v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is
that where the dictates of justice so demand ... the Supreme Court should
act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing
Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the
dictates of justice do demand that this Court act, and act with finality. 7
xxx
Remand of the case to the lower court for further reception of evidence is not
necessary where the court is in a position to resolve the dispute based on the
records before it. On many occasions, the Court, in the public interest and
the expeditious administration of justice, has resolved actions on the merits
instead of remanding them to the trial court for further proceedings, such as
where the ends of justice would not be subserved by the remand of the case
or when public interest demands an early disposition of the case or where
the trial court had already received all the evidence of the parties. 8
This course of action becomes all the more justified in the present case
where, to repeat for stress, it is claimed that a foreigner is holding a public
office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment, respondent COMELEC implicitly
adopted as "its own" private respondent's repeated assertion that petitioner is
no longer a Filipino citizen. In so doing, has not respondent COMELEC
effectively disqualified itself, by reason of prejudgment, from resolving the
petition for quo warranto filed by private respondent still pending before it? 9
This is still another reason why the Court has seen fit to rule directly on the
merits of this case.
Going over the record, we find that there are two administrative decisions on
the question of the petitioner's citizenship. The first was rendered by the
Commission on Elections on May 12, 1982, and found the petitioner to be a
citizen of the Philippines. 10 The second was rendered by the Commission
on Immigration and Deportation on September 13, 1988, and held that the
petitioner was not a citizen of the Philippines. 11
The first decision was penned by then COMELEC Chigas, Vicente Santiago,
Jr., with Commissioners Pabalate Savellano and Opinion concurring in full
and Commissioner Bacungan concurring in the dismissal of the petition
"without prejudice to the issue of the respondent's citizenship being raised
anew in a proper case." Commissioner Sagadraca reserved his vote, while
Commissioner Felipe was for deferring decision until representations shall
have been made with the Australian Embassy for official verification of the
petitioner's alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam
Defensor-Santiago and Commissioners Alano and Geraldez of the
Commission on Immigration and Deportation. It is important to observe that
in the proceeding before the COMELEC, there was no direct proof that the
herein petitioner had been formally naturalized as a citizen of Australia. This
conjecture, which was eventually rejected, was merely inferred from the fact
that he had married an Australian citizen, obtained an Australian passport,
and registered as an alien with the CID upon his return to this country in
1980.
On the other hand, the decision of the CID took into account the official
statement of the Australian Government dated August 12, 1984, through its
Consul in the Philippines, that the petitioner was still an Australian citizen as
of that date by reason of his naturalization in 1976. That statement 12 is
reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of
a certificate of appointment signed and sealed by the Australian Minister of
State for Foreign Affairs on 19 October 1983, and recognized as such by
Letter of Patent signed and sealed by the Philippines Acting Minister of
Foreign Affairs on 23 November 1983, do hereby provide the following
statement in response to the subpoena Testificandum dated 9 April 1984 in
regard to the Petition for disqualification against RAMON LABO, JR. Y
LOZANO (SPC No. 84-73), and do hereby certify that the statement is true
and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was
married in the Philippines to an Australian citizen. As the spouse of an
Australian citizen, he was not required to meet normal requirements for the
grant of citizenship and was granted Australian citizenship by Sydney on 28
July 1976.
B) Any person over the age of 16 years who is granted Australian citizenship
must take an oath of allegiance or make an affirmation of allegiance. The
wording of the oath of affirmation is: "I ..., renouncing all other allegiance ..."
etc. This need not necessarily have any effect on his former nationality as
this would depend on the citizenship laws of his former country.
C) The marriage was declared void in the Australian Federal Court in Sydney
on 27 June 1980 on the ground that the marriage had been bigamous.
D) According to our records LABO is still an Australian citizen.
E) Should he return to Australia, LABO may face court action in respect of
Section 50 of Australian Citizenship Act 1948 which relates to the giving of
false or misleading information of a material nature in respect of an
application for Australian citizenship. If such a prosecution was successful,
he could be deprived of Australian citizenship under Section 21 of the Act.
F) There are two further ways in which LABO could divest himself of
Australian citizenship:
(i) He could make a declaration of Renunciation of Australian citizenship
under Section 18 of the Australian Citizenship Act, or
(ii) If he acquired another nationality, (for example, Filipino) by a formal and
voluntary act other than marriage, then he would automatically lose as
Australian citizenship under Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL
OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL
1984. DONE AT MANILA IN THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1, 1988, addressed to the
private respondent by the Department of Foreign Affairs reading as follows:
13
Sir:
With reference to your letter dated 1 February 1988, I wish to inform you that
inquiry made with the Australian Government through the Embassy of the
Philippines in Canberra has elicited the following information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July
1976.
2) That prior to 17 July 1986, a candidate for Australian citizenship had to
either swear an oath of allegiance or make an affirmation of allegiance which
carries a renunciation of "all other allegiance.
Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO
SEVERINO, JR. Assistant Secretary
The decision also noted the oath of allegiance taken by every naturalized
Australian reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by Almighty God that I will be
faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen
of Australia, Her heirs and successors according to law, and that I will
faithfully observe the laws of Australia and fulfill my duties as an Australian
citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely promise and
declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth
the Second, Queen of Australia, Her heirs and successors according to law,
and that I will faithfully observe the Laws of Australia and fulfill my duties as
an Australian citizen. 15
The petitioner does not question the authenticity of the above evidence.
Neither does he deny that he obtained Australian Passport No. 754705,
which he used in coming back to the Philippines in 1980, when he declared
before the immigration authorities that he was an alien and registered as
such under Alien Certificate of Registration No. B-323985. 16 He later asked
for the change of his status from immigrant to a returning former Philippine
citizen and was granted Immigrant Certificate of Residence No. 223809. 17
He also categorically declared that he was a citizen of Australia in a number
of sworn statements voluntarily made by him and. even sought to avoid the
jurisdiction of the barangay court on the ground that he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts as
"mistakes" that did not divest the petitioner of his citizenship, although, as
earlier noted, not all the members joined in this finding. We reject this ruling
as totally baseless. The petitioner is not an unlettered person who was not
aware of the consequences of his acts, let alone the fact that he was
assisted by counsel when he performed these acts.
The private respondent questions the motives of the COMELEC at that time
and stresses Labo's political affiliation with the party in power then, but we
need not go into that now.
There is also the claim that the decision can no longer be reversed because
of the doctrine of res judicata, but this too must be dismissed. This doctrine
does not apply to questions of citizenship, as the Court has ruled in several
cases. 19 Moreover, it does not appear that it was properly and seasonably
pleaded, in a motion to dismiss or in the answer, having been invoked only
when the petitioner filed his reply 20 to the private respondent's comment.
Besides, one of the requisites of res judicata, to wit, identity of parties, is not
present in this case.
The petitioner's contention that his marriage to an Australian national in 1976
did not automatically divest him of Philippine citizenship is irrelevant. There is
no claim or finding that he automatically ceased to be a Filipino because of
that marriage. He became a citizen of Australia because he was naturalized
as such through a formal and positive process, simplified in his case because
he was married to an Australian citizen. As a condition for such
naturalization, he formally took the Oath of Allegiance and/or made the
Affirmation of Allegiance, both quoted above. Renouncing all other
allegiance, he swore "to be faithful and bear true allegiance to Her Majesty
Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as an
Australian citizen."
The petitioner now claims that his naturalization in Australia made him at
worst only a dual national and did not divest him of his Philippine citizenship.
Such a specious argument cannot stand against the clear provisions of CA
No. 63, which enumerates the modes by which Philippine citizenship may be
lost. Among these are: (1) naturalization in a foreign country; (2) express
renunciation of citizenship; and (3) subscribing to an oath of allegiance to
support the Constitution or laws of a foreign country, all of which are
applicable to the petitioner. It is also worth mentioning in this connection that
under Article IV, Section 5, of the present Constitution, "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization in
Australia was annulled after it was found that his marriage to the Australian
citizen was bigamous, that circumstance alone did not automatically restore
his Philippine citizenship. His divestiture of Australian citizenship does not
concern us here. That is a matter between him and his adopted country.
What we must consider is the fact that he voluntarily and freely rejected
Philippine citizenship and willingly and knowingly embraced the citizenship of
a foreign country. The possibility that he may have been subsequently
rejected by Australia, as he claims, does not mean that he has been
automatically reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be
reacquired by direct act of Congress, by naturalization, or by repatriation. It
does not appear in the record, nor does the petitioner claim, that he has
reacquired Philippine citizenship by any of these methods. He does not point
to any judicial decree of naturalization as to any statute directly conferring
Philippine citizenship upon him. Neither has he shown that he has complied
with PD No. 725, providing that:
... (2) natural-born Filipinos who have lost their Philippine citizenship may
reacquire Philippine citizenship through repatriation by applying with the
Special Committee on Naturalization created by Letter of Instruction No. 270,
and, if their applications are approved, taking the necessary oath of
allegiance to the Republic of the Philippines, after which they shall be
deemed to have reacquired Philippine citizenship. The Commission on
Immigration and Deportation shall thereupon cancel their certificate of
registration. (Emphasis supplied.)
That is why the Commission on Immigration and Deportation rejected his
application for the cancellation of his alien certificate of registration. And that
is also the reason we must deny his present claim for recognition as a citizen
of the Philippines.
The petitioner is not now, nor was he on the day of the local elections on
January 18, 1988, a citizen of the Philippines. In fact, he was not even a
qualified voter under the Constitution itself because of his alienage. 21 He
was therefore ineligible as a candidate for mayor of Baguio City, under
Section 42 of the Local Government Code providing in material part as
follows:
Sec. 42. Qualifications. — An elective local official must be a citizen of the
Philippines, at least twenty-three years of age on election day, a qualified
voter registered as such in the barangay, municipality, city or province where
he proposes to be elected, a resident therein for at least one year at the time
of the filing of his certificate of candidacy, and able to read and write English,
Filipino, or any other local language or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile
technicality" that should not frustrate the will of the electorate of Baguio City,
who elected him by a "resonant and thunderous majority." To be accurate, it
was not as loud as all that, for his lead over the second-placer was only
about 2,100 votes. In any event, the people of that locality could not have,
even unanimously, changed the requirements of the Local Government Code
and the Constitution. The electorate had no power to permit a foreigner
owing his total allegiance to the Queen of Australia, or at least a stateless
individual owing no allegiance to the Republic of the Philippines, to preside
over them as mayor of their city. Only citizens of the Philippines have that
privilege over their countrymen.
The probability that many of those who voted for the petitioner may have
done so in the belief that he was qualified only strengthens the conclusion
that the results of the election cannot nullify the qualifications for the office
now held by him. These qualifications are continuing requirements; once any
of them is lost during incumbency, title to the office itself is deemed forfeited.
In the case at bar, the citizenship and voting requirements were not
subsequently lost but were not possessed at all in the first place on the day
of the election. The petitioner was disqualified from running as mayor and,
although elected, is not now qualified to serve as such.
Finally, there is the question of whether or not the private respondent, who
filed the quo warranto petition, can replace the petitioner as mayor. He
cannot. The simple reason is that as he obtained only the second highest
number of votes in the election, he was obviously not the choice of the
people of Baguio city.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections 22 decided in 1985. In that case, the candidate who placed second
was proclaimed elected after the votes for his winning rival, who was
disqualified as a turncoat and considered a non-candidate, were all
disregarded as stray. In effect, the second placer won by default. That
decision was supported by eight members of the Court then 23 with three
dissenting 24 and another two reserving their vote. 25 One was on official
leave. 26
Re-examining that decision, the Court finds, and so holds, that it should be
reversed in favor of the earlier case of Geronimo v. Ramos, 27 Which
represents the more logical and democratic rule. That case, which reiterated
the doctrine first announced in 1912 in Topacio vs. Paredes 28 was
supported by ten members of the Court 29 without any dissent, although one
reserved his vote, 30 another took no part 31 and two others were on leave.
32 There the Court held:
... it would be extremely repugnant to the basic concept of the constitutionally
guaranteed right to suffrage if a candidate who has not acquired the majority
or plurality of votes is proclaimed a winner and imposed as the
representative of a constituency, the majority of which have positively
declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have
received the highest number of votes cast in the election for that office, and it
is a fundamental Idea in all republican forms of government that no one can
be declared elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the election. (20
Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later
declared to be disqualified or not eligible for the office to which he was
elected does not necessarily entitle the candidate who obtained the second
highest number of votes to be declared the winner of the elective office. The
votes cast for a dead, disqualified, or non-eligible person may not be valid to
vote the winner into office or maintain him there. However, in the absence of
a statute which clearly asserts a contrary political and legislative policy on the
matter, if the votes were cast in the sincere belief that the candidate was
alive, qualified, or eligible, they should not be treated as stray, void or
meaningless.
It remains to stress that the citizen of the Philippines must take pride in his
status as such and cherish this priceless gift that, out of more than a hundred
other nationalities, God has seen fit to grant him. Having been so endowed,
he must not lightly yield this precious advantage, rejecting it for another land
that may offer him material and other attractions that he may not find in his
own country. To be sure, he has the right to renounce the Philippines if he
sees fit and transfer his allegiance to a state with more allurements for him.
33 But having done so, he cannot expect to be welcomed back with open
arms once his taste for his adopted country turns sour or he is himself
disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily recovered
after its renunciation. It may be restored only after the returning renegade
makes a formal act of re-dedication to the country he has abjured and he
solemnly affirms once again his total and exclusive loyalty to the Republic of
the Philippines. This may not be accomplished by election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a
citizen of the Philippines and therefore DISQUALIFIED from continuing to
serve as Mayor of Baguio City. He is ordered to VACATE his office and
surrender the same to the Vice-Mayor of Baguio City, once this decision
becomes final and executory. The temporary restraining order dated January
31, 1989, is LIFTED.
Frivaldo vs. COMELEC [174 SCRA 245 (1989)
The ultimate question posed before this Court in these twin cases is: Who
should be declared the rightful governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of
votes in three successive elections but who was twice declared by this Court
to be disqualified to hold such office due to his alien citizenship, and who
now claims to have re-assumed his lost Philippine citizenship thru
repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but who claims
that the votes cast in favor of Frivaldo should be considered void; that the
electorate should be deemed to have intentionally thrown away their ballots;
and that legally, he secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not
voted directly to the position of governor, but who according to prevailing
jurisprudence should take over the said post inasmuch as, by the ineligibility
of Frivaldo, a "permanent vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on repatriation,
clarifies/reiterates/amplifies existing jurisprudence on citizenship and
elections, and upholds the superiority of substantial justice over pure
legalisms.
G.R. No. 123755

This is a special civil action under Rules 65 and 58 of the Rules of Court for
certiorari and preliminary injunction to review and annul a Resolution of the
respondent Commission on Elections (Comelec), First Division,1
promulgated on December 19, 19952 and another Resolution of the Comelec
en banc promulgated February 23, 19963 denying petitioner's motion for
reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate
of Candidacy for the office of Governor of Sorsogon in the May 8, 1995
elections. On March 23, 1995, petitioner Raul R. Lee, another candidate,
filed a petition4 with the Comelec docketed as SPA No. 95-028 praying that
Frivaldo "be disqualified from seeking or holding any public office or position
by reason of not yet being a citizen of the Philippines", and that his Certificate
of Candidacy be canceled. On May 1, 1995, the Second Division of the
Comelec promulgated a Resolution5 granting the petition with the following
disposition6:
WHEREFORE, this Division resolves to GRANT the petition and declares
that respondent is DISQUALIFIED to run for the Office of Governor of
Sorsogon on the ground that he is NOT a citizen of the Philippines.
Accordingly, respondent's certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained unacted upon until
after the May 8, 1995 elections. So, his candidacy continued and he was
voted for during the elections held on said date. On May 11, 1995, the
Comelec en banc7 affirmed the aforementioned Resolution of the Second
Division.
The Provincial Board of Canvassers completed the canvass of the election
returns and a Certificate of Votes8 dated May 27, 1995 was issued showing
the following votes obtained by the candidates for the position of Governor of
Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition9 praying for his proclamation as the duly-elected Governor of
Sorsogon.
In an order10 dated June 21, 1995, but promulgated according to the petition
"only on June 29, 1995," the Comelec en banc directed "the Provincial Board
of Canvassers of Sorsogon to reconvene for the purpose of proclaiming
candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June
30, 1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed
as SPC No. 95-317, praying for the annulment of the June 30, 1995
proclamation of Lee and for his own proclamation. He alleged that on June
30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen
of the Philippines after "his petition for repatriation under P.D. 725 which he
filed with the Special Committee on Naturalization in September 1994 had
been granted". As such, when "the said order (dated June 21, 1995) (of the
Comelec) . . . was released and received by Frivaldo on June 30, 1995 at
5:30 o'clock in the evening, there was no more legal impediment to the
proclamation (of Frivaldo) as governor . . ." In the alternative, he averred that
pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor - not
Lee - should occupy said position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein
assailed Resolution13 holding that Lee, "not having garnered the highest
number of votes," was not legally entitled to be proclaimed as duly-elected
governor; and that Frivaldo, "having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30,
1995 under the provisions of Presidential Decree No. 725 . . . (is) qualified to
hold the office of governor of Sorsogon"; thus:
PREMISES CONSIDERED, the Commission (First Division), therefore
RESOLVES to GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul
R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary
to law, he not having garnered the highest number of votes to warrant his
proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the
Provincial Board of Canvassers is directed to immediately reconvene and, on
the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as
the duly elected Governor of Sorsogon having garnered the highest number
of votes, and he having reacquired his Filipino citizenship by repatriation on
June 30, 1995 under the provisions of Presidential Decree No. 725 and, thus,
qualified to hold the office of Governor of Sorsogon.
Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881),
the Clerk of the Commission is directed to notify His Excellency the President
of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the
Province of Sorsogon of this resolution immediately upon the due
implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration which was
denied by the Comelec en banc in its Resolution 14 promulgated on
February 23, 1996. On February 26, 1996, the present petition was filed.
Acting on the prayer for a temporary restraining order, this Court issued on
February 27, 1996 a Resolution which inter alia directed the parties "to
maintain the status quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be capsulized in
the following propositions"15:
First -- The initiatory petition below was so far insufficient in form and
substance to warrant the exercise by the COMELEC of its jurisdiction with
the result that, in effect, the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;
Second -- The judicially declared disqualification of respondent was a
continuing condition and rendered him ineligible to run for, to be elected to
and to hold the Office of Governor;
Third -- The alleged repatriation of respondent was neither valid nor is the
effect thereof retroactive as to cure his ineligibility and qualify him to hold the
Office of Governor; and
Fourth -- Correctly read and applied, the Labo Doctrine fully supports the
validity of petitioner's proclamation as duly elected Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent Comelec, the
first two of which are also at issue in G.R. No. 123755, as follows:
1. Resolution16 of the Second Division, promulgated on May 1, 1995,
disqualifying Frivaldo from running for governor of Sorsogon in the May 8,
1995 elections "on the ground that he is not a citizen of the Philippines";
2. Resolution17 of the Comelec en banc, promulgated on May 11, 1995; and
3. Resolution18 of the Comelec en banc, promulgated also on May 11, 1995
suspending the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755.
However, Frivaldo assails the above-mentioned resolutions on a different
ground: that under Section 78 of the Omnibus Election Code, which is
reproduced hereinunder:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. --
A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be
decided, after notice and hearing, not later than fifteen days before the
election. (Emphasis supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were
not rendered "within the period allowed by law" i.e., "not later than fifteen
days before the election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on
the petition for disqualification within the period of fifteen days prior to the
election as provided by law is a jurisdictional defect which renders the said
Resolutions null and void.
By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295
and 123755 since they are intimately related in their factual environment and
are identical in the ultimate question raised, viz., who should occupy the
position of governor of the province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the parties and
required them thereafter to file simultaneously their respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be restated as
follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably
cure his lack of citizenship as to qualify him to be proclaimed and to hold the
Office of Governor? If not, may it be given retroactive effect? If so, from
when?
2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino
citizenship a continuing bar to his eligibility to run for, be elected to or hold
the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the initiatory petition in
SPC No. 95-317 considering that said petition is not "a pre-proclamation
case, an election protest or a quo warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in
light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in
promulgating the assailed Resolutions, all of which prevented Frivaldo from
assuming the governorship of Sorsogon, considering that they were not
rendered within the period referred to in Section 78 of the Omnibus Election
Code, viz., "not later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the
threshold legal issue in this case. All the other matters raised are secondary
to this.
The Local Government Code of 199119 expressly requires Philippine
citizenship as a qualification for elective local officials, including that of
provincial governor, thus:
Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be
elected; a resident therein for at least one (1) year immediately preceding the
day of the election; and able to read and write Filipino or any other local
language or dialect.
(b) Candidates for the position of governor, vice governor or member of the
sangguniang panlalawigan, or mayor, vice mayor or member of the
sangguniang panlungsod of highly urbanized cities must be at least twenty-
three (23) years of age on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it
is therefore incumbent upon him to show that he has reacquired citizenship;
in fine, that he possesses the qualifications prescribed under the said statute
(R.A. 7160).
Under Philippine law,21 citizenship may be reacquired by direct act of
Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R.
No. 10465422 and during the oral argument in this case that he tried to
resume his citizenship by direct act of Congress, but that the bill allowing him
to do so "failed to materialize, notwithstanding the endorsement of several
members of the House of Representatives" due, according to him, to the
"maneuvers of his political rivals." In the same case, his attempt at
naturalization was rejected by this Court because of jurisdictional, substantial
and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly
elected governor by the electorate of Sorsogon, with a margin of 27,000
votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the
same opponent Raul Lee. Twice, he was judicially declared a non-Filipino
and thus twice disqualified from holding and discharging his popular
mandate. Now, he comes to us a third time, with a fresh vote from the people
of Sorsogon and a favorable decision from the Commission on Elections to
boot. Moreover, he now boasts of having successfully passed through the
third and last mode of reacquiring citizenship: by repatriation under P.D. No.
725, with no less than the Solicitor General himself, who was the prime
opposing counsel in the previous cases he lost, this time, as counsel for co-
respondent Comelec, arguing the validity of his cause (in addition to his able
private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance
under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not
disputed. Hence, he insists that he -- not Lee -- should have been proclaimed
as the duly-elected governor of Sorsogon when the Provincial Board of
Canvassers met at 8:30 p.m. on the said date since, clearly and
unquestionably, he garnered the highest number of votes in the elections and
since at that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with serious
defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting
that "then President Corazon Aquino exercising legislative powers under the
Transitory Provisions of the 1987 Constitution, forbade the grant of
citizenship by Presidential Decree or Executive Issuances as the same
poses a serious and contentious issue of policy which the present
government, in the exercise of prudence and sound discretion, should best
leave to the judgment of the first Congress under the 1987 Constitution",
adding that in her memorandum dated March 27, 1987 to the members of the
Special Committee on Naturalization constituted for purposes of Presidential
Decree No. 725, President Aquino directed them "to cease and desist from
undertaking any and all proceedings within your functional area of
responsibility as defined under Letter of Instructions (LOI) No. 270 dated
April 11, 1975, as amended."23
This memorandum dated March 27, 198724 cannot by any stretch of legal
hermeneutics be construed as a law sanctioning or authorizing a repeal of
P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal
may be express or implied. It is obvious that no express repeal was made
because then President Aquino in her memorandum -- based on the copy
furnished us by Lee -- did not categorically and/or impliedly state that P.D.
725 was being repealed or was being rendered without any legal effect. In
fact, she did not even mention it specifically by its number or text. On the
other hand, it is a basic rule of statutory construction that repeals by
implication are not favored. An implied repeal will not be allowed "unless it is
convincingly and unambiguously demonstrated that the two laws are clearly
repugnant and patently inconsistent that they cannot co-exist".26
The memorandum of then President Aquino cannot even be regarded as a
legislative enactment, for not every pronouncement of the Chief Executive
even under the Transitory Provisions of the 1987 Constitution can nor should
be regarded as an exercise of her law-making powers. At best, it could be
treated as an executive policy addressed to the Special Committee to halt
the acceptance and processing of applications for repatriation pending
whatever "judgment the first Congress under the 1987 Constitution" might
make. In other words, the former President did not repeal P.D. 725 but left it
to the first Congress -- once created -- to deal with the matter. If she had
intended to repeal such law, she should have unequivocally said so instead
of referring the matter to Congress. The fact is she carefully couched her
presidential issuance in terms that clearly indicated the intention of "the
present government, in the exercise of prudence and sound discretion" to
leave the matter of repeal to the new Congress. Any other interpretation of
the said Presidential Memorandum, such as is now being proffered to the
Court by Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities flawed the
repatriation proceedings," asserting that Frivaldo's application therefor was
"filed on June 29, 1995 . . . (and) was approved in just one day or on June
30, 1995 . . .", which "prevented a judicious review and evaluation of the
merits thereof." Frivaldo counters that he filed his application for repatriation
with the Office of the President in Malacañang Palace on August 17, 1994.
This is confirmed by the Solicitor General. However, the Special Committee
was reactivated only on June 8, 1995, when presumably the said Committee
started processing his application. On June 29, 1995, he filled up and re-
submitted the FORM that the Committee required. Under these
circumstances, it could not be said that there was "indecent haste" in the
processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee
on Naturalization was intended solely for the personal interest of
respondent,"27 the Solicitor General explained during the oral argument on
March 19, 1996 that such allegation is simply baseless as there were many
others who applied and were considered for repatriation, a list of whom was
submitted by him to this Court, through a Manifestation28 filed on April 3,
1996.
On the basis of the parties' submissions, we are convinced that the
presumption of regularity in the performance of official duty and the
presumption of legality in the repatriation of Frivaldo have not been
successfully rebutted by Lee. The mere fact that the proceedings were
speeded up is by itself not a ground to conclude that such proceedings were
necessarily tainted. After all, the requirements of repatriation under P.D. No.
725 are not difficult to comply with, nor are they tedious and cumbersome. In
fact, P.D.
72529 itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special Committee
to promulgate. This is not unusual since, unlike in naturalization where an
alien covets a first-time entry into Philippine political life, in repatriation the
applicant is a former natural-born Filipino who is merely seeking to reacquire
his previous citizenship. In the case of Frivaldo, he was undoubtedly a
natural-born citizen who openly and faithfully served his country and his
province prior to his naturalization in the United States -- a naturalization he
insists was made necessary only to escape the iron clutches of a dictatorship
he abhorred and could not in conscience embrace -- and who, after the fall of
the dictator and the re-establishment of democratic space, wasted no time in
returning to his country of birth to offer once more his talent and services to
his people.
So too, the fact that ten other persons, as certified to by the Solicitor General,
were granted repatriation argues convincingly and conclusively against the
existence of favoritism vehemently posited by Raul Lee. At any rate, any
contest on the legality of Frivaldo's repatriation should have been pursued
before the Committee itself, and, failing there, in the Office of the President,
pursuant to the doctrine of exhaustion of administrative remedies.
Third, Lee further contends that assuming the assailed repatriation to be
valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995
whereas the citizenship qualification prescribed by the Local Government
Code "must exist on the date of his election, if not when the certificate of
candidacy is filed," citing our decision in G.R. 10465430 which held that "both
the Local Government Code and the Constitution require that only Philippine
citizens can run and be elected to public office." Obviously, however, this
was a mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not -- and NOT the effective date thereof. Since
the Court held his naturalization to be invalid, then the issue of when an
aspirant for public office should be a citizen was NOT resolved at all by the
Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official
must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province . . . where
he intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of
the election;
* able to read and write Filipino or any other local language or dialect.
* In addition, "candidates for the position of governor . . . must be at least
twenty-three (23) years of age on election day.
From the above, it will be noted that the law does not specify any particular
date or time when the candidate must possess citizenship, unlike that for
residence (which must consist of at least one year's residency immediately
preceding the day of election) and age (at least twenty three years of age on
election day).
Philippine citizenship is an indispensable requirement for holding an elective
public office,31 and the purpose of the citizenship qualification is none other
than to ensure that no alien, i.e., no person owing allegiance to another
nation, shall govern our people and our country or a unit of territory thereof.
Now, an official begins to govern or to discharge his functions only upon his
proclamation and on the day the law mandates his term of office to begin.
Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very day32
the term of office of governor (and other elective officials) began -- he was
therefore already qualified to be proclaimed, to hold such office and to
discharge the functions and responsibilities thereof as of said date. In short,
at that time, he was already qualified to govern his native Sorsogon. This is
the liberal interpretation that should give spirit, life and meaning to our law on
qualifications consistent with the purpose for which such law was enacted.
So too, even from a literal (as distinguished from liberal) construction, it
should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then
should such qualification be required at the time of election or at the time of
the filing of the certificates of candidacies, as Lee insists? Literally, such
qualifications -- unless otherwise expressly conditioned, as in the case of age
and residence -- should thus be possessed when the "elective [or elected]
official" begins to govern, i.e., at the time he is proclaimed and at the start of
his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling in
Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the
citizenship requirement is to ensure that our people and country do not end
up being governed by aliens, i.e., persons owing allegiance to another
nation, that aim or purpose would not be thwarted but instead achieved by
construing the citizenship qualification as applying to the time of proclamation
of the elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral
argument34 to the effect that the citizenship qualification should be
possessed at the time the candidate (or for that matter the elected official)
registered as a voter. After all, Section 39, apart from requiring the official to
be a citizen, also specifies as another item of qualification, that he be a
"registered voter". And, under the law35 a "voter" must be a citizen of the
Philippines. So therefore, Frivaldo could not have been a voter -- much less a
validly registered one -- if he was not a citizen at the time of such registration.
The answer to this problem again lies in discerning the purpose of the
requirement. If the law intended the citizenship qualification to be possessed
prior to election consistent with the requirement of being a registered voter,
then it would not have made citizenship a SEPARATE qualification. The law
abhors a redundancy. It therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from being a VOTER, even if
being a voter presumes being a citizen first. It also stands to reason that the
voter requirement was included as another qualification (aside from
"citizenship"), not to reiterate the need for nationality but to require that the
official be registered as a voter IN THE AREA OR TERRITORY he seeks to
govern, i.e., the law states: "a registered voter in the barangay, municipality,
city, or province . . . where he intends to be elected." It should be
emphasized that the Local Government Code requires an elective official to
be a registered voter. It does not require him to vote actually. Hence,
registration -- not the actual voting -- is the core of this "qualification". In other
words, the law's purpose in this second requirement is to ensure that the
prospective official is actually registered in the area he seeks to govern --
and not anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not
disputed -- that he "was and is a registered voter of Sorsogon, and his
registration as a voter has been sustained as valid by judicial declaration . . .
In fact, he cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel steadfastly maintained that "Mr.
Frivaldo has always been a registered voter of Sorsogon. He has voted in
1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a
voter was questioned, but the court dismissed (sic) his eligibility as a voter
and he was allowed to vote as in fact, he voted in all the previous elections
including on May 8, 1995."3 7
It is thus clear that Frivaldo is a registered voter in the province where he
intended to be elected.
There is yet another reason why the prime issue of citizenship should be
reckoned from the date of proclamation, not necessarily the date of election
or date of filing of the certificate of candidacy. Section 253 of the Omnibus
Election Code 38 gives any voter, presumably including the defeated
candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a
candidate. This is the only provision of the Code that authorizes a remedy on
how to contest before the Comelec an incumbent's ineligibility arising from
failure to meet the qualifications enumerated under Sec. 39 of the Local
Government Code. Such remedy of Quo Warranto can be availed of "within
ten days after proclamation" of the winning candidate. Hence, it is only at
such time that the issue of ineligibility may be taken cognizance of by the
Commission. And since, at the very moment of Lee's proclamation (8:30
p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen,
having taken his oath of allegiance earlier in the afternoon of the same day,
then he should have been the candidate proclaimed as he unquestionably
garnered the highest number of votes in the immediately preceding elections
and such oath had already cured his previous "judicially-declared" alienage.
Hence, at such time, he was no longer ineligible.
But to remove all doubts on this important issue, we also hold that the
repatriation of Frivaldo RETROACTED to the date of the filing of his
application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no
retroactive effect, unless the contrary is provided." But there are settled
exceptions40 to this general rule, such as when the statute is CURATIVE or
REMEDIAL in nature or when it CREATES NEW RIGHTS.
According to Tolentino,41 curative statutes are those which undertake to
cure errors and irregularities, thereby validating judicial or administrative
proceedings, acts of public officers, or private deeds and contracts which
otherwise would not produce their intended consequences by reason of
some statutory disability or failure to comply with some technical
requirement. They operate on conditions already existing, and are
necessarily retroactive in operation. Agpalo,42 on the other hand, says that
curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing
existing obligations . . . (and) are intended to supply defects, abridge
superfluities in existing laws, and curb certain evils. . . . By their very nature,
curative statutes are retroactive . . . (and) reach back to past events to
correct errors or irregularities and to render valid and effective attempted acts
which would be otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those statutes relating
to remedies or modes of procedure, which do not create new or take away
vested rights, but only operate in furtherance of the remedy or confirmation of
such rights, ordinarily do not come within the legal meaning of a retrospective
law, nor within the general rule against the retrospective operation of
statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and also
provides for a new remedy, thereby filling certain voids in our laws. Thus, in
its preamble, P.D. 725 expressly recognizes the plight of "many Filipino
women (who) had lost their Philippine citizenship by marriage to aliens" and
who could not, under the existing law (C.A. No. 63, as amended) avail of
repatriation until "after the death of their husbands or the termination of their
marital status" and who could neither be benefitted by the 1973 Constitution's
new provision allowing "a Filipino woman who marries an alien to retain her
Philippine citizenship . . ." because "such provision of the new Constitution
does not apply to Filipino women who had married aliens before said
constitution took effect." Thus, P.D. 725 granted a new right to these women
-- the right to re-acquire Filipino citizenship even during their marital
coverture, which right did not exist prior to P.D. 725. On the other hand, said
statute also provided a new remedy and a new right in favor of other "natural
born Filipinos who (had) lost their Philippine citizenship but now desire to re-
acquire Philippine citizenship", because prior to the promulgation of P.D. 725
such former Filipinos would have had to undergo the tedious and
cumbersome process of naturalization, but with the advent of P.D. 725 they
could now re-acquire their Philippine citizenship under the simplified
procedure of repatriation.
The Solicitor General44 argues:
By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA
342), since they are intended to supply defects, abridge superfluities in
existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil.
119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to cure the defect in the existing
naturalization law, specifically C.A. No. 63 wherein married Filipino women
are allowed to repatriate only upon the death of their husbands, and natural-
born Filipinos who lost their citizenship by naturalization and other causes
faced the difficulty of undergoing the rigid procedures of C.A. 63 for
reacquisition of Filipino citizenship by naturalization.
Presidential Decree No. 725 provided a remedy for the aforementioned legal
aberrations and thus its provisions are considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of the preamble, it
is unarguable that the legislative intent was precisely to give the statute
retroactive operation. "(A) retrospective operation is given to a statute or
amendment where the intent that it should so operate clearly appears from a
consideration of the act as a whole, or from the terms thereof."45 It is
obvious to the Court that the statute was meant to "reach back" to those
persons, events and transactions not otherwise covered by prevailing law
and jurisprudence. And inasmuch as it has been held that citizenship is a
political and civil right equally as important as the freedom of speech, liberty
of abode, the right against unreasonable searches and seizures and other
guarantees enshrined in the Bill of Rights, therefore the legislative intent to
give retrospective operation to P.D. 725 must be given the fullest effect
possible. "(I)t has been said that a remedial statute must be so construed as
to make it effect the evident purpose for which it was enacted, so that if the
reason of the statute extends to past transactions, as well as to those in the
future, then it will be so applied although the statute does not in terms so
direct, unless to do so would impair some vested right or violate some
constitutional guaranty."46 This is all the more true of P.D. 725, which did not
specify any restrictions on or delimit or qualify the right of repatriation granted
therein.
At this point, a valid question may be raised: How can the retroactivity of P.D.
725 benefit Frivaldo considering that said law was enacted on June 5, 1975,
while Frivaldo lost his Filipino citizenship much later, on January 20, 1983,
and applied for repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that Frivaldo
became an American citizen, nevertheless, it is not only the law itself (P.D.
725) which is to be given retroactive effect, but even the repatriation granted
under said law to Frivaldo on June 30, 1995 is to be deemed to have
retroacted to the date of his application therefor, August 17, 1994. The
reason for this is simply that if, as in this case, it was the intent of the
legislative authority that the law should apply to past events -- i.e., situations
and transactions existing even before the law came into being -- in order to
benefit the greatest number of former Filipinos possible thereby enabling
them to enjoy and exercise the constitutionally guaranteed right of
citizenship, and such legislative intention is to be given the fullest effect and
expression, then there is all the more reason to have the law apply in a
retroactive or retrospective manner to situations, events and transactions
subsequent to the passage of such law. That is, the repatriation granted to
Frivaldo on June 30, 1995 can and should be made to take effect as of date
of his application. As earlier mentioned, there is nothing in the law that would
bar this or would show a contrary intention on the part of the legislative
authority; and there is no showing that damage or prejudice to anyone, or
anything unjust or injurious would result from giving retroactivity to his
repatriation. Neither has Lee shown that there will result the impairment of
any contractual obligation, disturbance of any vested right or breach of some
constitutional guaranty.
Being a former Filipino who has served the people repeatedly, Frivaldo
deserves a liberal interpretation of Philippine laws and whatever defects
there were in his nationality should now be deemed mooted by his
repatriation.
Another argument for retroactivity to the date of filing is that it would prevent
prejudice to applicants. If P.D. 725 were not to be given retroactive effect,
and the Special Committee decides not to act, i.e., to delay the processing of
applications for any substantial length of time, then the former Filipinos who
may be stateless, as Frivaldo -- having already renounced his American
citizenship -- was, may be prejudiced for causes outside their control. This
should not be. In case of doubt in the interpretation or application of laws, it is
to be presumed that the law-making body intended right and justice to
prevail.4 7
And as experience will show, the Special Committee was able to process, act
upon and grant applications for repatriation within relatively short spans of
time after the same were filed.48 The fact that such interregna were relatively
insignificant minimizes the likelihood of prejudice to the government as a
result of giving retroactivity to repatriation. Besides, to the mind of the Court,
direct prejudice to the government is possible only where a person's
repatriation has the effect of wiping out a liability of his to the government
arising in connection with or as a result of his being an alien, and accruing
only during the interregnum between application and approval, a situation
that is not present in the instant case.
And it is but right and just that the mandate of the people, already twice
frustrated, should now prevail. Under the circumstances, there is nothing
unjust or iniquitous in treating Frivaldo's repatriation as having become
effective as of the date of his application, i.e., on August 17, 1994. This being
so, all questions about his possession of the nationality qualification --
whether at the date of proclamation (June 30, 1995) or the date of election
(May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995)
would become moot.
Based on the foregoing, any question regarding Frivaldo's status as a
registered voter would also be deemed settled. Inasmuch as he is
considered as having been repatriated -- i.e., his Filipino citizenship restored
-- as of August 17, 1994, his previous registration as a voter is likewise
deemed validated as of said date.
It is not disputed that on January 20, 1983 Frivaldo became an American.
Would the retroactivity of his repatriation not effectively give him dual
citizenship, which under Sec. 40 of the Local Government Code would
disqualify him "from running for any elective local position?"49 We answer
this question in the negative, as there is cogent reason to hold that Frivaldo
was really STATELESS at the time he took said oath of allegiance and even
before that, when he ran for governor in 1988. In his Comment, Frivaldo
wrote that he "had long renounced and had long abandoned his American
citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the
interim -- when he abandoned and renounced his US citizenship but before
he was repatriated to his Filipino citizenship."50
On this point, we quote from the assailed Resolution dated December 19,
1995:51
By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine Government
when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of
candidacy contains an oath of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long before
the elections of 1995 have not been effectively rebutted by Lee. Furthermore,
it is basic that such findings of the Commission are conclusive upon this
Court, absent any showing of capriciousness or arbitrariness or
abuse.52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second
Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its
Resolution of May 11, 1995 "became final and executory after five (5) days or
on May 17, 1995, no restraining order having been issued by this Honorable
Court.54 Hence, before Lee "was proclaimed as the elected governor on
June 30, 1995, there was already a final and executory judgment
disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo
now concedes were legally "correct") declaring Frivaldo an alien have also
become final and executory way before the 1995 elections, and these
"judicial pronouncements of his political status as an American citizen
absolutely and for all time disqualified (him) from running for, and holding any
public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo
was rendered in connection with the 1988 elections while that in G.R. No.
104654 was in connection with the 1992 elections. That he was disqualified
for such elections is final and can no longer be changed. In the words of the
respondent Commission (Second Division) in its assailed Resolution:55
The records show that the Honorable Supreme Court had decided that
Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the
1988 and 1992 elections. However, there is no record of any "final judgment"
of the disqualification of Frivaldo as a candidate for the May 8, 1995
elections. What the Commission said in its Order of June 21, 1995
(implemented on June 30, 1995), directing the proclamation of Raul R. Lee,
was that Frivaldo was not a Filipino citizen "having been declared by the
Supreme Court in its Order dated March 25, 1995, not a citizen of the
Philippines." This declaration of the Supreme Court, however, was in
connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot
govern a person's future status with finality. This is because a person may
subsequently reacquire, or for that matter lose, his citizenship under any of
the modes recognized by law for the purpose. Hence, in Lee vs.
Commissioner of Immigration,56 we held:
Everytime the citizenship of a person is material or indispensable in a judicial
or administrative case, whatever the corresponding court or administrative
authority decides therein as to such citizenship is generally not considered
res judicata, hence it has to be threshed out again and again, as the
occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the
petition in SPC No. 95-317 because the only "possible types of proceedings
that may be entertained by the Comelec are a pre-proclamation case, an
election protest or a quo warranto case". Again, Lee reminds us that he was
proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317
questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-
day reglementary period." Hence, according to him, Frivaldo's "recourse was
to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution57 has given the Comelec
ample power to "exercise exclusive original jurisdiction over all contests
relating to the elections, returns and qualifications of all elective . . . provincial
. . . officials." Instead of dwelling at length on the various petitions that
Comelec, in the exercise of its constitutional prerogatives, may entertain,
suffice it to say that this Court has invariably recognized the Commission's
authority to hear and decide petitions for annulment of proclamations -- of
which SPC No. 95-317 obviously is one.58 Thus, in Mentang vs.
COMELEC,59 we ruled:
The petitioner argues that after proclamation and assumption of office, a pre-
proclamation controversy is no longer viable. Indeed, we are aware of cases
holding that pre-proclamation controversies may no longer be entertained by
the COMELEC after the winning candidate has been proclaimed. (citing
Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA
513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is
premised on an assumption that the proclamation is no proclamation at all
and the proclaimed candidate's assumption of office cannot deprive the
COMELEC of the power to make such declaration of nullity. (citing Aguam
vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a proclamation must
"be done within ten (10) days following the proclamation." Inasmuch as
Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is
no question that the Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold him for the
following reasons:
First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains
that he (Lee) was not the choice of the sovereign will," and in Aquino vs.
COMELEC,61 Lee is "a second placer, . . . just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the
pronouncement of this Court in the aforesaid Labo62 case, as follows:
The rule would have been different if the electorate fully aware in fact and in
law of a candidate's disqualification so as to bring such awareness within the
realm of notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise
or throwing away their votes, in which case, the eligible candidate obtaining
the next higher number of votes may be deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the instant dispute. It has not been
shown, and none was alleged, that petitioner Labo was notoriously known as
an ineligible candidate, much less the electorate as having known of such
fact. On the contrary, petitioner Labo was even allowed by no less than the
Comelec itself in its resolution dated May 10, 1992 to be voted for the office
of the city Payor as its resolution dated May 9, 1992 denying due course to
petitioner Labo's certificate of candidacy had not yet become final and
subject to the final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling
appropriate in this case because Frivaldo was in 1995 in an identical
situation as Labo was in 1992 when the Comelec's cancellation of his
certificate of candidacy was not yet final on election day as there was in both
cases a pending motion for reconsideration, for which reason Comelec
issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and
several others can still be voted for in the May 8, 1995 election, as in fact, he
was.
Furthermore, there has been no sufficient evidence presented to show that
the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's
alleged disqualification as to "bring such awareness within the realm of
notoriety;" in other words, that the voters intentionally wasted their ballots
knowing that, in spite of their voting for him, he was ineligible. If Labo has
any relevance at all, it is that the vice-governor -- and not Lee -- should be
pro- claimed, since in losing the election, Lee was, to paraphrase Labo
again, "obviously not the choice of the people" of Sorsogon. This is the
emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes
does not entitle the eligible candidate receiving the next highest number of
votes to be declared elected. A minority or defeated candidate cannot be
deemed elected to the office.
Second. As we have earlier declared Frivaldo to have seasonably reacquired
his citizenship and inasmuch as he obtained the highest number of votes in
the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's
proclamation was patently erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the
Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc
Resolution of May 11, 1995 disqualifying him for want of citizenship should
be annulled because they were rendered beyond the fifteen (15) day period
prescribed by Section 78, of the Omnibus Election Code which reads as
follows:
Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. --
A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and shall be
decided after notice and hearing, not later than fifteen days before the
election. (Emphasis supplied.)
This claim is now moot and academic inasmuch as these resolutions are
deemed superseded by the subsequent ones issued by the Commission
(First Division) on December 19, 1995, affirmed en banc63 on February 23,
1996; which both upheld his election. At any rate, it is obvious that Section
78 is merely directory as Section 6 of R.A. No. 6646 authorizes the
Commission to try and decide petitions for disqualifications even after the
elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry or protest and upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong. (emphasis
supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr.
argues that President Aquino's memorandum dated March 27, 1987 should
be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But
whether it decrees a suspension or a repeal is a purely academic distinction
because the said issuance is not a statute that can amend or abrogate an
existing law.
The existence and subsistence of P.D. 725 were recognized in the first
Frivaldo case;64 viz., "(u)nder CA No. 63 as amended by CA No. 473 and
P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation".
He also contends that by allowing Frivaldo to register and to remain as a
registered voter, the Comelec and in effect this Court abetted a "mockery" of
our two previous judgments declaring him a non-citizen. We do not see such
abetting or mockery. The retroactivity of his repatriation, as discussed earlier,
legally cured whatever defects there may have been in his registration as a
voter for the purpose of the 1995 elections. Such retroactivity did not change
his disqualifications in 1988 and 1992, which were the subjects of such
previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to
question the ineligibility of a candidate, citing the Comelec's authority under
Section 78 of the Omnibus Election Code allowing the denial of a certificate
of candidacy on the ground of a false material representation therein as
required by Section 74. Citing Loong, he then states his disagreement with
our holding that Section 78 is merely directory. We really have no quarrel.
Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the
Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were
invalid because they were issued "not later than fifteen days before the
election" as prescribed by Section 78. In dismissing the petition in G.R. No.
120295, we hold that the Comelec did not commit grave abuse of discretion
because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide
disqualifications even after the elections." In spite of his disagreement with us
on this point, i.e., that Section 78 "is merely directory", we note that just like
us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295".
One other point. Loong, as quoted in the dissent, teaches that a petition to
deny due course under Section 78 must be filed within the 25-day period
prescribed therein. The present case however deals with the period during
which the Comelec may decide such petition. And we hold that it may be
decided even after the fifteen day period mentioned in Section 78. Here, we
rule that a decision promulgated by the Comelec even after the elections is
valid but Loong held that a petition filed beyond the 25-day period is out of
time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the
unique factual circumstances of Frivaldo, repatriation may be given
retroactive effect. He argues that such retroactivity "dilutes" our holding in the
first Frivaldo case. But the first (and even the second Frivaldo) decision did
not directly involve repatriation as a mode of acquiring citizenship. If we may
repeat, there is no question that Frivaldo was not a Filipino for purposes of
determining his qualifications in the 1988 and 1992 elections. That is settled.
But his supervening repatriation has changed his political status -- not in
1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless
prior to his repatriation, saying that "informal renunciation or abandonment is
not a ground to lose American citizenship". Since our courts are charged only
with the duty of determining who are Philippine nationals, we cannot rule on
the legal question of who are or who are not Americans. It is basic in
international law that a State determines ONLY those who are its own
citizens -- not who are the citizens of other countries.65 The issue here is:
the Comelec made a finding of fact that Frivaldo was stateless and such
finding has not been shown by Lee to be arbitrary or whimsical. Thus,
following settled case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to
Frivaldo in all three previous elections, should be declared winner because
"Frivaldo's ineligibility for being an American was publicly known". First, there
is absolutely no empirical evidence for such "public" knowledge. Second,
even if there is, such knowledge can be true post facto only of the last two
previous elections. Third, even the Comelec and now this Court were/are still
deliberating on his nationality before, during and after the 1995 elections.
How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code
refers to the qualifications of elective local officials, i.e., candidates, and not
elected officials, and that the citizenship qualification [under par. (a) of that
section] must be possessed by candidates, not merely at the commencement
of the term, but by election day at the latest. We see it differently. Section 39,
par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to
"candidates". If the qualifications under par. (a) were intended to apply to
"candidates" and not elected officials, the legislature would have said so,
instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should be possessed at
election day or prior thereto, it would have specifically stated such detail, the
same way it did in pars. (b) to (f) far other qualifications of candidates for
governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's
repatriation on the ground, among others, that the law specifically provides
that it is only after taking the oath of allegiance that applicants shall be
deemed to have reacquired Philippine citizenship. We do not question what
the provision states. We hold however that the provision should be
understood thus: that after taking the oath of allegiance the applicant is
deemed to have reacquired Philippine citizenship, which reacquisition (or
repatriation) is deemed for all purposes and intents to have retroacted to the
date of his application therefor.
In any event, our "so too" argument regarding the literal meaning of the word
"elective" in reference to Section 39 of the Local Authority Code, as well as
regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725
suggest non-retroactivity, were already taken up rather extensively earlier in
this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the
first to uphold the Rule of Law." We agree -- we must all follow the rule of
law. But that is NOT the issue here. The issue is how should the law be
interpreted and applied in this case so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and
perception of how to interpret and apply laws relating to elections: literal or
liberal; the letter or the spirit, the naked provision or its ultimate purpose;
legal syllogism or substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voters' obvious choice. In
applying election laws, it would be far better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms.
Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon
would constitute unmitigated judicial tyranny and an unacceptable assault
upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government
Code is to be possessed by an elective official at the latest as of the time he
is proclaimed and at the start of the term of office to which he has been
elected. We further hold P.D. No. 725 to be in full force and effect up to the
present, not having been suspended or repealed expressly nor impliedly at
any time, and Frivaldo's repatriation by virtue thereof to have been properly
granted and thus valid and effective. Moreover, by reason of the remedial or
curative nature of the law granting him a new right to resume his political
status and the legislative intent behind it, as well as his unique situation of
having been forced to give up his citizenship and political aspiration as his
means of escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during the
pendency of which he was stateless, he having given up his U.S. nationality.
Thus, in contemplation of law, he possessed the vital requirement of Filipino
citizenship as of the start of the term of office of governor, and should have
been proclaimed instead of Lee. Furthermore, since his reacquisition of
citizenship retroacted to August 17, 1994, his registration as a voter of
Sorsogon is deemed to have been validated as of said date as well. The
foregoing, of course, are precisely consistent with our holding that lack of the
citizenship requirement is not a continuing disability or disqualification to run
for and hold public office. And once again, we emphasize herein our previous
rulings recognizing the Comelec's authority and jurisdiction to hear and
decide petitions for annulment of proclamations.
This Court has time and again liberally and equitably construed the electoral
laws of our country to give fullest effect to the manifest will of our people,66
for in case of doubt, political laws must be interpreted to give life and spirit to
the popular mandate freely expressed through the ballot. Otherwise stated,
legal niceties and technicalities cannot stand in the way of the sovereign will.
Consistently, we have held:
. . . (L)aws governing election contests must be liberally construed to the end
that the will of the people in the choice of public officials may not be defeated
by mere technical objections (citations omitted).67
The law and the courts must accord Frivaldo every possible protection,
defense and refuge, in deference to the popular will. Indeed, this Court has
repeatedly stressed the importance of giving effect to the sovereign will in
order to ensure the survival of our democracy. In any action involving the
possibility of a reversal of the popular electoral choice, this Court must exert
utmost effort to resolve the issues in a manner that would give effect to the
will of the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority. To
successfully challenge a winning candidate's qualifications, the petitioner
must clearly demonstrate that the ineligibility is so patently antagonistic68 to
constitutional and legal principles that overriding such ineligibility and thereby
giving effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic traditions that
our Constitution and laws so zealously protect and promote. In this
undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault with his
cause. The Court could have refused to grant retroactivity to the effects of his
repatriation and hold him still ineligible due to his failure to show his
citizenship at the time he registered as a voter before the 1995 elections. Or,
it could have disputed the factual findings of the Comelec that he was
stateless at the time of repatriation and thus hold his consequent dual
citizenship as a disqualification "from running for any elective local position."
But the real essence of justice does not emanate from quibblings over
patchwork legal technicality. It proceeds from the spirit's gut consciousness
of the dynamic role of law as a brick in the ultimate development of the social
edifice. Thus, the Court struggled against and eschewed the easy, legalistic,
technical and sometimes harsh anachronisms of the law in order to evoke
substantial justice in the larger social context consistent with Frivaldo's
unique situation approximating venerability in Philippine political life.
Concededly, he sought American citizenship only to escape the clutches of
the dictatorship. At this stage, we cannot seriously entertain any doubt about
his loyalty and dedication to this country. At the first opportunity, he returned
to this land, and sought to serve his people once more. The people of
Sorsogon overwhelmingly voted for him three times. He took an oath of
allegiance to this Republic every time he filed his certificate of candidacy and
during his failed naturalization bid. And let it not be overlooked, his
demonstrated tenacity and sheer determination to re-assume his nationality
of birth despite several legal set-backs speak more loudly, in spirit, in fact
and in truth than any legal technicality, of his consuming intention and
burning desire to re-embrace his native Philippines even now at the ripe old
age of 81 years. Such loyalty to and love of country as well as nobility of
purpose cannot be lost on this Court of justice and equity. Mortals of lesser
mettle would have given up. After all, Frivaldo was assured of a life of ease
and plenty as a citizen of the most powerful country in the world. But he
opted, nay, single-mindedly insisted on returning to and serving once more
his struggling but beloved land of birth. He therefore deserves every liberal
interpretation of the law which can be applied in his favor. And in the final
analysis, over and above Frivaldo himself, the indomitable people of
Sorsogon most certainly deserve to be governed by a leader of their
overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed
Resolutions of the respondent Commission are AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and
academic. In any event, it has no merit.
No costs.
SO ORDERED.
Bengzon vs. Cruz (G.R. No. 142840, May 7, 2001)
The citizenship of respondent Teodoro C. Cruz is at issue in this case, in
view of the constitutional requirement that "no person shall be a Member of
the House of Representative unless he is a natural-born citizen."1
Respondent Cruz was a natural-born citizen of the Philippines. He was born
in San Clemente, Tarlac, on April 27, 1960, of Filipino parents. The
fundamental law then applicable was the 1935 Constitution.2
On November 5, 1985, however, respondent Cruz enlisted in the United
States Marine Corps and without the consent of the Republic of the
Philippines, took an oath of allegiance to the United States. As a
Consequence, he lost his Filipino citizenship for under Commonwealth Act
No. 63, section 1(4), a Filipino citizen may lose his citizenship by, among
other, "rendering service to or accepting commission in the armed forces of a
foreign country." Said provision of law reads:
SECTION 1. How citizenship may be lost. – A Filipino citizen may lose his
citizenship in any of the following ways and/or events:
xxx
(4) By rendering services to, or accepting commission in, the armed of a
foreign country: Provided, That the rendering of service to, or the acceptance
of such commission in, the armed forces of a foreign country, and the taking
of an oath of allegiance incident thereto, with the consent of the Republic of
the Philippines, shall not divest a Filipino of his Philippine citizenship if either
of the following circumstances is present:
(a) The Republic of the Philippines has a defensive and/or offensive pact of
alliance with said foreign country; or
(b) The said foreign country maintains armed forces on Philippine territory
with the consent of the Republic of the Philippines: Provided, That the
Filipino citizen concerned, at the time of rendering said service, or
acceptance of said commission, and taking the oath of allegiance incident
thereto, states that he does so only in connection with his service to said
foreign country; And provided, finally, That any Filipino citizen who is
rendering service to, or is commissioned in, the armed forces of a foreign
country under any of the circumstances mentioned in paragraph (a) or (b),
shall not be Republic of the Philippines during the period of his service to, or
commission in, the armed forces of said country. Upon his discharge from
the service of the said foreign country, he shall be automatically entitled to
the full enjoyment of his civil and politically entitled to the full enjoyment of his
civil political rights as a Filipino citizen x x x.
Whatever doubt that remained regarding his loss of Philippine citizenship
was erased by his naturalization as a U.S. citizen on June 5, 1990, in
connection with his service in the U.S. Marine Corps.
On March 17, 1994, respondent Cruz reacquired his Philippine citizenship
through repatriation under Republic Act No. 2630.3 He ran for and was
elected as the Representative of the Second District of Pangasinan in the
May 11, 1998 elections. He won by a convincing margin of 26,671 votes over
petitioner Antonio Bengson III, who was then running for
reelection.1âwphi1.nêt
Subsequently, petitioner filed a case for Quo Warranto Ad Cautelam with
respondent House of Representatives Electoral Tribunal (HRET) claiming
that respondent Cruz was not qualified to become a member of the House of
Representatives since he is not a natural-born citizen as required under
Article VI, section 6 of the Constitution.4
On March 2, 2000, the HRET rendered its decision5 dismissing the petition
for quo warranto and declaring Cruz the duly elected Representative of the
Second District of Pangasinan in the May 1998 elections. The HRET likewise
denied petitioner's motion for reconsideration of the decision in its resolution
dated April 27, 2000.6
Petitioner thus filed the present petition for certiorari assailing the HRET's
decision on the following grounds:
1. The HRET committed serious errors and grave abuse of discretion,
amounting to excess of jurisdiction, when it ruled that private respondent is a
natural-born citizen of the Philippines despite the fact that he had ceased
being such in view of the loss and renunciation of such citizenship on his
part.
2. The HRET committed serious errors and grave abuse of discretion,
amounting to excess of jurisdiction, when it considered private respondent as
a citizen of the Philippines despite the fact he did not validly acquire his
Philippine citizenship.
3. Assuming that private respondent's acquisition of Philippine citizenship
was invalid, the HRET committed serious errors and grave abuse of
discretion, amounting to excess of jurisdiction, when it dismissed the petition
despite the fact that such reacquisition could not legally and constitutionally
restore his natural-born status.7
The issue now before us is whether respondent Cruz, a natural-born Filipino
who became an American citizen, can still be considered a natural-born
Filipino upon his reacquisition of Philippine citizenship.
Petitioner asserts that respondent Cruz may no longer be considered a
natural-born Filipino since he lost h is Philippine citizenship when he swore
allegiance to the United States in 1995, and had to reacquire the same by
repatriation. He insists that Article citizens are those who are from birth with
out having to perform any act to acquire or perfect such citizenship.
Respondent on the other hand contends that he reacquired his status as
natural-born citizen when he was repatriated since the phrase "from birth" in
Article IV, Section 2 refers to the innate, inherent and inborn characteristic of
being a natural-born citizen.
The petition is without merit.
The 1987 Constitution enumerates who are Filipino citizens as follow:
(1) Those who are citizens of the Philippines at the time of the adoption of
this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973 of Filipino mother, who elect
Philippine citizenship upon reaching the age of majority, and
(4) Those who are naturalized in accordance with law.8
There are two ways of acquiring citizenship: (1) by birth, and (2) by
naturalization. These ways of acquiring citizenship correspond to the two
kinds of citizens: the natural-born citizen, and the naturalized citizen. A
person who at the time of his birth is a citizen of a particular country, is a
natural-born citizen thereof.9
As defined in the same Constitution, natural-born citizens "are those citizens
of the Philippines from birth without having to perform any act to acquire or
perfect his Philippine citezenship."10
On the other hand, naturalized citizens are those who have become Filipino
citizens through naturalization, generally under Commonwealth Act No. 473,
otherwise known as the Revised Naturalization Law, which repealed the
former Naturalization Law (Act No. 2927), and by Republic Act No. 530.11 To
be naturalized, an applicant has to prove that he possesses all the
qualifications12 and none of the disqualification13 provided by law to
become a Filipino citizen. The decision granting Philippine citizenship
becomes executory only after two (2) years from its promulgation when the
court is satisfied that during the intervening period, the applicant has (1) not
left the Philippines; (2) has dedicated himself to a lawful calling or profession;
(3) has not been convicted of any offense or violation of Government
promulgated rules; or (4) committed any act prejudicial to the interest of the
nation or contrary to any Government announced policies.14
Filipino citizens who have lost their citizenship may however reacquire the
same in the manner provided by law. Commonwealth Act. No. (C.A. No. 63),
enumerates the three modes by which Philippine citizenship may be
reacquired by a former citizen: (1) by naturalization, (2) by repatriation, and
(3) by direct act of Congress.15
Naturalization is mode for both acquisition and reacquisition of Philippine
citizenship. As a mode of initially acquiring Philippine citizenship,
naturalization is governed by Commonwealth Act No. 473, as amended. On
the other hand, naturalization as a mode for reacquiring Philippine citizenship
is governed by Commonwealth Act No. 63.16 Under this law, a former
Filipino citizen who wishes to reacquire Philippine citizenship must possess
certain qualifications17 and none of the disqualification mentioned in Section
4 of C.A. 473.18
Repatriation, on the other hand, may be had under various statutes by those
who lost their citizenship due to: (1) desertion of the armed forces;19
services in the armed forces of the allied forces in World War II;20 (3) service
in the Armed Forces of the United States at any other time,21 (4) marriage of
a Filipino woman to an alien;22 and (5) political economic necessity.23
As distinguished from the lengthy process of naturalization, repatriation
simply consists of the taking of an oath of allegiance to the Republic of the
Philippine and registering said oath in the Local Civil Registry of the place
where the person concerned resides or last resided.
In Angat v. Republic,24 we held:
xxx. Parenthetically, under these statutes [referring to RA Nos. 965 and
2630], the person desiring to reacquire Philippine citizenship would not
even be required to file a petition in court, and all that he had to do was to
take an oath of allegiance to the Republic of the Philippines and to register
that fact with the civil registry in the place of his residence or where he had
last resided in the Philippines. [Italics in the original.25
Moreover, repatriation results in the recovery of the original nationality.26
This means that a naturalized Filipino who lost his citizenship will be restored
to his prior status as a naturalized Filipino citizen. On the other hand, if he
was originally a natural-born citizen before he lost his Philippine citizenship,
he will be restored to his former status as a natural-born Filipino.
In respondent Cruz's case, he lost his Filipino citizenship when he rendered
service in the Armed Forces of the United States. However, he subsequently
reacquired Philippine citizenship under R.A. No. 2630, which provides:
Section 1. Any person who had lost his Philippine citizenship by rendering
service to, or accepting commission in, the Armed Forces of the United
States, or after separation from the Armed Forces of the United States,
acquired United States citizenship, may reacquire Philippine citizenship by
taking an oath of allegiance to the Republic of the Philippines and registering
the same with Local Civil Registry in the place where he resides or last
resided in the Philippines. The said oath of allegiance shall contain a
renunciation of any other citizenship.
Having thus taken the required oath of allegiance to the Republic and having
registered the same in the Civil Registry of Magantarem, Pangasinan in
accordance with the aforecited provision, respondent Cruz is deemed to
have recovered his original status as a natural-born citizen, a status which he
acquired at birth as the son of a Filipino father.27 It bears stressing that the
act of repatriation allows him to recover, or return to, his original status
before he lost his Philippine citizenship.
Petitioner's contention that respondent Cruz is no longer a natural-born
citizen since he had to perform an act to regain his citizenship is untenable.
As correctly explained by the HRET in its decision, the term "natural-born
citizen" was first defined in Article III, Section 4 of the 1973 Constitution as
follows:
Sec. 4. A natural-born citizen is one who is a citizen of the Philippines from
birth without having to perform any act to acquire or perfect his Philippine
citizenship.
Two requisites must concur for a person to be considered as such: (1) a
person must be a Filipino citizen birth and (2) he does not have to perform
any act to obtain or perfect his Philippine citizenship.
Under the 1973 Constitution definition, there were two categories of Filipino
citizens which were not considered natural-born: (1) those who were
naturalized and (2) those born before January 17, 1973,38 of Filipino
mothers who, upon reaching the age of majority, elected Philippine
citizenship. Those "naturalized citizens" were not considered natural-born
obviously because they were not Filipino at birth and had to perform an act to
acquire Philippine citizenship. Those born of Filipino mothers before the
effectively of the 1973 Constitution were likewise not considered natural-born
because they also had to perform an act to perfect their Philippines
citizenship.
The present Constitution, however, now consider those born of Filipino
mothers before the effectivity of the 1973 Constitution and who elected
Philippine citizenship upon reaching the majority age as natural-born. After
defining who re natural-born citizens, Section 2 of Article IV adds a sentence:
"Those who elect Philippine citizenship in accordance with paragraph (3),
Section 1 hereof shall be deemed natural-born citizens." Consequently, only
naturalized Filipinos are considered not natural-born citizens. It is apparent
from the enumeration of who are citizens under the present Constitution that
there are only two classes of citizens: (1) those who are natural-born and (2)
those who are naturalized in accordance with law. A citizen who is not a
naturalized Filipino, i.e., did not have to undergo the process of naturalization
to obtain Philippine citizenship, necessarily is natural-born Filipino.
Noteworthy is the absence in said enumeration of a separate category for
persons who, after losing Philippine citizenship, subsequently reacquire it.
The reason therefor is clear: as to such persons, they would either be
natural-born or naturalized depending on the reasons for the loss of their
citizenship and the mode prescribed by the applicable law for the
reacquisition thereof. As respondent Cruz was not required by law to go
through naturalization proceeding in order to reacquire his citizenship, he is
perforce a natural-born Filipino. As such, he possessed all the necessary
qualifications to be elected as member of the House of Representatives.
A final point. The HRET has been empowered by the Constitution to be the
"sole judge" of all contests relating to the election, returns, and qualifications
of the members of the House.29 The Court's jurisdiction over the HRET is
merely to check "whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction" on the part of the latter.30 In the
absence thereof, there is no occasion for the Court to exercise its corrective
power and annul the decision of the HRET nor to substitute the Court's
judgement for that of the latter for the simple reason that it is not the office of
a petition for certiorari to inquire into the correctness of the assailed
decision.31 There is no such showing of grave abuse of discretion in this
case.
WHEREFORE, the petition is hereby DISMISSED.
SO ORDERED.
FREEDOM OF RELIGION
Ronulo vs. People of the Philippines (G.R. No. 182438, July 2, 2014)
Before the Court is a petition for review on certiorari1 filed by petitioner Fr.
Rene Ronulo challenging the April 3, 2008 decision2 of the Court of Appeals
(CA) in CA-G.R. CR. No. 31028 which affirmed the decision of the Regional
Trial Court, (RTC) Branch 18, Batac, Ilocos Norte.
The Factual Antecedents
The presented evidence showed that3 Joey Umadac and Claire Bingayen
were scheduled to marry each other on March 29, 2003 at the Sta. Rosa
Catholic Parish Church of San Nicolas, Ilocos Norte. However, on the day of
the wedding, the supposed officiating priest, Fr. Mario Ragaza, refused to
solemnize the marriage upon learning that the couple failed to secure a
marriage license. As a recourse, Joey, who was then dressed in barong
tagalong,and Claire, clad in a wedding gown, together with their parents,
sponsors and guests, proceeded to the Independent Church of Filipino
Christians, also known as the Aglipayan Church. They requested the
petitioner, an Aglipayan priest, to perform a ceremony to which the latter
agreed despite having been informed by the couple that they had no
marriage certificate.
The petitioner prepared his choir and scheduled a mass for the couple on the
same date. He conducted the ceremony in the presence of the groom, the
bride, their parents, the principal and secondary sponsors and the rest of
their invited guests.4
An information for violation of Article 352 of the Revised Penal Code (RPC),
as amended, was filed against the petitioner before the Municipal Trial Court
(MTC) of Batac, Ilocos Norte for allegedly performing an illegal marriage
ceremony.5
The petitioner entered the plea of "not guilty" to the crime charged on
arraignment.
The prosecution’s witnesses, Joseph and Mary Anne Yere, testified on the
incidents of the ceremony. Joseph was the veil sponsor while Mary Anne
was the cord sponsor in the wedding. Mary Anne testified that she saw the
bride walk down the aisle. She also saw the couple exchange their wedding
rings, kiss each other, and sign a document.6 She heard the petitioner
instructing the principal sponsors to sign the marriage contract. Thereafter,
they went to the reception, had lunch and took pictures. She saw the
petitioner there. She also identified the wedding invitation given to her by
Joey.7
Florida Umadac, the mother of Joey, testified that she heard the couple
declare during the ceremony that they take each other as husband and
wife.8 Days after the wedding, she went to the municipal local civil registrar
of San Nicolas, Ilocos Norte with Atty. Mariano R. Nalupta Jr. where she was
given a certificate that no marriage license was issued to the couple.9
The petitioner, while admitting that he conducted a ceremony, denied that his
act of blessing the couple was tantamount to a solemnization of the marriage
as contemplated by law.10
The MTC Judgment
The MTC found the petitioner guilty of violation of Article 352 of the RPC, as
amended, and imposed on him a ₱200.00 fine pursuant to Section 44 of Act200.00 fine pursuant to Section 44 of Act
No. 3613. It held that the petitioner’s act of giving a blessing constitutes a
marriage ceremony as he made an official church recognition of the
cohabitation of the couple as husband and wife.11 It further ruled that in
performing a marriage ceremony without the couple’s marriage license, the
petitioner violated Article 352 of the RPC which imposes the penalty provided
under Act No. 3613 or the Marriage Law. The MTC applied Section 44 of the
Marriage Law which pertinently states that a violation of any of its provisions
that is not specifically penalized or of the regulations to be promulgated, shall
be punished by a fine of not more than two hundred pesos or by
imprisonment of not more than one month, or both, in the discretion of the
court.
The RPC is a law subsequent to the Marriage Law, and provides the penalty
for violation of the latter law. Applying these laws, the MTC imposed the
penalty of a fine in the amount of ₱200.00 fine pursuant to Section 44 of Act200.00.12
The RTC Ruling
The RTC affirmed the findings of the MTC and added that the circumstances
surrounding the act of the petitioner in "blessing" the couple unmistakably
show that a marriage ceremony had transpired. It further ruled that the
positive declarations of the prosecution witnesses deserve more credence
than the petitioner’s negative statements.13 The RTC, however, ruled that
the basis of the fine should be Section 39, instead of Section 44, of the
Marriage Law.
The CA Decision
On appeal, the CA affirmed the RTC’s ruling. The CA observed that although
there is no prescribed form or religious rite for the solemnization of marriage,
the law provides minimum standards in determining whether a marriage
ceremony has been conducted, viz.: (1) the contracting parties must appear
personally before the solemnizing officer; and (2) they should declare that
they take each other as husband and wife in the presence of at least two
witnesses of legal age.14 According to the CA, the prosecution duly proved
these requirements. It added that the presence of a marriage certificate is not
a requirement in a marriage ceremony.15
The CA additionally ruled that the petitioner’s criminal liability under Article
352 of the RPC, as amended, is not dependent on whether Joey or Claire
were charged or found guilty under Article 350 of the same Code.16
The CA agreed with the MTC that the legal basis for the imposition of the fine
is Section 44 of the Marriage Law since it covers violation of regulations to be
promulgated by the proper authorities such as the RPC.
The Petition

The petitioner argues that the CA erred on the following grounds: First,
Article 352 of the RPC, as amended, is vague and does not define what
constitutes "an illegal marriage ceremony." Assuming that a marriage
ceremony principally constitutes those enunciated in Article 55 of the Civil
Code and Article 6 of the Family Code, these provisions require the verbal
declaration that the couple take each other as husband and wife, and a
marriage certificate containing the declaration in writing which is duly signed
by the contracting parties and attested to by the solemnizing officer.17 The
petitioner likewise maintains that the prosecution failed to prove that the
contracting parties personally declared that they take each other as husband
and wife.18 Second, under the principle of separation of church and State,
the State cannot interfere in ecclesiastical affairs such as the administration
of matrimony. Therefore, the State cannot convert the "blessing" into a
"marriage ceremony."19
Third, the petitioner had no criminal intent as he conducted the "blessing" in
good faith for purposes of giving moral guidance to the couple.20
Fourth, the non-filing of a criminal case against the couple in violating Article
350 of the RPC, as amended, should preclude the filing of the present case
against him.21
Finally, Article 352 of the RPC, as amended, does not provide for a penalty.
The present case is not covered by Section 44 of the Marriage Law as the
petitioner was not found violating its provisions nor a regulation promulgated
thereafter.22
THE COURT’S RULING:
We find the petition unmeritorious.
The elements of the crime punishable under Article 352 of the RPC, as
amended, were proven by the prosecution
Article 352 of the RPC, as amended, penalizes an authorized solemnizing
officer who shall perform or authorize any illegal marriage ceremony. The
elements of this crime are as follows: (1) authority of the solemnizing officer;
and (2) his performance of an illegal marriage ceremony. In the present case,
the petitioner admitted that he has authority to solemnize a marriage. Hence,
the only issue to be resolved is whether the alleged "blessing" by the
petitioner is tantamount to the performance of an "illegal marriage ceremony"
which is punishable under Article 352 of the RPC, as amended.
While Article 352 of the RPC, as amended, does not specifically define a
"marriage ceremony" and what constitutes its "illegal" performance, Articles
3(3) and 6 of the Family Code are clear on these matters. These provisions
were taken from Article 5523 of the New Civil Code which, in turn, was
copied from Section 324 of the Marriage Law with no substantial
amendments. Article 625 of the Family Code provides that "[n]o prescribed
form or religious rite for the solemnization of the marriage is required. It shall
be necessary, however, for the contracting parties to appear personally
before the solemnizing officer and declare in the presence of not less than
two witnesses of legal age that they take each other as husband and wife."26
Pertinently, Article 3(3)27 mirrors Article 6 of the Family Code and
particularly defines a marriage ceremony as that which takes place with the
appearance of the contracting parties before the solemnizing officer and their
personal declaration that they take each other as husband and wife in the
presence of not less than two witnesses of legal age.
Even prior to the date of the enactment of Article 352 of the RPC, as
amended, the rule was clear that no prescribed form of religious rite for the
solemnization of the marriage is required. However, as correctly found by the
CA, the law sets the minimum requirements constituting a marriage
ceremony: first, there should be the personal appearance of the contracting
parties before a solemnizing officer; and second, heir declaration in the
presence of not less than two witnesses that they take each other as
husband and wife.
As to the first requirement, the petitioner admitted that the parties appeared
before him and this fact was testified to by witnesses. On the second
requirement, we find that, contrary to the petitioner’s allegation, the
prosecution has proven, through the testimony of Florida, that the contracting
parties personally declared that they take each other as husband and wife.
The petitioner’s allegation that the court asked insinuating and leading
questions to Florida fails to persuadeus. A judge may examine or cross-
examine a witness. He may propound clarificatory questions to test the
credibility of the witness and to extract the truth. He may seek to draw out
relevant and material testimony though that testimony may tend to support or
rebut the position taken by one or the other party. It cannot be taken against
him if the clarificatory questions he propounds happen to reveal certain truths
that tend to destroy the theory of one party.28
At any rate, if the defense found the line of questioning of the judge
objectionable, its failure to timely register this bars it from belatedly invoking
any irregularity.
In addition, the testimonies of Joseph and Mary Anne, and even the
petitioner’s admission regarding the circumstances of the ceremony, support
Florida’s testimony that there had indeed been the declaration by the couple
that they take each other as husband and wife. The testimony of Joey
disowning their declaration as husband and wife cannot overcome these
clear and convincing pieces of evidence. Notably, the defense failed to show
that the prosecution witnesses, Joseph and Mary Anne, had any ill-motive to
testify against the petitioner.
We also do not agree with the petitioner that the principle of separation of
church and State precludes the State from qualifying the church "blessing"
into a marriage ceremony. Contrary to the petitioner’s allegation, this
principle has been duly preserved by Article 6 of the Family Code when it
provides that no prescribed form or religious rite for the solemnization of
marriage is required. This pronouncement gives any religion or sect the
freedom or latitude in conducting its respective marital rites, subject only to
the requirement that the core requirements of law be observed.
We emphasize at this point that Article 1529 of the Constitution recognizes
marriage as an inviolable social institution and that our family law is based on
the policy that marriage is not a mere contract, but a social institution in
which the State is vitally interested. The State has paramount interest in the
enforcement of its constitutional policies and the preservation of the sanctity
of marriage. To this end, it is within its power to enact laws and regulations,
such as Article 352 of the RPC, as amended, which penalize the commission
of acts resulting in the disintegration and mockery of marriage.
From these perspectives, we find it clear that what the petitioner conducted
was a marriage ceremony, as the minimum requirements set by law were
complied with. While the petitioner may view this merely as a "blessing," the
presence of the requirements of the law constitutive of a marriage ceremony
qualified this "blessing" into a "marriage ceremony" as contemplated by
Article 3(3) of the Family Code and Article 352 of the RPC, as amended.
We come now to the issue of whether the solemnization by the petitioner of
this marriage ceremony was illegal.
Under Article 3(3) of the Family Code, one of the essential requisites of
marriage is the presence of a valid marriage certificate. In the present case,
the petitioner admitted that he knew that the couple had no marriage license,
yet he conducted the "blessing" of their relationship.
Undoubtedly, the petitioner conducted the marriage ceremony despite
knowledge that the essential and formal requirements of marriage set by law
were lacking. The marriage ceremony, therefore, was illegal. The petitioner’s
knowledge of the absence of these requirements negates his defense of
good faith.
We also do not agree with the petitioner that the lack of a marriage certificate
negates his criminal liability in the present case. For purposes of determining
if a marriage ceremony has been conducted, a marriage certificate is not
included in the requirements provided by Article 3(3) of the Family Code, as
discussed above.
Neither does the non-filing of a criminal complaint against the couple negate
criminal liability of the petitioner. Article 352 of the RPC, as amended, does
not make this an element of the crime. The penalty imposed is proper
On the issue on the penalty for violation of Article 352 of the RPC, as
amended, this provision clearly provides that it shall be imposed in
accordance with the provision of the Marriage Law. The penalty provisions of
the Marriage Law are Sections 39 and 44 which provide as follows: Section
39 of the Marriage Law provides that:
Section 39. Illegal Solemnization of Marriage – Any priest or minister
solemnizing marriage without being authorized by the Director of the
Philippine National Library or who, upon solemnizing marriage, refuses to
exhibit the authorization in force when called upon to do so by the parties or
parents, grandparents, guardians, or persons having charge and any bishop
or officer, priest, or minister of any church, religion or sect the regulations
and practices whereof require banns or publications previous to the
solemnization of a marriage in accordance with section ten, who authorized
the immediate solemnization of a marriage that is subsequently declared
illegal; or any officer, priest or minister solemnizing marriage in violation of
this act, shall be punished by imprisonment for not less than one month nor
more than two years, or by a fine of not less than two hundred pesos nor
more than two thousand pesos. [emphasis ours]
On the other hand, Section 44 of the Marriage Law states that:
Section 44. General Penal Clause – Any violation of any provision of this Act
not specifically penalized, or of the regulations to be promulgated by the
proper authorities, shall be punished by a fine of not more than two hundred
pesos or by imprisonment for not more than one month, or both, in the
discretion of the court. [emphasis ours]
From a reading of the provisions cited above, we find merit in the ruling of the
CA and the MTC that the penalty imposable in the present case is that
covered under Section 44, and not Section 39, of the Marriage Law.
The penalized acts under Section 39 of Act No. 3613 do not include the
present case.1âwphi1 As correctly found by the MTC, the petitioner was not
found violating the provisions of the Marriage Law but Article 352 of the RPC,
as amended. It is only the imposition of the penalty for the violation of this
provision which is referred to the Marriage Law. On this point, Article 352
falls squarely under the provision of Section 44 of Act No. 3613 which
provides for the penalty for any violation of the regulations to be promulgated
by the proper authorities; Article 352 of the RPC, as amended, which was
enacted after the Marriage Law, is one of such regulations.
Therefore, the CA did not err in imposing the penalty of fine of ₱200.00 fine pursuant to Section 44 of Act200.00
pursuant to Section 44 of the Marriage Law.
WHEREFORE, we DENY the petition and affirm the decision of the Court of
Appeals dated April 3, 2008 in CA-G.R. CR. No. 31028.
SO ORDERED.
Ang Ladlad LGBT vs. COMELEC (G.R. No. 190582, April 8, 2010)
... [F]reedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to
differ as to things that touch the heart of the existing order.
Justice Robert A. Jackson
West Virginia State Board of Education v. Barnette1
One unavoidable consequence of everyone having the freedom to choose is
that others may make different choices – choices we would not make for
ourselves, choices we may disapprove of, even choices that may shock or
offend or anger us. However, choices are not to be legally prohibited merely
because they are different, and the right to disagree and debate about
important questions of public policy is a core value protected by our Bill of
Rights. Indeed, our democracy is built on genuine recognition of, and respect
for, diversity and difference in opinion.
Since ancient times, society has grappled with deep disagreements about
the definitions and demands of morality. In many cases, where moral
convictions are concerned, harmony among those theoretically opposed is
an insurmountable goal. Yet herein lies the paradox – philosophical
justifications about what is moral are indispensable and yet at the same time
powerless to create agreement. This Court recognizes, however, that
practical solutions are preferable to ideological stalemates; accommodation
is better than intransigence; reason more worthy than rhetoric. This will allow
persons of diverse viewpoints to live together, if not harmoniously, then, at
least, civilly.
Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an
application for a writ of preliminary mandatory injunction, filed by Ang Ladlad
LGBT Party (Ang Ladlad) against the Resolutions of the Commission on
Elections (COMELEC) dated November 11, 20092 (the First Assailed
Resolution) and December 16, 20093 (the Second Assailed Resolution) in
SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has
its roots in the COMELEC’s refusal to accredit Ang Ladlad as a party-list
organization under Republic Act (RA) No. 7941, otherwise known as the
Party-List System Act.4
Ang Ladlad is an organization composed of men and women who identify
themselves as lesbians, gays, bisexuals, or trans-gendered individuals
(LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with
the COMELEC in 2006. The application for accreditation was denied on the
ground that the organization had no substantial membership base. On
August 17, 2009, Ang Ladlad again filed a Petition5 for registration with the
COMELEC.
Before the COMELEC, petitioner argued that the LGBT community is a
marginalized and under-represented sector that is particularly disadvantaged
because of their sexual orientation and gender identity; that LGBTs are
victims of exclusion, discrimination, and violence; that because of negative
societal attitudes, LGBTs are constrained to hide their sexual orientation; and
that Ang Ladlad complied with the 8-point guidelines enunciated by this Court
in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections.6 Ang
Ladlad laid out its national membership base consisting of individual
members and organizational supporters, and outlined its platform of
governance.7
On November 11, 2009, after admitting the petitioner’s evidence, the
COMELEC (Second Division) dismissed the Petition on moral grounds,
stating that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the
Filipino Lesbian, Gay, Bisexual and Transgender (LGBT) Community, thus:
x x x a marginalized and under-represented sector that is particularly
disadvantaged because of their sexual orientation and gender identity.
and proceeded to define sexual orientation as that which:
x x x refers to a person’s capacity for profound emotional, affectional and
sexual attraction to, and intimate and sexual relations with, individuals of a
different gender, of the same gender, or more than one gender."
This definition of the LGBT sector makes it crystal clear that petitioner
tolerates immorality which offends religious beliefs. In Romans 1:26, 27, Paul
wrote:
For this cause God gave them up into vile affections, for even their women
did change the natural use into that which is against nature: And likewise
also the men, leaving the natural use of the woman, burned in their lust one
toward another; men with men working that which is unseemly, and receiving
in themselves that recompense of their error which was meet.
In the Koran, the hereunder verses are pertinent:
For ye practice your lusts on men in preference to women "ye are indeed a
people transgressing beyond bounds." (7.81) "And we rained down on them
a shower (of brimstone): Then see what was the end of those who indulged
in sin and crime!" (7:84) "He said: "O my Lord! Help Thou me against people
who do mischief" (29:30).
As correctly pointed out by the Law Department in its Comment dated
October 2, 2008:
The ANG LADLAD apparently advocates sexual immorality as indicated in
the Petition’s par. 6F: ‘Consensual partnerships or relationships by gays and
lesbians who are already of age’. It is further indicated in par. 24 of the
Petition which waves for the record: ‘In 2007, Men Having Sex with Men or
MSMs in the Philippines were estimated as 670,000 (Genesis 19 is the
history of Sodom and Gomorrah).
Laws are deemed incorporated in every contract, permit, license,
relationship, or accreditation. Hence, pertinent provisions of the Civil Code
and the Revised Penal Code are deemed part of the requirement to be
complied with for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines
nuisance as ‘Any act, omission, establishment, business, condition of
property, or anything else which x x x (3) shocks, defies; or disregards
decency or morality x x x
It also collides with Article 1306 of the Civil Code: ‘The contracting parties
may establish such stipulations, clauses, terms and conditions as they may
deem convenient, provided they are not contrary to law, morals, good
customs, public order or public policy. Art 1409 of the Civil Code provides
that ‘Contracts whose cause, object or purpose is contrary to law, morals,
good customs, public order or public policy’ are inexistent and void from the
beginning.
Finally to safeguard the morality of the Filipino community, the Revised Penal
Code, as amended, penalizes ‘Immoral doctrines, obscene publications and
exhibitions and indecent shows’ as follows:
Art. 201. Immoral doctrines, obscene publications and exhibitions, and
indecent shows. — The penalty of prision mayor or a fine ranging from six
thousand to twelve thousand pesos, or both such imprisonment and fine,
shall be imposed upon:
1. Those who shall publicly expound or proclaim doctrines openly contrary to
public morals;
2. (a) The authors of obscene literature, published with their knowledge in
any form; the editors publishing such literature; and the owners/operators of
the establishment selling the same;
(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit
indecent or immoral plays, scenes, acts or shows, it being understood that
the obscene literature or indecent or immoral plays, scenes, acts or shows,
whether live or in film, which are prescribed by virtue hereof, shall include
those which: (1) glorify criminals or condone crimes; (2) serve no other
purpose but to satisfy the market for violence, lust or pornography; (3) offend
any race or religion; (4) tend to abet traffic in and use of prohibited drugs;
and (5) are contrary to law, public order, morals, good customs, established
policies, lawful orders, decrees and edicts.
3. Those who shall sell, give away or exhibit films, prints, engravings,
sculpture or literature which are offensive to morals.
Petitioner should likewise be denied accreditation not only for advocating
immoral doctrines but likewise for not being truthful when it said that it "or any
of its nominees/party-list representatives have not violated or failed to comply
with laws, rules, or regulations relating to the elections."
Furthermore, should this Commission grant the petition, we will be exposing
our youth to an environment that does not conform to the teachings of our
faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in
one article that "older practicing homosexuals are a threat to the youth." As
an agency of the government, ours too is the State’s avowed duty under
Section 13, Article II of the Constitution to protect our youth from moral and
spiritual degradation.8
When Ang Ladlad sought reconsideration,9 three commissioners voted to
overturn the First Assailed Resolution (Commissioners Gregorio Y.
Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three
commissioners voted to deny Ang Ladlad’s Motion for Reconsideration
(Commissioners Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R.
Yusoph). The COMELEC Chairman, breaking the tie and speaking for the
majority in his Separate Opinion, upheld the First Assailed Resolution, stating
that:
I. The Spirit of Republic Act No. 7941
Ladlad is applying for accreditation as a sectoral party in the party-list
system. Even assuming that it has properly proven its under-representation
and marginalization, it cannot be said that Ladlad’s expressed sexual
orientations per se would benefit the nation as a whole.
Section 2 of the party-list law unequivocally states that the purpose of the
party-list system of electing congressional representatives is to enable
Filipino citizens belonging to marginalized and under-represented sectors,
organizations and parties, and who lack well-defined political constituencies
but who could contribute to the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to become members of the
House of Representatives.
If entry into the party-list system would depend only on the ability of an
organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But that
is not the intention of the framers of the law. The party-list system is not a
tool to advocate tolerance and acceptance of misunderstood persons or
groups of persons. Rather, the party-list system is a tool for the realization of
aspirations of marginalized individuals whose interests are also the nation’s –
only that their interests have not been brought to the attention of the nation
because of their under representation. Until the time comes when Ladlad is
able to justify that having mixed sexual orientations and transgender
identities is beneficial to the nation, its application for accreditation under the
party-list system will remain just that.
II. No substantial differentiation
In the United States, whose equal protection doctrine pervades Philippine
jurisprudence, courts do not recognize lesbians, gays, homosexuals, and
bisexuals (LGBT) as a "special class" of individuals. x x x Significantly, it has
also been held that homosexuality is not a constitutionally protected
fundamental right, and that "nothing in the U.S. Constitution discloses a
comparable intent to protect or promote the social or legal equality of
homosexual relations," as in the case of race or religion or belief.
xxxx
Thus, even if society’s understanding, tolerance, and acceptance of LGBT’s
is elevated, there can be no denying that Ladlad constituencies are still
males and females, and they will remain either male or female protected by
the same Bill of Rights that applies to all citizens alike.
xxxx
IV. Public Morals
x x x There is no question about not imposing on Ladlad Christian or Muslim
religious practices. Neither is there any attempt to any particular religious
group’s moral rules on Ladlad. Rather, what are being adopted as moral
parameters and precepts are generally accepted public morals. They are
possibly religious-based, but as a society, the Philippines cannot ignore its
more than 500 years of Muslim and Christian upbringing, such that some
moral precepts espoused by said religions have sipped [sic] into society and
these are not publicly accepted moral norms.
V. Legal Provisions
But above morality and social norms, they have become part of the law of the
land. Article 201 of the Revised Penal Code imposes the penalty of prision
mayor upon "Those who shall publicly expound or proclaim doctrines openly
contrary to public morals." It penalizes "immoral doctrines, obscene
publications and exhibition and indecent shows." "Ang Ladlad" apparently
falls under these legal provisions. This is clear from its Petition’s paragraph
6F: "Consensual partnerships or relationships by gays and lesbians who are
already of age’ It is further indicated in par. 24 of the Petition which waves for
the record: ‘In 2007, Men Having Sex with Men or MSMs in the Philippines
were estimated as 670,000. Moreoever, Article 694 of the Civil Code defines
"nuisance" as any act, omission x x x or anything else x x x which shocks,
defies or disregards decency or morality x x x." These are all unlawful.10
On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court
annul the Assailed Resolutions and direct the COMELEC to grant Ang
Ladlad’s application for accreditation. Ang Ladlad also sought the issuance
ex parte of a preliminary mandatory injunction against the COMELEC, which
had previously announced that it would begin printing the final ballots for the
May 2010 elections by January 25, 2010.
On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to
file its Comment on behalf of COMELEC not later than 12:00 noon of
January 11, 2010.11 Instead of filing a Comment, however, the OSG filed a
Motion for Extension, requesting that it be given until January 16, 2010 to
Comment.12 Somewhat surprisingly, the OSG later filed a Comment in
support of petitioner’s application.13 Thus, in order to give COMELEC the
opportunity to fully ventilate its position, we required it to file its own
comment.14 The COMELEC, through its Law Department, filed its Comment
on February 2, 2010.15
In the meantime, due to the urgency of the petition, we issued a temporary
restraining order on January 12, 2010, effective immediately and continuing
until further orders from this Court, directing the COMELEC to cease and
desist from implementing the Assailed Resolutions.16
Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a
Motion to Intervene or to Appear as Amicus Curiae, attaching thereto its
Comment-in-Intervention.17 The CHR opined that the denial of Ang Ladlad’s
petition on moral grounds violated the standards and principles of the
Constitution, the Universal Declaration of Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). On January 19,
2010, we granted the CHR’s motion to intervene.
On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene18
which motion was granted on February 2, 2010.19
The Parties’ Arguments
Ang Ladlad argued that the denial of accreditation, insofar as it justified the
exclusion by using religious dogma, violated the constitutional guarantees
against the establishment of religion. Petitioner also claimed that the
Assailed Resolutions contravened its constitutional rights to privacy, freedom
of speech and assembly, and equal protection of laws, as well as constituted
violations of the Philippines’ international obligations against discrimination
based on sexual orientation.
The OSG concurred with Ang Ladlad’s petition and argued that the
COMELEC erred in denying petitioner’s application for registration since
there was no basis for COMELEC’s allegations of immorality. It also opined
that LGBTs have their own special interests and concerns which should have
been recognized by the COMELEC as a separate classification. However,
insofar as the purported violations of petitioner’s freedom of speech,
expression, and assembly were concerned, the OSG maintained that there
had been no restrictions on these rights.
In its Comment, the COMELEC reiterated that petitioner does not have a
concrete and genuine national political agenda to benefit the nation and that
the petition was validly dismissed on moral grounds. It also argued for the
first time that the LGBT sector is not among the sectors enumerated by the
Constitution and RA 7941, and that petitioner made untruthful statements in
its petition when it alleged its national existence contrary to actual verification
reports by COMELEC’s field personnel.
Our Ruling
We grant the petition.
Compliance with the Requirements of the Constitution and Republic Act No.
7941
The COMELEC denied Ang Ladlad’s application for registration on the
ground that the LGBT sector is neither enumerated in the Constitution and
RA 7941, nor is it associated with or related to any of the sectors in the
enumeration.
Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands
for the proposition that only those sectors specifically enumerated in the law
or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous
cultural communities, elderly, handicapped, women, youth, veterans,
overseas workers, and professionals) may be registered under the party-list
system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v.
Commission on Elections,20 "the enumeration of marginalized and under-
represented sectors is not exclusive". The crucial element is not whether a
sector is specifically enumerated, but whether a particular organization
complies with the requirements of the Constitution and RA 7941.
Respondent also argues that Ang Ladlad made untruthful statements in its
petition when it alleged that it had nationwide existence through its members
and affiliate organizations. The COMELEC claims that upon verification by its
field personnel, it was shown that "save for a few isolated places in the
country, petitioner does not exist in almost all provinces in the country."21
This argument that "petitioner made untruthful statements in its petition when
it alleged its national existence" is a new one; previously, the COMELEC
claimed that petitioner was "not being truthful when it said that it or any of its
nominees/party-list representatives have not violated or failed to comply with
laws, rules, or regulations relating to the elections." Nowhere was this ground
for denial of petitioner’s accreditation mentioned or even alluded to in the
Assailed Resolutions. This, in itself, is quite curious, considering that the
reports of petitioner’s alleged non-existence were already available to the
COMELEC prior to the issuance of the First Assailed Resolution. At best, this
is irregular procedure; at worst, a belated afterthought, a change in
respondent’s theory, and a serious violation of petitioner’s right to procedural
due process.
Nonetheless, we find that there has been no misrepresentation. A cursory
perusal of Ang Ladlad’s initial petition shows that it never claimed to exist in
each province of the Philippines. Rather, petitioner alleged that the LGBT
community in the Philippines was estimated to constitute at least 670,000
persons; that it had 16,100 affiliates and members around the country, and
4,044 members in its electronic discussion group.22 Ang Ladlad also
represented itself to be "a national LGBT umbrella organization with affiliates
around the Philippines composed of the following LGBT networks:"
§ Abra Gay Association
§ Aklan Butterfly Brigade (ABB) – Aklan
§ Albay Gay Association
§ Arts Center of Cabanatuan City – Nueva Ecija
§ Boys Legion – Metro Manila
§ Cagayan de Oro People Like Us (CDO PLUS)
§ Can’t Live in the Closet, Inc. (CLIC) – Metro Manila
§ Cebu Pride – Cebu City
§ Circle of Friends
§ Dipolog Gay Association – Zamboanga del Norte
§ Gay, Bisexual, & Transgender Youth Association (GABAY)
§ Gay and Lesbian Activists Network for Gender Equality (GALANG) – Metro
Manila
§ Gay Men’s Support Group (GMSG) – Metro Manila
§ Gay United for Peace and Solidarity (GUPS) – Lanao del Norte
§ Iloilo City Gay Association – Iloilo City
§ Kabulig Writer’s Group – Camarines Sur
§ Lesbian Advocates Philippines, Inc. (LEAP)
§ LUMINA – Baguio City
§ Marikina Gay Association – Metro Manila
§ Metropolitan Community Church (MCC) – Metro Manila
§ Naga City Gay Association – Naga City
§ ONE BACARDI
§ Order of St. Aelred (OSAe) – Metro Manila
§ PUP LAKAN
§ RADAR PRIDEWEAR
§ Rainbow Rights Project (R-Rights), Inc. – Metro Manila
§ San Jose del Monte Gay Association – Bulacan
§ Sining Kayumanggi Royal Family – Rizal
§ Society of Transexual Women of the Philippines (STRAP) – Metro Manila
§ Soul Jive – Antipolo, Rizal
§ The Link – Davao City
§ Tayabas Gay Association – Quezon
§ Women’s Bisexual Network – Metro Manila
§ Zamboanga Gay Association – Zamboanga City23
Since the COMELEC only searched for the names ANG LADLAD LGBT or
LADLAD LGBT, it is no surprise that they found that petitioner had no
presence in any of these regions. In fact, if COMELEC’s findings are to be
believed, petitioner does not even exist in Quezon City, which is registered
as Ang Ladlad’s principal place of business.
Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated
its compliance with the legal requirements for accreditation. Indeed, aside
from COMELEC’s moral objection and the belated allegation of non-
existence, nowhere in the records has the respondent ever found/ruled that
Ang Ladlad is not qualified to register as a party-list organization under any
of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The
difference, COMELEC claims, lies in Ang Ladlad’s morality, or lack thereof.
Religion as the Basis for Refusal to Accept Ang Ladlad’s Petition for
Registration
Our Constitution provides in Article III, Section 5 that "[n]o law shall be made
respecting an establishment of religion, or prohibiting the free exercise
thereof." At bottom, what our non-establishment clause calls for is
"government neutrality in religious matters."24 Clearly, "governmental
reliance on religious justification is inconsistent with this policy of
neutrality."25 We thus find that it was grave violation of the non-
establishment clause for the COMELEC to utilize the Bible and the Koran to
justify the exclusion of Ang Ladlad.
Rather than relying on religious belief, the legitimacy of the Assailed
Resolutions should depend, instead, on whether the COMELEC is able to
advance some justification for its rulings beyond mere conformity to religious
doctrine. Otherwise stated, government must act for secular purposes and in
ways that have primarily secular effects. As we held in Estrada v. Escritor:26
x x x The morality referred to in the law is public and necessarily secular, not
religious as the dissent of Mr. Justice Carpio holds. "Religious teachings as
expressed in public debate may influence the civil public order but public
moral disputes may be resolved only on grounds articulable in secular
terms." Otherwise, if government relies upon religious beliefs in formulating
public policies and morals, the resulting policies and morals would require
conformity to what some might regard as religious programs or agenda. The
non-believers would therefore be compelled to conform to a standard of
conduct buttressed by a religious belief, i.e., to a "compelled religion,"
anathema to religious freedom. Likewise, if government based its actions
upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that
would not support the policy. As a result, government will not provide full
religious freedom for all its citizens, or even make it appear that those whose
beliefs are disapproved are second-class citizens.1avvphi1
In other words, government action, including its proscription of immorality as
expressed in criminal law like concubinage, must have a secular purpose.
That is, the government proscribes this conduct because it is "detrimental (or
dangerous) to those conditions upon which depend the existence and
progress of human society" and not because the conduct is proscribed by the
beliefs of one religion or the other. Although admittedly, moral judgments
based on religion might have a compelling influence on those engaged in
public deliberations over what actions would be considered a moral
disapprobation punishable by law. After all, they might also be adherents of a
religion and thus have religious opinions and moral codes with a compelling
influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with
heaven. Succinctly put, a law could be religious or Kantian or Aquinian or
utilitarian in its deepest roots, but it must have an articulable and discernible
secular purpose and justification to pass scrutiny of the religion clauses. x x x
Recognizing the religious nature of the Filipinos and the elevating influence
of religion in society, however, the Philippine constitution's religion clauses
prescribe not a strict but a benevolent neutrality. Benevolent neutrality
recognizes that government must pursue its secular goals and interests but
at the same time strive to uphold religious liberty to the greatest extent
possible within flexible constitutional limits. Thus, although the morality
contemplated by laws is secular, benevolent neutrality could allow for
accommodation of morality based on religion, provided it does not offend
compelling state interests.27
Public Morals as a Ground to Deny Ang Ladlad’s Petition for Registration
Respondent suggests that although the moral condemnation of
homosexuality and homosexual conduct may be religion-based, it has long
been transplanted into generally accepted public morals. The COMELEC
argues:
Petitioner’s accreditation was denied not necessarily because their group
consists of LGBTs but because of the danger it poses to the people
especially the youth. Once it is recognized by the government, a sector which
believes that there is nothing wrong in having sexual relations with
individuals of the same gender is a bad example. It will bring down the
standard of morals we cherish in our civilized society. Any society without a
set of moral precepts is in danger of losing its own existence.28
We are not blind to the fact that, through the years, homosexual conduct, and
perhaps homosexuals themselves, have borne the brunt of societal
disapproval. It is not difficult to imagine the reasons behind this censure –
religious beliefs, convictions about the preservation of marriage, family, and
procreation, even dislike or distrust of homosexuals themselves and their
perceived lifestyle. Nonetheless, we recall that the Philippines has not seen
fit to criminalize homosexual conduct. Evidently, therefore, these "generally
accepted public morals" have not been convincingly transplanted into the
realm of law.29
The Assailed Resolutions have not identified any specific overt immoral act
performed by Ang Ladlad. Even the OSG agrees that "there should have
been a finding by the COMELEC that the group’s members have committed
or are committing immoral acts."30 The OSG argues:
x x x A person may be sexually attracted to a person of the same gender, of
a different gender, or more than one gender, but mere attraction does not
translate to immoral acts. There is a great divide between thought and action.
Reduction ad absurdum. If immoral thoughts could be penalized, COMELEC
would have its hands full of disqualification cases against both the "straights"
and the gays." Certainly this is not the intendment of the law.31

Respondent has failed to explain what societal ills are sought to be
prevented, or why special protection is required for the youth. Neither has the
COMELEC condescended to justify its position that petitioner’s admission
into the party-list system would be so harmful as to irreparably damage the
moral fabric of society. We, of course, do not suggest that the state is wholly
without authority to regulate matters concerning morality, sexuality, and
sexual relations, and we recognize that the government will and should
continue to restrict behavior considered detrimental to society. Nonetheless,
we cannot countenance advocates who, undoubtedly with the loftiest of
intentions, situate morality on one end of an argument or another, without
bothering to go through the rigors of legal reasoning and explanation. In this,
the notion of morality is robbed of all value. Clearly then, the bare invocation
of morality will not remove an issue from our scrutiny.
We also find the COMELEC’s reference to purported violations of our penal
and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil
Code defines a nuisance as "any act, omission, establishment, condition of
property, or anything else which shocks, defies, or disregards decency or
morality," the remedies for which are a prosecution under the Revised Penal
Code or any local ordinance, a civil action, or abatement without judicial
proceedings.32 A violation of Article 201 of the Revised Penal Code, on the
other hand, requires proof beyond reasonable doubt to support a criminal
conviction. It hardly needs to be emphasized that mere allegation of violation
of laws is not proof, and a mere blanket invocation of public morals cannot
replace the institution of civil or criminal proceedings and a judicial
determination of liability or culpability.
As such, we hold that moral disapproval, without more, is not a sufficient
governmental interest to justify exclusion of homosexuals from participation
in the party-list system. The denial of Ang Ladlad’s registration on purely
moral grounds amounts more to a statement of dislike and disapproval of
homosexuals, rather than a tool to further any substantial public interest.
Respondent’s blanket justifications give rise to the inevitable conclusion that
the COMELEC targets homosexuals themselves as a class, not because of
any particular morally reprehensible act. It is this selective targeting that
implicates our equal protection clause.
Equal Protection
Despite the absolutism of Article III, Section 1 of our Constitution, which
provides "nor shall any person be denied equal protection of the laws," courts
have never interpreted the provision as an absolute prohibition on
classification. "Equality," said Aristotle, "consists in the same treatment of
similar persons."33 The equal protection clause guarantees that no person or
class of persons shall be deprived of the same protection of laws which is
enjoyed by other persons or other classes in the same place and in like
circumstances.34
Recent jurisprudence has affirmed that if a law neither burdens a
fundamental right nor targets a suspect class, we will uphold the
classification as long as it bears a rational relationship to some legitimate
government end.35 In Central Bank Employees Association, Inc. v. Banko
Sentral ng Pilipinas,36 we declared that "[i]n our jurisdiction, the standard of
analysis of equal protection challenges x x x have followed the ‘rational basis’
test, coupled with a deferential attitude to legislative classifications and a
reluctance to invalidate a law unless there is a showing of a clear and
unequivocal breach of the Constitution."37
The COMELEC posits that the majority of the Philippine population considers
homosexual conduct as immoral and unacceptable, and this constitutes
sufficient reason to disqualify the petitioner. Unfortunately for the respondent,
the Philippine electorate has expressed no such belief. No law exists to
criminalize homosexual behavior or expressions or parties about homosexual
behavior. Indeed, even if we were to assume that public opinion is as the
COMELEC describes it, the asserted state interest here – that is, moral
disapproval of an unpopular minority – is not a legitimate state interest that is
sufficient to satisfy rational basis review under the equal protection clause.
The COMELEC’s differentiation, and its unsubstantiated claim that Ang
Ladlad cannot contribute to the formulation of legislation that would benefit
the nation, furthers no legitimate state interest other than disapproval of or
dislike for a disfavored group.
From the standpoint of the political process, the lesbian, gay, bisexual, and
transgender have the same interest in participating in the party-list system on
the same basis as other political parties similarly situated. State intrusion in
this case is equally burdensome. Hence, laws of general application should
apply with equal force to LGBTs, and they deserve to participate in the party-
list system on the same basis as other marginalized and under-represented
sectors.
It bears stressing that our finding that COMELEC’s act of differentiating
LGBTs from heterosexuals insofar as the party-list system is concerned does
not imply that any other law distinguishing between heterosexuals and
homosexuals under different circumstances would similarly fail. We disagree
with the OSG’s position that homosexuals are a class in themselves for the
purposes of the equal protection clause.38 We are not prepared to single out
homosexuals as a separate class meriting special or differentiated treatment.
We have not received sufficient evidence to this effect, and it is simply
unnecessary to make such a ruling today. Petitioner itself has merely
demanded that it be recognized under the same basis as all other groups
similarly situated, and that the COMELEC made "an unwarranted and
impermissible classification not justified by the circumstances of the case."
Freedom of Expression and Association
Under our system of laws, every group has the right to promote its agenda
and attempt to persuade society of the validity of its position through normal
democratic means.39 It is in the public square that deeply held convictions
and differing opinions should be distilled and deliberated upon. As we held in
Estrada v. Escritor:40
In a democracy, this common agreement on political and moral ideas is
distilled in the public square. Where citizens are free, every opinion, every
prejudice, every aspiration, and every moral discernment has access to the
public square where people deliberate the order of their life together. Citizens
are the bearers of opinion, including opinion shaped by, or espousing
religious belief, and these citizens have equal access to the public square. In
this representative democracy, the state is prohibited from determining which
convictions and moral judgments may be proposed for public deliberation.
Through a constitutionally designed process, the people deliberate and
decide. Majority rule is a necessary principle in this democratic governance.
Thus, when public deliberation on moral judgments is finally crystallized into
law, the laws will largely reflect the beliefs and preferences of the majority,
i.e., the mainstream or median groups. Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies – including
protection of religious freedom "not only for a minority, however small – not
only for a majority, however large – but for each of us" – the majority imposes
upon itself a self-denying ordinance. It promises not to do what it otherwise
could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a
democratic society, and this freedom applies not only to those that are
favorably received but also to those that offend, shock, or disturb. Any
restriction imposed in this sphere must be proportionate to the legitimate aim
pursued. Absent any compelling state interest, it is not for the COMELEC or
this Court to impose its views on the populace. Otherwise stated, the
COMELEC is certainly not free to interfere with speech for no better reason
than promoting an approved message or discouraging a disfavored one.
This position gains even more force if one considers that homosexual
conduct is not illegal in this country. It follows that both expressions
concerning one’s homosexuality and the activity of forming a political
association that supports LGBT individuals are protected as well.
Other jurisdictions have gone so far as to categorically rule that even
overwhelming public perception that homosexual conduct violates public
morality does not justify criminalizing same-sex conduct.41 European and
United Nations judicial decisions have ruled in favor of gay rights claimants
on both privacy and equality grounds, citing general privacy and equal
protection provisions in foreign and international texts.42 To the extent that
there is much to learn from other jurisdictions that have reflected on the
issues we face here, such jurisprudence is certainly illuminating. These
foreign authorities, while not formally binding on Philippine courts, may
nevertheless have persuasive influence on the Court’s analysis.
In the area of freedom of expression, for instance, United States courts have
ruled that existing free speech doctrines protect gay and lesbian rights to
expressive conduct. In order to justify the prohibition of a particular
expression of opinion, public institutions must show that their actions were
caused by "something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint."43
With respect to freedom of association for the advancement of ideas and
beliefs, in Europe, with its vibrant human rights tradition, the European Court
of Human Rights (ECHR) has repeatedly stated that a political party may
campaign for a change in the law or the constitutional structures of a state if
it uses legal and democratic means and the changes it proposes are
consistent with democratic principles. The ECHR has emphasized that
political ideas that challenge the existing order and whose realization is
advocated by peaceful means must be afforded a proper opportunity of
expression through the exercise of the right of association, even if such ideas
may seem shocking or unacceptable to the authorities or the majority of the
population.44 A political group should not be hindered solely because it
seeks to publicly debate controversial political issues in order to find
solutions capable of satisfying everyone concerned.45 Only if a political party
incites violence or puts forward policies that are incompatible with democracy
does it fall outside the protection of the freedom of association guarantee.46
We do not doubt that a number of our citizens may believe that homosexual
conduct is distasteful, offensive, or even defiant. They are entitled to hold
and express that view. On the other hand, LGBTs and their supporters, in all
likelihood, believe with equal fervor that relationships between individuals of
the same sex are morally equivalent to heterosexual relationships. They, too,
are entitled to hold and express that view. However, as far as this Court is
concerned, our democracy precludes using the religious or moral views of
one part of the community to exclude from consideration the values of other
members of the community.
Of course, none of this suggests the impending arrival of a golden age for
gay rights litigants. It well may be that this Decision will only serve to highlight
the discrepancy between the rigid constitutional analysis of this Court and the
more complex moral sentiments of Filipinos. We do not suggest that public
opinion, even at its most liberal, reflect a clear-cut strong consensus
favorable to gay rights claims and we neither attempt nor expect to affect
individual perceptions of homosexuality through this Decision.
The OSG argues that since there has been neither prior restraint nor
subsequent punishment imposed on Ang Ladlad, and its members have not
been deprived of their right to voluntarily associate, then there has been no
restriction on their freedom of expression or association. The OSG argues
that:
There was no utterance restricted, no publication censored, or any assembly
denied. [COMELEC] simply exercised its authority to review and verify the
qualifications of petitioner as a sectoral party applying to participate in the
party-list system. This lawful exercise of duty cannot be said to be a
transgression of Section 4, Article III of the Constitution.
xxxx
A denial of the petition for registration x x x does not deprive the members of
the petitioner to freely take part in the conduct of elections. Their right to vote
will not be hampered by said denial. In fact, the right to vote is a
constitutionally-guaranteed right which cannot be limited.
As to its right to be elected in a genuine periodic election, petitioner contends
that the denial of Ang Ladlad’s petition has the clear and immediate effect of
limiting, if not outrightly nullifying the capacity of its members to fully and
equally participate in public life through engagement in the party list
elections.
This argument is puerile. The holding of a public office is not a right but a
privilege subject to limitations imposed by law. x x x47
The OSG fails to recall that petitioner has, in fact, established its
qualifications to participate in the party-list system, and – as advanced by the
OSG itself – the moral objection offered by the COMELEC was not a
limitation imposed by law. To the extent, therefore, that the petitioner has
been precluded, because of COMELEC’s action, from publicly expressing its
views as a political party and participating on an equal basis in the political
process with other equally-qualified party-list candidates, we find that there
has, indeed, been a transgression of petitioner’s fundamental rights.
Non-Discrimination and International Law
In an age that has seen international law evolve geometrically in scope and
promise, international human rights law, in particular, has grown dynamically
in its attempt to bring about a more just and humane world order. For
individuals and groups struggling with inadequate structural and
governmental support, international human rights norms are particularly
significant, and should be effectively enforced in domestic legal systems so
that such norms may become actual, rather than ideal, standards of conduct.
Our Decision today is fully in accord with our international obligations to
protect and promote human rights. In particular, we explicitly recognize the
principle of non-discrimination as it relates to the right to electoral
participation, enunciated in the UDHR and the ICCPR.
The principle of non-discrimination is laid out in Article 26 of the ICCPR, as
follows:
Article 26
All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law shall
prohibit any discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.
In this context, the principle of non-discrimination requires that laws of
general application relating to elections be applied equally to all persons,
regardless of sexual orientation. Although sexual orientation is not
specifically enumerated as a status or ratio for discrimination in Article 26 of
the ICCPR, the ICCPR Human Rights Committee has opined that the
reference to "sex" in Article 26 should be construed to include "sexual
orientation."48 Additionally, a variety of United Nations bodies have declared
discrimination on the basis of sexual orientation to be prohibited under
various international agreements.49
The UDHR provides:
Article 21.
(1) Everyone has the right to take part in the government of his country,
directly or through freely chosen representatives.
Likewise, the ICCPR states:
Article 25
Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely
chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot, guaranteeing
the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his
country.
As stated by the CHR in its Comment-in-Intervention, the scope of the right
to electoral participation is elaborated by the Human Rights Committee in its
General Comment No. 25 (Participation in Public Affairs and the Right to
Vote) as follows:
1. Article 25 of the Covenant recognizes and protects the right of every
citizen to take part in the conduct of public affairs, the right to vote and to be
elected and the right to have access to public service. Whatever form of
constitution or government is in force, the Covenant requires States to adopt
such legislative and other measures as may be necessary to ensure that
citizens have an effective opportunity to enjoy the rights it protects. Article 25
lies at the core of democratic government based on the consent of the
people and in conformity with the principles of the Covenant.
xxxx
15. The effective implementation of the right and the opportunity to stand for
elective office ensures that persons entitled to vote have a free choice of
candidates. Any restrictions on the right to stand for election, such as
minimum age, must be justifiable on objective and reasonable criteria.
Persons who are otherwise eligible to stand for election should not be
excluded by unreasonable or discriminatory requirements such as education,
residence or descent, or by reason of political affiliation. No person should
suffer discrimination or disadvantage of any kind because of that person's
candidacy. States parties should indicate and explain the legislative
provisions which exclude any group or category of persons from elective
office.50
We stress, however, that although this Court stands willing to assume the
responsibility of giving effect to the Philippines’ international law obligations,
the blanket invocation of international law is not the panacea for all social ills.
We refer now to the petitioner’s invocation of the Yogyakarta Principles (the
Application of International Human Rights Law In Relation to Sexual
Orientation and Gender Identity),51 which petitioner declares to reflect
binding principles of international law.
At this time, we are not prepared to declare that these Yogyakarta Principles
contain norms that are obligatory on the Philippines. There are declarations
and obligations outlined in said Principles which are not reflective of the
current state of international law, and do not find basis in any of the sources
of international law enumerated under Article 38(1) of the Statute of the
International Court of Justice.52 Petitioner has not undertaken any objective
and rigorous analysis of these alleged principles of international law to
ascertain their true status.
We also hasten to add that not everything that society – or a certain segment
of society – wants or demands is automatically a human right. This is not an
arbitrary human intervention that may be added to or subtracted from at will.
It is unfortunate that much of what passes for human rights today is a much
broader context of needs that identifies many social desires as rights in order
to further claims that international law obliges states to sanction these
innovations. This has the effect of diluting real human rights, and is a result
of the notion that if "wants" are couched in "rights" language, then they are
no longer controversial.1avvphi1
Using even the most liberal of lenses, these Yogyakarta Principles,
consisting of a declaration formulated by various international law professors,
are – at best – de lege ferenda – and do not constitute binding obligations on
the Philippines. Indeed, so much of contemporary international law is
characterized by the "soft law" nomenclature, i.e., international law is full of
principles that promote international cooperation, harmony, and respect for
human rights, most of which amount to no more than well-meaning desires,
without the support of either State practice or opinio juris.53
As a final note, we cannot help but observe that the social issues presented
by this case are emotionally charged, societal attitudes are in flux, even the
psychiatric and religious communities are divided in opinion. This Court’s role
is not to impose its own view of acceptable behavior. Rather, it is to apply the
Constitution and laws as best as it can, uninfluenced by public opinion, and
confident in the knowledge that our democracy is resilient enough to
withstand vigorous debate.
WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the
Commission on Elections dated November 11, 2009 and December 16, 2009
in SPP No. 09-228 (PL) are hereby SET ASIDE. The Commission on
Elections is directed to GRANT petitioner’s application for party-list
accreditation.
SO ORDERED.
Epperson vs. Arkansas [33 U.S. 27 (1968)]
U.S. Supreme Court
Epperson v. Arkansas, 393 U.S. 97 (1968)
Epperson v. Arkansas
No. 7
Argued October 16, 1968
Decided November 12, 1968
393 U.S. 97
APPEAL FROM THE SUPREME COURT OF ARKANSAS
Syllabus
Appellant Epperson, an Arkansas public school teacher, brought this action
for declaratory and injunctive relief challenging the constitutionality of
Arkansas' "anti-evolution" statute. That statute makes it unlawful for a
teacher in any state supported school or university to teach or to use a
textbook that teaches "that mankind ascended or descended from a lower
order of animals." The State Chancery Court held the statute an abridgment
of free speech violating the First and Fourteenth Amendments. The State
Supreme Court, expressing no opinion as to whether the statute prohibits
"explanation" of the theory or only teaching that the theory is true, reversed
the Chancery Court. In a two-sentence opinion, it sustained the statute as
within the State's power to specify the public school curriculum.
Held: The statute violates the Fourteenth Amendment, which embraces the
First Amendment's prohibition of state laws respecting an establishment of
religion. Pp. 393 U. S. 102-109.
(a) The Court does not decide whether the statute is unconstitutionally
vague, since, whether it is construed to prohibit explaining the Darwinian
theory or teaching that it is true, the law conflicts with the Establishment
Clause. Pp. 393 U. S. 102-103.
(b) The sole reason for the Arkansas law is that a particular religious group
considers the evolution theory to conflict with the account of the origin of man
set forth in the Book of Genesis. Pp. 393 U. S. 103, 393 U. S. 107-109.
(c) The First Amendment mandates governmental neutrality between religion
and religion, and between religion and nonreligion. Pp. 393 U. S. 103-107.
(d) A State's right to prescribe the public school curriculum does not include
the right to prohibit teaching a scientific theory or doctrine for reasons that
run counter to the principles of the First Amendment. P. 393 U. S. 107.
(e) The Arkansas law is not a manifestation of religious neutrality. P. 393 U.
S. 109.
242 Ark. 922, 416 S.W.2d 322, reversed.
Page 393 U. S. 98
MR. JUSTICE FORTAS delivered the opinion of the Court.
I
This appeal challenges the constitutionality of the "anti-evolution" statute
which the State of Arkansas adopted in 1928 to prohibit the teaching in its
public schools and universities of the theory that man evolved from other
species of life. The statute was a product of the upsurge of "fundamentalist"
religious fervor of the twenties. The Arkansas statute was an adaptation of
the famous Tennessee "monkey law" which that State adopted in 1925.
[Footnote 1] The constitutionality of the Tennessee law was upheld by the
Tennessee Supreme Court in the celebrated Scopes case in 1927. [Footnote
2]
The Arkansas law makes it unlawful for a teacher in any state supported
school or university "to teach the
Page 393 U. S. 99
theory or doctrine that mankind ascended or descended from a lower order
of animals," or "to adopt or use in any such institution a textbook that
teaches" this theory. Violation is a misdemeanor and subjects the violator to
dismissal from his position. [Footnote 3]
The present case concerns the teaching of biology in a high school in Little
Rock. According to the testimony, until the events here in litigation, the
official textbook furnished for the high school biology course did not have a
section on the Darwinian Theory. Then, for the academic year 1965-1966,
the school administration, on recommendation of the teachers of biology in
the school system, adopted and prescribed a textbook which contained a
chapter setting forth "the theory about the origin . . . of man from a lower form
of animal."
Page 393 U. S. 100
Susan Epperson, a young woman who graduated from Arkansas' school
system and then obtained her master's degree in zoology at the University of
Illinois, was employed by the Little Rock school system in the fall of 1964 to
teach 10th grade biology at Central High School. At the start of the next
academic year, 1965, she was confronted by the new textbook (which one
surmises from the record was not unwelcome to her). She faced at least a
literal dilemma because she was supposed to use the new textbook for
classroom instruction, and presumably to teach the statutorily condemned
chapter; but to do so would be a criminal offense, and subject her to
dismissal.
She instituted the present action in the Chancery Court of the State, seeking
a declaration that the Arkansas statute is void and enjoining the State and
the defendant officials of the Little Rock school system from dismissing her
for violation of the statute's provisions. H. H. Blanchard, a parent of children
attending the public schools, intervened in support of the action.
The Chancery Court, in an opinion by Chancellor Murray O. Reed, held that
the statute violated the Fourteenth Amendment to the United States
Constitution. [Footnote 4] The court noted that this Amendment
encompasses the prohibitions upon state interference with freedom of
speech and thought which are contained in the First Amendment.
Accordingly, it held that the challenged statute is unconstitutional because, in
violation of the First Amendment, it "tends to hinder the quest for knowledge,
restrict the freedom to learn, and restrain the freedom to teach." [Footnote 5]
In this perspective, the Act,
Page 393 U. S. 101
it held, was an unconstitutional and void restraint upon the freedom of
speech guaranteed by the Constitution.
On appeal, the Supreme Court of Arkansas reversed. [Footnote 6] Its two-
sentence opinion is set forth in the margin. [Footnote 7] It sustained the
statute as an exercise of the State's power to specify the curriculum in public
schools. It did not address itself to the competing constitutional
considerations.
Appeal was duly prosecuted to this Court under 28 U.S.C. § 1257(2). Only
Arkansas and Mississippi have such "anti-evolution" or "monkey" laws on
their books. [Footnote 8] There is no record of any prosecutions in Arkansas
Page 393 U. S. 102
under its statute. It is possible that the statute is presently more of a curiosity
than a vital fact of life in these States. [Footnote 9] Nevertheless, the present
case was brought, the appeal as of right is properly here, and it is our duty to
decide the issues presented.
II
At the outset, it is urged upon us that the challenged statute is vague and
uncertain, and therefore within the condemnation of the Due Process Clause
of the Fourteenth Amendment. The contention that the Act is vague and
uncertain is supported by language in the brief opinion of Arkansas' Supreme
Court. That court, perhaps reflecting the discomfort which the statute's
quixotic prohibition necessarily engenders in the modern mind, [Footnote 10]
stated that it "expresses no opinion" as to whether the Act prohibits
"explanation" of the theory of evolution or merely forbids "teaching that the
theory is true." Regardless of this uncertainty, the court held that the statute
is constitutional.
On the other hand, counsel for the State, in oral argument in this Court,
candidly stated that, despite the State Supreme Court's equivocation,
Arkansas would interpret the statute "to mean that to make a student aware
of the theory . . . just to teach that there was
Page 393 U. S. 103
such a theory" would be grounds for dismissal and for prosecution under the
statute, and he said "that the Supreme Court of Arkansas' opinion should be
interpreted in that manner." He said:
"If Mrs. Epperson would tell her students that 'Here is Darwin's theory, that
man ascended or descended from a lower form of being,' then I think she
would be, under this statute, liable for prosecution."
In any event, we do not rest our decision upon the asserted vagueness of the
statute. On either interpretation of its language, Arkansas' statute cannot
stand. It is of no moment whether the law is deemed to prohibit mention of
Darwin's theory or to forbid any or all of the infinite varieties of
communication embraced within the term "teaching." Under either
interpretation, the law must be stricken because of its conflict with the
constitutional prohibition of state laws respecting an establishment of religion
or prohibiting the free exercise thereof. The overriding fact is that Arkansas'
law selects from the body of knowledge a particular segment which it
proscribes for the sole reason that it is deemed to conflict with a particular
religious doctrine; that is, with a particular interpretation of the Book of
Genesis by a particular religious group. [Footnote 11]
III
The antecedents of today's decision are many, and unmistakable. They are
rooted in the foundation soil of our Nation. They are fundamental to freedom.
Government in our democracy, state and national, must be neutral in matters
of religious theory, doctrine,
Page 393 U. S. 104
and practice. It may not be hostile to any religion or to the advocacy of no-
religion, and it may not aid, foster, or promote one religion or religious theory
against another or even against the militant opposite. The First Amendment
mandates governmental neutrality between religion and religion, and
between religion and nonreligion. [Footnote 12]
As early as 1872, this Court said: "The law knows no heresy, and is
committed to the support of no dogma, the establishment of no sect." Watson
v. Jones, 13 Wall. 679, 80 U. S. 728. This has been the interpretation of the
great First Amendment which this Court has applied in the many and subtle
problems which the ferment of our national life has presented for decision
within the Amendment's broad command.
Judicial interposition in the operation of the public school system of the
Nation raises problems requiring care and restraint. Our courts, however,
have not failed to apply the First Amendment's mandate in our educational
system where essential to safeguard the fundamental values of freedom of
speech and inquiry and of belief. By and large, public education in our Nation
is committed to the control of state and local authorities. Courts do not and
cannot intervene in the resolution of conflicts which arise in the daily
operation of school systems and which do not directly and sharply implicate
basic constitutional values. [Footnote 13] On the other hand, "[t]he vigilant
protection of constitutional freedoms is nowhere more vital than in the
community of American schools," Shelton v. Tucker, 364 U. S. 479, 364 U. S.
487 (1960). As this
Page 393 U. S. 105
Court said in Keyishian v. Board of Regents, the First Amendment "does not
tolerate laws that cast a pall of orthodoxy over the classroom." 385 U. S. 385
U.S. 589, 385 U. S. 603 (1967).
The earliest cases in this Court on the subject of the impact of constitutional
guarantees upon the classroom were decided before the Court expressly
applied the specific prohibitions of the First Amendment to the States. But, as
early as 1923, the Court did not hesitate to condemn under the Due Process
Clause "arbitrary" restrictions upon the freedom of teachers to teach and of
students to learn. In that year, the Court, in an opinion by Justice
McReynolds, held unconstitutional an Act of the State of Nebraska making it
a crime to teach any subject in any language other than English to pupils
who had not passed the eighth grade. [Footnote 14] The State's purpose in
enacting the law was to promote civic cohesiveness by encouraging the
learning of English and to combat the "baneful effect" of permitting foreigners
to rear and educate their children in the language of the parents' native land.
The Court recognized these purposes, and it acknowledged the State's
power to prescribe the school curriculum, but it held that these were not
adequate to support the restriction upon the liberty of teacher and pupil. The
challenged statute, it held, unconstitutionally interfered with the right of the
individual, guaranteed by the Due Process Clause, to engage in any of the
common occupations of life and to acquire useful knowledge. Meyer v.
Nebraska, 262 U. S. 390 (1923). See also Bartels v. Iowa, 262 U. S. 404
(1923).
For purposes of the present case, we need not reenter the difficult terrain
which the Court, in 1923, traversed without apparent misgivings. We need
not take advantage of the broad premise which the Court's decision
Page 393 U. S. 106
in Meyer furnishes, nor need we explore the implications of that decision in
terms of the justiciability of the multitude of controversies that beset our
campuses today. Today's problem is capable of resolution in the narrower
terms of the First Amendment's prohibition of laws respecting an
establishment of religion or prohibiting the free exercise thereof.
There is and can be no doubt that the First Amendment does not permit the
State to require that teaching and learning must be tailored to the principles
or prohibitions of any religious sect or dogma. In Everson v. Board of
Education, this Court, in upholding a state law to provide free bus service to
school children, including those attending parochial schools, said: "Neither [a]
State nor the Federal Government can pass laws which aid one religion, aid
all religions, or prefer one religion over another." 330 U. S. 1, 330 U. S. 15
(1947).
At the following Term of Court, in McCollum v. Board of Education, 333 U. S.
203 (1948), the Court held that Illinois could not release pupils from class to
attend classes of instruction in the school buildings in the religion of their
choice. This, it said, would involve the State in using tax supported property
for religious purposes, thereby breaching the "wall of separation" which,
according to Jefferson. the First Amendment was intended to erect between
church and state. Id. at 333 U. S. 211. See also Engel v. Vitale, 370 U. S.
421 (1962); Abington School District v. Schempp, 374 U. S. 203 (1963).
While study of religions and of the Bible from a literary and historic viewpoint,
presented objectively as part of a secular program of education, need not
collide with the First Amendment's prohibition, the State may not adopt
programs or practices in its public schools or colleges which "aid or oppose"
any religion. Id. at 374 U. S. 225. This prohibition is absolute. It forbids alike
the preference of a religious doctrine or the prohibition
Page 393 U. S. 107
of theory which is deemed antagonistic to a particular dogma. As Mr. Justice
Clark stated in Joseph Burstyn Inc. v. Wilson, "the state has no legitimate
interest in protecting any or all religions from views distasteful to them. . . ."
343 U. S. 495, 343 U. S. 505 (1952). The test was stated as follows in
Abington School District v. Schempp, supra, at 374 U. S. 222:
"[W]hat are the purpose and the primary effect of the enactment? If either is
the advancement or inhibition of religion, then the enactment exceeds the
scope of legislative power as circumscribed by the Constitution."
These precedents inevitably determine the result in the present case. The
State's undoubted right to prescribe the curriculum for its public schools does
not carry with it the right to prohibit, on pain of criminal penalty, the teaching
of a scientific theory or doctrine where that prohibition is based upon reasons
that violate the First Amendment. It is much too late to argue that the State
may impose upon the teachers in its schools any conditions that it chooses,
however restrictive they may be of constitutional guarantees. Keyishian v.
Board of Regents, 385 U. S. 589, 385 U. S. 605-606 (1967).
In the present case, there can be no doubt that Arkansas has sought to
prevent its teachers from discussing the theory of evolution because it is
contrary to the belief of some that the Book of Genesis must be the exclusive
source of doctrine as to the origin of man. No suggestion has been made that
Arkansas' law may be justified by considerations of state policy other than
the religious views of some of its citizens. [Footnote 15] It is clear
Page 393 U. S. 108
that fundamentalist sectarian conviction was and is the law's reason for
existence. [Footnote 16] Its antecedent, Tennessee's "monkey law," candidly
stated its purpose: to make it unlawful
"to teach any theory that denies the story of the Divine Creation of man as
taught in the Bible, and to teach instead that man has descended from a
Page 393 U. S. 109
lower order of animals. [Footnote 17]"
Perhaps the sensational publicity attendant upon the Scopes trial induced
Arkansas to adopt less explicit language. [Footnote 18] It eliminated
Tennessee's reference to "the story of the Divine Creation of man" as taught
in the Bible, but there is no doubt that the motivation for the law was the
same: to suppress the teaching of a theory which, it was thought, "denied"
the divine creation of man.
Arkansas' law cannot be defended as an act of religious neutrality. Arkansas
did not seek to excise from the curricula of its schools and universities all
discussion of the origin of man. The law's effort was confined to an attempt to
blot out a particular theory because of its supposed conflict with the Biblical
account, literally read. Plainly, the law is contrary to the mandate of the First,
and in violation of the Fourteenth, Amendments to the Constitution.
The judgment of the Supreme Court of Arkansas is
Reversed.
[Footnote 1]
Chapter 27, Tenn. Acts 1925; Tenn.Code Ann. § 49-1922 (1966 Repl. Vol.).
[Footnote 2]
Scopes v. State, 154 Tenn. 105, 289 S.W. 363 (1927). The Tennessee court,
however, reversed Scopes' conviction on the ground that the jury, and not
the judge, should have assessed the fine of $100. Since Scopes was no
longer in the State's employ, it saw "nothing to be gained by prolonging the
life of this bizarre case." It directed that a nolle prosequi be entered, in the
interests of "the peace and dignity of the state." 154 Tenn. at 121, 289 S.W.
at 367.
[Footnote 3]
Initiated Act No. 1, Ark. Acts 1929; Ark.Stat.Ann. §§ 80-1627, 80-1628 (1960
Repl. Vol.). The text of the law is as follows:
"§ 80-1627. -- Doctrine of ascent or descent of man from lower order of
animals prohibited. -- It shall be unlawful for any teacher or other instructor in
any University, College, Normal, Public School or other institution of the
State, which is supported in whole or in part from public funds derived by
State and local taxation to teach the theory or doctrine that mankind
ascended or descended from a lower order of animals and also it shall be
unlawful for any teacher, textbook commission, or other authority exercising
the power to select textbooks for above mentioned educational institutions to
adopt or use in any such institution a textbook that teaches the doctrine or
theory that mankind descended or ascended from a lower order of animals."
"§ 80-1628. -- Teaching doctrine or adopting textbook mentioning doctrine --
Penalties -- Positions to be vacated. -- Any teacher or other instructor or
textbook commissioner who is found guilty of violation of this act by teaching
the theory or doctrine mentioned in section 1 hereof, or by using, or adopting
any such textbooks in any such educational institution shall be guilty of a
misdemeanor and upon conviction shall be fined not exceeding five hundred
dollars, and upon conviction shall vacate the position thus held in any
educational institutions of the character above mentioned or any commission
of which he may be a member."
[Footnote 4]
The opinion of the Chancery Court is not officially reported.
[Footnote 5]
The Chancery Court analyzed the holding of its sister State of Tennessee in
the Scopes case sustaining Tennessee's similar statute. It refused to follow
Tennessee's 1927 example. It declined to confine the judicial horizon to a
view of the law as merely a direction by the State as employer to its
employees. This sort of astigmatism, it held, would ignore overriding
constitutional values, and "should not be followed," and it proceeded to
confront the substance of the law and its effect.
[Footnote 6]
242 Ark. 922, 416 S.W.2d 322 (1967).
[Footnote 7]
"Per Curiam. Upon the principal issue, that of constitutionality, the court holds
that Initiated Measure No. 1 of 1928, Ark.Stat.Ann. § 80-1627 and § 80-1628
(Repl.1960), is a valid exercise of the state's power to specify the curriculum
in its public schools. The court expresses no opinion on the question whether
the Act prohibits any explanation of the theory of evolution or merely prohibits
teaching that the theory is true; the answer not being necessary to a decision
in the case, and the issue not having been raised."
"The decree is reversed, and the cause dismissed."
"Ward, J., concurs. Brown, J., dissents."
"Paul Ward, Justice, concurring. I agree with the first sentence in the majority
opinion."
"To my mind, the rest of the opinion beclouds the clear announcement made
in the first sentence."
[Footnote 8]
Miss.Code Ann. §§ 6798, 6799 (1942). Ark.Stat.Ann. §§ 80-1627, 80-1628
(1960 Repl. Vol.). The Tennessee law was repealed in 1967. Oklahoma
enacted an anti-evolution law, but it was repealed in 1926. The Florida and
Texas Legislatures, in the period between 1921 and 1929, adopted
resolutions against teaching the doctrine of evolution. In all, during that
period, bills to this effect were introduced in 20 States. American Civil
Liberties Union (ACLU), The Gag on Teaching 8 (2d ed., 1937).
[Footnote 9]
Clarence Darrow, who was counsel for the defense in the Scopes trial, in his
biography, published in 1932, somewhat sardonically pointed out that States
with anti-evolution laws did not insist upon the fundamentalist theory in all
respects. He said:
"I understand that the States of Tennessee and Mississippi both continue to
teach that the earth is round and that the revolution on its axis brings the day
and night, in spite of all opposition."
The Story of My Life 247 (1932).
[Footnote 10]
R. Hofstadter & W. Metzger, in The Development of Academic Freedom in
the United States 324 (1955), refer to some of Darwin's opponents as
"exhibiting a kind of phylogenetic snobbery [which led them] to think that
Darwin had libeled the [human] race by discovering simian, rather than
seraphic, ancestors."
[Footnote 11]
In Scopes v. State, 154 Tenn. 105, 126, 289 S.W. 363, 369 (1927), Judge
Chambliss, concurring, referred to the defense contention that Tennessee's
anti-evolution law gives a "preference" to "religious establishments which
have as one of their tenets or dogmas the instantaneous creation of man."
[Footnote 12]

Everson v. Board of Education, 330 U. S. 1, 330 U. S. 18 (1947); McCollum
v. Board of Education, 333 U. S. 203 (1948); Zorach v. Clauson, 343 U. S.
306, 343 U. S. 313-314 (1952); Fowler v. Rhode Island, 345 U. S. 67 (1953);
Torcaso v. Watkins, 367 U. S. 488, 367 U. S. 495 (1961).
[Footnote 13]
See the discussion in Developments in The Law -- Academic Freedom, 81
Harv.L.Rev. 1045, 1051-1055 (1968).
[Footnote 14]
The case involved a conviction for teaching "the subject of reading in the
German language" to a child of 10 years.
[Footnote 15]
Former Dean Leflar of the University of Arkansas School of Law has stated
that "the same ideological considerations underlie the anti-evolution
enactment" as underlie the typical blasphemy statute. He says that the
purpose of these statutes is an "ideological" one which
"involves an effort to prevent (by censorship) or punish the presentation of
intellectually significant matter which contradicts accepted social, moral or
religious ideas."
Leflar, Legal Liability for the Exercise of Free Speech, 10 Ark.L.Rev. 155,
158 (1956). See also R. Hofstadter & W. Metzger, The Development of
Academic Freedom in the United States 320-366 (1955) (passim); H. Beale,
A History of Freedom of Teaching in American Schools 202-207 (1941);
Emerson & Haber, The Scopes Case in Modern Dress, 27 U.Chi.L.Rev. 522
(1960); Waller, The Constitutionality of the Tennessee Anti-Evolution Act, 35
Yale L.J.191 (1925) (passim); ACLU, The Gag on Teaching 7 (2d ed., 1937);
J. Scopes & J. Presley, Center of the Storm 45-53 (1967).
[Footnote 16]
The following advertisement is typical of the public appeal which was used in
the campaign to secure adoption of the statute:
"THE BIBLE OR ATHEISM, WHICH?"
"All atheists favor evolution. If you agree with atheism, vote against Act No.
1. If you agree with the Bible, vote for Act No. 1. . . . Shall conscientious
church members be forced to pay taxes to support teachers to teach
evolution which will undermine the faith of their children? The Gazette said
Russian Bolshevists laughed at Tennessee. True, and that sort will laugh at
Arkansas. Who cares? Vote FOR ACT No. 1."
The Arkansas Gazette, Little Rock, Nov. 4, 1928, p. 12, cols. 4-5.
Letters from the public expressed the fear that teaching of evolution would be
"subversive of Christianity," id. Oct. 24, 1928, p. 7, col. 2; see also id., Nov.
4, 1928, p. 19, col. 4, and that it would cause school children "to disrespect
the Bible," id. Oct. 27, 1928, p. 15, col. 5. One letter read:
"The cosmogony taught by [evolution] runs contrary to that of Moses and
Jesus, and, as such, is nothing, if anything at all, but atheism. . . . Now let the
mothers and fathers of our state that are trying to raise their children in the
Christian faith arise in their might and vote for this anti-evolution bill that will
take it out of our tax-supported schools. When they have saved the children,
they have saved the state."
Id. at cols. 4-5.
[Footnote 17]
Arkansas' law was adopted by popular initiative in 1928, three years after
Tennessee's law was enacted and one year after the Tennessee Supreme
Court's decision in the Scopes case, supra.
[Footnote 18]
In its brief, the State says that the Arkansas statute was passed with the
holding of the Scopes case in mind. Brief for Appellee 1.
MR. JUSTICE BLACK, concurring.
I am by no means sure that this case presents a genuinely justiciable case or
controversy. Although Arkansas Initiated Act No. 1, the statute alleged to be
unconstitutional, was passed by the voters of Arkansas in 1928, we are
informed that there has never been even a single attempt by the State to
enforce it. And the pallid, unenthusiastic, even apologetic defense of the Act
presented by the State in this Court indicates that the State would make no
attempt to enforce the law
Page 393 U. S. 110
should it remain on the books for the next century. Now, nearly 40 years after
the law has slumbered on the books as though dead, a teacher, alleging fear
that the State might arouse from its lethargy and try to punish her, has asked
for a declaratory judgment holding the law unconstitutional. She was
subsequently joined by a parent who alleged his interest in seeing that his
two then school-age sons "be informed of all scientific theories and
hypotheses. . . ." But whether this Arkansas teacher is still a teacher, fearful
of punishment under the Act, we do not know. It may be, as has been
published in the daily press, that she has long since given up her job as a
teacher and moved to a distant city, thereby escaping the dangers she had
imagined might befall her under this lifeless Arkansas Act. And there is not
one iota of concrete evidence to show that the parent-intervenor's sons have
not been or will not be taught about evolution. The textbook adopted for use
in biology classes in Little Rock includes an entire chapter dealing with
evolution. There is no evidence that this chapter is not being freely taught in
the schools that use the textbook, and no evidence that the intervenor's sons,
who were 15 and 17 years old when this suit was brought three years ago,
are still in high school, or yet to take biology. Unfortunately, however, the
State's languid interest in the case has not prompted it to keep this Court
informed concerning facts that might easily justify dismissal of this alleged
lawsuit as moot or as lacking the qualities of a genuine case or controversy.
Notwithstanding my own doubts as to whether the case presents a justiciable
controversy, the Court brushes aside these doubts and leaps headlong into
the middle of the very broad problems involved in federal intrusion into state
powers to decide what subjects and schoolbooks it may wish to use in
teaching state pupils. While I hesitate to enter into the consideration and
decision
Page 393 U. S. 111
of such sensitive state-federal relationships, I reluctantly acquiesce. But,
agreeing to consider this as a genuine case or controversy, I cannot agree to
thrust the Federal Government's long arm the least bit further into state
school curriculums than decision of this particular case requires. And the
Court, in order to invalidate the Arkansas law as a violation of the First
Amendment, has been compelled to give the State's law a broader meaning
than the State Supreme Court was willing to give it. The Arkansas Supreme
Court's opinion, in its entirety, stated that:
"Upon the principal issue, that of constitutionality, the court holds that
Initiated Measure No. 1 of 1928, Ark.Stat.Ann. § 81627 and § 81628
(Repl.1960), is a valid exercise of the state's power to specify the curriculum
in its public schools. The court expresses no opinion on the question whether
the Act prohibits any explanation of the theory of evolution or merely prohibits
teaching that the theory is true, the answer not being necessary to a decision
in the case and the issue not having been raised."
It is plain that a state law prohibiting all teaching of human development or
biology is constitutionally quite different from a law that compels a teacher to
teach as true only one theory of a given doctrine. It would be difficult to make
a First Amendment case out of a state law eliminating the subject of higher
mathematics, or astronomy, or biology from its curriculum. And, for all the
Supreme Court of Arkansas has said, this particular Act may prohibit that and
nothing else. This Court, however, treats the Arkansas Act as though it made
it a misdemeanor to teach or to use a book that teaches that evolution is true.
But it is not for this Court to arrogate to itself the power to determine the
scope of Arkansas statutes. Since the highest court of
Page 393 U. S. 112
Arkansas has deliberately refused to give its statute that meaning, we should
not presume to do so.
It seems to me that, in this situation, the statute is too vague for us to strike it
down on any ground but that: vagueness. Under this statute, as construed by
the Arkansas Supreme Court, a teacher cannot know whether he is forbidden
to mention Darwin's theory at all or only free to discuss it as long as he
refrains from contending that it is true. It is an established rule that a statute
which leaves an ordinary man so doubtful about its meaning that he cannot
know when he has violated it denies him the first essential of due process.
See, e.g., Connally v. General Construction Co., 269 U. S. 385, 269 U. S.
391 (1926). Holding the statute too vague to enforce would not only follow
longstanding constitutional precedents, but it would avoid having this Court
take unto itself the duty of a State's highest court to interpret and mark the
boundaries of the State's laws. And, more important, it would not place this
Court in the unenviable position of violating the principle of leaving the States
absolutely free to choose their own curriculums for their own schools so long
as their action does not palpably conflict with a clear constitutional command.
The Court, not content to strike down this Arkansas Act on the
unchallengeable ground of its plain vagueness, chooses rather to invalidate it
as a violation of the Establishment of Religion Clause of the First
Amendment. I would not decide this case on such a sweeping ground for the
following reasons, among others.
1. In the first place I find it difficult to agree with the Court's statement that
"there can be no doubt that Arkansas has sought to prevent its teachers from
discussing the theory of evolution because it is contrary to the belief of some
that the Book of Genesis must be the exclusive source of doctrine as to the
origin of man."
It may be, instead, that the people's motive was merely that it would be best
to remove this controversial
Page 393 U. S. 113
subject from its schools; there is no reason I can imagine why a State is
without power to withdraw from its curriculum any subject deemed too
emotional and controversial for its public schools. And this Court has
consistently held that it is not for us to invalidate a statute because of our
views that the "motives" behind its passage were improper; it is simply too
difficult to determine what those motives were. See, e.g., United States v.
O'Brien, 391 U. S. 367, 391 U. S. 382-383 (1968).
2. A second question that arises for me is whether this Court's decision
forbidding a State to exclude the subject of evolution from its schools
infringes the religious freedom of those who consider evolution an anti-
religious doctrine. If the theory is considered anti-religious, as the Court
indicates, how can the State be bound by the Federal Constitution to permit
its teachers to advocate such an "anti-religious" doctrine to school children?
The very cases cited by the Court as supporting its conclusion hold that the
State must be neutral, not favoring one religious or anti-religious view over
another. The Darwinian theory is said to challenge the Bible's story of
creation; so, too, have some of those who believe in the Bible, along with
many others, challenged the Darwinian theory. Since there is no indication
that the literal Biblical doctrine of the origin of man is included in the
curriculum of Arkansas schools, does not the removal of the subject of
evolution leave the State in a neutral position toward these supposedly
competing religious and anti-religious doctrines? Unless this Court is
prepared simply to write off as pure nonsense the views of those who
consider evolution an anti-religious doctrine, then this issue presents
problems under the Establishment Clause far more troublesome than are
discussed in the Court's opinion.
3. I am also not ready to hold that a person hired to teach school children
takes with him into the classroom a constitutional right to teach sociological,
economic,
Page 393 U. S. 114
political, or religious subjects that the school's managers do not want
discussed. This Court has said that the rights of free speech, "while
fundamental in our democratic society, still do not mean that everyone with
opinions or beliefs to express may address a group at any public place and
at any time." Cox v. Louisiana, 379 U. S. 536, 379 U. S. 554; Cox v.
Louisiana, 379 U. S. 559, 379 U. S. 574. I question whether it is absolutely
certain, as the Court's opinion indicates, that "academic freedom" permits a
teacher to breach his contractual agreement to teach only the subjects
designated by the school authorities who hired him.
Certainly the Darwinian theory, precisely like the Genesis story of the
creation of man, is not above challenge. In fact the Darwinian theory has not
merely been criticized by religionists, but by scientists, and perhaps no
scientist would be willing to take an oath and swear that everything
announced in the Darwinian theory is unquestionably true. The Court, it
seems to me, makes a serious mistake in bypassing the plain,
unconstitutional vagueness of this statute in order to reach out and decide
this troublesome, to me, First Amendment question. However wise this Court
may be or may become hereafter, it is doubtful that, sitting in Washington, it
can successfully supervise and censor the curriculum of every public school
in every hamlet and city in the United States. I doubt that our wisdom is so
nearly infallible.
I would either strike down the Arkansas Act as too vague to enforce or
remand to the State Supreme Court for clarification of its holding and opinion.
MR. JUSTICE HARLAN, concurring.
I think it deplorable that this case should have come to us with such an
opaque opinion by the State's highest court. With all respect, that court's
handling of the
Page 393 U. S. 115
case savors of a studied effort to avoid coming to grips with this
anachronistic statute, and to "pass the buck" to this Court. This sort of
temporizing does not make for healthy operations between the state and
federal judiciaries. Despite these observations, I am in agreement with this
Court's opinion that, the constitutional claims having been properly raised
and necessarily decided below, resolution of the matter by us cannot
properly be avoided. * See, e.g., Chicago Life Insurance Co. v. Needles, 113
U. S. 74, 113 U. S. 579 (1885).
I concur in so much of the Court's opinion as holds that the Arkansas statute
constitutes an "establishment of religion" forbidden to the States by the
Fourteenth Amendment. I do not understand, however, why the Court finds it
necessary to explore at length appellants' contentions that the statute is
unconstitutionally vague and that it interferes with free speech, only to
conclude that these issues need not be decided in this case. In the process
of not deciding them, the Court obscures its otherwise straightforward
holding, and opens its opinion to possible implications from which I am
constrained to disassociate myself.
* Short of reading the Arkansas Supreme Court's opinion to have proceeded
on the premise that it need not consider appellants' "establishment"
contention, clearly raised in the state courts and here, in view of its holding
that the State possesses plenary power to fix the curriculum in its public
schools, I can perceive no tenable basis for remanding the case to the state
court for an explication of the purpose and meaning of the statute in
question. I am unwilling to ascribe to the Arkansas Supreme Court any such
quixotic approach to constitutional adjudication. I take the first sentence of its
opinion (ante at 393 U. S. 101, n. 7) to encompass an overruling of
appellants' "establishment" point, and the second sentence to refer only to
their "vagueness" claim.
MR JUSTICE STEWART, concurring in the result.
The States are most assuredly free "to choose their own curriculums for their
own schools." A State is entirely
Page 393 U. S. 116
free, for example, to decide that the only foreign language to be taught in its
public school system shall be Spanish. But would a State be constitutionally
free to punish a teacher for letting his students know that other languages
are also spoken in the world? I think not.
It is one thing for a State to determine that "the subject of higher
mathematics, or astronomy, or biology" shall or shall not be included in its
public school curriculum. It is quite another thing for a State to make it a
criminal offense for a public school teacher so much as to mention the very
existence of an entire system of respected human thought. That kind of
criminal law, I think, would clearly impinge upon the guarantees of free
communication contained in the First Amendment and made applicable to
the States by the Fourteenth.
The Arkansas Supreme Court has said that the statute before us may or may
not be just such a law. The result, as MR. JUSTICE BLACK points out, is that
"a teacher cannot know whether he is forbidden to mention Darwin's theory
at all." Since I believe that no State could constitutionally forbid a teacher "to
mention Darwin's theory at all," and since Arkansas may, or may not, have
done just that, I conclude that the statute before us is so vague as to be
invalid under the Fourteenth Amendment. See Cramp v. Board of Pub.
Instruction, 368 U. S. 278.
Engel vs. Vitale [370 U.S. 421 (1962)]
Facts of the case
The New York State Board of Regents authorized a short, voluntary prayer
for recitation at the start of each school day. A group of organizations joined
forces in challenging the prayer, claiming that it violated the Establishment
Clause of the First Amendment. The New York Court of Appeals rejected
their arguments.
Question
Does the reading of a nondenominational prayer at the start of the school
day violate the "establishment of religion" clause of the First Amendment?
The state cannot hold prayers in public schools, even if participation is not
required and the prayer is not tied to a particular religion.
In an opinion authored by Hugo L. Black, the Court held that respondent's
decision to use its school system to facilitate recitation of the official prayer
violated the Establishment Clause. Specifically, the policy breached the
constitutional wall of separation between church and state. The Court ruled
that the constitutional prohibition of laws establishing religion meant that
government had no business drafting formal prayers for any segment of its
population to repeat in a government-sponsored religious program. The
Court held that respondent's provision of the contested daily prayer was
inconsistent with the Establishment Clause.
Justice Douglas concurred in the judgment on the ground that the state's
financing a religious exercise violated the First Amendment.
Justice Stewart dissented, arguing that no "official religion" was established
by permitting those who want to say a prayer to say it.
Abington Schools Dist. vs. Schempp [374 U.S. 203 (1973)]
Facts of the case
Under Pennsylvania law, public schools were required to read from the bible
at the opening of each school day. The school district sought to enjoin
enforcement of the statute. The district court ruled that the statute violated
the First Amendment, even after the statute had been amended to permit a
student to excuse himself.
The Court consolidated this case with one involving Maryland atheists who
challenged a city rule that provided for opening exercises in the public
schools that consisted primarily of reading a chapter from the bible and the
Lord's Prayer. The state's highest court held the exercise did not violate the
First Amendment. The religious character of the exercise was admitted by
the state.

Question
Did the Pennsylvania law requiring public school students to participate in
classroom religious exercises violate the religious freedom of students as
protected by the First and Fourteenth Amendments?
Public schools cannot sponsor Bible readings and recitations of the Lord’s
Prayer under the First Amendment’s Establishment Clause.
In an opinion authored by Justice Clark, the majority concluded that, in both
cases, the laws required religious exercises and such exercises directly
violated the First Amendment. The Court affirmed the Pennsylvania decision,
and reversed and remanded the Maryland decision because the mandatory
reading from the bible before school each day was found to be
unconstitutional.
Justice Stewart dissented, expressing the view that on the records it could
not be said that the Establishment Clause had necessarily been violated. He
would remand both cases for further hearings.
Stone vs. Graham [449 U.S. 39 (1980)]
Facts of the case
Sydell Stone and a number of other parents challenged a Kentucky state law
that required the posting of a copy of the Ten Commandments in each public
school classroom. They filed a claim against James Graham, the
superintendent of public schools in Kentucky.
Question
Did the Kentucky statute violate the Establishment Clause of the First
Amendment?
In a 5-to-4 per curiam decision, the Court ruled that the Kentucky law violated
the first part of the test established in Lemon v. Kurtzman, and thus violated
the Establishment Clause of the Constitution. The Court found that the
requirement that the Ten Commandments be posted "had no secular
legislative purpose" and was "plainly religious in nature." The Court noted
that the Commandments did not confine themselves to arguably secular
matters (such as murder, stealing, etc.), but rather concerned matters such
as the worship of God and the observance of the Sabbath Day.
In Re: Letter of Tony Q. Valenciano (A.M. No. 10-4-19-SC, March 7, 2017)
One of our fundamental differences lies in our chosen religion. Some put
their faith in a god different from ours, while some may not believe in a god at
all. Nevertheless, despite the inconveniences this difference may cause us,
we must accept it unconditionally for only upon acceptance of the fact that
we are different from each other will we learn to respect one another.
This controversy originated from a series of letters, written by Tony Q.
Valenciano (Valenciano) and addressed to then Chief Justice Reynato S.
Puno (Chief Justice Puno).
In his first Letter,1 dated January 6, 2009, Valenciano reported that the
basement of the Hall of Justice of Quezon City (QC) had been converted into
a Roman Catholic Chapel, complete with offertory table, images of Catholic
religious icons, a canopy, an electric organ, and a projector. He believed that
such practice violated the constitutional provision on the separation of
Church and State and the constitutional prohibition against the appropriation
of public money or property for the benefit of a sect, church, denomination, or
any other system of religion.
Valenciano further averred that the holding of masses at the basement of the
QC Hall of Justice showed that it tended to favor Catholic litigants; that the
rehearsals of the choir caused great disturbance to other employees; that the
public could no longer use the basement as resting place; that the
employees and litigants of the Public Attorney's Office (PAO), Branches 82
and 83 of the Regional Trial Court (RTC), Legal Library, Philippine Mediation
Center, and Records Section of the Office of the Clerk of Court (OCC) could
not attend to their personal necessities such as going to the lavatories
because they could not traverse the basement between 12:00 o'clock
noontime and 1: 15 o'clock in the afternoon; that the court employees
became hostile toward each other as they vied for the right to read the
epistle; and that the water supply in the entire building was cut off during the
mass because the generator was turned off to ensure silence.
In his 1st Indorsement,2 dated February 6, 2009, Chief Justice Puno referred
Valenciano 's letter to then Deputy Court Administrator (DCA) and Officer-in-
Charge of the Office on Halls of Justice, Antonio H. Dujua (DCA Dujua).
In turn, DCA Dujua, in his 1st Indorsement,3 dated February 11, 2009,
referred the letter to Executive Judge Teodoro A. Bay (Judge Bay) of the
RTC and to Executive Judge Luis Zenon Q. Maceren (Judge Maceren) of the
Metropolitan Trial Court (MeTC) for their respective comments.
In his March 6, 2009 Letter,4 addressed to DCA Dujua, Judge Maceren
clarified that the basement of the QC Hall of Justice was known as the prayer
corner. He opined that the use of the said area for holding masses did not
violate the constitutional prohibition against the use of public property for
religious purposes because the religious character of such use was merely
incidental to a temporary use.
In his Memorandum,5 dated March 10, 2009, Judge Bay manifested that he
was due to compulsorily retire on April 29, 2009, and he was taking a leave
of absence prior to such date to concentrate in resolving cases submitted for
decision before his sala and requested that then Vice-Executive Judge Jaime
N. Salazar (Judge Salazar) be assigned to further investigate, study, and
make recommendations on the matter raised by Valenciana.
In the meantime, Judge Bay recommended that, pending the final resolution
of the case, daily masses be permitted to continue, provided that: (1) the
mass be limited to thirty (30) minutes; (2) no loud singing be allowed so as
not to disturb others; and (3) the inconveniences caused by the mass be
addressed.
In his 1st Indorsement,6 dated May 27, 2009, Chief Justice Puno referred
another letter of Valenciano, dated May 13, 2009, to DCA Dujua for
appropriate action, as he complained that masses continued to be held at the
basement of the QC Hall of Justice.
On March 23, 2010, Valenciano wrote another letter,7 praying that rules be
promulgated by the Court to put a stop to the holding of Catholic masses, or
any other religious rituals, at the QC Hall of Justice and in all other halls of
justice in the country.
In its June 22, 2010 Resolution,8 the Court noted the March 23, 2010 letter
of Valenciano and referred the matter to the Office of the Court Administrator
(OCA) for evaluation, report and recommendation.
Thus, in its 1st Indorsement,9 dated September 6, 2010, the OCA, through
then Assistant Court Administrator (ACA) Jenny Lind R. AldecoaDelorino
(now Deputy Court Administrator), referred the letters of Valenciano to the
incumbent RTC Executive Judge Fernando T. Sagun, Jr. (Judge Sagun, Jr.)
and incumbent MeTC Executive Judge Caridad M. WalseLutero (Judge
Lutero).
In his Letter-Comment,10 dated September 9, 2010, Judge Sagun, Jr.
informed the Court that his office had already implemented measures to
address Valenciano's complaints. He reported that masses were shortened
to a little over thirty (30) minutes; that it was only during special holy days of
obligation when the celebration of mass went beyond one (1) o'clock in the
afternoon; that the pathways leading to the lavatories were open and could
be used without obstruction; that there was never an instance where the
actions of court personnel, who were vying to read the epistle during mass,
caused back-biting and irritation among themselves; that the water generator
had been broken beyond repair and decommissioned since December 2009;
and that the court employees prepared for the mass before the day officially
started, so that the performance of their official duties in court was not
hampered.
In her letter,11 Judge Lutero reported that Catholic masses were being held
only during lunch breaks and did not disturb court proceedings; that the
basement of the QC Hall of Justice could still be used as waiting area for the
public; that court personnel and the public were never physically prevented
from reaching the lavatories during mass as there was a clear path from the
public offices leading to the comfort rooms; that water service interruptions
were caused by maintenance problems and not because the water pump
was being shut off during mass; and that the elevators could not be used
during mass because elevator attendants took their lunch break from twelve
(12) o'clock to one (1) o'clock in the afternoon.
Judge Lutero opined that it is not the conduct of masses in public places
which the Constitution prohibited, but the passage of laws or the use of
public funds for the purpose of establishing a religion or prohibiting the free
exercise thereof. She conveyed the fact that no law or rule had been passed
and that no public funds had been appropriated or used to support the
celebration of masses. She added that the holding of Catholic masses did
not mean that Catholics had better chances of obtaining favorable
resolutions from the court.
Accordingly, Judge Lutero recommended that the holding of masses at the
basement of the QC Hall of Justice be allowed to continue considering that it
was not inimical to the interests of the court employees and the public.
The OCA Report
and Recommendation
In its Memorandum,12 dated August 7, 2014, the OCA believed that the
practical inconveniences cited by Valenciano were unfounded. It, thus,
recommended that his letter-complaints, dated January 6, 2009, May 13,
2009 and March 23, 2010, be dismissed for lack of merit and that the RTC
and MeTC Executive Judges of QC be directed to closely regulate and
monitor the holding of masses and other religious practices within the
premises of the QC Hall of Justice.1âwphi1
The OCA opined that the principle of separation of Church and State,
particularly with reference to the Establishment Clause, ought not to be
interpreted according to the rigid standards of separation; that the neutrality
of the State on religion should be benevolent because religion was an
ingrained part of society and played an important role in it; and that the State,
therefore, instead of being belligerent (in the case of Strict Separation) or
being aloof (in the case of Strict Neutrality) towards religion should instead
interact and forbear.13
The OCA advanced the view that the standard of Benevolent
Neutrality/Accommodation was espoused because the principal religion
clauses in our Constitution were not limited to the Establishment Clause,
which created a wall between the Church and the State, but was quickly
followed by the declaration of the Free Exercise Clause, which protected the
right of the people to practice their religion. In effect, the standard of
Benevolent Neutrality/Accommodation balanced the interest of the State
through the Establishment Clause, and the interest and right of the individual
to freely exercise his religion as guaranteed by the Free Exercise Clause.14
The OCA observed that the present controversy did not involve a national or
local law or regulation in conflict with the Free Exercise Clause. On the
contrary, Valenciano was merely questioning the propriety of holding
religious masses at the basement of the QC Hall of Justice, which was
nothing more than an issue of whether the said religious practice could be
accommodated or not. It ended up concluding that based on prevailing
jurisprudence, as well as the interpretations given to the religion clauses of
the 1987 Constitution, there was nothing constitutionally abhorrent in
allowing the continuation of the masses.15
The OCA added that by allowing or accommodating the celebration of
Catholic masses within the premises of the QC Hall of Justice, the Court
could not be said to have established Roman Catholicism as an official
religion or to have endorsed the said religion, for the reason that it also
allowed other religious denominations to practice their religion within the
courthouses.16
ISSUE
WHETHER THE HOLDING OF MASSES AT THE BASEMENT OF THE
QUEZON CITY HALL OF JUSTICE VIOLATES THE CONSTITUTIONAL
PRINCIPLE OF SEPARATION OF CHURCH AND STATE AS WELL AS
THE CONSTITUTIONAL PROHIBITION AGAINST APPROPRIATION OF
PUBLIC MONEY OR PROPERTY FOR THE BENEFIT OF ANY SECT,
CHURCH, DENOMINATION, SECTARIAN INSTITUTION, OR SYSTEM OF
RELIGION.
The Court's Ruling
The Court agrees with the findings and recommendation of the OCA and
denies the prayer of Valenciano that the holding of religious rituals of any of
the world's religions in the QC Hall of Justice or any halls of justice all over
the country be prohibited.
The Holding of Religious
Rituals in the Halls of Justice
does not Amount to a Union of
Church and State
As earlier stated, Valenciano is against the holding of religious rituals in the
halls of justice on the ground that it violates the constitutional provision on
the separation of Church and State and the constitutional prohibition against
the appropriation of public money or property for the benefit of a sect, church,
denomination, or any other system of religion. Indeed, Section 6, Article II of
the 1987 Constitution provides:
The separation of Church and State shall be inviolable.17
The Court once pronounced that "our history, not to speak of the history of
mankind, has taught us that the union of church and state is prejudicial to
both, for occasions might arise when the state will use the church, and the
church the state, as a weapon in the furtherance of their respective ends and
aims."18
Justice Isagani Cruz expounded on this doctrine, viz.:
The rationale of the rule is summed up in the familiar saying, "Strong fences
make good neighbors." The idea is to delineate the boundaries between the
two institutions and, thus, avoid encroachments by one against the other
because of a misunderstanding of the limits of their respective exclusive
jurisdictions. The demarcation line calls on the entities to "render therefore
unto Caesar the things that are Caesar's and unto God the things that are
God's."19
This, notwithstanding, the State still recognizes the inherent right of the
people to have some form of belief system, whether such may be belief in a
Supreme Being, a certain way of life, or even an outright rejection of religion.
Our very own Constitution recognizes the heterogeneity and religiosity of our
people as reflected in lmbong v. Ochoa,20 as follows:
At the outset, it cannot be denied that we all live in a heterogeneous society.
It is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in
practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups
and is tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally believe in a
deity, whatever they conceived Him to be, and to Whom they called for
guidance and enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order
to build a just and humane society, and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve
and develop our patrimony, and secure to ourselves and our posterity, the
blessings of independence and democracy under the rule of law and a
regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God" manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so
far as it instills into the mind the purest principles of morality. Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and
1987 Constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions
in public schools. [Emphases supplied]
In Aglipay v. Ruiz21 (Aglipay), the Court acknowledged how religion could
serve as a motivating force behind each person's actions:
Religious freedom, however, as a constitutional mandate is not inhibition of
profound reverence for religion and is not a denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government
that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested their intense religious nature and
placed unfaltering reliance upon Him who guides the destinies of men and
nations. The elevating influence of religion in human society is recognized
here as elsewhere. In fact, certain general concessions are indiscriminately
accorded to religious sects and denominations. Our Constitution and laws
exempt from taxation properties devoted exclusively to religious purposes
(sec. 14, subsec. 3, Art. VI, Constitution of the Philippines and sec. 1,
subsec. Ordinance appended thereto; Assessment Law, sec. 344, par [c],
Adm. Code) sectarian aid is not prohibited when a priest, preacher, minister
or other religious teacher or dignitary as such is assigned to the armed forces
or to any penal institution, orphanage or leprosarium xxx. Optional religious
instruction in the public schools is by constitutional mandate allowed xxx.
Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays are made legal holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conducive to beneficial moral results.
The law allows divorce but punishes polygamy and bigamy; and certain
crimes against religious worship are considered crimes against the
fundamental laws of the state xxx.22 [Emphasis supplied]
Thus, the right to believe or not to believe has again been enshrined in
Section 5, Article III of the 1987 Constitution:
Section 5. xxx. The free exercise and enjoyment of religious profession and
worship, without discrimination or preference, shall forever be allowed. xxx.
Free Exercise Clause
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good."23
"The right to religious profession and worship has a two-fold aspect -
freedom to believe and freedom to act on one's beliefs. The first is absolute
as long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that
affect the public welfare."24 Justice Isagani A. Cruz explained these two (2)
concepts in this wise:
(1) Freedom to Believe
The individual is free to believe (or disbelieve) as he pleases concerning the
hereafter. He may indulge his own theories about life and death; worship any
god he chooses, or none at all; embrace or reject any religion; acknowledge
the divinity of God or of any being that appeals to his reverence; recognize or
deny the immortality of his soul - in fact, cherish any religious conviction as
he and he alone sees fit. However absurd his beliefs may be to others, even
if they be hostile and heretical to the majority, he has full freedom to believe
as he pleases. He may not be required to prove his beliefs. He may not be
punished for his inability to do so. Religion, after all, is a matter of faith. "Men
may believe what they cannot prove." Every one has a right to his beliefs and
he may not be called to account because he cannot prove what he believes.
(2) Freedom to Act on One's Beliefs

But where the individual externalizes his beliefs in acts or omissions that
affect the public, his freedom to do so becomes subject to the authority of the
State. As great as this liberty may be, religious freedom, like all other rights
guaranteed in the Constitution, can be enjoyed only with a proper regard for
the rights of others.
It is error to think that the mere invocation of religious freedom will stalemate
the State and render it impotent in protecting the general welfare. The
inherent police power can be exercised to prevent religious practices inimical
to society. And this is true even if such practices are pursued out of sincere
religious conviction and not merely for the purpose of evading the reasonable
requirements or prohibitions of the law.
Justice Frankfurter put it succinctly: "The constitutional provision on religious
freedom terminated disabilities, it did not create new privileges. It gave
religious liberty, not civil immunity. Its essence is freedom from conformity to
religious dogma, not freedom from conformity to law because of religious
dogma."25
Allowing religion to flourish is not contrary to the principle of separation of
Church and State. In fact, these two principles are in perfect harmony with
each other.
The State is aware of the existence of religious movements whose members
believe in the divinity of Jose Rizal. Yet, it does not implement measures to
suppress the said religious sects. Such inaction or indifference on the part of
the State gives meaning to the separation of Church and State, and at the
same time, recognizes the religious freedom of the members of these sects
to worship their own Supreme Being.
As pointed out by Judge Lutero, "the Roman Catholics express their worship
through the holy mass and to stop these would be tantamount to repressing
the right to the free exercise of their religion. Our Muslim brethren, who are
government employees, are allowed to worship their Allah even during office
hours inside their own offices. The Seventh Day Adventists are exempted
from rendering Saturday duty because their religion prohibits them from
working on a Saturday. Even Christians have been allowed to conduct their
own bible studies in their own offices. All these have been allowed in respect
of the workers' right to the free exercise of their religion. xxx"26
Clearly, allowing the citizens to practice their religion is not equivalent to a
fusion of Church and State.
No Compelling State Interest
Religious freedom, however, is not absolute. It cannot have its way if there is
a compelling state interest. To successfully invoke compelling state interest,
it must be demonstrated that the masses in the QC Hall of Justice unduly
disrupt the delivery of public services or affect the judges and employees in
the performance of their official functions. In Estrada v. Escritor,27 the Court
expounded on the test as follows:
The "compelling state interest" test is proper where conduct is involved for
the whole gamut of human conduct has different effects on the state's
interests: some effects may be immediate and short-term while others
delayed and far-reaching. A test that would protect the interests of the state
in preventing a substantive evil, whether immediate or delayed, is therefore
necessary. However, not any interest of the state would suffice to prevail
over the right to religious freedom as this is a fundamental .right that enjoys a
preferred position in the hierarchy of rights - "the most inalienable and sacred
of all human rights", in the words of Jefferson. This right is sacred for an
invocation of the Free Exercise Clause is an appeal to a higher sovereignty.
The entire constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful
ones until they are destroyed. In determining which shall prevail between the
state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e. refusal
to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very
state, without which, religious liberty will not be preserved.137 [Citations
omitted] [Emphases supplied]
As reported by the Executive Judges of Quezon City, the masses were being
conducted only during noon breaks and were not disruptive of public
services. The court proceedings were not being distracted or interrupted and
that the performance of the judiciary employees were not being adversely
affected. Moreover, no Civil Service rules were being violated. As there has
been no detrimental effect on the public service or prejudice to the State,
there is simply no state interest compelling enough to prohibit the exercise of
religious freedom in the halls of justice.
In fact, the Civil Service Commission (CSC) was more lenient or tolerant. On
November 13, 1981, the CSC came out with Resolution No. 81-1277, which
provided, among others, that "during Friday, the Muslim pray day, Muslims
are excused from work from 10:00 o'clock in the morning to 2:00 o'clock in
the afternoon." The Court struck this down28 as not sanctioned by the law. It
wrote:
To allow the Muslim employees in the Judiciary to be excused from work
from 10:00 a.m. to 2:00 p.m. every Friday (Muslim Prayer Day) during the
entire calendar year would mean a diminution of the prescribed government
working hours. For then, they would be rendering service twelve (12) hours
less than that required by the civil service rules for each month. Further, this
would encourage other religious denominations to request for similar
treatment.
The performance of religious practices, whether by the Muslim employees or
those belonging to other religious denominations, should not prejudice the
courts and the public. Indeed, the exercise of religious freedom does not
exempt anyone from compliance with reasonable requirements of the law,
including civil service laws.
Accommodation, Not Establishment of Religion
In order to give life to the constitutional right of freedom of religion, the State
adopts a policy of accommodation. Accommodation is a recognition of the
reality that some governmental measures may not be imposed on a certain
portion of the population for the reason that these measures are contrary to
their religious beliefs. As long as it can be shown that the exercise of the right
does not impair the public welfare, the attempt of the State to regulate or
prohibit such right would be an unconstitutional encroachment.29
In Estrada v. Escritor,30 the Court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically into
account not to promote the government's favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance.
Their purpose or effect therefore is to remove a burden on, or facilitate the
exercise of, a person's or institution's religion. As Justice Brennan explained,
the "government [may] take religion into account ... to exempt, when
possible, from generally applicable governmental regulation individuals
whose religious beliefs and practices would otherwise thereby be infringed,
or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish." [Emphases supplied]
In Victoriano v. Elizalde Rope Workers Union,31 the Court upheld the
exemption of members of Iglesia ni Cristo from the coverage of a closed
shop agreement between their employer and a union, because it would
violate the teaching of their church not to affiliate with a labor organization.
In Ebralinag v. Division Superintendent of Schools of Cebu,32 the petitioners,
who were members of the Jehovah 's Witnesses, refused to salute the flag,
sing the national anthem, and recite the patriotic pledge for it is their belief
that those were acts of worship or religious devotion, which they could not
conscientiously give to anyone or anything except God. The Court
accommodated them and granted them an exemption from observing the flag
ceremony out of respect for their religious beliefs.
Further, several laws have been enacted to accommodate religion. The
Revised Administrative Code of 1987 has declared Maundy Thursday, Good
Friday, and Christmas Day as regular holidays. Republic Act (R.A.) No. 9177
proclaimed the FIRST Day of Shawwal, the tenth month of the Islamic
Calendar, a national holiday for the observance of Eidul Fitr (the end of
Ramadan). R.A. No. 9849 declared the tenth day of Zhu/ Hijja, the twelfth
month of the Islamic Calendar, a national holiday for the observance of Eidul
Adha. Presidential Decree (P.D.) No. 1083, otherwise known as the Code of
Muslim Personal Laws of the Philippines, expressly allows a Filipino Muslim
to have more than one (1) wife and exempts him from the crime of bigamy
punishable under Revised Penal Code (RPC). The same Code allows
Muslims to have divorce.33
As to Muslims in government offices, Section 3 of P.D. No. 291, as amended
by P.D. No. 322, provides:
Sec. 3. (a) During the fasting season on the month of Ramadan, all Muslim
employees in the national government, government-owned or controlled
corporations, provinces, cities, municipalities and other instrumentalities shall
observe office hours from seven-thirty in the morning (7:30 a.m.) to three-
thirty in the afternoon (3:30 p.m.) without lunch break or coffee breaks, and
that there shall be no diminution of salary or wages, provided, that the
employee who is not fasting is not entitled to the benefit of this provision.
Pursuant thereto, the CSC promulgated Resolution No. 81-1277, dated
November 13, 1981, which reads in part:
2. During "Ramadan" the Fasting month (30 days) of the Muslims, the Civil
Service official time of 8 o'clock to 12 o'clock and 1 o'clock to 5 o'clock is
hereby modified to 7:30 AM. to 3:30 P.M. without noon break and the
difference of 2 hours is not counted as undertime.
Following the decree, in Re: Request of Muslim Employees in the Different
Courts in Iligan City (Re: Office Hours),34 the Court recognized that the
observance of Ramadan as integral to the Islamic faith and allowed Muslim
employees in the Judiciary to hold flexible office hours from 7:30 o'clock in
the morning to 3:30 o'clock in the afternoon without any break during the
period. This is a clear case of accommodation because Section 5, Rule XVII
of the Omnibus Rules Implementing Book V of E.0. No. 292, enjoins all civil
servants, of whatever religious denomination, to render public service of no
less than eight (8) hours a day or forty (40) hours a week.
Non-Establishment Clause
On the opposite side of the spectrum is the constitutional mandate that "no
law shall be made respecting an establishment of religion,"35 otherwise
known as the non-establishment clause. Indeed, there is a thin line between
accommodation and establishment, which makes it even more imperative to
understand each of these concepts by placing them in the Filipino society's
perspective.
The non-establishment clause reinforces the wall of separation between
Church and State. It simply means that the State cannot set up a Church; nor
pass laws which aid one religion, aid all religion, or prefer one religion over
another nor force nor influence a person to go to or remain away from church
against his will or force him to profess a belief or disbelief in any religion; that
the state cannot punish a person for entertaining or professing religious
beliefs or disbeliefs, for church attendance or nonattendance; that no tax in
any amount, large or small, can be levied to support any religious activity or
institution whatever they may be called or whatever form they may adopt or
teach or practice religion; that the state cannot openly or secretly participate
in the affairs of any religious organization or group and vice versa.36 Its
minimal sense is that the state cannot establish or sponsor an official
religion.37
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects can or
cannot do. They can neither cause the government to adopt their particular
doctrines as policy for everyone, nor can they cause the government to
restrict other groups. To do so, in simple terms, would cause the State to
adhere to a particular religion and, thus, establish a state religion.38
Father Bernas further elaborated on this matter, as follows:
"In effect, what non-establishment calls for is government neutrality in
religious matters. Such government neutrality may be summarized in four
general propositions: (1) Government must not prefer one religion over
another or religion over irreligion because such preference would violate
voluntarism and breed dissension; (2) Government funds must not be applied
to religious purposes because this too would violate voluntarism and breed
interfaith dissension; (3) Government action must not aid religion because
this too can violate voluntarism and breed interfaith dissension; [and] (4)
Government action must not result in excessive entanglement with religion
because this too can violate voluntarism and breed interfaith dissension."39
Establishment entails a positive action on the part of the State.
Accommodation, on the other hand, is passive. In the former, the State
becomes involved through the use of government resources with the primary
intention of setting up a state religion. In the latter, the State, without being
entangled, merely gives consideration to its citizens who want to freely
exercise their religion.
In a September 12, 2003 Memorandum for Chief Justice Hilario G. Davide,
Jr., the Office of the Chief Attorney recommended to deny, on constitutional
grounds, the request of Rev. Fr. Carlo M. Ilagan to hold a oneday vigil in
honor of the Our Lady of Caysasay within the premises of the Court. Such
controversy must be distinguished from the present issue in that with respect
to the former, a Catholic priest was the one who requested for the vigil.
Moreover, in that case, the vigil would take one (1) whole working day;
whereas in this case, the masses are held at the initiative of Catholic
employees and only during the thirty-minute lunch break.
Guided by the foregoing, it is our considered view that the holding of Catholic
masses at the basement of the QC Hall of Justice is not a case of
establishment, but merely accommodation. First, there is no law, ordinance
or circular issued by any duly constitutive authorities expressly mandating
that judiciary employees attend the Catholic masses at the basement.
Second, when judiciary employees attend the masses to profess their faith, it
is at their own initiative as they are there on their own free will and volition,
without any coercion from the judges or administrative officers. Third, no
government funds are being spent because the lightings and airconditioning
continue to be operational even if there are no religious rituals there. Fourth,
the basement has neither been converted into a Roman Catholic chapel nor
has it been permanently appropriated for the exclusive use of its faithful.
Fifth, the allowance of the masses has not prejudiced other religions.
No Appropriation of Public
Money or Property for the
Benefit of any Church
Section 29 (2), Article VI of the 1987 Constitution provides, "No public money
or property shall be appropriated, applied, paid, or employed, directly or
indirectly, for the use, benefit, or support of any sect, church, denomination,
sectarian institution, or system of religion, or of any priest, preacher, minister,
or other religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium."
The word "apply" means "to use or employ for a particular purpose."40
"Appropriate" means "to prescribe a particular use for particular moneys or to
designate or destine a fund or property for a distinct use, or for the payment
of a particular demand."41
Under the principle of noscitur a sociis, where a particular word or phrase is
ambiguous in itself or is equally susceptible of various meanings, its correct
construction may be made clear and specific by considering the company of
words in which it is found or with which it is associated. This is because a
word or phrase in a statute is always used in association with other words or
phrases, and its meaning may, thus, be modified or restricted by the latter.
The particular words, clauses and phrases should not be studied as
detached and isolated expressions, but the whole and every part of the
statute must be considered in fixing the meaning of any of its parts and in
order to produce a harmonious whole. A statute must be so construed as to
harmonize and give effect to all its provisions whenever possible.42
Thus, the words "pay" and "employ" should be understood to mean that what
is prohibited is the use of public money or property for the sole purpose of
benefiting or supporting any church. The prohibition contemplates a scenario
where the appropriation is primarily intended for the furtherance of a
particular church.
It has also been held that the aforecited constitutional provision "does not
inhibit the use of public property for religious purposes when the religious
character of such use is merely incidental to a temporary use which is
available indiscriminately to the public in general." Hence, a public street may
be used for a religious procession even as it is available for a civic parade, in
the same way that a public plaza is not barred to a religious rally if it may
also be used for a political assemblage.43
In relation thereto, the phrase "directly or indirectly" refers to the manner of
appropriation of public money or property, not as to whether a particular act
involves a direct or a mere incidental benefit to any church. Otherwise, the
framers of the Constitution would have placed it before "use, benefit or
support" to describe the same. Even the exception to the same provision
bolsters this interpretation. The exception contemplates a situation wherein
public funds are paid to a priest, preacher, minister, or other religious
teacher, or dignitary because they rendered service in the armed forces, or to
any penal institution, or government orphanage or leprosarium. That a priest
belongs to a particular church and the latter may have benefited from the
money he received is of no moment, for the purpose of the payment of public
funds is merely to compensate the priest for services rendered and for which
other persons, who will perform the same services will also be compensated
in the same manner.
Ut magis valeat quam pereat. The Constitution is to be interpreted as a
whole.44 As such, the foregoing interpretation finds support in the
Establishment Clause, which is as clear as daylight in stating that what is
proscribed is the passage of any law which tends to establish a religion, not
merely to accommodate the free exercise thereof.
The Constitution even grants tax exemption to properties actually, directly
and exclusively devoted to religious purposes.45 Certainly, this benefits the
religious sects for a portion of what could have been collected for the benefit
of the public is surrendered in their favor.
In Manosca v. CA,46 a parcel of land located in Taguig was determined by
the National Historical Institute to be the birthsite of Felix Y. Manalo, the
founder of Iglesia ni Cristo. The Republic then sought to expropriate the said
property. The exercise of the power of eminent domain was questioned on
the ground that it would only benefit members of Iglesia ni Cristo. The Court
upheld the legality of the expropriation, viz.:
The practical reality that greater benefit may be derived by members of the
Iglesia ni Cristo than by most others could well be true but such a peculiar
advantage still remains to be merely incidental and secondary in nature.47
[Emphasis supplied]
Again, in Aglipay, the issuing and selling of postage stamps commemorative
of the Thirty-third International Eucharistic Congress was assailed on the
ground that it violated the constitutional prohibition against the appropriation
of public money or property for the benefit of any church. In ruling that there
was no such violation, the Court held:
It is obvious that while the issuance and sale of the stamps in question may
be said to be inseparably linked with an event of a religious character, the
resulting propaganda, if any, received by the Roman Catholic Church, was
not the aim and purpose of the Government. We are of the opinion that the
Government should not be embarrassed in its activities simply because of
incidental results, more or less religious in character, if the purpose had in
view is one which could legitimately be undertaken by appropriate legislation.
The main purpose should not be frustrated by its subordination to mere
incidental results not contemplated.48 [Emphasis supplied]
Here, the basement of the QC Hall of Justice is not appropriated, applied or
employed for the sole purpose of supporting the Roman Catholics.

Further, it has not been converted into a Roman Catholic chapel for the
exclusive use of its faithful contrary to the claim of Valenciana. Judge
Maceren reported that the basement is also being used as a public waiting
area for most of the day and a meeting place for different employee
organizations. The use of the area for holding masses is limited to lunch
break period from twelve (12) o'clock to one (1) o'clock in the afternoon.
Further, Judge Sagun, Jr. related that masses run for just a little over thirty
(30) minutes. It is, therefore, clear that no undue religious bias is being
committed when the subject basement is allowed to be temporarily used by
the Catholics to celebrate mass, as the same area can be used by other
groups of people and for other purposes.49 Thus, the basement of the QC
Hall of Justice has remained to be a public property devoted for public use
because the holding of Catholic masses therein is a mere incidental
consequence of its primary purpose.
Conclusion
Directing the Executive Judges of the RTC and MeTC to regulate and closely
monitor the holding of masses and other religious practices within the courts
does not promote excessive collaboration between courts and various
religions. On the contrary, this is necessary to ensure that there would be no
excessive entanglement.
To disallow the holding of religious rituals within halls of justice would set a
dangerous precedent and commence a domino effect. Strict separation,
rather than benevolent neutrality/accommodation, would be the norm. Thus,
the establishment of Shari'a courts, the National Commission for Muslim
Filipinos, and the exception of Muslims from the provisions of the RPC
relative to the crime of bigamy would all be rendered nugatory because of
strict separation. The exception of members of Iglesia ni Cristo from joining a
union or the non-compulsion recognized in favor of members of the
Jehovah's Witnesses from doing certain gestures during the flag ceremony,
will all go down the drain simply because we insist on strict separation.
That the holding of masses at the basement of the QC Hall of Justice may
offend non-Catholics is no reason to proscribe it. Our Constitution ensures
and mandates an unconditional tolerance, without regard to whether those
who seek to profess their faith belong to the majority or to the minority. It is
emphatic in saying that "the free exercise and enjoyment of religious
profession and worship shall be without discrimination or preference."
Otherwise, accommodation or tolerance would just be mere lip service.
One cannot espouse that the constitutional freedom of religion ensures
tolerance, but, in reality, refuses to practice what he preaches. One cannot
ask for tolerance when he refuses to do the same for others.
In fine, the Court denies the plea that the holding of Catholic masses at the
basement of the QC Hall of Justice be prohibited because the said practice
does not violate the constitutional principle of separation of Church and State
and the constitutional prohibition against appropriation of public money or
property for the benefit of a sect, church, denomination, or any other system
of religion.
WHEREFORE, the Court resolves to:
1. NOTE the letter-complaints of Mr. Tony Q. Valenciano, dated January 6,
2009, May 13, 2009, and March 23, 2010;
2. NOTE the 1st Indorsement, dated September 21, 2010, by the Office on
Halls of Justice, containing photocopies and certified photocopies of previous
actions made relative to the complaint;
3. NOTE the Letter-Comment, dated September 9, 2010, of Quezon City
Regional Trial Court Executive Judge Fernando T. Sagun, Jr.;
4. NOTE the undated Letter-Comment of Quezon City Metropolitan Trial
Court Executive Judge Caridad M. Walse-Lutero;
5. DENY the prayer of Tony Q. Valenciano to prohibit the holding of religious
rituals in the QC Hall of Justice and in all halls of justice in the country; and
6. DIRECT the Executive Judges of Quezon City to REGULATE and
CLOSELY MONITOR the holding of masses and other religious practices
within the Quezon City Hall of Justice by ensuring, among others, that:
(a) it does not disturb or interrupt court proceedings;
(b) it does not adversely affect and interrupt the delivery of public service;
and
(c) it does not unduly inconvenience the public.
In no case shall a particular part of a public building be a permanent place for
worship for the benefit of any and all religious groups. There shall also be no
permanent display of religious icons in all halls of justice in the country. In
case of religious rituals, religious icons and images may be displayed but
their presentation is limited only during the celebration of such activities so as
not to offend the sensibilities of members of other religious denominations or
the non-religious public. After any religious affair, the icons and images shall
be hidden or concealed from public view.
The disposition in this administrative matter shall apply to all halls of justice in
the country. Other churches, religious denominations or sects are entitled to
the same rights, privileges, and practices in every hall of justice. In other
buildings not owned or controlled by the Judiciary, the Executive Judges
should coordinate and seek approval of the building owners/administrators
accommodating their courts.
SO ORDERED.
Aglipay vs. Ruiz [64 Phil. 201 (1937)]
The petitioner, Mons. Gregorio Aglipay, Supreme Head of the Philippine
Independent Church, seeks the issuance from this court of a writ of
prohibition to prevent the respondent Director of Posts from issuing and
selling postage stamps commemorative of the Thirty-third International
Eucharistic Congress.
In May, 1936, the Director of Posts announced in the dailies of Manila that he
would order the issues of postage stamps commemorating the celebration in
the City of Manila of the Thirty-third international Eucharistic Congress,
organized by the Roman Catholic Church. The petitioner, in the fulfillment of
what he considers to be a civic duty, requested Vicente Sotto, Esq., member
of the Philippine Bar, to denounce the matter to the President of the
Philippines. In spite of the protest of the petitioner's attorney, the respondent
publicly announced having sent to the United States the designs of the
postage stamps for printing as follows:
"In the center is chalice, with grape vine and stalks of wheat as border
design. The stamps are blue, green, brown, cardinal red, violet and orange, 1
inch by 1,094 inches. The denominations are for 2, 6, 16, 20, 36 and 50
centavos." The said stamps were actually issued and sold though the greater
part thereof, to this day, remains unsold. The further sale of the stamps is
sought to be prevented by the petitioner herein.
The Solicitor-General contends that the writ of prohibition is not the proper
legal remedy in the instant case, although he admits that the writ may
properly restrain ministerial functions. While, generally, prohibition as an
extraordinary legal writ will not issue to restrain or control the performance of
other than judicial or quasi-judicial functions (50 C. J., 6580, its issuance and
enforcement are regulated by statute and in this jurisdiction may issue to . . .
inferior tribunals, corporations, boards, or persons, whether excercising
functions judicial or ministerial, which are without or in excess of the
jurisdiction of such tribunal, corporation, board, or person, . . . ." (Secs. 516
and 226, Code of Civil Procedure.) The terms "judicial" and "ministerial" used
with reference to "functions" in the statute are undoubtedly comprehensive
and include the challenged act of the respondent Director of Posts in the
present case, which act because alleged to be violative of the Constitution is
a fortiorari "without or in excess of . . . jurisdiction." The statutory rule,
therefore, in the jurisdiction is that the writ of prohibition is not confined
exclusively to courts or tribunals to keep them within the limits of their own
jurisdiction and to prevent them from encroaching upon the jurisdiction of
other tribunals, but will issue, in appropriate cases, to an officer or person
whose acts are without or in excess of his authority. Not infrequently, "the
writ is granted, where it is necessary for the orderly administration of justice,
or to prevent the use of the strong arm of the law in an oppressive or
vindictive manner, or a multiplicity of actions." (Dimayuga and Fajardo vs.
Fernandez [1923], 43 Phil., 304, 307.)
The more important question raised refers to the alleged violation of the
Constitution by the respondent in issuing and selling postage stamps
commemorative of the Thirty-third International Eucharistic Congress. It is
alleged that this action of the respondent is violative of the provisions of
section 23, subsection 3, Article VI, of the Constitution of the Philippines,
which provides as follows:
No public money or property shall ever be appropriated, applied, or used,
directly or indirectly, for the use, benefit, or support of any sect, church,
denomination, secretarian, institution, or system of religion, or for the use,
benefit, or support of any priest, preacher, minister, or other religious teacher
or dignitary as such, except when such priest, preacher, minister, or dignitary
is assigned to the armed forces or to any penal institution, orphanage, or
leprosarium.
The prohibition herein expressed is a direct corollary of the principle of
separation of church and state. Without the necessity of adverting to the
historical background of this principle in our country, it is sufficient to say that
our history, not to speak of the history of mankind, has taught us that the
union of church and state is prejudicial to both, for ocassions might arise
when the estate will use the church, and the church the state, as a weapon in
the furtherance of their recognized this principle of separation of church and
state in the early stages of our constitutional development; it was inserted in
the Treaty of Paris between the United States and Spain of December 10,
1898, reiterated in President McKinley's Instructions of the Philippine
Commission, reaffirmed in the Philippine Bill of 1902 and in the autonomy Act
of August 29, 1916, and finally embodied in the constitution of the Philippines
as the supreme expression of the Filipino people. It is almost trite to say now
that in this country we enjoy both religious and civil freedom. All the officers
of the Government, from the highest to the lowest, in taking their oath to
support and defend the constitution, bind themselves to recognize and
respect the constitutional guarantee of religious freedom, with its inherent
limitations and recognized implications. It should be stated that what is
guaranteed by our Constitution is religious liberty, not mere religious
toleration.
Religious freedom, however, as a constitutional mandate is not inhibition of
profound reverence for religion and is not denial of its influence in human
affairs. Religion as a profession of faith to an active power that binds and
elevates man to his Creator is recognized. And, in so far as it instills into the
minds the purest principles of morality, its influence is deeply felt and highly
appreciated. When the Filipino people, in the preamble of their Constitution,
implored "the aid of Divine Providence, in order to establish a government
that shall embody their ideals, conserve and develop the patrimony of the
nation, promote the general welfare, and secure to themselves and their
posterity the blessings of independence under a regime of justice, liberty and
democracy," they thereby manifested reliance upon Him who guides the
destinies of men and nations. The elevating influence of religion in human
society is recognized here as elsewhere. In fact, certain general concessions
are indiscriminately accorded to religious sects and denominations. Our
Constitution and laws exempt from taxation properties devoted exclusively to
religious purposes (sec. 14, subsec. 3, Art. VI, Constitution of the Philippines
and sec. 1, subsec. 4, Ordinance appended thereto; Assessment Law, sec.
344, par. [c]. Adm. Code). Sectarian aid is not prohibited when a priest,
preacher, minister or other religious teacher or dignitary as such is assigned
to the armed forces or to any penal institution, orphanage or leprosarium 9
sec. 13, subsec. 3, Art. VI, Constitution of the Philippines). Optional religious
instruction in the public schools is by constitutional mandate allowed (sec. 5,
Art. XIII, Constitution of the Philippines, in relation to sec. 928, Adm. Code).
Thursday and Friday of Holy Week, Thanksgiving Day, Christmas Day, and
Sundays and made legal holidays (sec. 29, Adm. Code) because of the
secular idea that their observance is conclusive to beneficial moral results.
The law allows divorce but punishes polygamy and bigamy; and certain
crimes against religious worship are considered crimes against the
fundamental laws of the state (see arts. 132 and 133, Revised Penal Code).
In the case at bar, it appears that the respondent Director of Posts issued the
postage stamps in question under the provisions of Act No. 4052 of the
Philippine Legislature. This Act is as follows:
No. 4052. — AN ACT APPROPRIATING THE SUM OF SIXTY THOUSAND
PESOS AND MAKING THE SAME AVAILABLE OUT OF ANY FUNDS IN
THE INSULAR TREASURY NOT OTHERWISE APPROPRIATED FOR THE
COST OF PLATES AND PRINTING OF POSTAGE STAMPS WITH NEW
DESIGNS, AND FOR OTHER PURPOSES.
Be it enacted by the Senate and House of Representatives of the Philippines
in Legislature assembled and by the authority of the same:
SECTION 1. The sum of sixty thousand pesos is hereby appropriated and
made immediately available out of any funds in the Insular Treasury not
otherwise appropriated, for the costs of plates and printing of postage stamps
with new designs, and other expenses incident thereto.
SEC. 2. The Director of Posts, with the approval of the Secretary of Public
Works and Communications, is hereby authorized to dispose of the whole or
any portion of the amount herein appropriated in the manner indicated and
as often as may be deemed advantageous to the Government.
SEC. 3. This amount or any portion thereof not otherwise expended shall not
revert to the Treasury.
SEC. 4. This act shall take effect on its approval.
Approved, February 21, 1933.
It will be seen that the Act appropriates the sum of sixty thousand pesos for
the costs of plates and printing of postage stamps with new designs and
other expenses incident thereto, and authorizes the Director of Posts, with
the approval of the Secretary of Public Works and Communications, to
dispose of the amount appropriated in the manner indicated and "as often as
may be deemed advantageous to the Government". The printing and
issuance of the postage stamps in question appears to have been approved
by authority of the President of the Philippines in a letter dated September 1,
1936, made part of the respondent's memorandum as Exhibit A. The
respondent alleges that the Government of the Philippines would suffer
losses if the writ prayed for is granted. He estimates the revenue to be
derived from the sale of the postage stamps in question at P1,618,17.10 and
states that there still remain to be sold stamps worth P1,402,279.02.
Act No. 4052 contemplates no religious purpose in view. What it gives the
Director of Posts is the discretionary power to determine when the issuance
of special postage stamps would be "advantageous to the Government." Of
course, the phrase "advantageous to the Government" does not authorize
the violation of the Constitution. It does not authorize the appropriation, use
or application of public money or property for the use, benefit or support of a
particular sect or church. In the present case, however, the issuance of the
postage stamps in question by the Director of Posts and the Secretary of
Public Works and Communications was not inspired by any sectarian
denomination. The stamps were not issue and sold for the benefit of the
Roman Catholic Church. Nor were money derived from the sale of the
stamps given to that church. On the contrary, it appears from the latter of the
Director of Posts of June 5, 1936, incorporated on page 2 of the petitioner's
complaint, that the only purpose in issuing and selling the stamps was "to
advertise the Philippines and attract more tourist to this country." The officials
concerned merely, took advantage of an event considered of international
importance "to give publicity to the Philippines and its people" (Letter of the
Undersecretary of Public Works and Communications to the President of the
Philippines, June 9, 1936; p. 3, petitioner's complaint). It is significant to note
that the stamps as actually designed and printed (Exhibit 2), instead of
showing a Catholic Church chalice as originally planned, contains a map of
the Philippines and the location of the City of Manila, and an inscription as
follows: "Seat XXXIII International Eucharistic Congress, Feb. 3-7,1937."
What is emphasized is not the Eucharistic Congress itself but Manila, the
capital of the Philippines, as the seat of that congress. It is obvious that while
the issuance and sale of the stamps in question may be said to be
inseparably linked with an event of a religious character, the resulting
propaganda, if any, received by the Roman Catholic Church, was not the aim
and purpose of the Government. We are of the opinion that the Government
should not be embarassed in its activities simply because of incidental
results, more or less religious in character, if the purpose had in view is one
which could legitimately be undertaken by appropriate legislation. The main
purpose should not be frustrated by its subordinate to mere incidental results
not contemplated. (Vide Bradfield vs. Roberts, 175 U. S., 295; 20 Sup. Ct.
Rep., 121; 44 Law. ed., 168.)
We are much impressed with the vehement appeal of counsel for the
petitioner to maintain inviolate the complete separation of church and state
and curb any attempt to infringe by indirection a constitutional inhibition.
Indeed, in the Philippines, once the scene of religious intolerance and
prescription, care should be taken that at this stage of our political
development nothing is done by the Government or its officials that may lead
to the belief that the Government is taking sides or favoring a particular
religious sect or institution. But, upon very serious reflection, examination of
Act No. 4052, and scrutiny of the attending circumstances, we have come to
the conclusion that there has been no constitutional infraction in the case at
bar, Act No. 4052 grants the Director of Posts, with the approval of the
Secretary of Public Works and Communications, discretion to misuse
postage stamps with new designs "as often as may be deemed
advantageous to the Government." Even if we were to assume that these
officials made use of a poor judgment in issuing and selling the postage
stamps in question still, the case of the petitioner would fail to take in weight.
Between the exercise of a poor judgment and the unconstitutionality of the
step taken, a gap exists which is yet to be filled to justify the court in setting
aside the official act assailed as coming within a constitutional inhibition.
The petition for a writ of prohibition is hereby denied, without pronouncement
as to costs. So ordered.
Mueller vs. Allen [463 U.S. 388 (1983)]
Facts of the case
A Minnesota law allowed taxpayers to deduct from their state income tax
expenses incurred in providing tuition, textbooks, and transportation for their
children's elementary or secondary school education. Parents who sent their
children to parochial school also qualified for the deductions.
Question
Did the law violate the Establishment Clause of the First Amendment?
No. The Court held that the law did not have "the primary effect of advancing
the sectarian aims of the non-public schools," nor did it "excessively
entangle" the state in religion. Most importantly, argued Justice Rehnquist,
the deductions were available to all parents; in effect, Minnesota did not
"confer any imprimatur of state approval" on religious schools. Thus, the law
passed the Court's three-pronged test announced in Lemon v. Kurtzman
(1971) used to evaluate claims regarding the Establishment Clause.
Lemon vs. Kurtzman [403 U.S. 602 (1971)]
Facts of the case
Both Pennsylvania and Rhode Island adopted statutes that provided for the
state to pay for aspects of non-secular, non-public education. The
Pennsylvania statute was passed in 1968 and provided funding for non-
public elementary and secondary school teachers’ salaries, textbooks, and
instructional materials for secular subjects. Rhode Island’s statute was
passed in 1969 and provided state financial support for non-public
elementary schools in the form of supplementing 15% of teachers’ annual
salaries.
The appellants in the Pennsylvania case represented citizens and taxpayers
in Pennsylvania who believed that the statute violated the separation of
church and state described in the First Amendment. Appellant Lemon also
had a child in Pennsylvania public school. The district court granted the state
officials’ motion to dismiss the case. In the Rhode Island case, the appellees
were citizens and tax payers of Rhode Island who sued to have the statute in
question declared unconstitutional by arguing that it violated the
Establishment Clause of the First Amendment. The district court found in
favor of the appellees and held that the statute violated the First Amendment.
Question

Do statutes that provide state funding for non-public, non-secular schools
violate the Establishment Clause of the First Amendment?
Yes. Chief Justice Warren E. Burger delivered the opinion for the 8-0 majority
as to the Pennsylvania statute and 8-1 as to the Rhode Island statute. The
Court held that a statute must pass a three-pronged test in order to avoid
violating the Establishment Clause. The statute must have a secular
legislative purpose, its principal or primary effect must be one that neither
promotes nor inhibits religion, and it must not foster “excessive government
entanglement with religion.” The Court held that both the state statutes in
question had secular legislative purposes because they reflected the desire
of the states to ensure minimum secular education requirements were being
met in the non-public schools. The Court did not reach a holding regarding
the second prong of the test, but it did find that the statutes constituted an
excessive government entanglement with religion. In the Rhode Island
program, the amount of oversight of teachers and curricula required to
ensure that there is no unnecessary injection of religion into secular topics
would require the government to become excessively involved in the
nuances of religious education. The same danger holds true for the
Pennsylvania statute, which additionally provides state funding directly to a
church-related organization. Government financial involvement in such
institutions inevitably leads to “an intimate and continuing relationship”
between church and state. The Court also noted the potential political
implications of public funding, as there is a risk of religious issues becoming
politically divisive.
In his concurring opinion, Justice William O. Douglas wrote that the intrusion
of the government into the running of non-public schools through grants and
other funding creates the entanglement that the Establishment Clause
prohibits. He also argued that non-secular schools are so thoroughly
governed by religious ideologies that any amount of public funding supports
those doctrines, which the Framers of the Constitution dictated the
government must not do. Justice Hugo L. Black joined in the concurrence,
and Justice Thurgood Marshall joined in the parts relating to case numbers
569 and 570. Justice William J. Brennan, Jr. wrote a separate concurrence in
which he argued that the danger was not only that religion would infiltrate the
government, but also that the government would push secularization onto
religious creeds. An analysis of the statutes in question shows that they
impermissible involve the government in “essentially religious activities,”
which the Establishment Clause is meant to prevent. In his opinion
concurring in part and dissenting in part, Justice Byron R. White wrote that
the majority opinion goes too far and, in restricting the use of state funds in
non-secular schools, creates an obstacle to the use of public funds for
secular education. He argued that there was no proof that religion would
invade secular education or that the government oversight of the use of
public funds would be so extensive as to constitute entanglement.
Justice Thurgood Marshall did not participate in the discussion or decision of
case number 89.
Wallace vs. Jaffree [472 U.S. 38 (1985)]
Facts of the case
An Alabama law authorized teachers to conduct regular religious prayer
services and activities in school classrooms during the school day. Three of
Jaffree's children attended public schools in Mobile.
Question
Did Alabama law violate the First Amendment's Establishment Clause?
Yes. The Court determined the constitutionality of Alabama's prayer and
meditation statute by applying the secular purpose test, which asked if the
state's actual purpose was to endorse or disapprove of religion. The Court
held that Alabama's passage of the prayer and meditation statute was not
only a deviation from the state's duty to maintain absolute neutrality toward
religion, but was an affirmative endorsement of religion. As such, the statute
clearly lacked any secular purpose as it sought to establish religion in public
schools, thereby violating the First Amendment's Establishment Clause.
Islamic Da ‘wah Counsil vs. Executive Secretary [G.R. No. 153888, July
9, 2003]
Before us is a petition for prohibition filed by petitioner Islamic Da'wah
Council of the Philippines, Inc. (IDCP) praying for the declaration of nullity of
Executive Order (EO) 46, s. 2001 and the prohibition of herein respondents
Office of the Executive Secretary and Office of Muslim Affairs (OMA) from
implementing the subject EO.
Petitioner IDCP, a corporation that operates under Department of Social
Welfare and Development License No. SB-01-085, is a non-governmental
organization that extends voluntary services to the Filipino people, especially
to Muslim communities. It claims to be a federation of national Islamic
organizations and an active member of international organizations such as
the Regional Islamic Da'wah Council of Southeast Asia and the Pacific
(RISEAP)1 and The World Assembly of Muslim Youth. The RISEAP
accredited petitioner to issue halal2 certifications in the Philippines. Thus,
among the functions petitioner carries out is to conduct seminars, orient
manufacturers on halal food and issue halal certifications to qualified
products and manufacturers.
Petitioner alleges that, on account of the actual need to certify food products
as halal and also due to halal food producers' request, petitioner formulated
in 1995 internal rules and procedures based on the Qur'an3 and the
Sunnah4 for the analysis of food, inspection thereof and issuance of halal
certifications. In that same year, petitioner began to issue, for a fee,
certifications to qualified products and food manufacturers. Petitioner even
adopted for use on its halal certificates a distinct sign or logo registered in the
Philippine Patent Office under Patent No. 4-2000-03664.
On October 26, 2001, respondent Office of the Executive Secretary issued
EO 465 creating the Philippine Halal Certification Scheme and designating
respondent OMA to oversee its implementation. Under the EO, respondent
OMA has the exclusive authority to issue halal certificates and perform other
related regulatory activities.
On May 8, 2002, a news article entitled "OMA Warns NGOs Issuing Illegal
'Halal' Certification" was published in the Manila Bulletin, a newspaper of
general circulation. In said article, OMA warned Muslim consumers to buy
only products with its official halal certification since those without said
certification had not been subjected to careful analysis and therefore could
contain pork or its derivatives. Respondent OMA also sent letters to food
manufacturers asking them to secure the halal certification only from OMA
lest they violate EO 46 and RA 4109.6 As a result, petitioner lost revenues
after food manufacturers stopped securing certifications from it.
Hence, this petition for prohibition.
Petitioner contends that the subject EO violates the constitutional provision
on the separation of Church and State.7 It is unconstitutional for the
government to formulate policies and guidelines on the halal certification
scheme because said scheme is a function only religious organizations,
entity or scholars can lawfully and validly perform for the Muslims. According
to petitioner, a food product becomes halal only after the performance of
Islamic religious ritual and prayer. Thus, only practicing Muslims are qualified
to slaughter animals for food. A government agency like herein respondent
OMA cannot therefore perform a religious function like certifying qualified
food products as halal.
Petitioner also maintains that the respondents violated Section 10, Article III
of the 1987 Constitution which provides that "(n)o law impairing the obligation
of contracts, shall be passed." After the subject EO was implemented, food
manufacturers with existing contracts with petitioner ceased to obtain
certifications from the latter.
Moreover, petitioner argues that the subject EO violates Sections 15 and 16
of Article XIII of the 1987 Constitution which respectively provide:
ROLE AND RIGHTS OF PEOPLE'S ORGANIZATIONS
Sec. 15. The State shall respect the role of independent people's
organizations to enable the people to pursue and protect, within the
democratic framework, their legitimate and collective interests and
aspirations through peaceful and lawful means.
People's organizations are bona fide associations of citizens with
demonstrated capacity to promote the public interest and with identifiable
leadership, membership, and structure.
Sec. 16. The rights of the people and their organizations to effective and
reasonable participation at all levels of social, political, and economic
decision-making shall not be abridged. The State shall, by law, facilitate, the
establishment of adequate consultation mechanisms.
According to petitioner, the subject EO was issued with utter haste and
without even consulting Muslim people's organizations like petitioner before it
became effective.
We grant the petition.
OMA was created in 1981 through Executive Order No. 697 (EO 697) "to
ensure the integration of Muslim Filipinos into the mainstream of Filipino
society with due regard to their beliefs, customs, traditions, and institutions."8
OMA deals with the societal, legal, political and economic concerns of the
Muslim community as a "national cultural community" and not as a religious
group. Thus, bearing in mind the constitutional barrier between the Church
and State, the latter must make sure that OMA does not intrude into purely
religious matters lest it violate the non-establishment clause and the "free
exercise of religion" provision found in Article III, Section 5 of the 1987
Constitution.9
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good."10

Without doubt, classifying a food product as halal is a religious function
because the standards used are drawn from the Qur'an and Islamic beliefs.
By giving OMA the exclusive power to classify food products as halal, EO 46
encroached on the religious freedom of Muslim organizations like herein
petitioner to interpret for Filipino Muslims what food products are fit for
Muslim consumption. Also, by arrogating to itself the task of issuing halal
certifications, the State has in effect forced Muslims to accept its own
interpretation of the Qur'an and Sunnah on halal food.
To justify EO 46's intrusion into the subject religious activity, the Solicitor
General argues that the freedom of religion is subservient to the police power
of the State. By delegating to OMA the authority to issue halal certifications,
the government allegedly seeks to protect and promote the muslim Filipinos'
right to health, and to instill health consciousness in them.
We disagree.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom.11
If the government fails to show the seriousness and immediacy of the threat,
State intrusion is constitutionally unacceptable. In a society with a democratic
framework like ours, the State must minimize its interference with the affairs
of its citizens and instead allow them to exercise reasonable freedom of
personal and religious activity.
In the case at bar, we find no compelling justification for the government to
deprive muslim organizations, like herein petitioner, of their religious right to
classify a product as halal, even on the premise that the health of muslim
Filipinos can be effectively protected by assigning to OMA the exclusive
power to issue halal certifications. The protection and promotion of the
muslim Filipinos' right to health are already provided for in existing laws and
ministered to by government agencies charged with ensuring that food
products released in the market are fit for human consumption, properly
labeled and safe. Unlike EO 46, these laws do not encroach on the religious
freedom of muslims.
Section 48(4) of the Administrative Code of 1987 gives to the National Meat
Inspection Commission (NMIC) of the Department of Agriculture (DOA) the
power to inspect slaughtered animals intended for human consumption to
ensure the safety of the meat released in the market. Another law, RA 7394,
otherwise known as "The Consumer Act of 1992," gives to certain
government departments the duty to protect the interests of the consumer,
promote his general welfare and to establish standards of conduct for
business and industry.12 To this end, a food product, before its distribution to
the market, is required to secure the Philippine Standard Certification Mark
after the concerned department inspects and certifies its compliance with
quality and safety standards.13
One such government agency designated by RA 7394 is the Bureau of Food
and Drugs (BFD) of the Department of Health (DOH). Under Article 22 of
said law, BFD has the duty to promulgate and enforce rules and regulations
fixing and establishing a reasonable definition and standard of identity, a
standard of quality and a standard of fill of containers for food. The BFD also
ensures that food products released in the market are not adulterated.14
Furthermore, under Article 48 of RA 7394, the Department of Trade and
Industry (DTI) is tasked to protect the consumer against deceptive, unfair and
unconscionable sales acts or practices as defined in Article 50.15 DTI also
enforces compulsory labeling and fair packaging to enable the consumer to
obtain accurate information as to the nature, quality and quantity of the
contents of consumer products and to facilitate his comparison of the value
of such products.16
With these regulatory bodies given detailed functions on how to screen and
check the quality and safety of food products, the perceived danger against
the health of muslim and non-muslim Filipinos alike is totally avoided. Of
great help are the provisions on labeling of food products (Articles 74 to
85)17 of RA 7394. In fact, through these labeling provisions, the State ably
informs the consuming public of the contents of food products released in the
market. Stiff sanctions are imposed on violators of said labeling
requirements.
Through the laws on food safety and quality, therefore, the State indirectly
aids muslim consumers in differentiating food from non-food products. The
NMIC guarantees that the meat sold in the market has been thoroughly
inspected and fit for consumption. Meanwhile, BFD ensures that food
products are properly categorized and have passed safety and quality
standards. Then, through the labeling provisions enforced by the DTI, muslim
consumers are adequately apprised of the products that contain substances
or ingredients that, according to their Islamic beliefs, are not fit for human
intake. These are the non-secular steps put in place by the State to ensure
that the muslim consumers' right to health is protected. The halal
certifications issued by petitioner and similar organizations come forward as
the official religious approval of a food product fit for muslim consumption.
We do not share respondents' apprehension that the absence of a central
administrative body to regulate halal certifications might give rise to
schemers who, for profit, will issue certifications for products that are not
actually halal. Aside from the fact that muslim consumers can actually verify
through the labels whether a product contains non-food substances, we
believe that they are discerning enough to know who the reliable and
competent certifying organizations in their community are. Before purchasing
a product, they can easily avert this perceived evil by a diligent inquiry on the
reliability of the concerned certifying organization.
WHEREFORE, the petition is GRANTED. Executive Order 46, s. 2000, is
hereby declared NULL AND VOID. Consequently, respondents are
prohibited from enforcing the same.
SO ORDERED.
Fonacier vs. CA [96 Phil. 417 (1955)]
This case was instituted in the Court of First Instance of Manila by the Iglesia
Filipina Independiente, represented by its Supreme Bishop Gerardo M.
Bayaca, against Bishop Santiago A. Fonacier seeking to require the latter to
render an accounting of his administration of all the temporal properties he
has in his possession belonging to said church and to recover the same from
him on the ground that he had ceased to be the Supreme Bishop of said
religious organization. Bishop Isabelo de los Reyes, Jr., having been elected
as Supreme Bishop after the filing of the original complaint, was later made a
co-plaintiff in a supplementary complaint.
Mons. Fonacier claims as a defense that he has not been properly removed
as Supreme Bishop; that his legal successor was Juan Jamias who had been
elected in accordance with the constitution of the church; that he had already
rendered an accounting of his administration to Bishop Jamias and turned
over all the properties to the latter; that Bishop Isabelo de los Reyes, Jr.
formally joined the Protestant Episcopal Church of America and for this
reason he has ceased to be a member of the Iglesia Filipina Independiente;
and that Bishops De los Reyes and Bayaca having abandoned the faith,
fundamental doctrines and practices of the Iglesia Filipina Independiente,
they ceased to be members thereof and consequently, have no personality to
maintain the present action.
On May 17, 1950, the court rendered judgment declaring Mons. Isabelo de
los Reyes, Jr. as the sole and legitimate Supreme Bishop of the Iglesia
Filipina Independiente, and ordering Mons. Fonacier to render an accounting
of his administration of the properties and funds of the church "from the time
he began occupying the position of Secretario de Economia Temporal
thereof until the present time.".
When the case was taken to the Court of Appeals, the latter found the
decision of the Court of origin in accordance with law and the evidence and
affirmed the same in toto, and the case is now before us by virtue of a
petition for review interposed by defendant Mons. Fonacier.
Petitioner assigns in this instance twelve errors as allegedly committed by
the Court of Appeals which, in his opinion, merely involve or raise legal
questions which can be looked into in the present petition for review, but this
assertion is disputed by respondent who claims that the issues herein
involved call for factual conclusions inasmuch as they require an examination
of the oral and documentary evidence submitted by the parties. As to which
of these contention is correct, we are not in a position to determine at the
moment, the only thing clear being that in a petition for review, "The
judgment of the Court of Appeals is conclusive as to the facts, and cannot be
reviewed by the Supreme Court. The entry of such judgment is the end of all
questions of fact." (Moran, Comments on the Rules of Court, Vol. 1, 1952,
ed., p. 952), or, as section 2, Rule 46 of the Rules of Court provides, "only
questions of law may be raised in the petition and must be distinctly set
forth", and conformably with this provision this Court has constantly ruled that
it would not disturb the findings of fact of the Court of Appeals in an appeal
by certiorari (De Vera vs. Fernandez, 88 Phil., 668; Velasco vs. The Court of
Appeals, 90 Phil., 689; Monfort vs. Aguinaldo, L-4104, May 2, 1952.)
Considering the nature of the present appeal, we would therefore proceed to
restate the facts as found by the Court of Appeals, limiting our function to
ascertaining or determining if the conclusions drawn from said facts are in
accordance with law or the constitution of the Iglesia Filipina Independiente
which, in our opinion, is the key to the solution of the present controversy,
and in our discussion of the issues as reflected in the various assignments of
error, we will follow the same arrangement made in petitioner's brief without
prejudice of discussing together or in a group those which we believe are
interrelated and can be better elucidated than by discussing them separately.
The main facts which led to the present controversy as found by the Court of
Appeals are: "It is not disputed that upon the death of Mons. Aglipay, the
Supreme Head of the IFI since 1902, Mons. Fonacier was elected Obispo
Maximo, on October 14,1940, in accordance with the constitution of the
church. The latter's successor should have been elected by the Asemblea
Magna of the Church on September 1, 1943. However, due to circumstances
brought about by the Pacific War, it was agreed, on December 16, 1941, by
the Bishops stationed in Manila and neighboring provinces that Mons.
Fonacier should hold over as Obispo Maximo of IFI, for the duration of the
emergency created by the war. After the liberation of the Philippines, and on
September 1, 1945, an attempt was made to convene the Asemblea Magna
for the purpose of electing the Bishop Maximo, but owing to lack of quorum,
the Bishops present agreed that Mons. Fonacier would continue for another
year, or until September 1, 1946.
On September 2, 1945, the Consejo Supremo de Obispos (Supreme Council
of Bishops) of the IFI convened and approved the designation of bishops to
their respective bishoprics. Here began the conflict which culminated in the
division Mons. Alejandro Remollino was assigned as bishop of the diocese of
Cavite. Upon learning that the latter notified the priests of his bishopric
regarding his assignment, Mons. Fonacier wrote him a letter dated
September 18, 1945 enjoining him from assuming the duties of his office and
from taking possession of the diocese of Cavite until he (Fonacier) had
approved the appointment made by the Supreme Council as provided for in
the constitution. To this letter Bishop Remollino replied explaining his side
and adding that he was ready to defend his stand on the matter before the
courts of justice. In view of this attitude, Mons. Fonacier ordered the
expulsion of Bishop Remollino from the church and also of Bishop Manuel
Aguilar (Exhibits 3 and 4) whom Mons. Fonacier suspected to be the
instigator of certain acts of insubordination and defamation against him.
"On December 1, 1945, Bishop Manuel Aguilar filed charges (Exhibit B)
against Mons. Fonacier as Supreme Bishop which were submitted to a
meeting of the Supreme Council of Bishops, held on January 21, 1946, which
decreed the forced resignation of appellant, and to the Asemblea Magna or
Asemblea General of the church, held on January 22, 1946. This body
approved the forced resignation of appellant (petitioner Fonacier) and elected
Bishop Gerardo M. Bayaca as Supreme Bishop to succeed Mons. Fonacier.
"When notified of his removal as Obispo Maximo and required to turn over all
the funds, documents and other properties of the church to his successor,
appellant refused. Hence, the commencement of the instant action in the
Court of First Instance of Manila.
On September 1, 1946 the Asemblea Magna convened and elected Mons.
Isabelo de los Reyes, Jr. as Obispo Maximo (respondent herein). On the
same date Mons. Fonacier and some of his followers met at the Manila Hotel
and elected Mons. Juan Jamias as their Supreme Bishop. Thus two factions
of the IFI were created.
"The faction under Mons. Isabelo de los Reyes, Jr. according to the
statement (Exhibit EE) of the Director of National Library, issued on May 22,
1947, have nineteen bishops and 252 priests while the faction under Mons.
Juan Jamias had ten bishops and only 40 priests. Thus on June 23, 1947,
the Secretary of Public Instruction promulgated an order to the effect that for
administrative purposes, Mons. Isabelo de los Reyes, Jr., was recognized as
sole head of IFI and the applications of priests of said church for permits to
solemnize marriages would be granted if it were shown thereon that they
recognized Isabelo de los Reyes, Jr., as the Obispo Maximo of said church.
The Supreme Court, however, denied the power of the Secretary to stop the
Fonacier group from obtaining licenses to solemnize marriages.
"On January 22, 1948, the bishop and priests under Mons. De los Reyes, Jr.,
had increased from 252 to 293 while those under Mons. Jamias were only 64
(Exhibit)25) and Mons. De los Reyes, Jr. was duly registered as corporation
sole for the administration of the temporalities of the Iglesia Filipina
Independiente, pursuant to the provisions of Articles 154-164 of the
Corporation Law.'".
I.
The petitioner assigns as first error the following: The Court of Appeals erred
"in holding that the ouster of Bishops Manuel Aguilar, Alejandro Remollino,
Isabelo de los Reyes Jr., Gerardo Bayaca, Juan Quijano and Pablo Tablante
decreed by the Supreme Council and the petitioner as Obispo Maximo was
illegal," and the facts concerning the ouster of Bishops Remollino and Aguilar
as narrated by the Court of Appeals are:.
At the meeting of the Supreme Council of Bishops held on September 2,
1945, Mons. Alejandro Remollino was appointed to the diocese of Cavite. He
at once advised the priests of his bishopric Fonacier, wrote Bishop Remolino
a letter, dated September 18, 1945 (Exhibit T) calling his attention to the fact
that the latter had been quite hasty in returning to the diocese of Cavite
without waiting for the approval by the Obispo Maximo of the Supreme
Council's resolution of September 2, 1945 as provided for in the constitution
of the church, which requires the approval of the Obispo Maximo to all
resolutions of the Supreme Council before becoming effective and enjoining
him from assuming the duties of his office and from taking possession of said
diocese. Mons. Remollino answered appellant with a letter (Exhibit U) dated
September 19, 1945, stating that he had been appointed Bishop of the
diocese of Cavite by the late Mons. Aglipay; that said appointment was
subsequently confirmed by the Supreme Council of Bishops; that he had
ever since been the Bishop of said diocese; and that, therefore, he was
ready to defend his stand on the matter before the courts of justice.
Resenting such attitude of Bishop Remollino, taking it as a defiance and an
insult, considering it as a direct contempt of the Supreme Head of the church,
and suspecting Bishop Manuel Aguilar as the one who drafted said letter and
as the instigator, among the priests and followers of the church, of what he
considered as acts of insubordination, defamation and vilification against
him, appellant prepared and signed a document, dated October 8, 1945,
purporting to be a decree of expulsion, whereby he decreed the expulsion of
Msgrs. Aguilar and Remollino from the church (Exhibit 3). This document
was signed by appellant, countersigned by the Secretary General Bishop
Isabelo de los Reyes, Jr. and agreed to by Bishops Juan Jamias, Martin
Jamias, Gregorio Gaerlan, Leopoldo Ruiz, Gerardo Bayaca and Pablo
Tablante. On October 16, 1945 the last-named six bishops approved a
resolution decreeing the expulsion of Aguilar and Remollino from the church
(Exhibit 4), which they signed and appears to have been countersigned by
the Secretary General and approved by appellant as Obispo Maximo. It is
claimed by appellant that due to the intervention of persons interested in
settling the controversy within the church, said decree of expulsion (Exhibit 4)
was not put into effect immediately and that the, appellant, agreed to
consider the matter closed after receiving from Aguilar and Remollino a letter
of apology which the latter promised to write. In other words, there was an
understanding that if no letter of apology was written by Bishops Aguilar and
Remollino. Exhibits 3 and 4 will become operative. Appellant also contends
that having been informed by Bishop De los Reyes, Jr. that Bishops Aguilar
and Remollino refused to sign a letter of apology, appellant issued the
communication (Exhibit BB) on November 20, 1945, whereby he declared
the effectivity of the decree of ouster of the aforesaid two bishops, dated
October 8, 1945. (Exhibit 3).
The issue now to be determined is: Was the ouster of Bishops Manuel
Aguilar and Alejandro Remollino legal and valid?.
Petitioner contends that such ouster was legal and valid because it was
decreed by him as Supreme Bishop and the act was sanctioned by the
Supreme Council in accordance with the constitution of the church as a
punishment for the action of said bishops in defying and slandering the
Supreme Head of the church and in campaigning to destroy the unity of the
church. Furthermore, petitioner contends that, under the constitution of the
church Bishops Aguilar and Remollino had the right to appeal from the
decree of expulsion to the Curia de Apelaciones which had jurisdiction to
review and render final judgment thereon, but that they did not avail
themselves of this remedy and, hence, this decree became final and
executory and cannot now be attacked collaterally outside of the church, for
the civil courts have no jurisdiction to review or revise it.
We find that this claim is but a reiteration of what petitioner has advanced
when this case was brought before the Court of Appeals and the latter has
already passed upon it after making a careful discussion of the evidence, oral
and documentary, in connection with the pertinent provisions of the
constitution of the Iglesia Filipina Independiente touching upon the powers of
the Supreme Bishop concerning removal of bishops of the church, and in
connection with pertinent authorities relative to the doctrine of interference
which civil courts might have regarding ecclesiastical matters. And we find
that the discussion made by the Court of Appeals on the points raised by
petitioner is correct.
Take for instance the question relative to the authority of the civil courts to
review or revise an action of decree of the ecclesiastical courts or authorities
concerning which the Court of Appeals upheld the power of the civil courts to
look into the propriety of the decree of ouster because of the plea of
respondent that it was not issued in accordance with the procedure laid down
in the constitution of the Iglesia Filipina Independiente. The Court of Appeals
entertained the view that since it is claimed that the ouster was made by an
unauthorized person, or in a manner contrary to the constitution of the
church, and that the ousted bishops were not given notice of the charges
against them nor were they afforded an opportunity to be heard, the civil
courts, have jurisdiction to review the action regarding said ouster citing in
support of its view some authorities from Vol. 45 of the American
Jurisprudence which we believe to be pertinent and decisive of the issue
under consideration (45 Am. Jur. pp. 751-754). And, for the purposes of this
decision, it is enough for us to quote the following as a representative
authority: "Where, however, a decision of an ecclesiastical court plainly
violates the law it professes to administer, or is in conflict with the laws of the
land, it will not be followed by the civil courts. * * * In some instances, not
only have the civil courts assumed the right to inquire into the jurisdiction of
religious tribunals and the regularity of their procedure, but they have
subjected their decisions to the test of fairness or to the test furnished by the
constitution and laws of the church. Thus, it has been held that expulsion of a
member without notice or an opportunity to be heard is not conclusive upon
the civil courts when a property right is involved." (45 Am. Jur., p. 77.).
The claim that the ouster in question was legal and valid because petitioner,
as Supreme Bishop, could act alone pursuant to the constitution of the
church wherein it is provided that the Supreme Bishop is the supreme head
of the Iglesia Filipina Independiente and as such shall have full powers to
impose the penalties of dismissal, confinement in the seminary, suspension,
fine, transfer, etc. which, without contravening the penal laws of the
constituted government, can be imposed upon the bishops, and that said
power can be exercised even without the intervention of the Supreme
Council, cannot be entertained in the light of the very provisions of the
constitution of the church, it appearing that the alleged power of the Supreme
Bishop under the constitution is not all-embracing but limited and, in any
event, the final action shall be taken by the Supreme Council. Thus, the
pertinent provisions of the constitution of the church are quoted hereunder for
ready reference:.
Tendra omnimodas facultades para imponer las penas deseparacion,
reclusion en el Seminario, suspension, multa, translado y otras, que, sin
contravenir las leyes penales del Gobierno civil establecido, se puedan
imponer a los Apostoles * * *.
Sin embargo el Obispo Maximo no podra castigar a nadie, sinoir al acusado
y sin darle medios para justificarse, y aun asi, tendra que oir la opinion del
Juez de la Curia de Apelaciones, y en caso gravisimo, al Consejo Supremo
de Obispos (Sec. VI, Cap.III, Parte II, p. 39., Reglas Constitucionales, Exhibit
K).
Los Obispos, en caso de delinquir, seran juzgados por el ConsejoSupremo,
bajo la sancion del Obispo Maximo (Sec. VII, id., p. 40).
Los que se crean condenados injustamente podran apelar a la Curia de
Apelaciones, la cual fallara inapelabelemente.
La Curia de Apelaciones dirimira las competencias y conocera en primera
instancia de las condenas que dictare el Obispo Maximo, pudiendose apelar
al Consejo Supremo de Obispos, en los casos enque se impongan
exageradas penas. (Sec. VIII, Ibid., p. 40).
It can be plainly seen from a cursory reading of the foregoing provisions that
the Supreme Bishop cannot punish an erring member without first giving him
an opportunity to be heard and to defend himself, and, in any event, without
first securing the opinion of the Judge of the Curia de Apelaciones, and in
serious cases, the case needs to be referred to the Supreme Council of
Bishops. With regard to a case where a bishop is involved, the action shall
be submitted to the Supreme Bishop for approval. And in case of guilt, the
accused may appeal to the Curia de Apelaciones, whose decision shall be
final. Such is the procedure laid down by the constitution of the church when
disciplinary action needs to be taken against a delinquent member. It is not,
therefore, correct to say that the Supreme Bishop can take action alone in
connection with an erring bishop, even in disregard of the Supreme Council,
in view of the over-all powers he claims to possess under the circumstances.
That the procedure above outlined is correct and apparently is in line with the
practice consistently followed by the Iglesia Filipina Independiente against its
erring officials, finds reaffirmation in the alleged ouster of Bishops De los
Reyes, Jr. Bayaca, Quijano, and Tablante wherein it appears that, in
effecting said ouster, the group headed by petitioner followed a procedure
which apparently is in accordance with the above quoted provisions of the
constitution and which, as found by the Court of Appeals is as follows:
"Formal charges were filed with the Supreme Council. This body convened
on January 29, 1946, for the purpose of considering said charges. A
President of the Supreme Council was elected. A bishop was appointed as
judge of the Curia de Apelaciones. The charges were referred to the
President of the Curia de Apelaciones for action, who reported that the same
being so serious should be taken cognizance of by the Supreme Council.
The Supreme Council resolved to notify the respondents of the charges
requiring them to answer within 24 hours should they wish to plead any
defense. Two bishops were commissioned to serve notices upon the
respondents. Since propositions of an amicable settlement failed, the
Supreme Council constituted itself into a tribunal to hear the charges. A
hearing was held at which the respondents failed to appear or to present any
defense. At said hearing the Supreme Council received evidence and, after
hearing the opinion of the judge of the Curia de Apelaciones, approved and
promulgated a decision ordering the ouster of the respondents.".
Since, according to the Court of Appeals, no procedure similar to the one
followed by the faction of petitioner in connection with the case of Bishop De
los Reyes, Bayaca and others, was ever adopted as far as Bishops Aguilar
and Remollino are concerned, or no formal charges were filed against the
latter, nor an investigation or hearing ever held, it follows that the ouster of
said two bishops was null and void, it being in violation of the constitution of
the church.
Let us now take up the alleged ouster of Bishops De los Reyes, Bayaca,
Quijano and Tablante which, according to petitioner, has been validly
decreed by him as Supreme Bishop, and, as usual, let us refer to the facts as
found by the Court of Appeals:.
After having been noticed of his removal as Supreme Bishop of the IFI and
required to turn over all the funds, documents and other properties of the
Church he had in his possession to his successor by letter, Exhibit I, dated
January 23, 1946, the appellant organized a group of rebels of the church
which, on January 29,1946, formed a Supreme Council composed of
appellant himself, Bishop Jamias (J.) Jamias (M.), Gaerlan and Ruiz and the
bishops he illegally consecrated, namely, Evangelista, Elegado, Bergonia,
Pasetes and Mondala. Said Supreme Council met in Pasay; elected Juan
Jamias as President of the Supreme Council, who, in turn, appointed
Gaerlan and Ruiz, as Juez de la Curia de Apelaciones and Secretary
General, respectively; and took cognizance of the charges of Rev. Flaviano
Lorenzo against Mons. Isabelo de los Reyes, Jr., Gerardo Bayaca, Juan
Kijano and Pablo Tablante for alleged high treason to the IFI (Exh. 31). On
January 30, 1946 the same Supreme Council met, constituted itself as a
tribunal and rendered decision decreeing the separation of the above
mentioned Bishops Isabelo de los Reyes, Jr. et al., from the IFI.
It should be noted that the action against the abovementioned bishops was
taken after petitioner had been notified of his removal as Supreme Bishop of
the Iglesia Filipina Independiente and required to turn over all the funds,
documents, and properties of the Church to his successor by the Supreme
Council of Bishops which decreed his forced resignation on January 21,
1946. If petitioner has ceased to be the Supreme Bishop when he took that
action against the four bishops, then it would seem that he had no further
authority to convoke a Supreme Council of Bishops or a meeting of the
Asemblea Magna to sit in judgment of them in accordance with the
constitution of the church and, therefore, whatever action his group might
have taken leading to their ouster would necessarily be void and without
effect. While apparently the ouster of said bishops was made in accordance
with the procedure laid down by the constitution of the church wherein the
four bishops were given an opportunity to be heard and defend themselves,
the validity of the action taken will necessarily have to be premised on the
legality of the forced resignation decreed against petitioner which is also one
of the issues raised by petitioner in this appeal. This will be taken up in the
latter part of this decision. In the meantime, suffice it to state that the Court of
Appeals has found the ouster of Bishop De los Reyes and his companions to
be without justification in view of the conclusion it has reached that petitioner
has been validly removed as Supreme Bishop since January 22, 1946 and
the Supreme Council of Bishops he had convened was illegal it being
composed merely of himself and the bishops he had consecrated without the
sanction of the legitimate members of the Supreme Council of the Iglesia
Filipina Independiente. If this premise is correct, as will be discussed
elsewhere in this decision, then the ouster of Bishop De los Reyes and his
companions is unjustified and illegal.
II.
In this second assignment of error, petitioner claims that it was a mistake for
the Court of Appeals to consider Irineo C. de Vega as bishop and as member
of the Supreme Council, the Asemblea Magna, and the Asemblea General of
the church and this claim is predicated upon the fact that Bishop Vega has
already severed his connection with the church by voluntary resignation
because of his desire to engage in the practice of law.
We are afraid that this assignment of error raises a question of fact which
was already resolved by the Court of Appeals against the petitioner. The only
purpose of this assignment is to show that petitioner was not properly ousted
as Supreme Bishop and that Monsignors Bayaca and De los Reyes were not
duly elected as Supreme Bishops because Bishop Vega had no right to
participate in the proceeding affecting them, but in justifying his stand,
petitioner brings into play his own assumption of facts which have already
been rejected by the Court of Appeals. Thus, in discussing the evidence
submitted by both parties relative to the alleged resignation of Vega as
bishop of the Iglesia Filipina Independiente, the Court of Appeals made the
following findings:.
Testifying, appellant averred that it was the Secretary General Mons. De los
Reyes, Jr., who informed him that Vega did not want to continue as Bishop of
the IFI and that he preferred to engage in the practice of law (p. 188, tsn,
First Trial), but Mons. De los Reyes, Jr., testified that Bishop Vega did not
actually resign but only asked for a vacation which the Supreme Council
granted, the reason for such vacation being that his parish church in Paco
had been burned during the war. And Bishop Vega himself testified that he
never resigned as Bishop and that, in spite of the letter Exhibit 45 cancelling
his permit to solemnize marriages, he continued to exercise the other powers
and privileges of his position; and that the appellant wrote a letter to the
National Library for the cancellation of Vega's permit to solemnize marriages
because of the differences between the two or the grudge of appellant since
the election in 1940 when the former was the campaign manager of Bishop
Castro who ran against the appellant for the position of Supreme Bishop.
On the other hand, it appears that at the meeting on September 2, 1945
Vega was assigned or appointed by the Consejo Supremo to the diocese of
Tayabas, Marinduque, Batangas and Mindoro (Exhibit M) and on October 18,
1945 the minutes of said meeting were duly approved by the Supreme
Council (Exhibit AA) and appellant, although present in both meetings, never
protested to such appointment of Bishop Vega.
We hold, therefore, that the alleged resignation of Vega or the voluntary
relinquishment of his position as Bishop, has not been established by clear
and convincing evidence, and Error No. III assigned was not committed by
the trial court.".
Note that, after discussing the evidence in the manner above stated, the
Court of Appeals held "that the alleged resignation of Vega or the voluntary
relinquishment of his position as Bishop, has not been established by clear
and convincing evidence", and this finding we cannot now disturb.
III
The third assignment of error refers to the finding of the Court of Appeals that
Monsignors Apostol, Evangelista, Mondala, Pasetas, Bergonia, Ramos and
Elegado have not been validly consecrated as bishops and therefore cannot
be considered members of the Supreme Council, Asemblea Magna, and
Asemblea General of the church.
In this connection, the Court of Appeals found that the aforementioned seven
individuals were consecrated by petitioner without the approval of the
Supreme Council and in violation of the constitution of the church for,
according to said court, "In fact one of the charges filed against the
(petitioner) which culminated in his forced resignation was the latter's having
consecrated said bishops not only without the consent or approval of the
Consejo Supremo but also over its express objection as in the case of P.
Evangelista." And, in assailing this finding, petitioner merely makes the
comment that the appointments of these bishops is an ecclesiastical matter
which cannot be revised by the civil courts. We have already stated that
while the civil courts will ordinarily leave ecclesiastical matters to church
authorities, they may however intervene when it is shown, as in this case,
that they have acted outside the scope of their authority or in a manner
contrary to their organic law and rules (45 Am. Jur., 751,754). This
assignment, therefore, is without merit.
IV and V.
The fourth and fifth assignments of error read:.
IV. The Court of Appeals erred in not declaring that the so called Supreme
Council and Asemblea General that met on January 21 and 22, 1946,
respectively, upon the call of Aguilar, were illegally constituted, and that,
therefore, their actuations were null and void, more particularly, the ouster of
the petitioner as Obispo Maximo decreed by them.
V. The Court of Appeals erred in holding that the Asemblea General and the
Asemblea Magna referred to and defined in the Church's constitution is one
and the same body.
The fourth assignment of error is important because it calls for a
determination of the validity of the ouster of petitioner as Supreme Bishop of
the Iglesia Filipina Independiente. It involves an inquiry into the propriety of
the meeting held by the Supreme Council of Bishops and Asemblea General
on January 21, and January 22,1946, respectively, upon the call of Bishop
Aguilar. For the determination of the pertinent issues, it is necessary to make
a review of the facts leading to the forced resignation of petitioner as
Supreme Bishop as found by the Court of Appeals.
It appears that on December 1, 1945, Bishop Aguilar filed charges against
petitioner as Supreme Bishop which he outlined in detail in a letter he
addressed to him on said date and which appears copied verbatim in the
decision of the Court of Appeals (Exhibit B). On December 4, 1945, Bishop
Aguilar issued a call for meeting of the Asemblea General to be held on
January 22, 1946 (Exhibit D), and on January 2, 1946, he issued another call
for a meeting of the Supreme Council to be held on January 21, 1946 for the
purpose of hearing and considering the charges contained in the aforesaid
letter. Petitioner answered the charges, through a counsel, in a written
statement dated January 18, 1946 (Exhibit N) wherein he challenged the
authority of Bishop Aguilar to summon the council of bishops for the purpose
of hearing the charges and the authority of Bishop Remollino to attend the
same on the ground that the two bishops had already been expelled by him
from the church. The Supreme Council of Bishops convened on January 21,
1946 as scheduled and proceeded to deliberate on the charges against
petitioner, and after finding them proven and substantiated, it approved a
decree ordering the forced resignation of petitioner as Supreme Bishop of the
church. The decree was submitted to the Asemblea Magna or Asemblea
General which convened on January 22, 1946. Petitioner did not attend this
meeting but sent a printed answer to the charges (Exhibit O). The assembly,
after deliberating on the merits of the decree as well as the reasons and
explanations advanced in petitioner's answer, unanimously approved said
decree and immediately thereafter elected Bishop Gerardo Bayaca as
Supreme Bishop in place of petitioner.
Petitioner claims that the meeting of the Supreme Council held on January
21, 1946 was illegal because (1) it was called by Bishop Aguilar, an
unauthorized person, who already ceased to be a bishop and president of
the Supreme Council by reason of his previous ouster, and (2) the bishops
who were present did not constitute a quorum. Likewise, petitioner assails
the legality of the meeting of the Asemblea General or Asemblea Magna held
on January 22, 1946 for the reasons that (1) it was called by Bishop Aguilar
alone and not by the Supreme Council as provided for in the constitution, and
(2) the persons who attended said meeting did not constitute a quorum.
Petitioner further contends that the Asemblea General and the Asemblea
Magna are two different bodies, their differences being, to wit: the Asemblea
General is called by the Supreme Council while the Asemblea Magna is
called by the Obispo Maximo; the Asemblea Magna is composed of all
bishops, one priest from each diocese elected by the parish priests of the
same, and one layman from each diocese elected by the presidents of the
parochial committee, while the Asemblea General is composed of all
bishops, parish priests, and presidents of the parochial committees; and that
the sole function of the Asemblea General is to try to the Supreme Bishop,
while the Asemblea Magna is called upon to elect the Supreme Bishop and
to amend the constitution of the church.
The claim that Bishop Aguilar had no authority to convene the Supreme
Council by reason of his previous ouster cannot now be sustained in view of
our finding that said ouster was made in violation of the constitution of the
church. The same thing may be said with regard to the claim that Bishop
Vega had no right to participate in the meeting because of his voluntary
separation from the church. It is only important to note in this connection that
in the session of the Supreme Council held on September 2,1945, (Exhibit
M), Bishop Aguilar was elected president of said council and his designation
has not been disputed by petitioner. It was in this capacity that he issued the
call for a meeting of the Asemblea General on January 22, 1946 and the call
for a meeting of the Supreme Council on January 21, 1946.
As regards the existence of a quorum in the meeting held by the Supreme
Council of January 21, 1946, the following is the finding of the Court of
Appeals: "After examining the whole record, we believe, and so hold, that on
January 21 and 22, 1946 there were only thirteen legitimate bishops of the
IFI, namely: Fonacier, Jamias (J.), Jamias (M.), Gaerlan, Ruiz, De los Reyes,
Jr. Bayaca, Kijano, Tablante, Felipe, Aguilar, Remollino and Vega. Buyser is
not included because he was ill and never heard of. Seven out of these 13
attended the meeting of the Consejo Supremo held on January 21, 1946,
namely: De los Reyes, Jr., Bayaca, Kijano, Tablante, Aguilar, Remollino and
Vega. It is, therefore, beyond question that there was a quorum present in
that session." This finding we cannot now disturb.
On the question whether or not the Asemblea General and the Asemblea
Magna are one and the same body, the Court of Appeals, after examining all
the provisions of the constitution of the church (Exhibits K and L), found that
the finding of the trial court in the affirmative sense was correct making its
own the reasons advanced by the said trial court in support of said
conclusion. This is now assailed by petitioner as erroneous because it
ignored the amendment introduced in the original provision of the constitution
as regards the composition of the Asemblea Magna.
While apparently the trial court overlooked the amendment pointed out by the
petitioner regarding the composition of the Asemblea Magna, we do not
however consider material the nature of the change made as to effect the
substance of the finding of the trial court it appearing that the change is
merely nominal and does not make any reference to the composition of the
Asemblea General. The ambiguity in the composition of the latter body is still
there for it nowhere appears in the constitution any definition or explanation
as regards its composition in the same manner as it does with regard to the
Asemblea Magna. It is perhaps for this reason that the authorities of the
church have involved themselves in a confusion as to the real body that
should be called upon to act on the different problems of the church which
accounts for their differences of opinion as to whether said two bodies are
really one and the same. As the situation now stands, we do not feel justified
in nullifying the actuation of the assembly called by Bishop Aguilar in his
capacity as President of the Supreme Council of Bishops simply because it
was called Asemblea Magna and not Asemblea General as now pretended
by petitioner.
The legality of the meeting of the Asemblea Magna held on January 22, 1946
is also assailed because it was called by Bishop Aguilar alone and not by the
Supreme Council of Bishops as a body as provided for in the constitution.
While there is some merit in this contention, it cannot, however, have the
effect of nullifying the actuation of said body for this reason alone considering
the other factors that had intervened, namely: that the meeting was called by
Bishop Aguilar in his capacity as President of the Supreme Council; that this
body actually met in pursuance of that call and took action on the charges
referred to it by Bishop Aguilar, and that the action taken by the council was
submitted to the Asemblea General which the council well knew was to
convene on January 22, 1946. All these acts of the council have the effect of
ratifying the call made by Bishop Aguilar.
Petitioner also argues that there was no quorum in the meeting of the
Asemblea General held on January 22,1946 because of the thirty-one (31)
person present thereat, only nineteen (19) were qualified to attend it because
the other twelve (12) were neither bishops nor parish priests, nor presidents
of local committees. This issue was also resolved by the Court of Appeals in
the affirmative sense. The finding of the court on this matter is as follows:.
Pursuant to the Reglas Constitucionales the Asemblea Magna is composed
of all the bishops, and one parish priest delegate and one layman delegate
from each diocese. Accordingly, the total numbers of the members allowed to
attend the Asemblea Magna is equal to the number of the dioceses multiplied
by three. To find out how many delegates should be present in the session of
the Asemblea Magna on January 22, 1946, the number of dioceses into
which the IFI was then divided should be ascertained. According to the
minutes of the meeting of September 2, 1945 Exhibit M) there were sixteen
dioceses, two of which were vacant. In the minutes (Exhibit 12) of the
meeting of the Asemblea Magna, formed by the faction of the appellant, on
September 1, 1946 only fifteen dioceses were listed. The total number of
members or delegates allowed to attend the Asemblea Magna on January
22, 1946, was, therefore, (48.) Only twenty-five of them were needed to
constitute a quorum. Since there were thirty-one members or delegates
present in that meeting, it is beyond question that a quorum was present.".
As a corollary to the above findings, the Court of Appeals held that the
Supreme Council and the Asemblea Magna that met on January 21, and
January 22, 1946 respectively, were legally constituted and that the forced
resignation and ouster of petitioner taken therein and the designation of
Bishop Bayaca as Supreme Bishop, conducted on January 22, 1946, are
valid. These findings, which involve questions of fact, cannot now be looked
into, and, therefore, should be affirmed.
VI and VII.
The next error assigned by petitioner refers to the legality of the election of
Bishop De los Reyes, Jr., as Supreme Bishop of the Iglesia Filipina
Independiente.
It appears that on September 1, 1946, upon the call made by Mons. Bayaca
as incumbent Supreme Bishop, the Asemblea Magna held a meeting and
elected Bishop Isabelo de los Reyes, Jr. as his successor. This election is
now assailed on the ground that Mons. Bayaca had no authority to issue the
call as he was not legally elected Supreme Bishop and had been ousted as
member of the church by the Fonacier faction, and because there was no
quorum present in that meeting.
With regard to the first ground, we have already seen that the election of
Mons. Bayaca was found to be valid and his ouster by the Fonacier faction
null and void so that it cannot be said that he acted outside the scope of his
authority in calling the meeting in question. And with regard to the question of
quorum, the Court of Appeals found that there was, and this finding cannot
now be looked into.
Petitioner next takes up the legality of the election of Bishop Jamias as
Supreme Bishop of the church contending that the Court of Appeals
committed an error in declaring said election invalid and without effect.
On this point, the evidence shows that petitioner Fonacier, calling himself as
Supreme Bishop of the Iglesia Filipina Independiente, issued a call to all
those bishops and rebels belonging to his faction for a meeting to be held by
the Asemblea Magna on September 1, 1946 for the election of his successor,
and it was in that meeting where Bishop Jamias was elected to take his place
as Supreme Bishop; but such election was found by the Court of Appeals to
be illegal because, "It has been conducted not by a quorum of qualified and
legitimate members of the IFI but by rebels thereof who were not authorized
to organize the so-called Asemblea Magna", and so it concluded that Mons.
Juan Jamias was not legally elected as Supreme Bishop of said church. This
finding also involves a question of fact which we cannot now look into.
IX, X, XI, and XII.
Finally petitioner contends that the Court of Appeals erred:.
IX. In holding that the abandonment of the constitution, restatement of
articles of religion and abandonment of faith or abjuration alleged by
petitioner are unquestionably ecclesiastical matters which are outside the
province of the civil courts.
X. In holding that the new declaration of faith and the abandonment of the
constitution of the church were legally and validly adopted by the duly
constituted Consejo Supremo and Asemblea Magna composed of legitimate
members of the IFI headed by responded Isabelo de los Reyes, Jr., and duly
empowered by the reglas constitucionales (Exhibits K, and L,) to take such
actions.
XI. In holding that the consecration of Reyes, Bayaca, and Aguilar as bishops
by the American Protestant Episcopal Church was merely for the purpose of
conferring upon them apostolic succession and there is no factual basis for
their alleged abjuration or separation from the IFI.
XII. In not holding that the respondent Isabelo de los Reyes, Jr., and Gerardo
M. Bayaca, having abandoned the faith, fundamental doctrines and
practices, as well as the constitution of the Iglesia Filipina Independiente, and
having adhered to those of others, have automatically ceased to belong to
said church, and consequently, have no personality to maintain the present
action." (9th, 10th, 11th, and 12th assignments of error.).
The issues raised in the foregoing assignments of error were squarely met by
the Court of Appeals whose decision on the matter, because of its lucidity
and the interesting discussion made therein concerning the importance of the
alleged abandonment of the Constitution, restatement of articles of religion,
and abandonment of faith or abjuration on the part of Bishop De los Reyes,
Bayaca and Aguilar in relation to the tenets of the original constitution of the
church and the conclusions it has drawn in line with the authorities cited in
support thereof, we can do no better than to quote in toto hereunder:.
Sometime in April 1947, Bishops De los Reyes, Jr., Gerardo Bayaca and
Manuel Aguilar, upon their petition, were consecrated as bishops of the
Protestant Episcopal Church of the United States. On August 5, 1947, the
Obispo Maximo, the Supreme Council, the Asemblea Magna of appellee's
faction amended the constitution of the IFI (Exhibit 55) and restated its
articles of religion (Exhibit 54).
On January 10, 1948, the appellant amended his answer by further alleging
that: "in or about the month of August, 1947, plaintiff Isabelo de los Reyes,
Jr. as alleged Obispo Maximo of the plaintiff's Iglesia Filipina Independiente,
formally joined the Protestant Episcopal Church of America, a duly existing
religious corporation, and therefore, has ceased to be a member of the
Iglesia Filipina Independiente, and has no legal capacity to sue, allegedly as
Obispo Maximo of the last mentioned church.".
On this point the court below took the view that the alleged doctrinal
changes, abandonment of faith and acts of abjuration complained of are
purely ecclesiastical matters and that since Bishop De los Reyes, Jr. allowed
himself to be consecrated bishop of the Protestant Episcopal Church under
the conviction that he was so authorized by the Supreme Council of the IFI
and with the condition that he would not be bound by any obligation to the
Episcopal Church, his consecration will not affect his affiliation as member of
the IFI unless the latter takes action against him and expels him, if found
guilty.
Appellant now claims that the trial court committed the first error assigned
because it should have held that appellees De los Reyes, Jr. and Bayaca,
having abandoned the faith, fundamental doctrines and practices, as well as
the Constitution of the IFI, and having adhered to those of others, have
automatically ceased to belong to said church, and consequently, have no
personality to maintain the present action.
The arguments of appellant may be summarized as follows:.
(1) that the civil courts have jurisdiction to revise decisions on ecclesiastical
matters where it is necessary to do so for the purpose of settling question of
civil and property rights or when property rights are affected; (2) that the
amendment of the constitution of the IFI approved in August, 1947, were
illegal and ineffective, inasmuch as they were not approved by the duly
constituted authorities of the church; (3) that said amendments introduced
radical and substantial changes in the profession of faith and fundamental
doctrines and practices of the church; and (4) that in view of said
amendments and subsequent consecration of plaintiffs-appellees as bishops
by the Protestant Church of the United States they have lost their rights to
claim any participation in the properties and to use the name of the IFI.
The position of appellant is that appellees having taken part in adopting and
sanctioning amendments to the church's constitution which radically and
substantially changed the profession of faith and fundamental doctrines and
practices of the church, his faction cannot now be compelled to deliver to the
appellees whatever property of the church are in its hands particularly
because said faction continues to be loyal and faithful to the original
doctrines and practices of said church. In support of this stand appellant cites
several authorities (Watson vs. Jones, 20 L-ed. 666; 45 Am. Jur., 764, 765;
Reorganized Church of Jesus Christ, L.D.S. vs. Church of Christ, 60 Fed.
937; Parañaque Methodist Episcopal Church, et al. vs. Methodist Episcopal
Church, et al., 38 O.G. 534, C.J. 71) Holding that in case of schism within a
church its properties should remain with the faction that continues adhering
to the original doctrines and practices of the church irrespective of whether it
constitutes a majority or a minority of the members thereof. .
It is to be recalled that the forced resignation of appellant as Obispo Maximo
of the IFI was ordered on January 22, 1946 and on the same day, appellee,
Mons. Gerardo Bayaca was elected as Obispo Maximo to replace him. On
January 23, 1946, appellant was notified of his removal and required to
surrender and deliver all personal properties of the church still in his
possession or under his control. Instead of doing so, he with a few members
of the Consejo Supremo, with the help of some members of the laity,
because of dissatisfaction with the action of the majority in removing the
appellant as Supreme Bishop, erected themselves into a new organization
formed a rump Consejo Supremo and a rump Asemblea Magna and claiming
to speak for the church, decreed the ouster of Mons. Bayaca, De los Reyes,
Jr., Kijano and Tablante on January 30, 1946. On February 9, 1946 this
action was commenced by Mons. Bayaca and the IFI seeking to compel
appellant to render an accounting of his management of the properties of the
church and deliver the same to the plaintiffs. The alleged doctrinal changes
took place in August, 1947. It is thus clear that the present action sprang out
a mere division not a schism in the church. Schism is a "division or
separation in a church or denomination of Christians, occasioned by diversity
of opinions, breach of unity among people of the same religious faith (45 Am.
Jur., 775), a division occasioned by diversity of opinion on religious subjects
(38 Words and Phrases, Perm. Ed. 303), while division means "no more than
a separation of the society into two parts, without any change of faith or
ulterior relations" (45 Am. Jur., p. 775). Such being the case, the doctrinal
changes and abandonment of faith are irrelevant and immaterial in the case
at bar and the invoked rule of doctrinal adherence does not apply.
But assuming that there was a real schism in the IFI, the situation, under the
facts of record, would not help appellant's contention because pursuant to
the ruling in the case of Watson vs. Jones, 20 Law Ed., pp. 674-676, cited by
both parties, the use of properties of a "religious congregation" in case of
schism, "is controlled by the numerical majority of the members, such ruling
admitting of no inquiry into the existing religious opinions of those who
comprise the legal and regular organization.".
The law is stated in that case as follows:.
The question which have come before the civil courts concerning the rights to
property held by ecclesiastical bodies, may as far as we have been able to
examine them, be profitably classified under three general heads, which of
course do not include cases governed by considerations applicable to a
church established and supported by law as the religion of the state.
1. That first of these is when the property which is the subject of controversy
has been, by the deed of will of the donor, or other instrument by which the
property is held, by the express terms of the instrument devoted to the
teaching, support or spread of some specific form of religious doctrine or
belief.
2. The second is when the property is held by a religious congregation which,
by the nature of its organization, is strictly independent of other ecclesiastical
associations, and so far as church government is concerned owns no fealty
or obligation to any higher authority.
3. The third is where the religious congregation or ecclesiastical body holding
the property is but a subordinate member of some general church
organization in which there are superior ecclesiastical tribunals with a
general and ultimate power of control more or less complete in some
supreme judicatory over the whole membership of that general organization.
The second class of cases which we have described has reference to the
case of a church of a strictly congregational or independent organization,
governed solely within itself, either by a majority of its members or by such
other local organism as it may have instituted for the purpose of
ecclesiastical government; and to property held by such a church, either by
way of purchase or donation, with no other specific trust attached to it in the
hands of the church than that it is for the use of that congregation as a
religious society.
In such cases, where there is a schism which leads to a separation into
distinct and conflicting bodies, the rights of such bodies to the use of the
property must be determined by ordinary principles which govern voluntary
associations. If the principle of government in such cases is that the majority
rules, then the numerical majority of members must control the right to the
use of the property. If there be within the congregation officers in whom are
vested the powers of such control, then those who adhere in the
acknowledged organism by which the body is governed are entitled to the
use of the property. The minority in choosing to separate themselves into a
distinct body, and refusing to recognize the authority of the government body,
can claim no rights in the property from the fact that they had once been
members of the church or congregation. This ruling admits of no inquiry into
the existing religious opinions of those who comprise the legal or regular
organization; for, if such was permitted, a very small minority, without any
officers of the church among them, might be found to be the only faithful
supporters of the religious dogmas of the founders of the church. There
being no such trust imposed upon the property when purchased or given, the
court will not imply one for the purpose of expelling from its use those who by
regular succession and order constitute the church, because they may have
changed in some respect their views of religious truth.
Of the cases in which this doctrine is applied no better representative can be
found than that of Shannon vs. Nelson, 18 Vt. 511, which asserts this
doctrine in case where a legacy was left to the Associate congregation of
Ryegate, the interest whereof was to be annually paid to their minister
forever. In that case, though the Ryegate congregation was one of a number
of Presbyterian churches connected with the general Presbyterian body at
large, the court held that the only inquiry was whether they have a minister
chosen and appointed by the majority and regularly ordained over the
society, agreeably to the usage of that denomination. And though we may be
of opinion that the doctrine of that case needs modification, so far as it
discussed the relation of the Ryegate congregation to the other judicatures of
the body to which it belongs, it certainly lays down the principle correctly if
that congregation was to be treated as an independent one." (Watson vs.
Jones, 20 Law Ed., pp. 674-676).
It goes without saying that the properties of the IFI are held by a religious
congregation; that said church comes under the second class described in
the above-quoted decision; and that the numerical majority is on the side of
the faction of the appellees, because 7 out of the 13 bishops of the church
went to them and according to the statement of the Director of National
Library, issued on May 22, 1947, appellee's faction was composed of 19
bishops and 252 priests whereas appellant's faction had only 10 bishops and
40 priests, and on January 22, 1948 its bishops and priests were 293 as
against 64 of appellant's group (Exhibit 25).
The amendments of the constitution, restatement of articles of religion and
abandonment of faith or abjuration alleged by appellant, having to do with
faith, practice, doctrine, form of worship, ecclesiastical law, custom and rule
of a church and having reference to the power of excluding from the church
those who allegedly unworthy of membership, are unquestionably
ecclesiastical matters which are outside the province of the civil courts (45
Am. Jur. 748-752,755).
It appears that the main complaint of the appellant is that the appellees upon
adopting their new declaration of faith and the amendments of the
constitution of the church, as appears in Exhibits 54 and 55, they have
repudiated the Oficio Divino which is the definite statement of the doctrines
and rites of the IFI and the official book of the church. But appellant admits
that said Oficio Divino "does not pretend to close the way for any change
which the progress of religious science may in the course of time show to be
true and acceptable." (Appellant's Memorandum, pp. 28-29). Indeed, the
Oficio Divino itself says that it was an `ensayo' and that its purpose was
merely to give definite forms to the then accepted doctrines of the church
without however closing the doors to, or making impossible any future
changes that the progress of religious science might demand. Thus the note
on page 221 of the Oficio Divino (Exhibit 57) reads as follows:.
Con la publicacion del presente libro, damos formas definitivasa nuestras
doctrinas, pero sin cerrar jamas el camino del progreso de la ciencia
religiosa como si pretendieramos pasar por dogmas el resultado de nuestras
investigaciones.
It cannot be gainsaid that since the establishment of the IFI in 1902 there
have been some changes and revisions of some of its tenets and articles of
faith. This is quite understandable in a church like the Aglipayan Church
which is not an ancient one and has not had the opportunity to make any of
its doctrines and tenets clear and dogmatic. And it is but natural and fitting
that new doctrines in religious matters be subjected to investigation and
revision or even rejection in harmony with the advancement of religious
science.
Appellants contends however, that any such changes should be adopted by
the church (Memorandum supra). Without resolving whether the
amendments in question (Exhibits 54 and 55) constitute repudiation of faith
or involve wide departure from the fundamental and characteristic beliefs or
policy of the IFI, we believe, and so hold, that the same were legally and
validly adopted by the duly constituted Consejo Supremo and Asemblea
Magna composed of legitimate members of the IFI, headed by Mons. Isabelo
de los Reyes, Jr. and duly empowered by the Reglas Constitucionales, as
amended (Exhibits K and L), to take such action. Appellant's insistence that
Bishops Aguilar, Remollino, De los Reyes, Jr., Bayaca, Kijano and Tablante
who took part in the adoption of said amendments having been ousted by
appellant's faction were not authorized to act for the IFI, is untenable. We
have already discussed and held somewhere in this opinion that the alleged
ouster of the aforementioned bishops was null and void and the election of
Bishop De los Reyes, Jr., as Obispo Maximo was valid and we did recognize
him as the sole and legitimate head of the IFI.
Anent the consecrations of Mons. De los Reyes, Jr., Bayaca, and Aguilar as
bishops of the American Protestant Episcopal Church, we find that the
preponderating weight of evidence reveals, as questions of fact, that the
purpose of said consecrations was merely the conferring of apostolic
succession upon said bishops; that the American Episcopal Church did not
acquire any authority, ecclesiastical or otherwise over the IFI or over the
bishops thus consecrated; and that the latter were not required to take oath
nor were they accepted as bishops of the aforesaid episcopal church by
virtue of their consecrations, according to the uncontradicted testimony of
Bishop Norman Spencer Binstead, of the American Episcopal Church, who
consecrated them and of Bishops Bayaca, Aguilar and De los Reyes
themselves. Hence, there is no factual basis for the alleged abjuration or
separation from the IFI of said bishops and, consequently, appellees Isabelo
de los Reyes, Jr. and Gerardo M. Bayaca are still members of the IFI, and do
not lack personality to maintain the present action.".
We can hardly add to the above findings to which we agree. We wish only to
make the following observations. The complaint in this case was filed on
February 9, 1946 raising as the main issue whether petitioner should still be
regarded as legitimate Supreme Bishop of the Iglesia Filipina Independiente
or whether he has been properly replaced by Bishop Gerardo Bayaca. This
has been recognized by petitioner himself who, in the brief he submitted to
the Court of Appeals, maintained that the only issue was, "Who is the true
and legitimate Obispo Maximo of the IFI?" The alleged abjuration of
respondent De los Reyes and Bishops Bayaca and Aguilar and the alleged
restatement of articles of religion and doctrinal differences between the new
and original constitutions of the church were never alleged directly or
indirectly in the pleadings of the parties. These questions were raised for the
first time on January 10, 1948 when petitioner filed a supplementary answer
alleging that on August, 1947, the respondent "formally joined the Protestant
Episcopal Church of America." The alleged doctrinal changes and abjuration
took place therefore after this case was filed in court, and after the division of
the church into two groups had occurred and consequently, they could not
have been the cause of the division. Under these circumstances, it would
seem clear that the allegation regarding the alleged changes in doctrinal
matters or in matters of faith incorporated in the constitutions of the church
are entirely irrelevant in the present case. And, on this matter, this
observation of the Court of Appeals comes in very fittingly: "The amendments
of the constitution, restatement of articles of religion, and abandonment of
faith or abjuration alleged by appellant, having to do with faith, practice,
doctrine, form of worship, ecclesiastical law, custom and rule of a church
having reference to the power of excluding from the church those allegedly
unworthy of membership, are unquestionably ecclesiastical matters which
are outside the province of the civil courts." (45 Am. Jur., 748-752, 755.) To
this we agree.
Wherefore, the decision appealed from is affirmed, without pronouncement
as to costs.
Imbong vs. Ochoa (G.R. No. 204819, April 8, 2014)
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs , and to live as he believes he ought to live, consistent
with the liberty of others and with the common good."1
To this day, poverty is still a major stumbling block to the nation's emergence
as a developed country, leaving our people beleaguered in a state of hunger,
illiteracy and unemployment. While governmental policies have been geared
towards the revitalization of the economy, the bludgeoning dearth in social
services remains to be a problem that concerns not only the poor, but every
member of society. The government continues to tread on a trying path to the
realization of its very purpose, that is, the general welfare of the Filipino
people and the development of the country as a whole. The legislative
branch, as the main facet of a representative government, endeavors to
enact laws and policies that aim to remedy looming societal woes, while the
executive is closed set to fully implement these measures and bring concrete
and substantial solutions within the reach of Juan dela Cruz. Seemingly
distant is the judicial branch, oftentimes regarded as an inert governmental
body that merely casts its watchful eyes on clashing stakeholders until it is
called upon to adjudicate. Passive, yet reflexive when called into action, the
Judiciary then willingly embarks on its solemn duty to interpret legislation vis-
a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.
Nothing has polarized the nation more in recent years than the issues of
population growth control, abortion and contraception. As in every
democratic society, diametrically opposed views on the subjects and their
perceived consequences freely circulate in various media. From television
debates2 to sticker campaigns,3 from rallies by socio-political activists to
mass gatherings organized by members of the clergy4 - the clash between
the seemingly antithetical ideologies of the religious conservatives and
progressive liberals has caused a deep division in every level of the society.
Despite calls to withhold support thereto, however, Republic Act (R.A.) No.
10354, otherwise known as the Responsible Parenthood and Reproductive
Health Act of 2012 (RH Law), was enacted by Congress on December 21,
2012.
Shortly after the President placed his imprimatur on the said law, challengers
from various sectors of society came knocking on the doors of the Court,
beckoning it to wield the sword that strikes down constitutional disobedience.
Aware of the profound and lasting impact that its decision may produce, the
Court now faces the iuris controversy, as presented in fourteen (14) petitions
and two (2) petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M.
Imbong and Lovely Ann C. Imbong, in their personal capacities as citizens,
lawyers and taxpayers and on behalf of their minor children; and the
Magnificat Child Leaming Center, Inc., a domestic, privately-owned
educational institution (Jmbong);
(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation
Philippines, Inc., through its president, Atty. Maria Concepcion S. Noche7
and several others8 in their personal capacities as citizens and on behalf of
the generations unborn (ALFI);
(3) Petition for Certiorari,9 filed by the Task Force for Family and Life
Visayas, Inc., and Valeriano S. Avila, in their capacities as citizens and
taxpayers (Task Force Family);
(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De
Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a domestic, privately-owned
educational institution, and several others,13 in their capacities as citizens
(Serve Life);
(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen
(Bugarin);
(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the
Catholic Xybrspace Apostolate of the Philippines,16 in their capacities as a
citizens and taxpayers (Olaguer);
(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of
Xseminarians Inc.,18 and several others19 in their capacities as citizens and
taxpayers (PAX);
(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in
their capacities as citizens and taxpayers (Echavez);
(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and
Maria Fenny C. Tatad and Atty. Alan F. Paguia, in their capacities as
citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is
also proceeding in his capacity as a member of the Bar (Tatad);
(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines
Foundation Inc.24 and several others,25 in their capacities as citizens and
taxpayers and on behalf of its associates who are members of the Bar (Pro-
Life);
(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27
Attys. Ramon Pedrosa, Cita Borromeo-Garcia, Stella Acedera, and Berteni
Catalufia Causing, in their capacities as citizens, taxpayers and members of
the Bar (MSF);
(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and
several others,29 in their capacities as citizens (Juat) ;
(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ
Foundation, Inc. and several others,31 in their capacities as citizens (CFC);
(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein
M. Kashim in their capacities as citizens and taxpayers (Tillah); and
(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his
capacity as a citizen and a taxpayer (Alcantara); and
(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY)
, an accredited political party.
A perusal of the foregoing petitions shows that the petitioners are assailing
the constitutionality of RH Law on the following GROUNDS:
• The RH Law violates the right to life of the unborn. According to the
petitioners, notwithstanding its declared policy against abortion, the
implementation of the RH Law would authorize the purchase of hormonal
contraceptives, intra-uterine devices and injectables which are abortives, in
violation of Section 12, Article II of the Constitution which guarantees
protection of both the life of the mother and the life of the unborn from
conception.35
• The RH Law violates the right to health and the right to protection against
hazardous products. The petitioners posit that the RH Law provides universal
access to contraceptives which are hazardous to one's health, as it causes
cancer and other health problems.36
• The RH Law violates the right to religious freedom. The petitioners contend
that the RH Law violates the constitutional guarantee respecting religion as it
authorizes the use of public funds for the procurement of contraceptives. For
the petitioners, the use of public funds for purposes that are believed to be
contrary to their beliefs is included in the constitutional mandate ensuring
religious freedom.37
It is also contended that the RH Law threatens conscientious objectors of
criminal prosecution, imprisonment and other forms of punishment, as it
compels medical practitioners 1] to refer patients who seek advice on
reproductive health programs to other doctors; and 2] to provide full and
correct information on reproductive health programs and service, although it
is against their religious beliefs and convictions.38
In this connection, Section 5 .23 of the Implementing Rules and Regulations
of the RH Law (RH-IRR),39 provides that skilled health professionals who
are public officers such as, but not limited to, Provincial, City, or Municipal
Health Officers, medical officers, medical specialists, rural health physicians,
hospital staff nurses, public health nurses, or rural health midwives, who are
specifically charged with the duty to implement these Rules, cannot be
considered as conscientious objectors.40
It is also argued that the RH Law providing for the formulation of mandatory
sex education in schools should not be allowed as it is an affront to their
religious beliefs.41
While the petit10ners recognize that the guarantee of religious freedom is not
absolute, they argue that the RH Law fails to satisfy the "clear and present
danger test" and the "compelling state interest test" to justify the regulation of
the right to free exercise of religion and the right to free speech.42
• The RH Law violates the constitutional provision on involuntary servitude.
According to the petitioners, the RH Law subjects medical practitioners to
involuntary servitude because, to be accredited under the PhilHealth
program, they are compelled to provide forty-eight (48) hours of pro bona
services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43
The petitioners explain that since a majority of patients are covered by
PhilHealth, a medical practitioner would effectively be forced to render
reproductive health services since the lack of PhilHealth accreditation would
mean that the majority of the public would no longer be able to avail of the
practitioners services.44
• The RH Law violates the right to equal protection of the law. It is claimed
that the RH Law discriminates against the poor as it makes them the primary
target of the government program that promotes contraceptive use. The
petitioners argue that, rather than promoting reproductive health among the
poor, the RH Law seeks to introduce contraceptives that would effectively
reduce the number of the poor.45
• The RH Law is "void-for-vagueness" in violation of the due process clause
of the Constitution. In imposing the penalty of imprisonment and/or fine for
"any violation," it is vague because it does not define the type of conduct to
be treated as "violation" of the RH Law.46
In this connection, it is claimed that "Section 7 of the RH Law violates the
right to due process by removing from them (the people) the right to manage
their own affairs and to decide what kind of health facility they shall be and
what kind of services they shall offer."47 It ignores the management
prerogative inherent in corporations for employers to conduct their affairs in
accordance with their own discretion and judgment.
• The RH Law violates the right to free speech. To compel a person to
explain a full range of family planning methods is plainly to curtail his right to
expound only his own preferred way of family planning. The petitioners note
that although exemption is granted to institutions owned and operated by
religious groups, they are still forced to refer their patients to another
healthcare facility willing to perform the service or procedure.48
• The RH Law intrudes into the zone of privacy of one's family protected by
the Constitution. It is contended that the RH Law providing for mandatory
reproductive health education intrudes upon their constitutional right to raise
their children in accordance with their beliefs.49
It is claimed that, by giving absolute authority to the person who will undergo
reproductive health procedure, the RH Law forsakes any real dialogue
between the spouses and impedes the right of spouses to mutually decide on
matters pertaining to the overall well-being of their family. In the same breath,
it is also claimed that the parents of a child who has suffered a miscarriage
are deprived of parental authority to determine whether their child should use
contraceptives.50
• The RH Law violates the constitutional principle of non-delegation of
legislative authority. The petitioners question the delegation by Congress to
the FDA of the power to determine whether a product is non-abortifacient
and to be included in the Emergency Drugs List (EDL).51
• The RH Law violates the one subject/one bill rule provision under Section
26( 1 ), Article VI of the Constitution.52
• The RH Law violates Natural Law.53

• The RH Law violates the principle of Autonomy of Local Government Units
(LGUs) and the Autonomous Region of Muslim Mindanao {ARMM). It is
contended that the RH Law, providing for reproductive health measures at
the local government level and the ARMM, infringes upon the powers
devolved to LGUs and the ARMM under the Local Government Code and
R.A . No. 9054.54
Various parties also sought and were granted leave to file their respective
comments-in-intervention in defense of the constitutionality of the RH Law.
Aside from the Office of the Solicitor General (OSG) which commented on
the petitions in behalf of the respondents,55 Congressman Edcel C.
Lagman,56 former officials of the Department of Health Dr. Esperanza I.
Cabral, Jamie Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino
Catholic Voices for Reproductive Health (C4RH),58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective
Comments-in-Intervention in conjunction with several others. On June 4,
2013, Senator Pia Juliana S. Cayetano was also granted leave to
intervene.61
The respondents, aside from traversing the substantive arguments of the
petitioners, pray for the dismissal of the petitions for the principal reasons
that 1] there is no actual case or controversy and, therefore, the issues are
not yet ripe for judicial determination.; 2] some petitioners lack standing to
question the RH Law; and 3] the petitions are essentially petitions for
declaratory relief over which the Court has no original jurisdiction.
Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the
assailed legislation took effect.
On March 19, 2013, after considering the issues and arguments raised, the
Court issued the Status Quo Ante Order (SQAO), enjoining the effects and
implementation of the assailed legislation for a period of one hundred and
twenty (120) days, or until July 17, 2013.62
On May 30, 2013, the Court held a preliminary conference with the counsels
of the parties to determine and/or identify the pertinent issues raised by the
parties and the sequence by which these issues were to be discussed in the
oral arguments. On July 9 and 23, 2013, and on August 6, 13, and 27, 2013,
the cases were heard on oral argument. On July 16, 2013, the SQAO was
ordered extended until further orders of the Court.63
Thereafter, the Court directed the parties to submit their respective
memoranda within sixty (60) days and, at the same time posed several
questions for their clarification on some contentions of the parties.64
The Status Quo Ante
(Population, Contraceptive and Reproductive Health Laws
Prior to the RH Law
Long before the incipience of the RH Law, the country has allowed the sale,
dispensation and distribution of contraceptive drugs and devices. As far back
as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to
Regu,late the Sale, Dispensation, and/or Distribution of Contraceptive Drugs
and Devices." Although contraceptive drugs and devices were allowed, they
could not be sold, dispensed or distributed "unless such sale, dispensation
and distribution is by a duly licensed drug store or pharmaceutical company
and with the prescription of a qualified medical practitioner."65
In addition, R.A. No. 5921,66 approved on June 21, 1969, contained
provisions relative to "dispensing of abortifacients or anti-conceptional
substances and devices." Under Section 37 thereof, it was provided that "no
drug or chemical product or device capable of provoking abortion or
preventing conception as classified by the Food and Drug Administration
shall be delivered or sold to any person without a proper prescription by a
duly licensed physician."
On December 11, 1967, the Philippines, adhering to the UN Declaration on
Population, which recognized that the population problem should be
considered as the principal element for long-term economic development,
enacted measures that promoted male vasectomy and tubal ligation to
mitigate population growth.67 Among these measures included R.A. No.
6365, approved on August 16, 1971, entitled "An Act Establishing a National
Policy on Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made part of a
broad educational program; safe and effective means will be provided to
couples desiring to space or limit family size; mortality and morbidity rates
will be further reduced."
To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos
issued Presidential Decree. (P.D.) No. 79,68 dated December 8, 1972,
which, among others, made "family planning a part of a broad educational
program," provided "family planning services as a part of over-all health
care," and made "available all acceptable methods of contraception, except
abortion, to all Filipino citizens desirous of spacing, limiting or preventing
pregnancies."
Through the years, however, the use of contraceptives and family planning
methods evolved from being a component of demographic management, to
one centered on the promotion of public health, particularly, reproductive
health.69 Under that policy, the country gave priority to one's right to freely
choose the method of family planning to be adopted, in conformity with its
adherence to the commitments made in the International Conference on
Population and Development.70 Thus, on August 14, 2009, the country
enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among
others, mandated the State to provide for comprehensive health services and
programs for women, including family planning and sex education.71
to the fullest extent possible using taxpayers' money. The State then will be
the funder and provider of all forms of family planning methods and the
implementer of the program by ensuring the widespread dissemination of,
and universal access to, a full range of family planning methods, devices and
supplies.74
ISSUES

The RH Law After a scrutiny of the various arguments and contentions of the parties, the
Court has synthesized and refined them to the following principal issues:
Despite the foregoing legislative measures, the population of the country kept
on galloping at an uncontrollable pace. From a paltry number of just over 27 I. PROCEDURAL: Whether the Court may exercise its power of judicial
million Filipinos in 1960, the population of the country reached over 76 million review over the controversy.
in the year 2000 and over 92 million in 2010.72 The executive and the
legislative, thus, felt that the measures were still not adequate. To rein in the 1] Power of Judicial Review
problem, the RH Law was enacted to provide Filipinos, especially the poor
and the marginalized, access and information to the full range of modem 2] Actual Case or Controversy
family planning methods, and to ensure that its objective to provide for the
peoples' right to reproductive health be achieved. To make it more effective, 3] Facial Challenge
the RH Law made it mandatory for health providers to provide information on
the full range of modem family planning methods, supplies and services, and 4] Locus Standi
for schools to provide reproductive health education. To put teeth to it, the
RH Law criminalizes certain acts of refusals to carry out its mandates. 5] Declaratory Relief

Stated differently, the RH Law is an enhancement measure to fortify and 6] One Subject/One Title Rule
make effective the current laws on contraception, women's health and
population control. II. SUBSTANTIVE: Whether the RH law is unconstitutional:

Prayer of the Petitioners - Maintain the Status Quo 1] Right to Life

The petitioners are one in praying that the entire RH Law be declared 2] Right to Health
unconstitutional. Petitioner ALFI, in particular, argues that the government
sponsored contraception program, the very essence of the RH Law, violates 3] Freedom of Religion and the Right to Free Speech
the right to health of women and the sanctity of life, which the State is
mandated to protect and promote. Thus, ALFI prays that "the status quo ante 4] The Family
- the situation prior to the passage of the RH Law - must be maintained."73 It
explains: 5] Freedom of Expression and Academic Freedom

x x x. The instant Petition does not question contraception and 6] Due Process
contraceptives per se. As provided under Republic Act No. 5921 and
Republic Act No. 4729, the sale and distribution of contraceptives are 7] Equal Protection
prohibited unless dispensed by a prescription duly licensed by a physician.
What the Petitioners find deplorable and repugnant under the RH Law is the 8] Involuntary Servitude
role that the State and its agencies - the entire bureaucracy, from the cabinet
secretaries down to the barangay officials in the remotest areas of the 9] Delegation of Authority to the FDA
country - is made to play in the implementation of the contraception program
10] Autonomy of Local Govemments/ARMM
DISCUSSION
Before delving into the constitutionality of the RH Law and its implementing
rules, it behooves the Court to resolve some procedural impediments.
I. PROCEDURAL ISSUE: Whether the Court can exercise its power of
judicial review over the controversy.
The Power of Judicial Review
In its attempt to persuade the Court to stay its judicial hand, the OSG asserts
that it should submit to the legislative and political wisdom of Congress and
respect the compromises made in the crafting of the RH Law, it being "a
product of a majoritarian democratic process"75 and "characterized by an
inordinate amount of transparency."76 The OSG posits that the authority of
the Court to review social legislation like the RH Law by certiorari is "weak,"
since the Constitution vests the discretion to implement the constitutional
policies and positive norms with the political departments, in particular, with
Congress.77 It further asserts that in view of the Court's ruling in Southern
Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and
prohibition utilized by the petitioners are improper to assail the validity of the
acts of the legislature.79
Moreover, the OSG submits that as an "as applied challenge," it cannot
prosper considering that the assailed law has yet to be enforced and applied
to the petitioners, and that the government has yet to distribute reproductive
health devices that are abortive. It claims that the RH Law cannot be
challenged "on its face" as it is not a speech-regulating measure.80
In many cases involving the determination of the constitutionality of the
actions of the Executive and the Legislature, it is often sought that the Court
temper its exercise of judicial power and accord due respect to the wisdom of
its co-equal branch on the basis of the principle of separation of powers. To
be clear, the separation of powers is a fundamental principle in our system of
government, which obtains not through express provision but by actual
division in our Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction and is supreme within
its own sphere.81
Thus, the 1987 Constitution provides that: (a) the legislative power shall be
vested in the Congress of the Philippines;82 (b) the executive power shall be
vested in the President of the Philippines;83 and (c) the judicial power shall
be vested in one Supreme Court and in such lower courts as may be
established by law.84 The Constitution has truly blocked out with deft strokes
and in bold lines, the allotment of powers among the three branches of
government.85
In its relationship with its co-equals, the Judiciary recognizes the doctrine of
separation of powers which imposes upon the courts proper restraint, born of
the nature of their functions and of their respect for the other branches of
government, in striking down the acts of the Executive or the Legislature as
unconstitutional. Verily, the policy is a harmonious blend of courtesy and
caution.86
It has also long been observed, however, that in times of social disquietude
or political instability, the great landmarks of the Constitution are apt to be
forgotten or marred, if not entirely obliterated.87 In order to address this, the
Constitution impresses upon the Court to respect the acts performed by a co-
equal branch done within its sphere of competence and authority, but at the
same time, allows it to cross the line of separation - but only at a very limited
and specific point - to determine whether the acts of the executive and the
legislative branches are null because they were undertaken with grave abuse
of discretion.88 Thus, while the Court may not pass upon questions of
wisdom, justice or expediency of the RH Law, it may do so where an
attendant unconstitutionality or grave abuse of discretion results.89 The
Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.
In this connection, it bears adding that while the scope of judicial power of
review may be limited, the Constitution makes no distinction as to the kind of
legislation that may be subject to judicial scrutiny, be it in the form of social
legislation or otherwise. The reason is simple and goes back to the earlier
point. The Court may pass upon the constitutionality of acts of the legislative
and the executive branches, since its duty is not to review their collective
wisdom but, rather, to make sure that they have acted in consonance with
their respective authorities and rights as mandated of them by the
Constitution. If after said review, the Court finds no constitutional violations of
any sort, then, it has no more authority of proscribing the actions under
review.90 This is in line with Article VIII, Section 1 of the Constitution which
expressly provides:
Section 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
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. [Emphases supplied]
As far back as Tanada v. Angara,91 the Court has unequivocally declared
that certiorari, prohibition and mandamus are appropriate remedies to raise
constitutional issues and to review and/or prohibit/nullify, when proper, acts
of legislative and executive officials, as there is no other plain, speedy or
adequate remedy in the ordinary course of law. This ruling was later on
applied in Macalintal v. COMELEC,92 Aldaba v. COMELEC,93 Magallona v.
Ermita,94 and countless others. In Tanada, the Court wrote:
In seeking to nullify an act of the Philippine Senate on the ground that it
contravenes the Constitution, the petition no doubt raises a justiciable
controversy. Where an action of the legislative branch is seriously alleged to
have infringed the Constitution, it becomes not only the right but in fact the
duty of the judiciary to settle the dispute. "The question thus posed is judicial
rather than political. The duty (to adjudicate) remains to assure that the
supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this
Court (as in the instant case), it becomes a legal issue which the Court is
bound by constitutional mandate to decide. [Emphasis supplied]
In the scholarly estimation of former Supreme Court Justice Florentino
Feliciano, "judicial review is essential for the maintenance and enforcement
of the separation of powers and the balancing of powers among the three
great departments of government through the definition and maintenance of
the boundaries of authority and control between them. To him, judicial review
is the chief, indeed the only, medium of participation - or instrument of
intervention - of the judiciary in that balancing operation.95
Lest it be misunderstood, it bears emphasizing that the Court does not have
the unbridled authority to rule on just any and every claim of constitutional
violation. Jurisprudence is replete with the rule that the power of judicial
review is limited by four exacting requisites, viz : (a) there must be an actual
case or controversy; (b) the petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d)
the issue of constitutionality must be the lis mota of the case.96
Actual Case or Controversy
Proponents of the RH Law submit that the subj ect petitions do not present
any actual case or controversy because the RH Law has yet to be
implemented.97 They claim that the questions raised by the petitions are not
yet concrete and ripe for adjudication since no one has been charged with
violating any of its provisions and that there is no showing that any of the
petitioners' rights has been adversely affected by its operation.98 In short, it
is contended that judicial review of the RH Law is premature.
An actual case or controversy means an existing case or controversy that is
appropriate or ripe for determination, not conjectural or anticipatory, lest the
decision of the court would amount to an advisory opinion.99 The rule is that
courts do not sit to adjudicate mere academic questions to satisfy scholarly
interest, however intellectually challenging. The controversy must be
justiciable-definite and concrete, touching on the legal relations of parties
having adverse legal interests. In other words, the pleadings must show an
active antagonistic assertion of a legal right, on the one hand, and a denial
thereof, on the other; that is, it must concern a real, tangible and not merely a
theoretical question or issue. There ought to be an actual and substantial
controversy admitting of specific relief through a decree conclusive in nature,
as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts.100
Corollary to the requirement of an actual case or controversy is the
requirement of ripeness.101 A question is ripe for adjudication when the act
being challenged has had a direct adverse effect on the individual
challenging it. For a case to be considered ripe for adjudication, it is a
prerequisite that something has then been accomplished or performed by
either branch before a court may come into the picture, and the petitioner
must allege the existence of an immediate or threatened injury to himself as
a result of the challenged action. He must show that he has sustained or is
immediately in danger of sustaining some direct injury as a result of the act
complained of102
In The Province of North Cotabato v. The Government of the Republic of the
Philippines,103 where the constitutionality of an unimplemented
Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in
question, it was argued that the Court has no authority to pass upon the
issues raised as there was yet no concrete act performed that could possibly
violate the petitioners' and the intervenors' rights. Citing precedents, the
Court ruled that the fact of the law or act in question being not yet effective
does not negate ripeness. Concrete acts under a law are not necessary to
render the controversy ripe. Even a singular violation of the Constitution and/
or the law is enough to awaken judicial duty.
In this case, the Court is of the view that an actual case or controversy exists
and that the same is ripe for judicial determination. Considering that the RH
Law and its implementing rules have already taken effect and that budgetary
measures to carry out the law have already been passed, it is evident that
the subject petitions present a justiciable controversy. As stated earlier, when
an action of the legislative branch is seriously alleged to have infringed the
Constitution, it not only becomes a right, but also a duty of the Judiciary to
settle the dispute.104
Moreover, the petitioners have shown that the case is so because medical
practitioners or medical providers are in danger of being criminally
prosecuted under the RH Law for vague violations thereof, particularly public
health officers who are threatened to be dismissed from the service with
forfeiture of retirement and other benefits. They must, at least, be heard on
the matter NOW.
Facial Challenge
The OSG also assails the propriety of the facial challenge lodged by the
subject petitions, contending that the RH Law cannot be challenged "on its
face" as it is not a speech regulating measure.105
The Court is not persuaded.
In United States (US) constitutional law, a facial challenge, also known as a
First Amendment Challenge, is one that is launched to assail the validity of
statutes concerning not only protected speech, but also all other rights in the
First Amendment.106 These include religious freedom, freedom of the press,
and the right of the people to peaceably assemble, and to petition the
Government for a redress of grievances.107 After all, the fundamental right
to religious freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression, as they are
modes which one's thoughts are externalized.
In this jurisdiction, the application of doctrines originating from the U.S. has
been generally maintained, albeit with some modifications. While this Court
has withheld the application of facial challenges to strictly penal statues,108
it has expanded its scope to cover statutes not only regulating free speech,
but also those involving religious freedom, and other fundamental rights.109
The underlying reason for this modification is simple. For unlike its
counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies
involving rights which are legally demandable and enforceable, but also 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.110 Verily, the framers of Our Constitution
envisioned a proactive Judiciary, ever vigilant with its duty to maintain the
supremacy of the Constitution.
Consequently, considering that the foregoing petitions have seriously alleged
that the constitutional human rights to life, speech and religion and other
fundamental rights mentioned above have been violated by the assailed
legislation, the Court has authority to take cognizance of these kindred
petitions and to determine if the RH Law can indeed pass constitutional
scrutiny. To dismiss these petitions on the simple expedient that there exist
no actual case or controversy, would diminish this Court as a reactive branch
of government, acting only when the Fundamental Law has been
transgressed, to the detriment of the Filipino people.
Locus Standi
The OSG also attacks the legal personality of the petitioners to file their
respective petitions. It contends that the "as applied challenge" lodged by the
petitioners cannot prosper as the assailed law has yet to be enforced and
applied against them,111 and the government has yet to distribute
reproductive health devices that are abortive.112
The petitioners, for their part, invariably invoke the "transcendental
importance" doctrine and their status as citizens and taxpayers in
establishing the requisite locus standi.
Locus standi or legal standing is defined as a personal and substantial
interest in a case such that the party has sustained or will sustain direct injury
as a result of the challenged governmental act.113 It requires a personal
stake in the outcome of the controversy as to assure the concrete
adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions.114
In relation to locus standi, the "as applied challenge" embodies the rule that
one can challenge the constitutionality of a statute only if he asserts a
violation of his own rights. The rule prohibits one from challenging the
constitutionality of the statute grounded on a violation of the rights of third
persons not before the court. This rule is also known as the prohibition
against third-party standing.115
Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is
a matter of procedure, hence, can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so
requires, such as when the matter is of transcendental importance, of
overreaching significance to society, or of paramount public interest."116
In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in
cases of paramount importance where serious constitutional questions are
involved, the standing requirement may be relaxed and a suit may be
allowed to prosper even where there is no direct injury to the party claiming
the right of judicial review. In the first Emergency Powers Cases,118 ordinary
citizens and taxpayers were allowed to question the constitutionality of
several executive orders although they had only an indirect and general
interest shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be
assailed through an "as-applied challenge, still, the Court has time and again
acted liberally on the locus s tandi requirement. It has accorded certain
individuals standing to sue, not otherwise directly injured or with material
interest affected by a Government act, provided a constitutional issue of
transcendental importance is invoked. The rule on locus standi is, after all, a
procedural technicality which the Court has, on more than one occasion,
waived or relaxed, thus allowing non-traditional plaintiffs, such as concerned
citizens, taxpayers, voters or legislators, to sue in the public interest, albeit
they may not have been directly injured by the operation of a law or any other
government act. As held in Jaworski v. PAGCOR:119
Granting arguendo that the present action cannot be properly treated as a
petition for prohibition, the transcendental importance of the issues involved
in this case warrants that we set aside the technical defects and take primary
jurisdiction over the petition at bar. One cannot deny that the issues raised
herein have potentially pervasive influence on the social and moral well being
of this nation, specially the youth; hence, their proper and just determination
is an imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to hinder or
delay, but to facilitate and promote the administration of justice. Their strict
and rigid application, which would result in technicalities that tend to frustrate,
rather than promote substantial justice, must always be eschewed.
(Emphasis supplied)
In view of the seriousness, novelty and weight as precedents, not only to the
public, but also to the bench and bar, the issues raised must be resolved for
the guidance of all. After all, the RH Law drastically affects the constitutional
provisions on the right to life and health, the freedom of religion and
expression and other constitutional rights. Mindful of all these and the fact
that the issues of contraception and reproductive health have already caused
deep division among a broad spectrum of society, the Court entertains no
doubt that the petitions raise issues of transcendental importance warranting
immediate court adjudication. More importantly, considering that it is the right
to life of the mother and the unborn which is primarily at issue, the Court
need not wait for a life to be taken away before taking action.
The Court cannot, and should not, exercise judicial restraint at this time when
rights enshrined in the Constitution are being imperilled to be violated. To do
so, when the life of either the mother or her child is at stake, would lead to
irreparable consequences.
Declaratory Relief
The respondents also assail the petitions because they are essentially
petitions for declaratory relief over which the Court has no original
jurisdiction.120 Suffice it to state that most of the petitions are praying for
injunctive reliefs and so the Court would just consider them as petitions for
prohibition under Rule 65, over which it has original jurisdiction. Where the
case has far-reaching implications and prays for injunctive reliefs, the Court
may consider them as petitions for prohibition under Rule 65.121
One Subject-One Title
The petitioners also question the constitutionality of the RH Law, claiming
that it violates Section 26(1 ), Article VI of the Constitution,122 prescribing
the one subject-one title rule. According to them, being one for reproductive
health with responsible parenthood, the assailed legislation violates the
constitutional standards of due process by concealing its true intent - to act
as a population control measure.123
To belittle the challenge, the respondents insist that the RH Law is not a birth
or population control measure,124 and that the concepts of "responsible
parenthood" and "reproductive health" are both interrelated as they are
inseparable.125
Despite efforts to push the RH Law as a reproductive health law, the Court
sees it as principally a population control measure. The corpus of the RH
Law is geared towards the reduction of the country's population. While it
claims to save lives and keep our women and children healthy, it also
promotes pregnancy-preventing products. As stated earlier, the RH Law
emphasizes the need to provide Filipinos, especially the poor and the
marginalized, with access to information on the full range of modem family
planning products and methods. These family planning methods, natural or
modem, however, are clearly geared towards the prevention of pregnancy.
For said reason, the manifest underlying objective of the RH Law is to reduce
the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and
post-natal care as well. A large portion of the law, however, covers the
dissemination of information and provisions on access to medically-safe,
non-abortifacient, effective, legal, affordable, and quality reproductive health
care services, methods, devices, and supplies, which are all intended to
prevent pregnancy.
The Court, thus, agrees with the petitioners' contention that the whole idea of
contraception pervades the entire RH Law. It is, in fact, the central idea of the
RH Law.126 Indeed, remove the provisions that refer to contraception or are
related to it and the RH Law loses its very foundation.127 As earlier
explained, "the other positive provisions such as skilled birth attendance,
maternal care including pre-and post-natal services, prevention and
management of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women."128
Be that as it may, the RH Law does not violate the one subject/one bill rule.
In Benjamin E. Cawaling, Jr. v. The Commission on Elections and Rep.
Francis Joseph G Escudero, it was written:
It is well-settled that the "one title-one subject" rule does not require the
Congress to employ in the title of the enactment language of such precision
as to mirror, fully index or catalogue all the contents and the minute details
therein. The rule is sufficiently complied with if the title is comprehensive
enough as to include the general object which the statute seeks to effect, and
where, as here, the persons interested are informed of the nature, scope and
consequences of the proposed law and its operation. Moreover, this Court
has invariably adopted a liberal rather than technical construction of the rule
"so as not to cripple or impede legislation." [Emphases supplied]
In this case, a textual analysis of the various provisions of the law shows that
both "reproductive health" and "responsible parenthood" are interrelated and
germane to the overriding objective to control the population growth. As
expressed in the first paragraph of Section 2 of the RH Law:
SEC. 2. Declaration of Policy. - The State recognizes and guarantees the
human rights of all persons including their right to equality and
nondiscrimination of these rights, the right to sustainable human
development, the right to health which includes reproductive health, the right
to education and information, and the right to choose and make decisions for
themselves in accordance with their religious convictions, ethics, cultural
beliefs, and the demands of responsible parenthood.
The one subject/one title rule expresses the principle that the title of a law
must not be "so uncertain that the average person reading it would not be
informed of the purpose of the enactment or put on inquiry as to its contents,
or which is misleading, either in referring to or indicating one subject where
another or different one is really embraced in the act, or in omitting any
expression or indication of the real subject or scope of the act."129
Considering the close intimacy between "reproductive health" and
"responsible parenthood" which bears to the attainment of the goal of
achieving "sustainable human development" as stated under its terms, the
Court finds no reason to believe that Congress intentionally sought to
deceive the public as to the contents of the assailed legislation.
II - SUBSTANTIVE ISSUES:
1-The Right to Life
Position of the Petitioners
The petitioners assail the RH Law because it violates the right to life and
health of the unborn child under Section 12, Article II of the Constitution. The
assailed legislation allowing access to abortifacients/abortives effectively
sanctions abortion.130
According to the petitioners, despite its express terms prohibiting abortion,
Section 4(a) of the RH Law considers contraceptives that prevent the
fertilized ovum to reach and be implanted in the mother's womb as an
abortifacient; thus, sanctioning contraceptives that take effect after
fertilization and prior to implantation, contrary to the intent of the Framers of
the Constitution to afford protection to the fertilized ovum which already has
life.
They argue that even if Section 9 of the RH Law allows only "non-
abortifacient" hormonal contraceptives, intrauterine devices, injectables and
other safe, legal, non-abortifacient and effective family planning products and
supplies, medical research shows that contraceptives use results in abortion
as they operate to kill the fertilized ovum which already has life.131
As it opposes the initiation of life, which is a fundamental human good, the
petitioners assert that the State sanction of contraceptive use contravenes
natural law and is an affront to the dignity of man.132
Finally, it is contended that since Section 9 of the RH Law requires the Food
and Drug Administration (FDA) to certify that the product or supply is not to
be used as an abortifacient, the assailed legislation effectively confirms that
abortifacients are not prohibited. Also considering that the FDA is not the
agency that will actually supervise or administer the use of these products
and supplies to prospective patients, there is no way it can truthfully make a
certification that it shall not be used for abortifacient purposes.133
Position of the Respondents
For their part, the defenders of the RH Law point out that the intent of the
Framers of the Constitution was simply the prohibition of abortion. They
contend that the RH Law does not violate the Constitution since the said law
emphasizes that only "non-abortifacient" reproductive health care services,
methods, devices products and supplies shall be made accessible to the
public.134
According to the OSG, Congress has made a legislative determination that
contraceptives are not abortifacients by enacting the RH Law. As the RH Law
was enacted with due consideration to various studies and consultations with
the World Health Organization (WHO) and other experts in the medical field,
it is asserted that the Court afford deference and respect to such a
determination and pass judgment only when a particular drug or device is
later on determined as an abortive.135
For his part, respondent Lagman argues that the constitutional protection of
one's right to life is not violated considering that various studies of the WHO
show that life begins from the implantation of the fertilized ovum.
Consequently, he argues that the RH Law is constitutional since the law
specifically provides that only contraceptives that do not prevent the
implantation of the fertilized ovum are allowed.136
The Court's Position
It is a universally accepted principle that every human being enjoys the right
to life.137
Even if not formally established, the right to life, being grounded on natural
law, is inherent and, therefore, not a creation of, or dependent upon a
particular law, custom, or belief. It precedes and transcends any authority or
the laws of men.
In this jurisdiction, the right to life is given more than ample protection.
Section 1, Article III of the Constitution provides:
Section 1. No person shall be deprived of life, liberty, or property without due
process of law, nor shall any person be denied the equal protection of the
laws.
As expounded earlier, the use of contraceptives and family planning methods
in the Philippines is not of recent vintage. From the enactment of R.A. No.
4729, entitled "An Act To Regulate The Sale, Dispensation, and/or
Distribution of Contraceptive Drugs and Devices "on June 18, 1966,
prescribing rules on contraceptive drugs and devices which prevent
fertilization,138 to the promotion of male vasectomy and tubal ligation,139
and the ratification of numerous international agreements, the country has
long recognized the need to promote population control through the use of
contraceptives in order to achieve long-term economic development.
Through the years, however, the use of contraceptives and other family
planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health, particularly,
reproductive health.140
This has resulted in the enactment of various measures promoting women's
rights and health and the overall promotion of the family's well-being. Thus,
aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as the "The Magna Carta
of Women" were legislated. Notwithstanding this paradigm shift, the
Philippine national population program has always been grounded two
cornerstone principles: "principle of no-abortion" and the "principle of non-
coercion."141 As will be discussed later, these principles are not merely
grounded on administrative policy, but rather, originates from the
constitutional protection expressly provided to afford protection to life and
guarantee religious freedom.
When Life Begins*
Majority of the Members of the Court are of the position that the question of
when life begins is a scientific and medical issue that should not be decided,
at this stage, without proper hearing and evidence. During the deliberation,
however, it was agreed upon that the individual members of the Court could
express their own views on this matter.
In this regard, the ponente, is of the strong view that life begins at
fertilization.
In answering the question of when life begins, focus should be made on the
particular phrase of Section 12 which reads:
Section 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution. It shall
equally protect the life of the mother and the life of the unborn from
conception. The natural and primary right and duty of parents in the rearing
of the youth for civic efficiency and the development of moral character shall
receive the support of the Government.
Textually, the Constitution affords protection to the unborn from conception.
This is undisputable because before conception, there is no unborn to speak
of. For said reason, it is no surprise that the Constitution is mute as to any
proscription prior to conception or when life begins. The problem has arisen
because, amazingly, there are quarters who have conveniently disregarded
the scientific fact that conception is reckoned from fertilization. They are
waving the view that life begins at implantation. Hence, the issue of when life
begins.
In a nutshell, those opposing the RH Law contend that conception is
synonymous with "fertilization" of the female ovum by the male sperm.142
On the other side of the spectrum are those who assert that conception
refers to the "implantation" of the fertilized ovum in the uterus.143
Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution
should be interpreted in their plain and ordinary meaning. As held in the
recent case of Chavez v. Judicial Bar Council:144
One of the primary and basic rules in statutory construction is that where the
words of a statute are clear, plain, and free from ambiguity, it must be given
its literal meaning and applied without attempted interpretation. It is a well-
settled principle of constitutional construction that the language employed in
the Constitution must be given their ordinary meaning except where technical
terms are employed. As much as possible, the words of the Constitution
should be understood in the sense they have in common use. What it says
according to the text of the provision to be construed compels acceptance
and negates the power of the courts to alter it, based on the postulate that
the framers and the people mean what they say. Verba legis non est
recedendum - from the words of a statute there should be no departure.
The raison d' etre for the rule is essentially two-fold: First, because it is
assumed that the words in which constitutional provisions are couched
express the objective sought to be attained; and second, because the
Constitution is not primarily a lawyer's document but essentially that of the
people, in whose consciousness it should ever be present as an important
condition for the rule of law to prevail.
In conformity with the above principle, the traditional meaning of the word
"conception" which, as described and defined by all reliable and reputable
sources, means that life begins at fertilization.
Webster's Third New International Dictionary describes it as the act of
becoming pregnant, formation of a viable zygote; the fertilization that results
in a new entity capable of developing into a being like its parents.145
Black's Law Dictionary gives legal meaning to the term "conception" as the
fecundation of the female ovum by the male spermatozoon resulting in
human life capable of survival and maturation under normal conditions.146
Even in jurisprudence, an unborn child has already a legal personality. In
Continental Steel Manufacturing Corporation v. Hon. Accredited Voluntary
Arbitrator Allan S. Montano,147 it was written:
Life is not synonymous with civil personality. One need not acquire civil
personality first before he/she could die. Even a child inside the womb
already has life. No less than the Constitution recognizes the life of the
unborn from conception, that the State must protect equally with the life of
the mother. If the unborn already has life, then the cessation thereof even
prior to the child being delivered, qualifies as death. [Emphases in the
original]
In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US
Supreme Court, said that the State "has respect for human life at all stages in
the pregnancy" and "a legitimate and substantial interest in preserving and
promoting fetal life." Invariably, in the decision, the fetus was referred to, or
cited, as a baby or a child.149
Intent of the Framers
Records of the Constitutional Convention also shed light on the intention of
the Framers regarding the term "conception" used in Section 12, Article II of
the Constitution. From their deliberations, it clearly refers to the moment of
"fertilization." The records reflect the following:
Rev. Rigos: In Section 9, page 3, there is a sentence which reads:
"The State shall equally protect the life of the mother and the life of the
unborn from the moment of conception."
When is the moment of conception?
xxx
Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is
fertilized by the sperm that there is human life. x x x.150
xxx
As to why conception is reckoned from fertilization and, as such, the
beginning of human life, it was explained:
Mr. Villegas: I propose to review this issue in a biological manner. The first
question that needs to be answered is: Is the fertilized ovum alive?
Biologically categorically says yes, the fertilized ovum is alive. First of all, like
all living organisms, it takes in nutrients which it processes by itself. It begins
doing this upon fertilization. Secondly, as it takes in these nutrients, it grows
from within. Thirdly, it multiplies itself at a geometric rate in the continuous
process of cell division. All these processes are vital signs of life. Therefore,
there is no question that biologically the fertilized ovum has life.
The second question: Is it human? Genetics gives an equally categorical
"yes." At the moment of conception, the nuclei of the ovum and the sperm
rupture. As this happens 23 chromosomes from the ovum combine with 23
chromosomes of the sperm to form a total of 46 chromosomes. A
chromosome count of 46 is found only - and I repeat, only in human cells.
Therefore, the fertilized ovum is human.
Since these questions have been answered affirmatively, we must conclude
that if the fertilized ovum is both alive and human, then, as night follows day,
it must be human life. Its nature is human.151
Why the Constitution used the phrase "from the moment of conception" and
not "from the moment of fertilization" was not because of doubt when human
life begins, but rather, because:
Mr. Tingson: x x x x the phrase from the moment of conception" was
described by us here before with the scientific phrase "fertilized ovum" may
be beyond the comprehension of some people; we want to use the simpler
phrase "from the moment of conception."152
Thus, in order to ensure that the fertilized ovum is given ample protection
under the Constitution, it was discussed:
Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose
of writing a Constitution, without specifying "from the moment of conception."
Mr. Davide: I would not subscribe to that particular view because according
to the Commissioner's own admission, he would leave it to Congress to
define when life begins. So, Congress can define life to begin from six
months after fertilization; and that would really be very, very, dangerous. It is
now determined by science that life begins from the moment of conception.
There can be no doubt about it. So we should not give any doubt to
Congress, too.153
Upon further inquiry, it was asked:
Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that
point. Actually, that is one of the questions I was going to raise during the
period of interpellations but it has been expressed already. The provision, as
proposed right now states:
The State shall equally protect the life of the mother and the life of the unborn
from the moment of conception.
When it speaks of "from the moment of conception," does this mean when
the egg meets the sperm?
Mr. Villegas: Yes, the ovum is fertilized by the sperm.
Mr. Gascon: Therefore that does not leave to Congress the right to determine
whether certain contraceptives that we know today are abortifacient or not
because it is a fact that some of the so-called contraceptives deter the
rooting of the ovum in the uterus. If fertilization has already occurred, the
next process is for the fertilized ovum to travel towards the uterus and to take
root. What happens with some contraceptives is that they stop the
opportunity for the fertilized ovum to reach the uterus. Therefore, if we take
the provision as it is proposed, these so called contraceptives should be
banned.
Mr. Villegas: Yes, if that physical fact is established, then that is what is
called abortifacient and, therefore, would be unconstitutional and should be
banned under this provision.
Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to
state whether or not these certain contraceptives are abortifacient.
Scientifically and based on the provision as it is now proposed, they are
already considered abortifacient.154
From the deliberations above-quoted, it is apparent that the Framers of the
Constitution emphasized that the State shall provide equal protection to both
the mother and the unborn child from the earliest opportunity of life, that is,
upon fertilization or upon the union of the male sperm and the female ovum.
It is also apparent is that the Framers of the Constitution intended that to
prohibit Congress from enacting measures that would allow it determine
when life begins.
Equally apparent, however, is that the Framers of the Constitution did not
intend to ban all contraceptives for being unconstitutional. In fact,
Commissioner Bernardo Villegas, spearheading the need to have a
constitutional provision on the right to life, recognized that the determination
of whether a contraceptive device is an abortifacient is a question of fact
which should be left to the courts to decide on based on established
evidence.155
From the discussions above, contraceptives that kill or destroy the fertilized
ovum should be deemed an abortive and thus prohibited. Conversely,
contraceptives that actually prevent the union of the male sperm and the
female ovum, and those that similarly take action prior to fertilization should
be deemed non-abortive, and thus, constitutionally permissible.
As emphasized by the Framers of the Constitution:
xxx xxx xxx
Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro- To be protected.
life, to the point that I would like not only to protect the life of the unborn, but
also the lives of the millions of people in the world by fighting for a nuclear- Atty. Noche:
free world. I would just like to be assured of the legal and pragmatic
implications of the term "protection of the life of the unborn from the moment Under Section 12, yes.
of conception." I raised some of these implications this afternoon when I
interjected in the interpellation of Commissioner Regalado. I would like to ask Justice Bersamin:
that question again for a categorical answer.
So you have no objection to condoms?
I mentioned that if we institutionalize the term "the life of the unborn from the
moment of conception" we are also actually saying "no," not "maybe," to Atty. Noche:
certain contraceptives which are already being encouraged at this point in
time. Is that the sense of the committee or does it disagree with me? Not under Section 12, Article II.

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be
preventive. There is no unborn yet. That is yet unshaped.
Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some
contraceptives, such as the intra-uterine device which actually stops the egg
which has already been fertilized from taking route to the uterus. So if we say
"from the moment of conception," what really occurs is that some of these
contraceptives will have to be unconstitutionalized.
Justice Bersamin:
Even if there is already information that condoms sometimes have porosity?
Atty. Noche:
Well, yes, Your Honor, there are scientific findings to that effect, Your Honor,
but I am discussing here Section 12, Article II, Your Honor, yes.

Mr. Azcuna: Yes, to the extent that it is after the fertilization. Justice Bersamin:

Mr. Gascon: Thank you, Mr. Presiding Officer.156 Alright.

The fact that not all contraceptives are prohibited by the 1987 Constitution is
even admitted by petitioners during the oral arguments. There it was
conceded that tubal ligation, vasectomy, even condoms are not classified as
abortifacients.157
Atty. Noche:
Before the union of the eggs, egg and the sperm, there is no life yet.
Justice Bersamin:
Atty. Noche:
And it's not, I have to admit it's not an abortifacient, Your Honor.158
Medical Meaning
That conception begins at fertilization is not bereft of medical foundation.
Mosby s Medical, Nursing, and Allied Health Dictionary defines conception
as "the beginning of pregnancy usually taken to be the instant a
spermatozoon enters an ovum and forms a viable zygote."159

There is no life. It describes fertilization as "the union of male and female gametes to form a
zygote from which the embryo develops."160
Atty. Noche:
The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161
So, there is no life to be protected. used by medical schools in the Philippines, also concludes that human life
(human person) begins at the moment of fertilization with the union of the
Justice Bersamin: egg and the sperm resulting in the formation of a new individual, with a
unique genetic composition that dictates all developmental stages that
ensue.
Similarly, recent medical research on the matter also reveals that: "Human
development begins after the union of male and female gametes or germ
cells during a process known as fertilization (conception). Fertilization is a
sequence of events that begins with the contact of a sperm (spermatozoon)
with a secondary oocyte (ovum) and ends with the fusion of their pronuclei
(the haploid nuclei of the sperm and ovum) and the mingling of their
chromosomes to form a new cell. This fertilized ovum, known as a zygote, is
a large diploid cell that is the beginning, or primordium, of a human
being."162
The authors of Human Embryology & Teratology163 mirror the same
position. They wrote: "Although life is a continuous process, fertilization is a
critical landmark because, under ordinary circumstances, a new, genetically
distinct human organism is thereby formed.... The combination of 23
chromosomes present in each pronucleus results in 46 chromosomes in the
zygote. Thus the diploid number is restored and the embryonic genome is
formed. The embryo now exists as a genetic unity."
In support of the RH Bill, The Philippine Medical Association came out with a
"Paper on the Reproductive Health Bill (Responsible Parenthood Bill)" and
therein concluded that:
CONCLUSION
The PMA throws its full weight in supporting the RH Bill at the same time that
PMA maintains its strong position that fertilization is sacred because it is at
this stage that conception, and thus human life, begins. Human lives are
sacred from the moment of conception, and that destroying those new lives
is never licit, no matter what the purported good outcome would be. In terms
of biology and human embryology, a human being begins immediately at
fertilization and after that, there is no point along the continuous line of
human embryogenesis where only a "potential" human being can be posited.
Any philosophical, legal, or political conclusion cannot escape this objective
scientific fact.
The scientific evidence supports the conclusion that a zygote is a human
organism and that the life of a new human being commences at a
scientifically well defined "moment of conception." This conclusion is
objective, consistent with the factual evidence, and independent of any
specific ethical, moral, political, or religious view of human life or of human
embryos.164
Conclusion: The Moment of Conception is Reckoned from
Fertilization
In all, whether it be taken from a plain meaning, or understood under medical
parlance, and more importantly, following the intention of the Framers of the
Constitution, the undeniable conclusion is that a zygote is a human organism
and that the life of a new human being commences at a scientifically well-
defined moment of conception, that is, upon fertilization.
For the above reasons, the Court cannot subscribe to the theory advocated
by Hon. Lagman that life begins at implantation.165 According to him,
"fertilization and conception are two distinct and successive stages in the
reproductive process. They are not identical and synonymous."166 Citing a
letter of the WHO, he wrote that "medical authorities confirm that the
implantation of the fertilized ovum is the commencement of conception and it
is only after implantation that pregnancy can be medically detected."167
This theory of implantation as the beginning of life is devoid of any legal or
scientific mooring. It does not pertain to the beginning of life but to the
viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it
is a living human being complete with DNA and 46 chromosomes.168
Implantation has been conceptualized only for convenience by those who
had population control in mind. To adopt it would constitute textual infidelity
not only to the RH Law but also to the Constitution.
Not surprisingly, even the OSG does not support this position.
If such theory would be accepted, it would unnervingly legitimize the
utilization of any drug or device that would prevent the implantation of the
fetus at the uterine wall. It would be provocative and further aggravate
religious-based divisiveness.
It would legally permit what the Constitution proscribes - abortion and
abortifacients.
The RH Law and Abortion
The clear and unequivocal intent of the Framers of the 1987 Constitution in
protecting the life of the unborn from conception was to prevent the
Legislature from enacting a measure legalizing abortion. It was so clear that
even the Court cannot interpret it otherwise. This intent of the Framers was
captured in the record of the proceedings of the 1986 Constitutional
Commission. Commissioner Bernardo Villegas, the principal proponent of the
protection of the unborn from conception, explained:
The intention .. .is to make sure that there would be no pro-abortion laws
ever passed by Congress or any pro-abortion decision passed by the
Supreme Court.169
A reading of the RH Law would show that it is in line with this intent and
actually proscribes abortion. While the Court has opted not to make any
determination, at this stage, when life begins, it finds that the RH Law itself
clearly mandates that protection be afforded from the moment of fertilization.
As pointed out by Justice Carpio, the RH Law is replete with provisions that
embody the policy of the law to protect to the fertilized ovum and that it
should be afforded safe travel to the uterus for implantation.170
Moreover, the RH Law recognizes that abortion is a crime under Article 256
of the Revised Penal Code, which penalizes the destruction or expulsion of
the fertilized ovum. Thus:
1] xx x.
Section 4. Definition of Terms. - For the purpose of this Act, the following
terms shall be defined as follows:
xxx.
(q) Reproductive health care refers to the access to a full range of methods,
facilities, services and supplies that contribute to reproductive health and
well-being by addressing reproductive health-related problems. It also
includes sexual health, the purpose of which is the enhancement of life and
personal relations. The elements of reproductive health care include the
following:
xxx.
(3) Proscription of abortion and management of abortion complications;
xxx.
2] xx x.
Section 4. x x x.
(s) Reproductive health rights refers to the rights of individuals and couples,
to decide freely and responsibly whether or not to have children; the number,
spacing and timing of their children; to make other decisions concerning
reproduction, free of discrimination, coercion and violence; to have the
information and means to do so; and to attain the highest standard of sexual
health and reproductive health: Provided, however, That reproductive health
rights do not include abortion, and access to abortifacients.
3] xx x.
SEC. 29. Repealing Clause. - Except for prevailing laws against abortion,
any law, presidential decree or issuance, executive order, letter of instruction,
administrative order, rule or regulation contrary to or is inconsistent with the
provisions of this Act including Republic Act No. 7392, otherwise known as
the Midwifery Act, is hereby repealed, modified or amended accordingly.
The RH Law and Abortifacients
In carrying out its declared policy, the RH Law is consistent in prohibiting
abortifacients. To be clear, Section 4(a) of the RH Law defines an
abortifacient as:
Section 4. Definition of Terms - x x x x
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
As stated above, the RH Law mandates that protection must be afforded
from the moment of fertilization. By using the word " or," the RH Law
prohibits not only drugs or devices that prevent implantation, but also those
that induce abortion and those that induce the destruction of a fetus inside
the mother's womb. Thus, an abortifacient is any drug or device that either:
(a) Induces abortion; or
(b) Induces the destruction of a fetus inside the mother's womb; or
(c) Prevents the fertilized ovum to reach and be implanted in the mother's
womb, upon determination of the FDA.
Contrary to the assertions made by the petitioners, the Court finds that the
RH Law, consistent with the Constitution, recognizes that the fertilized ovum
already has life and that the State has a bounden duty to protect it. The
conclusion becomes clear because the RH Law, first, prohibits any drug or
device that induces abortion (first kind), which, as discussed exhaustively
above, refers to that which induces the killing or the destruction of the
fertilized ovum, and, second, prohibits any drug or device the fertilized ovum
to reach and be implanted in the mother's womb (third kind).
By expressly declaring that any drug or device that prevents the fertilized
ovum to reach and be implanted in the mother's womb is an abortifacient
(third kind), the RH Law does not intend to mean at all that life only begins
only at implantation, as Hon. Lagman suggests. It also does not declare
either that protection will only be given upon implantation, as the petitioners
likewise suggest. Rather, it recognizes that: one, there is a need to protect
the fertilized ovum which already has life, and two, the fertilized ovum must
be protected the moment it becomes existent - all the way until it reaches
and implants in the mother's womb. After all, if life is only recognized and
afforded protection from the moment the fertilized ovum implants - there is
nothing to prevent any drug or device from killing or destroying the fertilized
ovum prior to implantation.
From the foregoing, the Court finds that inasmuch as it affords protection to
the fertilized ovum, the RH Law does not sanction abortion. To repeat, it is
the Court's position that life begins at fertilization, not at implantation. When a
fertilized ovum is implanted in the uterine wall , its viability is sustained but
that instance of implantation is not the point of beginning of life. It started
earlier. And as defined by the RH Law, any drug or device that induces
abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an
abortifacient.
Proviso Under Section 9 of the RH Law
This notwithstanding, the Court finds that the proviso under Section 9 of the
law that "any product or supply included or to be included in the EDL must
have a certification from the FDA that said product and supply is made
available on the condition that it is not to be used as an abortifacient" as
empty as it is absurd. The FDA, with all its expertise, cannot fully attest that a
drug or device will not all be used as an abortifacient, since the agency
cannot be present in every instance when the contraceptive product or
supply will be used.171
Pursuant to its declared policy of providing access only to safe, legal and
non-abortifacient contraceptives, however, the Court finds that the proviso of
Section 9, as worded, should bend to the legislative intent and mean that
"any product or supply included or to be included in the EDL must have a
certification from the FDA that said product and supply is made available on
the condition that it cannot be used as abortifacient." Such a construction is
consistent with the proviso under the second paragraph of the same section
that provides:
Provided, further, That the foregoing offices shall not purchase or acquire by
any means emergency contraceptive pills, postcoital pills, abortifacients that
will be used for such purpose and their other forms or equivalent.
Abortifacients under the RH-IRR
At this juncture, the Court agrees with ALFI that the authors of the RH-IRR
gravely abused their office when they redefined the meaning of abortifacient.
The RH Law defines "abortifacient" as follows:
SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms
shall be defined as follows:
(a) Abortifacient refers to any drug or device that induces abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the FDA.
Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:
Section 3.01 For purposes of these Rules, the terms shall be defined as
follows:
a) Abortifacient refers to any drug or device that primarily induces abortion or
the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb upon
determination of the Food and Drug Administration (FDA). [Emphasis
supplied]
Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:
j) Contraceptive refers to any safe, legal, effective and scientifically proven
modern family planning method, device, or health product, whether natural or
artificial, that prevents pregnancy but does not primarily destroy a fertilized
ovum or prevent a fertilized ovum from being implanted in the mother's womb
in doses of its approved indication as determined by the Food and Drug
Administration (FDA).
The above-mentioned section of the RH-IRR allows "contraceptives" and
recognizes as "abortifacient" only those that primarily induce abortion or the
destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb.172
This cannot be done.
In this regard, the observations of Justice Brion and Justice Del Castillo are
well taken. As they pointed out, with the insertion of the word "primarily,"
Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra
vires.

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G)
of the RH-IRR is indeed ultra vires. It contravenes Section 4(a) of the RH
Law and should, therefore, be declared invalid. There is danger that the
insertion of the qualifier "primarily" will pave the way for the approval of
contraceptives which may harm or destroy the life of the unborn from
conception/fertilization in violation of Article II, Section 12 of the Constitution.
With such qualification in the RH-IRR, it appears to insinuate that a
contraceptive will only be considered as an "abortifacient" if its sole known
effect is abortion or, as pertinent here, the prevention of the implantation of
the fertilized ovum.
For the same reason, this definition of "contraceptive" would permit the
approval of contraceptives which are actually abortifacients because of their
fail-safe mechanism.174
Also, as discussed earlier, Section 9 calls for the certification by the FDA that
these contraceptives cannot act as abortive. With this, together with the
definition of an abortifacient under Section 4 (a) of the RH Law and its
declared policy against abortion, the undeniable conclusion is that
contraceptives to be included in the PNDFS and the EDL will not only be
those contraceptives that do not have the primary action of causing abortion
or the destruction of a fetus inside the mother's womb or the prevention of
the fertilized ovum to reach and be implanted in the mother's womb, but also
those that do not have the secondary action of acting the same way.
Indeed, consistent with the constitutional policy prohibiting abortion, and in
line with the principle that laws should be construed in a manner that its
constitutionality is sustained, the RH Law and its implementing rules must be
consistent with each other in prohibiting abortion. Thus, the word " primarily"
in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold
the validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those
contraceptives that have the primary effect of being an abortive would
effectively "open the floodgates to the approval of contraceptives which may
harm or destroy the life of the unborn from conception/fertilization in violation
of Article II, Section 12 of the Constitution."175
To repeat and emphasize, in all cases, the "principle of no abortion"
embodied in the constitutional protection of life must be upheld.
2-The Right to Health
The petitioners claim that the RH Law violates the right to health because it
requires the inclusion of hormonal contraceptives, intrauterine devices,
injectables and family products and supplies in the National Drug Formulary
and the inclusion of the same in the regular purchase of essential medicines
and supplies of all national hospitals.176 Citing various studies on the matter,
the petitioners posit that the risk of developing breast and cervical cancer is
greatly increased in women who use oral contraceptives as compared to
women who never use them. They point out that the risk is decreased when
the use of contraceptives is discontinued. Further, it is contended that the
use of combined oral contraceptive pills is associated with a threefold
increased risk of venous thromboembolism, a twofold increased risk of
ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual
health" under Sections 4(p)178 and (w)179 of the RH Law, the petitioners
assert that the assailed legislation only seeks to ensure that women have
pleasurable and satisfying sex lives.180
The OSG, however, points out that Section 15, Article II of the Constitution is
not self-executory, it being a mere statement of the administration's principle
and policy. Even if it were self-executory, the OSG posits that medical
authorities refute the claim that contraceptive pose a danger to the health of
women.181
The Court's Position
A component to the right to life is the constitutional right to health. In this
regard, the Constitution is replete with provisions protecting and promoting
the right to health. Section 15, Article II of the Constitution provides:
Section 15. The State shall protect and promote the right to health of the
people and instill health consciousness among them.
A portion of Article XIII also specifically provides for the States' duty to
provide for the health of the people, viz:
HEALTH
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
Section 12. The State shall establish and maintain an effective food and drug
regulatory system and undertake appropriate health, manpower
development, and research, responsive to the country's health needs and
problems.
Section 13. The State shall establish a special agency for disabled person for
their rehabilitation, self-development, and self-reliance, and their integration
into the mainstream of society.
Finally, Section 9, Article XVI provides:
Section 9. The State shall protect consumers from trade malpractices and
from substandard or hazardous products.
Contrary to the respondent's notion, however, these provisions are self-
executing. Unless the provisions clearly express the contrary, the provisions
of the Constitution should be considered self-executory. There is no need for
legislation to implement these self-executing provisions.182 In Manila Prince
Hotel v. GSIS,183 it was stated:
x x x Hence, unless it is expressly provided that a legislative act is necessary
to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing. If the constitutional
provisions are treated as requiring legislation instead of self-executing, the
legislature would have the power to ignore and practically nullify the mandate
of the fundamental law. This can be cataclysmic. That is why the prevailing
view is, as it has always been, that –
... in case of doubt, the Constitution should be considered self-executing
rather than non-self-executing. . . . Unless the contrary is clearly intended,
the provisions of the Constitution should be considered self-executing, as a
contrary rule would give the legislature discretion to determine when, or
whether, they shall be effective. These provisions would be subordinated to
the will of the lawmaking body, which could make them entirely meaningless
by simply refusing to pass the needed implementing statute. (Emphases
supplied)
This notwithstanding, it bears mentioning that the petitioners, particularly
ALFI, do not question contraception and contraceptives per se.184 In fact,
ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the
sale and distribution of contraceptives are not prohibited when they are
dispensed by a prescription of a duly licensed by a physician - be
maintained.185
The legislative intent in the enactment of the RH Law in this regard is to
leave intact the provisions of R.A. No. 4729. There is no intention at all to do
away with it. It is still a good law and its requirements are still in to be
complied with. Thus, the Court agrees with the observation of respondent
Lagman that the effectivity of the RH Law will not lead to the unmitigated
proliferation of contraceptives since the sale, distribution and dispensation of
contraceptive drugs and devices will still require the prescription of a licensed
physician. With R.A. No. 4729 in place, there exists adequate safeguards to
ensure the public that only contraceptives that are safe are made available to
the public. As aptly explained by respondent Lagman:
D. Contraceptives cannot be
dispensed and used without
prescription
108. As an added protection to voluntary users of contraceptives, the same
cannot be dispensed and used without prescription.
109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation,
and/ or Distribution of Contraceptive Drugs and Devices" and Republic Act
No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting
Standards of Pharmaceutical Education in the Philippines and for Other
Purposes" are not repealed by the RH Law and the provisions of said Acts
are not inconsistent with the RH Law.
110. Consequently, the sale, distribution and dispensation of contraceptive
drugs and devices are particularly governed by RA No. 4729 which provides
in full:
"Section 1. It shall be unlawful for any person, partnership, or corporation, to
sell, dispense or otherwise distribute whether for or without consideration,
any contraceptive drug or device, unless such sale, dispensation or
distribution is by a duly licensed drug store or pharmaceutical company and
with the prescription of a qualified medical practitioner.
"Sec. 2 . For the purpose of this Act:
"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is
used exclusively for the purpose of preventing fertilization of the female
ovum: and
"(b) "Contraceptive device" is any instrument, device, material, or agent
introduced into the female reproductive system for the primary purpose of
preventing conception.
"Sec. 3 Any person, partnership, or corporation, violating the provisions of
this Act shall be punished with a fine of not more than five hundred pesos or
an imprisonment of not less than six months or more than one year or both in
the discretion of the Court.
"This Act shall take effect upon its approval.
"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No.
5921 provides:
"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No
medicine, pharmaceutical, or drug of whatever nature and kind or device
shall be compounded, dispensed, sold or resold, or otherwise be made
available to the consuming public except through a prescription drugstore or
hospital pharmacy, duly established in accordance with the provisions of this
Act.
112. With all of the foregoing safeguards, as provided for in the RH Law and
other relevant statutes, the pretension of the petitioners that the RH Law will
lead to the unmitigated proliferation of contraceptives, whether harmful or
not, is completely unwarranted and baseless.186 [Emphases in the Original.
Underlining supplied.]
In Re: Section 10 of the RH Law:
The foregoing safeguards should be read in connection with Section 10 of
the RH Law which provides:
SEC. 10. Procurement and Distribution of Family Planning Supplies. - The
DOH shall procure, distribute to LGUs and monitor the usage of family
planning supplies for the whole country. The DOH shall coordinate with all
appropriate local government bodies to plan and implement this procurement
and distribution program. The supply and budget allotments shall be based
on, among others, the current levels and projections of the following:
(a) Number of women of reproductive age and couples who want to space or
limit their children;
(b) Contraceptive prevalence rate, by type of method used; and
(c) Cost of family planning supplies.
Provided, That LGUs may implement its own procurement, distribution and
monitoring program consistent with the overall provisions of this Act and the
guidelines of the DOH.
Thus, in the distribution by the DOH of contraceptive drugs and devices, it
must consider the provisions of R.A. No. 4729, which is still in effect, and
ensure that the contraceptives that it will procure shall be from a duly
licensed drug store or pharmaceutical company and that the actual
dispensation of these contraceptive drugs and devices will done following a
prescription of a qualified medical practitioner. The distribution of
contraceptive drugs and devices must not be indiscriminately done. The
public health must be protected by all possible means. As pointed out by
Justice De Castro, a heavy responsibility and burden are assumed by the
government in supplying contraceptive drugs and devices, for it may be held
accountable for any injury, illness or loss of life resulting from or incidental to
their use.187
At any rate, it bears pointing out that not a single contraceptive has yet been
submitted to the FDA pursuant to the RH Law. It behooves the Court to await
its determination which drugs or devices are declared by the FDA as safe, it
being the agency tasked to ensure that food and medicines available to the
public are safe for public consumption. Consequently, the Court finds that, at
this point, the attack on the RH Law on this ground is premature. Indeed, the
various kinds of contraceptives must first be measured up to the
constitutional yardstick as expounded herein, to be determined as the case
presents itself.
At this point, the Court is of the strong view that Congress cannot legislate
that hormonal contraceptives and intra-uterine devices are safe and non-
abortifacient. The first sentence of Section 9 that ordains their inclusion by
the National Drug Formulary in the EDL by using the mandatory "shall" is to
be construed as operative only after they have been tested, evaluated, and
approved by the FDA. The FDA, not Congress, has the expertise to
determine whether a particular hormonal contraceptive or intrauterine device
is safe and non-abortifacient. The provision of the third sentence concerning
the requirements for the inclusion or removal of a particular family planning
supply from the EDL supports this construction.
Stated differently, the provision in Section 9 covering the inclusion of
hormonal contraceptives, intra-uterine devices, injectables, and other safe,
legal, non-abortifacient and effective family planning products and supplies
by the National Drug Formulary in the EDL is not mandatory. There must first
be a determination by the FDA that they are in fact safe, legal, non-
abortifacient and effective family planning products and supplies. There can
be no predetermination by Congress that the gamut of contraceptives are
"safe, legal, non-abortifacient and effective" without the proper scientific
examination.
3 -Freedom of Religion
and the Right to Free Speech
Position of the Petitioners:
1. On Contraception
While contraceptives and procedures like vasectomy and tubal ligation are
not covered by the constitutional proscription, there are those who, because
of their religious education and background, sincerely believe that
contraceptives, whether abortifacient or not, are evil. Some of these are
medical practitioners who essentially claim that their beliefs prohibit not only
the use of contraceptives but also the willing participation and cooperation in
all things dealing with contraceptive use. Petitioner PAX explained that
"contraception is gravely opposed to marital chastity, it is contrary to the
good of the transmission of life, and to the reciprocal self-giving of the
spouses; it harms true love and denies the sovereign rule of God in the
transmission of Human life."188
The petitioners question the State-sponsored procurement of contraceptives,
arguing that the expenditure of their taxes on contraceptives violates the
guarantee of religious freedom since contraceptives contravene their
religious beliefs.189
2. On Religious Accommodation and
The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address
religious sentiments by making provisions for a conscientious objector, the
constitutional guarantee is nonetheless violated because the law also
imposes upon the conscientious objector the duty to refer the patient seeking
reproductive health services to another medical practitioner who would be
able to provide for the patient's needs. For the petitioners, this amounts to
requiring the conscientious objector to cooperate with the very thing he
refuses to do without violating his/her religious beliefs.190
They further argue that even if the conscientious objector's duty to refer is
recognized, the recognition is unduly limited, because although it allows a
conscientious objector in Section 23 (a)(3) the option to refer a patient
seeking reproductive health services and information - no escape is afforded
the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient
seeking reproductive health procedures. They claim that the right of other
individuals to conscientiously object, such as: a) those working in public
health facilities referred to in Section 7; b) public officers involved in the
implementation of the law referred to in Section 23(b ); and c) teachers in
public schools referred to in Section 14 of the RH Law, are also not
recognize.191
Petitioner Echavez and the other medical practitioners meanwhile, contend
that the requirement to refer the matter to another health care service
provider is still considered a compulsion on those objecting healthcare
service providers. They add that compelling them to do the act against their
will violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of
the law are too secular that they tend to disregard the religion of Filipinos.
Authorizing the use of contraceptives with abortive effects, mandatory sex
education, mandatory pro-bono reproductive health services to indigents
encroach upon the religious freedom of those upon whom they are
required.192
Petitioner CFC also argues that the requirement for a conscientious objector
to refer the person seeking reproductive health care services to another
provider infringes on one's freedom of religion as it forces the objector to
become an unwilling participant in the commission of a serious sin under
Catholic teachings. While the right to act on one's belief may be regulated by
the State, the acts prohibited by the RH Law are passive acts which produce
neither harm nor injury to the public.193
Petitioner CFC adds that the RH Law does not show compelling state
interest to justify regulation of religious freedom because it mentions no
emergency, risk or threat that endangers state interests. It does not explain
how the rights of the people (to equality, non-discrimination of rights,
sustainable human development, health, education, information, choice and
to make decisions according to religious convictions, ethics, cultural beliefs
and the demands of responsible parenthood) are being threatened or are not
being met as to justify the impairment of religious freedom.194
Finally, the petitioners also question Section 15 of the RH Law requiring
would-be couples to attend family planning and responsible parenthood
seminars and to obtain a certificate of compliance. They claim that the
provision forces individuals to participate in the implementation of the RH
Law even if it contravenes their religious beliefs.195 As the assailed law
dangles the threat of penalty of fine and/or imprisonment in case of non-
compliance with its provisions, the petitioners claim that the RH Law forcing
them to provide, support and facilitate access and information to
contraception against their beliefs must be struck down as it runs afoul to the
constitutional guarantee of religious freedom.
The Respondents' Positions
The respondents, on the other hand, contend that the RH Law does not
provide that a specific mode or type of contraceptives be used, be it natural
or artificial. It neither imposes nor sanctions any religion or belief.196 They
point out that the RH Law only seeks to serve the public interest by providing
accessible, effective and quality reproductive health services to ensure
maternal and child health, in line with the State's duty to bring to reality the
social justice health guarantees of the Constitution,197 and that what the law
only prohibits are those acts or practices, which deprive others of their right
to reproductive health.198 They assert that the assailed law only seeks to
guarantee informed choice, which is an assurance that no one will be
compelled to violate his religion against his free will.199
The respondents add that by asserting that only natural family planning
should be allowed, the petitioners are effectively going against the
constitutional right to religious freedom, the same right they invoked to assail
the constitutionality of the RH Law.200 In other words, by seeking the
declaration that the RH Law is unconstitutional, the petitioners are asking
that the Court recognize only the Catholic Church's sanctioned natural family
planning methods and impose this on the entire citizenry.201
With respect to the duty to refer, the respondents insist that the same does
not violate the constitutional guarantee of religious freedom, it being a
carefully balanced compromise between the interests of the religious
objector, on one hand, who is allowed to keep silent but is required to refer -
and that of the citizen who needs access to information and who has the right
to expect that the health care professional in front of her will act
professionally. For the respondents, the concession given by the State under
Section 7 and 23(a)(3) is sufficient accommodation to the right to freely
exercise one's religion without unnecessarily infringing on the rights of
others.202
Whatever burden is placed on the petitioner's religious freedom is minimal as
the duty to refer is limited in duration, location and impact.203
Regarding mandatory family planning seminars under Section 15 , the
respondents claim that it is a reasonable regulation providing an opportunity
for would-be couples to have access to information regarding parenthood,
family planning, breastfeeding and infant nutrition. It is argued that those who
object to any information received on account of their attendance in the
required seminars are not compelled to accept information given to them.
They are completely free to reject any information they do not agree with and
retain the freedom to decide on matters of family life without intervention of
the State.204
For their part, respondents De Venecia et al., dispute the notion that natural
family planning is the only method acceptable to Catholics and the Catholic
hierarchy. Citing various studies and surveys on the matter, they highlight the
changing stand of the Catholic Church on contraception throughout the years
and note the general acceptance of the benefits of contraceptives by its
followers in planning their families.
The Church and The State
At the outset, it cannot be denied that we all live in a heterogeneous society.
It is made up of people of diverse ethnic, cultural and religious beliefs and
backgrounds. History has shown us that our government, in law and in
practice, has allowed these various religious, cultural, social and racial
groups to thrive in a single society together. It has embraced minority groups
and is tolerant towards all - the religious people of different sects and the
non-believers. The undisputed fact is that our people generally believe in a
deity, whatever they conceived Him to be, and to whom they call for
guidance and enlightenment in crafting our fundamental law. Thus, the
preamble of the present Constitution reads:
We, the sovereign Filipino people, imploring the aid of Almighty God, in order
to build a just and humane society, and establish a Government that shall
embody our ideals and aspirations, promote the common good, conserve
and develop our patrimony, and secure to ourselves and our posterity, the
blessings of independence and democracy under the rule of law and a
regime of truth, justice, freedom, love, equality, and peace, do ordain and
promulgate this Constitution.
The Filipino people in "imploring the aid of Almighty God " manifested their
spirituality innate in our nature and consciousness as a people, shaped by
tradition and historical experience. As this is embodied in the preamble, it
means that the State recognizes with respect the influence of religion in so
far as it instills into the mind the purest principles of morality.205 Moreover, in
recognition of the contributions of religion to society, the 1935, 1973 and
1987 constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary of
religious officers in government institutions, and optional religious instructions
in public schools.
The Framers, however, felt the need to put up a strong barrier so that the
State would not encroach into the affairs of the church, and vice-versa. The
principle of separation of Church and State was, thus, enshrined in Article II,
Section 6 of the 1987 Constitution, viz:
Section 6. The separation of Church and State shall be inviolable.
Verily, the principle of separation of Church and State is based on mutual
respect.1âwphi1 Generally, the State cannot meddle in the internal affairs of
the church, much less question its faith and dogmas or dictate upon it. It
cannot favor one religion and discriminate against another. On the other
hand, the church cannot impose its beliefs and convictions on the State and
the rest of the citizenry. It cannot demand that the nation follow its beliefs,
even if it sincerely believes that they are good for the country.
Consistent with the principle that not any one religion should ever be
preferred over another, the Constitution in the above-cited provision utilizes
the term "church" in its generic sense, which refers to a temple, a mosque,
an iglesia, or any other house of God which metaphorically symbolizes a
religious organization. Thus, the "Church" means the religious congregations
collectively.
Balancing the benefits that religion affords and the need to provide an ample
barrier to protect the State from the pursuit of its secular objectives, the
Constitution lays down the following mandate in Article III, Section 5 and
Article VI, Section 29 (2), of the 1987 Constitution:
Section. 5. No law shall be made respecting an establishment of 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.
Section 29.
xxx.
No public money or property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use, benefit, or support of any sect,
church, denomination, sectarian institution, or system of religion, or of any
priest, preacher, minister, other religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary is assigned to the armed
forces, or to any penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two
guarantees: the Establishment Clause and the Free Exercise Clause.
The establishment clause "principally prohibits the State from sponsoring any
religion or favoring any religion as against other religions. It mandates a strict
neutrality in affairs among religious groups."206 Essentially, it prohibits the
establishment of a state religion and the use of public resources for the
support or prohibition of a religion.
On the other hand, the basis of the free exercise clause is the respect for the
inviolability of the human conscience.207 Under this part of religious freedom
guarantee, the State is prohibited from unduly interfering with the outside
manifestations of one's belief and faith.208 Explaining the concept of
religious freedom, the Court, in Victoriano v. Elizalde Rope Workers
Union209 wrote:
The constitutional provisions not only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship (U.S. Ballard, 322 U.S. 78, 88 L. ed. 1148, 1153), but also
assures the free exercise of one's chosen form of religion within limits of
utmost amplitude. It has been said that the religion clauses of the
Constitution are all designed to protect the broadest possible liberty of
conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good. Any legislation whose effect
or purpose is to impede the observance of one or all religions, or to
discriminate invidiously between the religions, is invalid, even though the
burden may be characterized as being only indirect. (Sherbert v. Verner, 374
U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct
by enacting, within its power, a general law which has for its purpose and
effect to advance the state's secular goals, the statute is valid despite its
indirect burden on religious observance, unless the state can accomplish its
purpose without imposing such burden. (Braunfeld v. Brown, 366 U.S. 599, 6
Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and
449).
As expounded in Escritor,
The establishment and free exercise clauses were not designed to serve
contradictory purposes. They have a single goal-to promote freedom of
individual religious beliefs and practices. In simplest terms, the free exercise
clause prohibits government from inhibiting religious beliefs with penalties for
religious beliefs and practice, while the establishment clause prohibits
government from inhibiting religious belief with rewards for religious beliefs
and practices. In other words, the two religion clauses were intended to deny
government the power to use either the carrot or the stick to influence
individual religious beliefs and practices.210
Corollary to the guarantee of free exercise of one's religion is the principle
that the guarantee of religious freedom is comprised of two parts: the
freedom to believe, and the freedom to act on one's belief. The first part is
absolute. As explained in Gerona v. Secretary of Education:211
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others,
even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel.212
The second part however, is limited and subject to the awesome power of
the State and can be enjoyed only with proper regard to the rights of others.
It is "subject to regulation where the belief is translated into external acts that
affect the public welfare."213

Legislative Acts and the
Free Exercise Clause
Thus, in case of conflict between the free exercise clause and the State, the
Court adheres to the doctrine of benevolent neutrality. This has been clearly
decided by the Court in Estrada v. Escritor, (Escritor)214 where it was stated
"that benevolent neutrality-accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the Philippine
Constitution."215 In the same case, it was further explained that"
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government's favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. "The purpose of
accommodation is to remove a burden on, or facilitate the exercise of, a
person's or institution's religion."216 "What is sought under the theory of
accommodation is not a declaration of unconstitutionality of a facially neutral
law, but an exemption from its application or its 'burdensome effect,' whether
by the legislature or the courts."217
In ascertaining the limits of the exercise of religious freedom, the compelling
state interest test is proper.218 Underlying the compelling state interest test
is the notion that free exercise is a fundamental right and that laws burdening
it should be subject to strict scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases
on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used,
albeit inappropriately, the "compelling state interest" test. After Victoriano ,
German went back to the Gerona rule. Ebralinag then employed the "grave
and immediate danger" test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the " clear and present danger" test in
the maiden case of A merican Bible Society. Not surprisingly, all the cases
which employed the "clear and present danger" or "grave and immediate
danger" test involved, in one form or another, religious speech as this test is
often used in cases on freedom of expression. On the other hand, the
Gerona and German cases set the rule that religious freedom will not prevail
over established institutions of society and law. Gerona, however, which was
the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test . Victoriano was the only
case that employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in A merican Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state's interests:
some effects may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to
religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation
of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful
ones until they are destroyed. In determining which shall prevail between the
state's interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e. refusal
to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very
state, without which, religious liberty will not be preserved. [Emphases in the
original. Underlining supplied.]
The Court's Position
In the case at bench, it is not within the province of the Court to determine
whether the use of contraceptives or one's participation in the support of
modem reproductive health measures is moral from a religious standpoint or
whether the same is right or wrong according to one's dogma or belief. For
the Court has declared that matters dealing with "faith, practice, doctrine,
form of worship, ecclesiastical law, custom and rule of a church ... are
unquestionably ecclesiastical matters which are outside the province of the
civil courts."220 The jurisdiction of the Court extends only to public and
secular morality. Whatever pronouncement the Court makes in the case at
bench should be understood only in this realm where it has authority. Stated
otherwise, while the Court stands without authority to rule on ecclesiastical
matters, as vanguard of the Constitution, it does have authority to determine
whether the RH Law contravenes the guarantee of religious freedom.
At first blush, it appears that the RH Law recognizes and respects religion
and religious beliefs and convictions. It is replete with assurances the no one
can be compelled to violate the tenets of his religion or defy his religious
convictions against his free will. Provisions in the RH Law respecting
religious freedom are the following:
1. The State recognizes and guarantees the human rights of all persons
including their right to equality and nondiscrimination of these rights, the right
to sustainable human development, the right to health which includes
reproductive health, the right to education and information, and the right to
choose and make decisions for themselves in accordance with their religious
convictions, ethics, cultural beliefs, and the demands of responsible
parenthood. [Section 2, Declaration of Policy]
2 . The State recognizes marriage as an inviolable social institution and the
foundation of the family which in turn is the foundation of the nation. Pursuant
thereto, the State shall defend:
(a) The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood." [Section 2,
Declaration of Policy]
3. The State shall promote and provide information and access, without bias,
to all methods of family planning, including effective natural and modern
methods which have been proven medically safe, legal, non-abortifacient,
and effective in accordance with scientific and evidence-based medical
research standards such as those registered and approved by the FDA for
the poor and marginalized as identified through the NHTS-PR and other
government measures of identifying marginalization: Provided, That the State
shall also provide funding support to promote modern natural methods of
family planning, especially the Billings Ovulation Method, consistent with the
needs of acceptors and their religious convictions. [Section 3(e), Declaration
of Policy]
4. The State shall promote programs that: (1) enable individuals and couples
to have the number of children they desire with due consideration to the
health, particularly of women, and the resources available and affordable to
them and in accordance with existing laws, public morals and their religious
convictions. [Section 3CDJ
5. The State shall respect individuals' preferences and choice of family
planning methods that are in accordance with their religious convictions and
cultural beliefs, taking into consideration the State's obligations under various
human rights instruments. [Section 3(h)]
6. Active participation by nongovernment organizations (NGOs) , women's
and people's organizations, civil society, faith-based organizations, the
religious sector and communities is crucial to ensure that reproductive health
and population and development policies, plans, and programs will address
the priority needs of women, the poor, and the marginalized. [Section 3(i)]
7. Responsible parenthood refers to the will and ability of a parent to respond
to the needs and aspirations of the family and children. It is likewise a shared
responsibility between parents to determine and achieve the desired number
of children, spacing and timing of their children according to their own family
life aspirations, taking into account psychological preparedness, health
status, sociocultural and economic concerns consistent with their religious
convictions. [Section 4(v)] (Emphases supplied)
While the Constitution prohibits abortion, laws were enacted allowing the use
of contraceptives. To some medical practitioners, however, the whole idea of
using contraceptives is an anathema. Consistent with the principle of
benevolent neutrality, their beliefs should be respected.
The Establishment Clause
and Contraceptives
In the same breath that the establishment clause restricts what the
government can do with religion, it also limits what religious sects can or
cannot do with the government. They can neither cause the government to
adopt their particular doctrines as policy for everyone, nor can they not cause
the government to restrict other groups. To do so, in simple terms, would
cause the State to adhere to a particular religion and, thus, establishing a
state religion.
Consequently, the petitioners are misguided in their supposition that the
State cannot enhance its population control program through the RH Law
simply because the promotion of contraceptive use is contrary to their
religious beliefs. Indeed, the State is not precluded to pursue its legitimate
secular objectives without being dictated upon by the policies of any one
religion. One cannot refuse to pay his taxes simply because it will cloud his
conscience. The demarcation line between Church and State demands that
one render unto Caesar the things that are Caesar's and unto God the things
that are God's.221
The Free Exercise Clause and the Duty to Refer
While the RH Law, in espousing state policy to promote reproductive health
manifestly respects diverse religious beliefs in line with the Non-
Establishment Clause, the same conclusion cannot be reached with respect
to Sections 7, 23 and 24 thereof. The said provisions commonly mandate
that a hospital or a medical practitioner to immediately refer a person seeking
health care and services under the law to another accessible healthcare
provider despite their conscientious objections based on religious or ethical
beliefs.
In a situation where the free exercise of religion is allegedly burdened by
government legislation or practice, the compelling state interest test in line
with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor,
finds application. In this case, the conscientious objector's claim to religious
freedom would warrant an exemption from obligations under the RH Law,
unless the government succeeds in demonstrating a more compelling state
interest in the accomplishment of an important secular objective. Necessarily
so, the plea of conscientious objectors for exemption from the RH Law
deserves no less than strict scrutiny.
In applying the test, the first inquiry is whether a conscientious objector's right
to religious freedom has been burdened. As in Escritor, there is no doubt that
an intense tug-of-war plagues a conscientious objector. One side coaxes him
into obedience to the law and the abandonment of his religious beliefs, while
the other entices him to a clean conscience yet under the pain of penalty.
The scenario is an illustration of the predicament of medical practitioners
whose religious beliefs are incongruent with what the RH Law promotes.
The Court is of the view that the obligation to refer imposed by the RH Law
violates the religious belief and conviction of a conscientious objector. Once
the medical practitioner, against his will, refers a patient seeking information
on modem reproductive health products, services, procedures and methods,
his conscience is immediately burdened as he has been compelled to
perform an act against his beliefs. As Commissioner Joaquin A. Bernas
(Commissioner Bernas) has written, "at the basis of the free exercise clause
is the respect for the inviolability of the human conscience.222
Though it has been said that the act of referral is an opt-out clause, it is,
however, a false compromise because it makes pro-life health providers
complicit in the performance of an act that they find morally repugnant or
offensive. They cannot, in conscience, do indirectly what they cannot do
directly. One may not be the principal, but he is equally guilty if he abets the
offensive act by indirect participation.
Moreover, the guarantee of religious freedom is necessarily intertwined with
the right to free speech, it being an externalization of one's thought and
conscience. This in turn includes the right to be silent. With the constitutional
guarantee of religious freedom follows the protection that should be afforded
to individuals in communicating their beliefs to others as well as the
protection for simply being silent. The Bill of Rights guarantees the liberty of
the individual to utter what is in his mind and the liberty not to utter what is
not in his mind.223 While the RH Law seeks to provide freedom of choice
through informed consent, freedom of choice guarantees the liberty of the
religious conscience and prohibits any degree of compulsion or burden,
whether direct or indirect, in the practice of one's religion.224
In case of conflict between the religious beliefs and moral convictions of
individuals, on one hand, and the interest of the State, on the other, to
provide access and information on reproductive health products, services,
procedures and methods to enable the people to determine the timing,
number and spacing of the birth of their children, the Court is of the strong
view that the religious freedom of health providers, whether public or private,
should be accorded primacy. Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the RH Law. If he would be
compelled to act contrary to his religious belief and conviction, it would be
violative of "the principle of non-coercion" enshrined in the constitutional right
to free exercise of religion.
Interestingly, on April 24, 2013, Scotland's Inner House of the Court of
Session, found in the case of Doogan and Wood v. NHS Greater Glasgow
and Clyde Health Board,225 that the midwives claiming to be conscientious
objectors under the provisions of Scotland's Abortion Act of 1967, could not
be required to delegate, supervise or support staff on their labor ward who
were involved in abortions.226 The Inner House stated "that if 'participation'
were defined according to whether the person was taking part 'directly' or '
indirectly' this would actually mean more complexity and uncertainty."227
While the said case did not cover the act of referral, the applicable principle
was the same - they could not be forced to assist abortions if it would be
against their conscience or will.

Institutional Health Providers
The same holds true with respect to non-maternity specialty hospitals and
hospitals owned and operated by a religious group and health care service
providers. Considering that Section 24 of the RH Law penalizes such
institutions should they fail or refuse to comply with their duty to refer under
Section 7 and Section 23(a)(3), the Court deems that it must be struck down
for being violative of the freedom of religion. The same applies to Section
23(a)(l) and (a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services and in the
performance of reproductive health procedures, the religious freedom of
health care service providers should be respected.
In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the
Executive Secretary228 it was stressed:
Freedom of religion was accorded preferred status by the framers of our
fundamental law. And this Court has consistently affirmed this preferred
status, well aware that it is "designed to protect the broadest possible liberty
of conscience, to allow each man to believe as his conscience directs, to
profess his beliefs, and to live as he believes he ought to live, consistent with
the liberty of others and with the common good."10
The Court is not oblivious to the view that penalties provided by law
endeavour to ensure compliance. Without set consequences for either an
active violation or mere inaction, a law tends to be toothless and ineffectual.
Nonetheless, when what is bartered for an effective implementation of a law
is a constitutionally-protected right the Court firmly chooses to stamp its
disapproval. The punishment of a healthcare service provider, who fails and/
or refuses to refer a patient to another, or who declines to perform
reproductive health procedure on a patient because incompatible religious
beliefs, is a clear inhibition of a constitutional guarantee which the Court
cannot allow.
The Implementing Rules and Regulation (RH-IRR)
The last paragraph of Section 5.24 of the RH-IRR reads:
Provided, That skilled health professional such as provincial, city or municipal
health officers, chiefs of hospital, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to
implement the provisions of the RPRH Act and these Rules, cannot be
considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The
conscientious objection clause should be equally protective of the religious
belief of public health officers. There is no perceptible distinction why they
should not be considered exempt from the mandates of the law. The
protection accorded to other conscientious objectors should equally apply to
all medical practitioners without distinction whether they belong to the public
or private sector. After all, the freedom to believe is intrinsic in every
individual and the protective robe that guarantees its free exercise is not
taken off even if one acquires employment in the government.
It should be stressed that intellectual liberty occupies a place inferior to none
in the hierarchy of human values. The mind must be free to think what it wills,
whether in the secular or religious sphere, to give expression to its beliefs by
oral discourse or through the media and, thus, seek other candid views in
occasions or gatherings or in more permanent aggrupation. Embraced in
such concept then are freedom of religion, freedom of speech, of the press,
assembly and petition, and freedom of association.229
The discriminatory provision is void not only because no such exception is
stated in the RH Law itself but also because it is violative of the equal
protection clause in the Constitution. Quoting respondent Lagman, if there is
any conflict between the RH-IRR and the RH Law, the law must prevail.
Justice Mendoza:
I'll go to another point. The RH law .. .in your Comment- in-Intervention on
page 52, you mentioned RH Law is replete with provisions in upholding the
freedom of religion and respecting religious convictions. Earlier, you affirmed
this with qualifications. Now, you have read, I presumed you have read the
IRR-Implementing Rules and Regulations of the RH Bill?
Congressman Lagman:
Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have
not thoroughly dissected the nuances of the provisions.
Justice Mendoza:
I will read to you one provision. It's Section 5.24. This I cannot find in the RH
Law. But in the IRR it says: " .... skilled health professionals such as
provincial, city or municipal health officers, chief of hospitals, head nurses,
supervising midwives, among others, who by virtue of their office are
specifically charged with the duty to implement the provisions of the RPRH
Act and these Rules, cannot be considered as conscientious objectors." Do
you agree with this?
Congressman Lagman:
I will have to go over again the provisions, Your Honor.
Justice Mendoza:
In other words, public health officers in contrast to the private practitioners
who can be conscientious objectors, skilled health professionals cannot be
considered conscientious objectors. Do you agree with this? Is this not
against the constitutional right to the religious belief?
Congressman Lagman:
Your Honor, if there is any conflict between the IRR and the law, the law
must prevail.230
Compelling State Interest
The foregoing discussion then begets the question on whether the
respondents, in defense of the subject provisions, were able to: 1]
demonstrate a more compelling state interest to restrain conscientious
objectors in their choice of services to render; and 2] discharge the burden of
proof that the obligatory character of the law is the least intrusive means to
achieve the objectives of the law.
Unfortunately, a deep scrutiny of the respondents' submissions proved to be
in vain. The OSG was curiously silent in the establishment of a more
compelling state interest that would rationalize the curbing of a conscientious
objector's right not to adhere to an action contrary to his religious convictions.
During the oral arguments, the OSG maintained the same silence and
evasion. The Transcripts of the Stenographic Notes disclose the following:
Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..
Senior State Solicitor Hilbay:
Yes, Justice.
Justice De Castro:
... which you are discussing awhile ago with Justice Abad. What is the
compelling State interest in imposing this duty to refer to a conscientious
objector which refuses to do so because of his religious belief?
Senior State Solicitor Hilbay:
Ahh, Your Honor, ..
Justice De Castro:
What is the compelling State interest to impose this burden?
Senior State Solicitor Hilbay:
In the first place, Your Honor, I don't believe that the standard is a compelling
State interest, this is an ordinary health legislation involving professionals.
This is not a free speech matter or a pure free exercise matter. This is a
regulation by the State of the relationship between medical doctors and their
patients.231
Resultantly, the Court finds no compelling state interest which would limit the
free exercise clause of the conscientious objectors, however few in number.
Only the prevention of an immediate and grave danger to the security and
welfare of the community can justify the infringement of religious freedom. If
the government fails to show the seriousness and immediacy of the threat,
State intrusion is constitutionally unacceptable.232
Freedom of religion means more than just the freedom to believe. It also
means the freedom to act or not to act according to what one believes. And
this freedom is violated when one is compelled to act against one's belief or
is prevented from acting according to one's belief.233
Apparently, in these cases, there is no immediate danger to the life or health
of an individual in the perceived scenario of the subject provisions. After all, a
couple who plans the timing, number and spacing of the birth of their children
refers to a future event that is contingent on whether or not the mother
decides to adopt or use the information, product, method or supply given to
her or whether she even decides to become pregnant at all. On the other
hand, the burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on
reproductive health matters.
Moreover, granting that a compelling interest exists to justify the infringement
of the conscientious objector's religious freedom, the respondents have failed
to demonstrate "the gravest abuses, endangering paramount interests" which
could limit or override a person's fundamental right to religious freedom. Also,
the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least
intrusive means.234 Other than the assertion that the act of referring would
only be momentary, considering that the act of referral by a conscientious
objector is the very action being contested as violative of religious freedom, it
behooves the respondents to demonstrate that no other means can be
undertaken by the State to achieve its objective without violating the rights of
the conscientious objector. The health concerns of women may still be
addressed by other practitioners who may perform reproductive health-
related procedures with open willingness and motivation. Suffice it to say, a
person who is forced to perform an act in utter reluctance deserves the
protection of the Court as the last vanguard of constitutional freedoms.
At any rate, there are other secular steps already taken by the Legislature to
ensure that the right to health is protected. Considering other legislations as
they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or
"The Population Act of the Philippines" and R.A. No. 9710, otherwise known
as "The Magna Carta of Women," amply cater to the needs of women in
relation to health services and programs. The pertinent provision of Magna
Carta on comprehensive health services and programs for women, in fact,
reads:
Section 17. Women's Right to Health. - (a) Comprehensive Health Services. -
The State shall, at all times, provide for a comprehensive, culture-sensitive,
and gender-responsive health services and programs covering all stages of a
woman's life cycle and which addresses the major causes of women's
mortality and morbidity: Provided, That in the provision for comprehensive
health services, due respect shall be accorded to women's religious
convictions, the rights of the spouses to found a family in accordance with
their religious convictions, and the demands of responsible parenthood, and
the right of women to protection from hazardous drugs, devices,
interventions, and substances.
Access to the following services shall be ensured:
(1) Maternal care to include pre- and post-natal services to address
pregnancy and infant health and nutrition;
(2) Promotion of breastfeeding;
(3) Responsible, ethical, legal, safe, and effective methods of family
planning;
(4) Family and State collaboration in youth sexuality education and health
services without prejudice to the primary right and duty of parents to educate
their children;
(5) Prevention and management of reproductive tract infections, including
sexually transmitted diseases, HIV, and AIDS;
(6) Prevention and management of reproductive tract cancers like breast and
cervical cancers, and other gynecological conditions and disorders;
(7) Prevention of abortion and management of pregnancy-related
complications;
(8) In cases of violence against women and children, women and children
victims and survivors shall be provided with comprehensive health services
that include psychosocial, therapeutic, medical, and legal interventions and
assistance towards healing, recovery, and empowerment;
(9) Prevention and management of infertility and sexual dysfunction pursuant
to ethical norms and medical standards;
(10) Care of the elderly women beyond their child-bearing years; and
(11) Management, treatment, and intervention of mental health problems of
women and girls. In addition, healthy lifestyle activities are encouraged and
promoted through programs and projects as strategies in the prevention of
diseases.
(b) Comprehensive Health Information and Education. - The State shall
provide women in all sectors with appropriate, timely, complete, and accurate
information and education on all the above-stated aspects of women's health
in government education and training programs, with due regard to the
following:
(1) The natural and primary right and duty of parents in the rearing of the
youth and the development of moral character and the right of children to be
brought up in an atmosphere of morality and rectitude for the enrichment and
strengthening of character;
(2) The formation of a person's sexuality that affirms human dignity; and
(3) Ethical, legal, safe, and effective family planning methods including
fertility awareness.
As an afterthought, Asst. Solicitor General Hilbay eventually replied that the
compelling state interest was "Fifteen maternal deaths per day, hundreds of
thousands of unintended pregnancies, lives changed, x x x."235 He,
however, failed to substantiate this point by concrete facts and figures from
reputable sources.
The undisputed fact, however, is that the World Health Organization reported
that the Filipino maternal mortality rate dropped to 48 percent from 1990 to
2008, 236 although there was still no RH Law at that time. Despite such
revelation, the proponents still insist that such number of maternal deaths
constitute a compelling state interest.
Granting that there are still deficiencies and flaws in the delivery of social
healthcare programs for Filipino women, they could not be solved by a
measure that puts an unwarrantable stranglehold on religious beliefs in
exchange for blind conformity.
Exception: Life Threatening Cases
All this notwithstanding, the Court properly recognizes a valid exception set
forth in the law. While generally healthcare service providers cannot be
forced to render reproductive health care procedures if doing it would
contravene their religious beliefs, an exception must be made in life-
threatening cases that require the performance of emergency procedures. In
these situations, the right to life of the mother should be given preference,
considering that a referral by a medical practitioner would amount to a denial
of service, resulting to unnecessarily placing the life of a mother in grave
danger. Thus, during the oral arguments, Atty. Liban, representing CFC,
manifested: "the forced referral clause that we are objecting on grounds of
violation of freedom of religion does not contemplate an emergency."237
In a conflict situation between the life of the mother and the life of a child, the
doctor is morally obliged always to try to save both lives. If, however, it is
impossible, the resulting death to one should not be deliberate. Atty. Noche
explained:
Principle of Double-Effect. - May we please remind the principal author of the
RH Bill in the House of Representatives of the principle of double-effect
wherein intentional harm on the life of either the mother of the child is never
justified to bring about a "good" effect. In a conflict situation between the life
of the child and the life of the mother, the doctor is morally obliged always to
try to save both lives. However, he can act in favor of one (not necessarily
the mother) when it is medically impossible to save both, provided that no
direct harm is intended to the other. If the above principles are observed, the
loss of the child's life or the mother's life is not intentional and, therefore,
unavoidable. Hence, the doctor would not be guilty of abortion or murder.
The mother is never pitted against the child because both their lives are
equally valuable.238
Accordingly, if it is necessary to save the life of a mother, procedures
endangering the life of the child may be resorted to even if is against the
religious sentiments of the medical practitioner. As quoted above, whatever
burden imposed upon a medical practitioner in this case would have been
more than justified considering the life he would be able to save.
Family Planning Seminars
Anent the requirement imposed under Section 15239 as a condition for the
issuance of a marriage license, the Court finds the same to be a reasonable
exercise of police power by the government. A cursory reading of the
assailed provision bares that the religious freedom of the petitioners is not at
all violated. All the law requires is for would-be spouses to attend a seminar
on parenthood, family planning breastfeeding and infant nutrition. It does not
even mandate the type of family planning methods to be included in the
seminar, whether they be natural or artificial. As correctly noted by the OSG,
those who receive any information during their attendance in the required
seminars are not compelled to accept the information given to them, are
completely free to reject the information they find unacceptable, and retain
the freedom to decide on matters of family life without the intervention of the
State.
4-The Family and the Right to Privacy
Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof
violates the provisions of the Constitution by intruding into marital privacy and
autonomy. It argues that it cultivates disunity and fosters animosity in the
family rather than promote its solidarity and total development.240
The Court cannot but agree.
The 1987 Constitution is replete with provisions strengthening the family as it
is the basic social institution. In fact, one article, Article XV, is devoted
entirely to the family.
ARTICLE XV
THE FAMILY
Section 1. The State recognizes the Filipino family as the foundation of the
nation. Accordingly, it shall strengthen its solidarity and actively promote its
total development.
Section 2. Marriage, as an inviolable social institution, is the foundation of the
family and shall be protected by the State.
Section 3. The State shall defend:
The right of spouses to found a family in accordance with their religious
convictions and the demands of responsible parenthood;
The right of children to assistance, including proper care and nutrition, and
special protection from all forms of neglect, abuse, cruelty, exploitation and
other conditions prejudicial to their development;
The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and
implementation of policies and programs that affect them.
In this case, the RH Law, in its not-so-hidden desire to control population
growth, contains provisions which tend to wreck the family as a solid social
institution. It bars the husband and/or the father from participating in the
decision making process regarding their common future progeny. It likewise
deprives the parents of their authority over their minor daughter simply
because she is already a parent or had suffered a miscarriage.
The Family and Spousal Consent
Section 23(a) (2) (i) of the RH Law states:
The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall: ...
(2) refuse to perform legal and medically-safe reproductive health procedures
on any person of legal age on the ground of lack of consent or authorization
of the following persons in the following instances:
(i) Spousal consent in case of married persons: provided, That in case of
disagreement, the decision of the one undergoing the procedures shall
prevail. [Emphasis supplied]
The above provision refers to reproductive health procedures like tubal
litigation and vasectomy which, by their very nature, should require mutual
consent and decision between the husband and the wife as they affect
issues intimately related to the founding of a family. Section 3, Art. XV of the
Constitution espouses that the State shall defend the "right of the spouses to
found a family." One person cannot found a family. The right, therefore, is
shared by both spouses. In the same Section 3, their right "to participate in
the planning and implementation of policies and programs that affect them "
is equally recognized.
The RH Law cannot be allowed to infringe upon this mutual decision-making.
By giving absolute authority to the spouse who would undergo a procedure,
and barring the other spouse from participating in the decision would drive a
wedge between the husband and wife, possibly result in bitter animosity, and
endanger the marriage and the family, all for the sake of reducing the
population. This would be a marked departure from the policy of the State to
protect marriage as an inviolable social institution.241
Decision-making involving a reproductive health procedure is a private matter
which belongs to the couple, not just one of them. Any decision they would
reach would affect their future as a family because the size of the family or
the number of their children significantly matters. The decision whether or not
to undergo the procedure belongs exclusively to, and shared by, both
spouses as one cohesive unit as they chart their own destiny. It is a
constitutionally guaranteed private right. Unless it prejudices the State, which
has not shown any compelling interest, the State should see to it that they
chart their destiny together as one family.
As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No.
9710, otherwise known as the "Magna Carta for Women," provides that
women shall have equal rights in all matters relating to marriage and family
relations, including the joint decision on the number and spacing of their
children. Indeed, responsible parenthood, as Section 3(v) of the RH Law
states, is a shared responsibility between parents. Section 23(a)(2)(i) of the
RH Law should not be allowed to betray the constitutional mandate to protect
and strengthen the family by giving to only one spouse the absolute authority
to decide whether to undergo reproductive health procedure.242
The right to chart their own destiny together falls within the protected zone of
marital privacy and such state intervention would encroach into the zones of
spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to
privacy was first recognized in Marje v. Mutuc,243 where the Court, speaking
through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it
is fully deserving of constitutional protection."244 Marje adopted the ruling of
the US Supreme Court in Griswold v. Connecticut,245 where Justice William
O. Douglas wrote:
We deal with a right of privacy older than the Bill of Rights -older than our
political parties, older than our school system. Marriage is a coming together
for better or for worse, hopefully enduring, and intimate to the degree of
being sacred. It is an association that promotes a way of life, not causes; a
harmony in living, not political faiths; a bilateral loyalty, not commercial or
social projects. Yet it is an association for as noble a purpose as any
involved in our prior decisions.
Ironically, Griswold invalidated a Connecticut statute which made the use of
contraceptives a criminal offense on the ground of its amounting to an
unconstitutional invasion of the right to privacy of married persons.
Nevertheless, it recognized the zone of privacy rightfully enjoyed by couples.
Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of
Rights have penumbras, formed by emanations from those guarantees that
help give them life and substance. Various guarantees create zones of
privacy."246
At any rate, in case of conflict between the couple, the courts will decide.
The Family and Parental Consent
Equally deplorable is the debarment of parental consent in cases where the
minor, who will be undergoing a procedure, is already a parent or has had a
miscarriage. Section 7 of the RH law provides:
SEC. 7. Access to Family Planning. – x x x.
No person shall be denied information and access to family planning
services, whether natural or artificial: Provided, That minors will not be
allowed access to modern methods of family planning without written consent
from their parents or guardian/s except when the minor is already a parent or
has had a miscarriage.
There can be no other interpretation of this provision except that when a
minor is already a parent or has had a miscarriage, the parents are excluded
from the decision making process of the minor with regard to family planning.
Even if she is not yet emancipated, the parental authority is already cut off
just because there is a need to tame population growth.
It is precisely in such situations when a minor parent needs the comfort, care,
advice, and guidance of her own parents. The State cannot replace her
natural mother and father when it comes to providing her needs and comfort.
To say that their consent is no longer relevant is clearly anti-family. It does
not promote unity in the family. It is an affront to the constitutional mandate to
protect and strengthen the family as an inviolable social institution.
More alarmingly, it disregards and disobeys the constitutional mandate that
"the natural and primary right and duty of parents in the rearing of the youth
for civic efficiency and the development of moral character shall receive the
support of the Government."247 In this regard, Commissioner Bernas wrote:
The 1987 provision has added the adjective "primary" to modify the right of
parents. It imports the assertion that the right of parents is superior to that of
the State.248 [Emphases supplied]
To insist on a rule that interferes with the right of parents to exercise parental
control over their minor-child or the right of the spouses to mutually decide on
matters which very well affect the very purpose of marriage, that is, the
establishment of conjugal and family life, would result in the violation of one's
privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of
the recognition that the State affords couples entering into the special
contract of marriage to as one unit in forming the foundation of the family and
society.
The State cannot, without a compelling state interest, take over the role of
parents in the care and custody of a minor child, whether or not the latter is
already a parent or has had a miscarriage. Only a compelling state interest
can justify a state substitution of their parental authority.
First Exception: Access to Information
Whether with respect to the minor referred to under the exception provided in
the second paragraph of Section 7 or with respect to the consenting spouse
under Section 23(a)(2)(i), a distinction must be made. There must be a
differentiation between access to information about family planning services,
on one hand, and access to the reproductive health procedures and modern
family planning methods themselves, on the other. Insofar as access to
information is concerned, the Court finds no constitutional objection to the
acquisition of information by the minor referred to under the exception in the
second paragraph of Section 7 that would enable her to take proper care of
her own body and that of her unborn child. After all, Section 12, Article II of
the Constitution mandates the State to protect both the life of the mother as
that of the unborn child. Considering that information to enable a person to
make informed decisions is essential in the protection and maintenance of
ones' health, access to such information with respect to reproductive health
must be allowed. In this situation, the fear that parents might be deprived of
their parental control is unfounded because they are not prohibited to
exercise parental guidance and control over their minor child and assist her
in deciding whether to accept or reject the information received.
Second Exception: Life Threatening Cases
As in the case of the conscientious objector, an exception must be made in
life-threatening cases that require the performance of emergency
procedures. In such cases, the life of the minor who has already suffered a
miscarriage and that of the spouse should not be put at grave risk simply for
lack of consent. It should be emphasized that no person should be denied
the appropriate medical care urgently needed to preserve the primordial
right, that is, the right to life.
In this connection, the second sentence of Section 23(a)(2)(ii)249 should be
struck down. By effectively limiting the requirement of parental consent to
"only in elective surgical procedures," it denies the parents their right of
parental authority in cases where what is involved are "non-surgical
procedures." Save for the two exceptions discussed above, and in the case
of an abused child as provided in the first sentence of Section 23(a)(2)(ii), the
parents should not be deprived of their constitutional right of parental
authority. To deny them of this right would be an affront to the constitutional
mandate to protect and strengthen the family.
5 - Academic Freedom
It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof,
mandating the teaching of Age-and Development-Appropriate Reproductive
Health Education under threat of fine and/or imprisonment violates the
principle of academic freedom . According to the petitioners, these provisions
effectively force educational institutions to teach reproductive health
education even if they believe that the same is not suitable to be taught to
their students.250 Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver that the
prevalence of contraceptives has led to an increase of out-of-wedlock births;
divorce and breakdown of families; the acceptance of abortion and
euthanasia; the "feminization of poverty"; the aging of society; and promotion
of promiscuity among the youth.251
At this point, suffice it to state that any attack on the validity of Section 14 of
the RH Law is premature because the Department of Education, Culture and
Sports has yet to formulate a curriculum on age-appropriate reproductive
health education. One can only speculate on the content, manner and
medium of instruction that will be used to educate the adolescents and
whether they will contradict the religious beliefs of the petitioners and validate
their apprehensions. Thus, considering the premature nature of this particular
issue, the Court declines to rule on its constitutionality or validity.
At any rate, Section 12, Article II of the 1987 Constitution provides that the
natural and primary right and duty of parents in the rearing of the youth for
civic efficiency and development of moral character shall receive the support
of the Government. Like the 1973 Constitution and the 1935 Constitution, the
1987 Constitution affirms the State recognition of the invaluable role of
parents in preparing the youth to become productive members of society.
Notably, it places more importance on the role of parents in the development
of their children by recognizing that said role shall be "primary," that is, that
the right of parents in upbringing the youth is superior to that of the State.252
It is also the inherent right of the State to act as parens patriae to aid parents
in the moral development of the youth. Indeed, the Constitution makes
mention of the importance of developing the youth and their important role in
nation building.253 Considering that Section 14 provides not only for the age-
appropriate-reproductive health education, but also for values formation; the
development of knowledge and skills in self-protection against discrimination;
sexual abuse and violence against women and children and other forms of
gender based violence and teen pregnancy; physical, social and emotional
changes in adolescents; women's rights and children's rights; responsible
teenage behavior; gender and development; and responsible parenthood,
and that Rule 10, Section 11.01 of the RH-IRR and Section 4(t) of the RH
Law itself provides for the teaching of responsible teenage behavior, gender
sensitivity and physical and emotional changes among adolescents - the
Court finds that the legal mandate provided under the assailed provision
supplements, rather than supplants, the rights and duties of the parents in
the moral development of their children.
Furthermore, as Section 14 also mandates that the mandatory reproductive
health education program shall be developed in conjunction with parent-
teacher-community associations, school officials and other interest groups, it
could very well be said that it will be in line with the religious beliefs of the
petitioners. By imposing such a condition, it becomes apparent that the
petitioners' contention that Section 14 violates Article XV, Section 3(1) of the
Constitution is without merit.254
While the Court notes the possibility that educators might raise their objection
to their participation in the reproductive health education program provided
under Section 14 of the RH Law on the ground that the same violates their
religious beliefs, the Court reserves its judgment should an actual case be
filed before it.
6 - Due Process
The petitioners contend that the RH Law suffers from vagueness and, thus
violates the due process clause of the Constitution. According to them,
Section 23 (a)(l) mentions a "private health service provider" among those
who may be held punishable but does not define who is a "private health
care service provider." They argue that confusion further results since
Section 7 only makes reference to a "private health care institution."
The petitioners also point out that Section 7 of the assailed legislation
exempts hospitals operated by religious groups from rendering reproductive
health service and modern family planning methods. It is unclear, however, if
these institutions are also exempt from giving reproductive health information
under Section 23(a)(l), or from rendering reproductive health procedures
under Section 23(a)(2).
Finally, it is averred that the RH Law punishes the withholding, restricting and
providing of incorrect information, but at the same time fails to define
"incorrect information."
The arguments fail to persuade.
A statute or act suffers from the defect of vagueness when it lacks
comprehensible standards that men of common intelligence must necessarily
guess its meaning and differ as to its application. It is repugnant to the
Constitution in two respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice of the conduct to
avoid; and (2) it leaves law enforcers unbridled discretion in carrying out its
provisions and becomes an arbitrary flexing of the Government muscle.255
Moreover, in determining whether the words used in a statute are vague,
words must not only be taken in accordance with their plain meaning alone,
but also in relation to other parts of the statute. It is a rule that every part of
the statute must be interpreted with reference to the context, that is, every
part of it must be construed together with the other parts and kept
subservient to the general intent of the whole enactment.256
As correctly noted by the OSG, in determining the definition of "private health
care service provider," reference must be made to Section 4(n) of the RH
Law which defines a "public health service provider," viz:
(n) Public health care service provider refers to: (1) public health care
institution, which is duly licensed and accredited and devoted primarily to the
maintenance and operation of facilities for health promotion, disease
prevention, diagnosis, treatment and care of individuals suffering from illness,
disease, injury, disability or deformity, or in need of obstetrical or other
medical and nursing care; (2) public health care professional, who is a doctor
of medicine, a nurse or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has
undergone training programs under any accredited government and NGO
and who voluntarily renders primarily health care services in the community
after having been accredited to function as such by the local health board in
accordance with the guidelines promulgated by the Department of Health
(DOH) .
Further, the use of the term "private health care institution" in Section 7 of the
law, instead of "private health care service provider," should not be a cause
of confusion for the obvious reason that they are used synonymously.
The Court need not belabor the issue of whether the right to be exempt from
being obligated to render reproductive health service and modem family
planning methods, includes exemption from being obligated to give
reproductive health information and to render reproductive health
procedures. Clearly, subject to the qualifications and exemptions earlier
discussed, the right to be exempt from being obligated to render reproductive
health service and modem family planning methods, necessarily includes
exemption from being obligated to give reproductive health information and
to render reproductive health procedures. The terms "service" and "methods"
are broad enough to include the providing of information and the rendering of
medical procedures.
The same can be said with respect to the contention that the RH Law
punishes health care service providers who intentionally withhold, restrict and
provide incorrect information regarding reproductive health programs and
services. For ready reference, the assailed provision is hereby quoted as
follows:
SEC. 23. Prohibited Acts. - The following acts are prohibited:
(a) Any health care service provider, whether public or private, who shall:
(1) Knowingly withhold information or restrict the dissemination thereof, and/
or intentionally provide incorrect information regarding programs and
services on reproductive health including the right to informed choice and
access to a full range of legal, medically-safe, non-abortifacient and effective
family planning methods;
From its plain meaning, the word "incorrect" here denotes failing to agree
with a copy or model or with established rules; inaccurate, faulty; failing to
agree with the requirements of duty, morality or propriety; and failing to
coincide with the truth. 257 On the other hand, the word "knowingly" means
with awareness or deliberateness that is intentional.258 Used together in
relation to Section 23(a)(l), they connote a sense of malice and ill motive to
mislead or misrepresent the public as to the nature and effect of programs
and services on reproductive health. Public health and safety demand that
health care service providers give their honest and correct medical
information in accordance with what is acceptable in medical practice. While
health care service providers are not barred from expressing their own
personal opinions regarding the programs and services on reproductive
health, their right must be tempered with the need to provide public health
and safety. The public deserves no less.
7-Egual Protection
The petitioners also claim that the RH Law violates the equal protection
clause under the Constitution as it discriminates against the poor because it
makes them the primary target of the government program that promotes
contraceptive use . They argue that, rather than promoting reproductive
health among the poor, the RH Law introduces contraceptives that would
effectively reduce the number of the poor. Their bases are the various
provisions in the RH Law dealing with the poor, especially those mentioned
in the guiding principles259 and definition of terms260 of the law.
They add that the exclusion of private educational institutions from the
mandatory reproductive health education program imposed by the RH Law
renders it unconstitutional.
In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to
expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of
the equality of right which is embodied in Section 1, Article III of the 1987
Constitution. The equal protection of the laws is embraced in the concept of
due process, as every unfair discrimination offends the requirements of
justice and fair play. It has been embodied in a separate clause, however, to
provide for a more specific guaranty against any form of undue favoritism or
hostility from the government. Arbitrariness in general may be challenged on
the basis of the due process clause. But if the particular act assailed
partakes of an unwarranted partiality or prejudice, the sharper weapon to cut
it down is the equal protection clause.
"According to a long line of decisions, equal protection simply requires that all
persons or things similarly situated should be treated alike, both as to rights
conferred and responsibilities imposed." It "requires public bodies and inst
itutions to treat similarly situated individuals in a similar manner." "The
purpose of the equal protection clause is to secure every person within a
state's jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statue or by its improper execution
through the state's duly constituted authorities." "In other words, the concept
of equal justice under the law requires the state to govern impartially, and it
may not draw distinctions between individuals solely on differences that are
irrelevant to a legitimate governmental objective."
The equal protection clause is aimed at all official state actions, not just those
of the legislature. Its inhibitions cover all the departments of the government
including the political and executive departments, and extend to all actions of
a state denying equal protection of the laws, through whatever agency or
whatever guise is taken.
It, however, does not require the universal application of the laws to all
persons or things without distinction. What it simply requires is equality
among equals as determined according to a valid classification. Indeed, the
equal protection clause permits classification. Such classification, however,
to be valid must pass the test of reasonableness. The test has four
requisites: (1) The classification rests on substantial distinctions; (2) It is
germane to the purpose of the law; (3) It is not limited to existing conditions
only; and (4) It applies equally to all members of the same class. "Superficial
differences do not make for a valid classification."
For a classification to meet the requirements of constitutionality, it must
include or embrace all persons who naturally belong to the class. "The
classification will be regarded as invalid if all the members of the class are
not similarly treated, both as to rights conferred and obligations imposed. It is
not necessary that the classification be made with absolute symmetry, in the
sense that the members of the class should possess the same
characteristics in equal degree. Substantial similarity will suffice; and as long
as this is achieved, all those covered by the classification are to be treated
equally. The mere fact that an individual belonging to a class differs from the
other members, as long as that class is substantially distinguishable from all
others, does not justify the non-application of the law to him."
The classification must not be based on existing circumstances only, or so
constituted as to preclude addition to the number included in the class. It
must be of such a nature as to embrace all those who may thereafter be in
similar circumstances and conditions. It must not leave out or "underinclude"
those that should otherwise fall into a certain classification. [Emphases
supplied; citations excluded]
To provide that the poor are to be given priority in the government's
reproductive health care program is not a violation of the equal protection
clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution
which recognizes the distinct necessity to address the needs of the
underprivileged by providing that they be given priority in addressing the
health development of the people. Thus:
Section 11. The State shall adopt an integrated and comprehensive
approach to health development which shall endeavor to make essential
goods, health and other social services available to all the people at
affordable cost. There shall be priority for the needs of the underprivileged,
sick, elderly, disabled, women, and children. The State shall endeavor to
provide free medical care to paupers.
It should be noted that Section 7 of the RH Law prioritizes poor and
marginalized couples who are suffering from fertility issues and desire to
have children. There is, therefore, no merit to the contention that the RH Law
only seeks to target the poor to reduce their number. While the RH Law
admits the use of contraceptives, it does not, as elucidated above, sanction
abortion. As Section 3(1) explains, the "promotion and/or stabilization of the
population growth rate is incidental to the advancement of reproductive
health."
Moreover, the RH Law does not prescribe the number of children a couple
may have and does not impose conditions upon couples who intend to have
children. While the petitioners surmise that the assailed law seeks to charge
couples with the duty to have children only if they would raise them in a truly
humane way, a deeper look into its provisions shows that what the law seeks
to do is to simply provide priority to the poor in the implementation of
government programs to promote basic reproductive health care.
With respect to the exclusion of private educational institutions from the
mandatory reproductive health education program under Section 14, suffice it
to state that the mere fact that the children of those who are less fortunate
attend public educational institutions does not amount to substantial
distinction sufficient to annul the assailed provision. On the other hand,
substantial distinction rests between public educational institutions and
private educational institutions, particularly because there is a need to
recognize the academic freedom of private educational institutions especially
with respect to religious instruction and to consider their sensitivity towards
the teaching of reproductive health education.
8-Involuntary Servitude
The petitioners also aver that the RH Law is constitutionally infirm as it
violates the constitutional prohibition against involuntary servitude. They posit
that Section 17 of the assailed legislation requiring private and non-
government health care service providers to render forty-eight (48) hours of
pro bono reproductive health services, actually amounts to involuntary
servitude because it requires medical practitioners to perform acts against
their will.262
The OSG counters that the rendition of pro bono services envisioned in
Section 17 can hardly be considered as forced labor analogous to slavery, as
reproductive health care service providers have the discretion as to the
manner and time of giving pro bono services. Moreover, the OSG points out
that the imposition is within the powers of the government, the accreditation
of medical practitioners with PhilHealth being a privilege and not a right.
The point of the OSG is well-taken.
It should first be mentioned that the practice of medicine is undeniably
imbued with public interest that it is both a power and a duty of the State to
control and regulate it in order to protect and promote the public welfare. Like
the legal profession, the practice of medicine is not a right but a privileged
burdened with conditions as it directly involves the very lives of the people. A
fortiori, this power includes the power of Congress263 to prescribe the
qualifications for the practice of professions or trades which affect the public
welfare, the public health, the public morals, and the public safety; and to
regulate or control such professions or trades, even to the point of revoking
such right altogether.264
Moreover, as some petitioners put it, the notion of involuntary servitude
connotes the presence of force, threats, intimidation or other similar means
of coercion and compulsion.265 A reading of the assailed provision,
however, reveals that it only encourages private and non- government
reproductive healthcare service providers to render pro bono service. Other
than non-accreditation with PhilHealth, no penalty is imposed should they
choose to do otherwise. Private and non-government reproductive healthcare
service providers also enjoy the liberty to choose which kind of health service
they wish to provide, when, where and how to provide it or whether to
provide it all. Clearly, therefore, no compulsion, force or threat is made upon
them to render pro bono service against their will. While the rendering of
such service was made a prerequisite to accreditation with PhilHealth, the
Court does not consider the same to be an unreasonable burden, but rather,
a necessary incentive imposed by Congress in the furtherance of a perceived
legitimate state interest.
Consistent with what the Court had earlier discussed, however, it should be
emphasized that conscientious objectors are exempt from this provision as
long as their religious beliefs and convictions do not allow them to render
reproductive health service, pro bona or otherwise.
9-Delegation of Authority to the FDA
The petitioners likewise question the delegation by Congress to the FDA of
the power to determine whether or not a supply or product is to be included
in the Essential Drugs List (EDL).266
The Court finds nothing wrong with the delegation. The FDA does not only
have the power but also the competency to evaluate, register and cover
health services and methods. It is the only government entity empowered to
render such services and highly proficient to do so. It should be understood
that health services and methods fall under the gamut of terms that are
associated with what is ordinarily understood as "health products."
In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No.
9711 reads:
SEC. 4. To carry out the provisions of this Act, there is hereby created an
office to be called the Food and Drug Administration (FDA) in the Department
of Health (DOH). Said Administration shall be under the Office of the
Secretary and shall have the following functions, powers and duties:
"(a) To administer the effective implementation of this Act and of the rules
and regulations issued pursuant to the same;
"(b) To assume primary jurisdiction in the collection of samples of health
products;
"(c) To analyze and inspect health products in connection with the
implementation of this Act;
"(d) To establish analytical data to serve as basis for the preparation of
health products standards, and to recommend standards of identity, purity,
safety, efficacy, quality and fill of container;
"(e) To issue certificates of compliance with technical requirements to serve
as basis for the issuance of appropriate authorization and spot-check for
compliance with regulations regarding operation of manufacturers, importers,
exporters, distributors, wholesalers, drug outlets, and other establishments
and facilities of health products, as determined by the FDA;
"x x x
"(h) To conduct appropriate tests on all applicable health products prior to the
issuance of appropriate authorizations to ensure safety, efficacy, purity, and
quality;
"(i) To require all manufacturers, traders, distributors, importers, exporters,
wholesalers, retailers, consumers, and non-consumer users of health
products to report to the FDA any incident that reasonably indicates that said
product has caused or contributed to the death, serious illness or serious
injury to a consumer, a patient, or any person;
"(j) To issue cease and desist orders motu propio or upon verified complaint
for health products, whether or not registered with the FDA Provided, That for
registered health products, the cease and desist order is valid for thirty (30)
days and may be extended for sixty ( 60) days only after due process has
been observed;
"(k) After due process, to order the ban, recall, and/or withdrawal of any
health product found to have caused death, serious illness or serious injury
to a consumer or patient, or is found to be imminently injurious, unsafe,
dangerous, or grossly deceptive, and to require all concerned to implement
the risk management plan which is a requirement for the issuance of the
appropriate authorization;
x x x.
As can be gleaned from the above, the functions, powers and duties of the
FDA are specific to enable the agency to carry out the mandates of the law.
Being the country's premiere and sole agency that ensures the safety of food
and medicines available to the public, the FDA was equipped with the
necessary powers and functions to make it effective. Pursuant to the
principle of necessary implication, the mandate by Congress to the FDA to
ensure public health and safety by permitting only food and medicines that
are safe includes "service" and "methods." From the declared policy of the
RH Law, it is clear that Congress intended that the public be given only those
medicines that are proven medically safe, legal, non-abortifacient, and
effective in accordance with scientific and evidence-based medical research
standards. The philosophy behind the permitted delegation was explained in
Echagaray v. Secretary of Justice,267 as follows:
The reason is the increasing complexity of the task of the government and
the growing inability of the legislature to cope directly with the many
problems demanding its attention. The growth of society has ramified its
activities and created peculiar and sophisticated problems that the legislature
cannot be expected reasonably to comprehend. Specialization even in
legislation has become necessary. To many of the problems attendant upon
present day undertakings, the legislature may not have the competence, let
alone the interest and the time, to provide the required direct and efficacious,
not to say specific solutions.
10- Autonomy of Local Governments and the Autonomous Region
of Muslim Mindanao (ARMM)
As for the autonomy of local governments, the petitioners claim that the RH
Law infringes upon the powers devolved to local government units (LGUs)
under Section 17 of the Local Government Code. Said Section 17 vested
upon the LGUs the duties and functions pertaining to the delivery of basic
services and facilities, as follows:
SECTION 17. Basic Services and Facilities. –
(a) Local government units shall endeavor to be self-reliant and shall
continue exercising the powers and discharging the duties and functions
currently vested upon them. They shall also discharge the functions and
responsibilities of national agencies and offices devolved to them pursuant to
this Code. Local government units shall likewise exercise such other powers
and discharge such other functions and responsibilities as are necessary,
appropriate, or incidental to efficient and effective provision of the basic
services and facilities enumerated herein.
(b) Such basic services and facilities include, but are not limited to, x x x.
While the aforementioned provision charges the LGUs to take on the
functions and responsibilities that have already been devolved upon them
from the national agencies on the aspect of providing for basic services and
facilities in their respective jurisdictions, paragraph (c) of the same provision
provides a categorical exception of cases involving nationally-funded
projects, facilities, programs and services.268 Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and
infrastructure projects and other facilities, programs and services funded by
the National Government under the annual General Appropriations Act, other
special laws, pertinent executive orders, and those wholly or partially funded
from foreign sources, are not covered under this Section, except in those
cases where the local government unit concerned is duly designated as the
implementing agency for such projects, facilities, programs and services.
[Emphases supplied]
The essence of this express reservation of power by the national government
is that, unless an LGU is particularly designated as the implementing agency,
it has no power over a program for which funding has been provided by the
national government under the annual general appropriations act, even if the
program involves the delivery of basic services within the jurisdiction of the
LGU.269 A complete relinquishment of central government powers on the
matter of providing basic facilities and services cannot be implied as the
Local Government Code itself weighs against it.270
In this case, a reading of the RH Law clearly shows that whether it pertains to
the establishment of health care facilities,271 the hiring of skilled health
professionals,272 or the training of barangay health workers,273 it will be the
national government that will provide for the funding of its implementation.
Local autonomy is not absolute. The national government still has the say
when it comes to national priority programs which the local government is
called upon to implement like the RH Law.
Moreover, from the use of the word "endeavor," the LG Us are merely
encouraged to provide these services. There is nothing in the wording of the
law which can be construed as making the availability of these services
mandatory for the LGUs. For said reason, it cannot be said that the RH Law
amounts to an undue encroachment by the national government upon the
autonomy enjoyed by the local governments.
The ARMM
The fact that the RH Law does not intrude in the autonomy of local
governments can be equally applied to the ARMM. The RH Law does not
infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of
R.A. No. 9054, or the organic act of the ARMM, alluded to by petitioner Tillah
to justify the exemption of the operation of the RH Law in the autonomous
region, refer to the policy statements for the guidance of the regional
government. These provisions relied upon by the petitioners simply delineate
the powers that may be exercised by the regional government, which can, in
no manner, be characterized as an abdication by the State of its power to
enact legislation that would benefit the general welfare. After all, despite the
veritable autonomy granted the ARMM, the Constitution and the supporting
jurisprudence, as they now stand, reject the notion of imperium et imperio in
the relationship between the national and the regional governments.274
Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and
plenary power to legislate on all subjects which extends to all matters of
general concern or common interest.275
11 - Natural Law
With respect to the argument that the RH Law violates natural law,276 suffice
it to say that the Court does not duly recognize it as a legal basis for
upholding or invalidating a law. Our only guidepost is the Constitution. While
every law enacted by man emanated from what is perceived as natural law,
the Court is not obliged to see if a statute, executive issuance or ordinance is
in conformity to it. To begin with, it is not enacted by an acceptable legitimate
body. Moreover, natural laws are mere thoughts and notions on inherent
rights espoused by theorists, philosophers and theologists. The jurists of the
philosophical school are interested in the law as an abstraction, rather than in
the actual law of the past or present.277 Unless, a natural right has been
transformed into a written law, it cannot serve as a basis to strike down a
law. In Republic v. Sandiganbayan,278 the very case cited by the petitioners,
it was explained that the Court is not duty-bound to examine every law or
action and whether it conforms with both the Constitution and natural law.
Rather, natural law is to be used sparingly only in the most peculiar of
circumstances involving rights inherent to man where no law is
applicable.279
At any rate, as earlier expounded, the RH Law does not sanction the taking
away of life. It does not allow abortion in any shape or form. It only seeks to
enhance the population control program of the government by providing
information and making non-abortifacient contraceptives more readily
available to the public, especially to the poor.
Facts and Fallacies
and the Wisdom of the Law
In general, the Court does not find the RH Law as unconstitutional insofar as
it seeks to provide access to medically-safe, non-abortifacient, effective,
legal, affordable, and quality reproductive healthcare services, methods,
devices, and supplies. As earlier pointed out, however, the religious freedom
of some sectors of society cannot be trampled upon in pursuit of what the law
hopes to achieve. After all, the Constitutional safeguard to religious freedom
is a recognition that man stands accountable to an authority higher than the
State.
In conformity with the principle of separation of Church and State, one
religious group cannot be allowed to impose its beliefs on the rest of the
society. Philippine modem society leaves enough room for diversity and
pluralism. As such, everyone should be tolerant and open-minded so that
peace and harmony may continue to reign as we exist alongside each other.
As healthful as the intention of the RH Law may be, the idea does not escape
the Court that what it seeks to address is the problem of rising poverty and
unemployment in the country. Let it be said that the cause of these perennial
issues is not the large population but the unequal distribution of wealth. Even
if population growth is controlled, poverty will remain as long as the country's
wealth remains in the hands of the very few.
At any rate, population control may not be beneficial for the country in the
long run. The European and Asian countries, which embarked on such a
program generations ago , are now burdened with ageing populations. The
number of their young workers is dwindling with adverse effects on their
economy. These young workers represent a significant human capital which
could have helped them invigorate, innovate and fuel their economy. These
countries are now trying to reverse their programs, but they are still
struggling. For one, Singapore, even with incentives, is failing.
And in this country, the economy is being propped up by remittances from
our Overseas Filipino Workers. This is because we have an ample supply of
young able-bodied workers. What would happen if the country would be
weighed down by an ageing population and the fewer younger generation
would not be able to support them? This would be the situation when our
total fertility rate would go down below the replacement level of two (2)
children per woman.280
Indeed, at the present, the country has a population problem, but the State
should not use coercive measures (like the penal provisions of the RH Law
against conscientious objectors) to solve it. Nonetheless, the policy of the
Court is non-interference in the wisdom of a law.
x x x. But this Court cannot go beyond what the legislature has laid down. Its
duty is to say what the law is as enacted by the lawmaking body. That is not
the same as saying what the law should be or what is the correct rule in a
given set of circumstances. It is not the province of the judiciary to look into
the wisdom of the law nor to question the policies adopted by the legislative
branch. Nor is it the business of this Tribunal to remedy every unjust situation
that may arise from the application of a particular law. It is for the legislature
to enact remedial legislation if that would be necessary in the premises. But
as always, with apt judicial caution and cold neutrality, the Court must carry
out the delicate function of interpreting the law, guided by the Constitution
and existing legislation and mindful of settled jurisprudence. The Court's
function is therefore limited, and accordingly, must confine itself to the judicial
task of saying what the law is, as enacted by the lawmaking body.281
Be that as it may, it bears reiterating that the RH Law is a mere compilation
and enhancement of the prior existing contraceptive and reproductive health
laws, but with coercive measures. Even if the Court decrees the RH Law as
entirely unconstitutional, there will still be the Population Act (R.A. No. 6365),
the Contraceptive Act (R.A. No. 4729) and the reproductive health for women
or The Magna Carta of Women (R.A. No. 9710), sans the coercive provisions
of the assailed legislation. All the same, the principle of "no-abortion" and
"non-coercion" in the adoption of any family planning method should be
maintained.
WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the
Court declares R.A. No. 10354 as NOT UNCONSTITUTIONAL except with
respect to the following provisions which are declared
UNCONSTITUTIONAL:
1) Section 7 and the corresponding provision in the RH-IRR insofar as they:
a) require private health facilities and non-maternity specialty hospitals and
hospitals owned and operated by a religious group to refer patients, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health facility which is conveniently accessible; and b) allow
minor-parents or minors who have suffered a miscarriage access to modem
methods of family planning without written consent from their parents or
guardian/s;
2) Section 23(a)(l) and the corresponding provision in the RH-IRR,
particularly Section 5 .24 thereof, insofar as they punish any healthcare
service provider who fails and or refuses to disseminate information
regarding programs and services on reproductive health regardless of his or
her religious beliefs.
3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar
as they allow a married individual, not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to undergo reproductive
health procedures without the consent of the spouse;
4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar
as they limit the requirement of parental consent only to elective surgical
procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR,
particularly Section 5.24 thereof, insofar as they punish any healthcare
service provider who fails and/or refuses to refer a patient not in an
emergency or life-threatening case, as defined under Republic Act No. 8344,
to another health care service provider within the same facility or one which
is conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly
Section 5 .24 thereof, insofar as they punish any public officer who refuses to
support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her
religious beliefs;
7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the
rendering of pro bona reproductive health service in so far as they affect the
conscientious objector in securing PhilHealth accreditation; and
8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the
qualifier "primarily" in defining abortifacients and contraceptives, as they are
ultra vires and, therefore, null and void for contravening Section 4(a) of the
RH Law and violating Section 12, Article II of the Constitution.
The Status Quo Ante Order issued by the Court on March 19, 2013 as
extended by its Order, dated July 16, 2013 , is hereby LIFTED, insofar as the
provisions of R.A. No. 10354 which have been herein declared as
constitutional.
SO ORDERED
Estrada vs. Escritor [A.M. No. P-02-1651, June 22, 2006]
While man is finite, he seeks and subscribes to the Infinite. Respondent
Soledad Escritor once again stands before the Court invoking her religious
freedom and her Jehovah God in a bid to save her family – united without the
benefit of legal marriage - and livelihood. The State, on the other hand, seeks
to wield its power to regulate her behavior and protect its interest in marriage
and family and the integrity of the courts where respondent is an employee.
How the Court will tilt the scales of justice in the case at bar will decide not
only the fate of respondent Escritor but of other believers coming to Court
bearing grievances on their free exercise of religion. This case comes to us
from our remand to the Office of the Court Administrator on August 4, 2003.1
I. THE PAST PROCEEDINGS
In a sworn-letter complaint dated July 27, 2000, complainant Alejandro
Estrada requested Judge Jose F. Caoibes, Jr., presiding judge of Branch
253, Regional Trial Court of Las Piñas City, for an investigation of
respondent Soledad Escritor, court interpreter in said court, for living with a
man not her husband, and having borne a child within this live-in
arrangement. Estrada believes that Escritor is committing an immoral act that
tarnishes the image of the court, thus she should not be allowed to remain
employed therein as it might appear that the court condones her act.2
Consequently, respondent was charged with committing "disgraceful and
immoral conduct" under Book V, Title I, Chapter VI, Sec. 46(b)(5) of the
Revised Administrative Code. 3
Respondent Escritor testified that when she entered the judiciary in 1999,
she was already a widow, her husband having died in 1998.4 She admitted
that she started living with Luciano Quilapio, Jr. without the benefit of
marriage more than twenty years ago when her husband was still alive but
living with another woman. She also admitted that she and Quilapio have a
son.5 But as a member of the religious sect known as the Jehovah’s
Witnesses and the Watch Tower and Bible Tract Society, respondent
asserted that their conjugal arrangement is in conformity with their religious
beliefs and has the approval of her congregation.6 In fact, after ten years of
living together, she executed on July 28, 1991, a "Declaration of Pledging
Faithfulness."7
For Jehovah’s Witnesses, the Declaration allows members of the
congregation who have been abandoned by their spouses to enter into
marital relations. The Declaration thus makes the resulting union moral and
binding within the congregation all over the world except in countries where
divorce is allowed. As laid out by the tenets of their faith, the Jehovah’s
congregation requires that at the time the declarations are executed, the
couple cannot secure the civil authorities’ approval of the marital relationship
because of legal impediments. Only couples who have been baptized and in
good standing may execute the Declaration, which requires the approval of
the elders of the congregation. As a matter of practice, the marital status of
the declarants and their respective spouses’ commission of adultery are
investigated before the declarations are executed.8 Escritor and Quilapio’s
declarations were executed in the usual and approved form prescribed by the
Jehovah’s Witnesses,9 approved by elders of the congregation where the
declarations were executed,10 and recorded in the Watch Tower Central
Office.11
Moreover, the Jehovah’s congregation believes that once all legal
impediments for the couple are lifted, the validity of the declarations ceases,
and the couple should legalize their union. In Escritor’s case, although she
was widowed in 1998, thereby lifting the legal impediment to marry on her
part, her mate was still not capacitated to remarry. Thus, their declarations
remained valid.12 In sum, therefore, insofar as the congregation is
concerned, there is nothing immoral about the conjugal arrangement
between Escritor and Quilapio and they remain members in good standing in
the congregation.
By invoking the religious beliefs, practices and moral standards of her
congregation, in asserting that her conjugal arrangement does not constitute
disgraceful and immoral conduct for which she should be held
administratively liable,13 the Court had to determine the contours of religious
freedom under Article III, Section 5 of the Constitution, which provides, viz:
Sec. 5. No law shall be made respecting an establishment of 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.
A. Ruling
In our decision dated August 4, 2003, after a long and arduous scrutiny into
the origins and development of the religion clauses in the United States
(U.S.) and the Philippines, we held that in resolving claims involving religious
freedom (1) benevolent neutrality or accommodation, whether mandatory or
permissive, is the spirit, intent and framework underlying the religion clauses
in our Constitution; and (2) in deciding respondent’s plea of exemption based
on the Free Exercise Clause (from the law with which she is administratively
charged), it is the compelling state interest test, the strictest test, which must
be applied.14
Notwithstanding the above rulings, the Court could not, at that time, rule
definitively on the ultimate issue of whether respondent was to be held
administratively liable for there was need to give the State the opportunity to
adduce evidence that it has a more "compelling interest" to defeat the claim
of the respondent to religious freedom. Thus, in the decision dated August 4,
2003, we remanded the complaint to the Office of the Court Administrator
(OCA), and ordered the Office of the Solicitor General (OSG) to intervene in
the case so it can:
(a) examine the sincerity and centrality of respondent’s claimed religious
belief and practice;
(b) present evidence on the state’s "compelling interest" to override
respondent’s religious belief and practice; and
(c) show that the means the state adopts in pursuing its interest is the least
restrictive to respondent’s religious freedom. 15
It bears stressing, therefore, that the residual issues of the case pertained
NOT TO WHAT APPROACH THIS COURT SHOULD TAKE IN
CONSTRUING THE RELIGION CLAUSES, NOR TO THE PROPER TEST
APPLICABLE IN DETERMINING CLAIMS OF EXEMPTION BASED ON
FREEDOM OF RELIGION. These issues have already been ruled upon prior
to the remand, and constitute "the law of the case" insofar as they resolved
the issues of which framework and test are to be applied in this case, and no
motion for its reconsideration having been filed.16 The only task that the
Court is left to do is to determine whether the evidence adduced by the State
proves its more compelling interest. This issue involves a pure question of
fact.
B. Law of the case
Mr. Justice Carpio’s insistence, in his dissent, in attacking the ruling of this
case interpreting the religious clauses of the Constitution, made more than
two years ago, is misplaced to say the least. Since neither the complainant,
respondent nor the government has filed a motion for reconsideration
assailing this ruling, the same has attained finality and constitutes the law of
the case. Any attempt to reopen this final ruling constitutes a crass
contravention of elementary rules of procedure. Worse, insofar as it would
overturn the parties’ right to rely upon our interpretation which has long
attained finality, it also runs counter to substantive due process.
Be that as it may, even assuming that there were no procedural and
substantive infirmities in Mr. Justice Carpio’s belated attempts to disturb
settled issues, and that he had timely presented his arguments, the results
would still be the same.
We review the highlights of our decision dated August 4, 2003.
1. Old World Antecedents
In our August 4, 2003 decision, we made a painstaking review of Old World
antecedents of the religion clauses, because "one cannot understand, much
less intelligently criticize the approaches of the courts and the political
branches to religious freedom in the recent past in the United States without
a deep appreciation of the roots of these controversies in the ancient and
medieval world and in the American experience."17 We delved into the
conception of religion from primitive times, when it started out as the state
itself, when the authority and power of the state were ascribed to God.18
Then, religion developed on its own and became superior to the state,19 its
subordinate,20 and even becoming an engine of state policy.21
We ascertained two salient features in the review of religious history: First,
with minor exceptions, the history of church-state relationships was
characterized by persecution, oppression, hatred, bloodshed, and war, all in
the name of the God of Love and of the Prince of Peace. Second, likewise
with minor exceptions, this history witnessed the unscrupulous use of religion
by secular powers to promote secular purposes and policies, and the willing
acceptance of that role by the vanguards of religion in exchange for the
favors and mundane benefits conferred by ambitious princes and emperors
in exchange for religion’s invaluable service. This was the context in which
the unique experiment of the principle of religious freedom and separation of
church and state saw its birth in American constitutional democracy and in
human history. 22
Strictly speaking, the American experiment of freedom and separation was
not translated in the First Amendment. That experiment had been launched
four years earlier, when the founders of the republic carefully withheld from
the new national government any power to deal with religion. As James
Madison said, the national government had no "jurisdiction" over religion or
any "shadow of right to intermeddle" with it. 23
The omission of an express guaranty of religious freedom and other natural
rights, however, nearly prevented the ratification of the Constitution. The
restriction had to be made explicit with the adoption of the religion clauses in
the First Amendment as they are worded to this day. Thus, the First
Amendment did not take away or abridge any power of the national
government; its intent was to make express the absence of power.24 It
commands, in two parts (with the first part usually referred to as the
Establishment Clause and the second part, the Free Exercise Clause), viz:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof. 25
The Establishment and Free Exercise Clauses, it should be noted, were not
designed to serve contradictory purposes. They have a single goal—to
promote freedom of individual religious beliefs and practices. In simplest
terms, the Free Exercise Clause prohibits government from inhibiting
religious beliefs with penalties for religious beliefs and practice, while the
Establishment Clause prohibits government from inhibiting religious belief
with rewards for religious beliefs and practices. In other words, the two
religion clauses were intended to deny government the power to use either
the carrot or the stick to influence individual religious beliefs and practices.26
In sum, a review of the Old World antecedents of religion shows the
movement of establishment of religion as an engine to promote state
interests, to the principle of non-establishment to allow the free exercise of
religion.
2. Religion Clauses in the U.S. Context
The Court then turned to the religion clauses’ interpretation and construction
in the United States, not because we are bound by their interpretation, but
because the U.S. religion clauses are the precursors to the Philippine religion
clauses, although we have significantly departed from the U.S. interpretation
as will be discussed later on.
At the outset, it is worth noting that American jurisprudence in this area has
been volatile and fraught with inconsistencies whether within a Court
decision or across decisions. For while there is widespread agreement
regarding the value of the First Amendment religion clauses, there is an
equally broad disagreement as to what these clauses specifically require,
permit and forbid. No agreement has been reached by those who have
studied the religion clauses as regards its exact meaning and the paucity of
records in the U.S. Congress renders it difficult to ascertain its meaning.27
U.S. history has produced two identifiably different, even opposing, strains of
jurisprudence on the religion clauses. First is the standard of separation,
which may take the form of either (a) strict separation or (b) the tamer
version of strict neutrality or separation, or what Mr. Justice Carpio refers to
as the second theory of governmental neutrality. Although the latter form is
not as hostile to religion as the former, both are anchored on the Jeffersonian
premise that a "wall of separation" must exist between the state and the
Church to protect the state from the church.28 Both protect the principle of
church-state separation with a rigid reading of the principle. On the other
hand, the second standard, the benevolent neutrality or accommodation, is
buttressed by the view that the wall of separation is meant to protect the
church from the state. A brief review of each theory is in order.
a. Strict Separation and Strict Neutrality/Separation
The Strict Separationist believes that the Establishment Clause was meant to
protect the state from the church, and the state’s hostility towards religion
allows no interaction between the two. According to this Jeffersonian view,
an absolute barrier to formal interdependence of religion and state needs to
be erected. Religious institutions could not receive aid, whether direct or
indirect, from the state. Nor could the state adjust its secular programs to
alleviate burdens the programs placed on believers.29 Only the complete
separation of religion from politics would eliminate the formal influence of
religious institutions and provide for a free choice among political views, thus
a strict "wall of separation" is necessary. 30
Strict separation faces difficulties, however, as it is deeply embedded in
American history and contemporary practice that enormous amounts of aid,
both direct and indirect, flow to religion from government in return for huge
amounts of mostly indirect aid from religion.31 For example, less than
twenty-four hours after Congress adopted the First Amendment’s prohibition
on laws respecting an establishment of religion, Congress decided to
express its thanks to God Almighty for the many blessings enjoyed by the
nation with a resolution in favor of a presidential proclamation declaring a
national day of Thanksgiving and Prayer.32 Thus, strict separationists are
caught in an awkward position of claiming a constitutional principle that has
never existed and is never likely to.33
The tamer version of the strict separationist view, the strict neutrality or
separationist view, (or, the governmental neutrality theory) finds basis in
Everson v. Board of Education,34 where the Court declared that Jefferson’s
"wall of separation" encapsulated the meaning of the First Amendment.
However, unlike the strict separationists, the strict neutrality view believes
that the "wall of separation" does not require the state to be their adversary.
Rather, the state must be neutral in its relations with groups of religious
believers and non-believers. "State power is no more to be used so as to
handicap religions than it is to favor them."35 The strict neutrality approach is
not hostile to religion, but it is strict in holding that religion may not be used
as a basis for classification for purposes of governmental action, whether the
action confers rights or privileges or imposes duties or obligations. Only
secular criteria may be the basis of government action. It does not permit,
much less require, accommodation of secular programs to religious belief.36
The problem with the strict neutrality approach, however, is if applied in
interpreting the Establishment Clause, it could lead to a de facto voiding of
religious expression in the Free Exercise Clause. As pointed out by Justice
Goldberg in his concurring opinion in Abington School District v. Schempp,37
strict neutrality could lead to "a brooding and pervasive devotion to the
secular and a passive, or even active, hostility to the religious" which is
prohibited by the Constitution.38 Professor Laurence Tribe commented in his
authoritative treatise, viz:
To most observers. . . strict neutrality has seemed incompatible with the very
idea of a free exercise clause. The Framers, whatever specific applications
they may have intended, clearly envisioned religion as something special;
they enacted that vision into law by guaranteeing the free exercise of religion
but not, say, of philosophy or science. The strict neutrality approach all but
erases this distinction. Thus it is not surprising that the [U.S.] Supreme Court
has rejected strict neutrality, permitting and sometimes mandating religious
classifications.39
Thus, the dilemma of the separationist approach, whether in the form of strict
separation or strict neutrality, is that while the Jeffersonian wall of separation
"captures the spirit of the American ideal of church-state separation," in real
life, church and state are not and cannot be totally separate. This is all the
more true in contemporary times when both the government and religion are
growing and expanding their spheres of involvement and activity, resulting in
the intersection of government and religion at many points.40
b. Benevolent Neutrality/Accommodation
The theory of benevolent neutrality or accommodation is premised on a
different view of the "wall of separation," associated with Williams, founder of
the Rhode Island colony. Unlike the Jeffersonian wall that is meant to protect
the state from the church, the wall is meant to protect the church from the
state.41 This doctrine was expressed in Zorach v. Clauson,42 which held,
viz:
The First Amendment, however, does not say that in every and all respects
there shall be a separation of Church and State. Rather, it studiously defines
the manner, the specific ways, in which there shall be no concert or union or
dependency one or the other. That is the common sense of the matter.
Otherwise, the state and religion would be aliens to each other - hostile,
suspicious, and even unfriendly. Churches could not be required to pay even
property taxes. Municipalities would not be permitted to render police or fire
protection to religious groups. Policemen who helped parishioners into their
places of worship would violate the Constitution. Prayers in our legislative
halls; the appeals to the Almighty in the messages of the Chief Executive; the
proclamations making Thanksgiving Day a holiday; "so help me God" in our
courtroom oaths- these and all other references to the Almighty that run
through our laws, our public rituals, our ceremonies would be flouting the
First Amendment. A fastidious atheist or agnostic could even object to the
supplication with which the Court opens each session: "God save the United
States and this Honorable Court."
xxx xxx xxx
We are a religious people whose institutions presuppose a Supreme Being.
We guarantee the freedom to worship as one chooses. . . When the state
encourages religious instruction or cooperates with religious authorities by
adjusting the schedule of public events, it follows the best of our traditions.
For it then respects the religious nature of our people and accommodates the
public service to their spiritual needs. To hold that it may not would be to find
in the Constitution a requirement that the government show a callous
indifference to religious groups. . . But we find no constitutional requirement
which makes it necessary for government to be hostile to religion and to
throw its weight against efforts to widen their effective scope of religious
influence. 43
Benevolent neutrality recognizes that religion plays an important role in the
public life of the United States as shown by many traditional government
practices which, to strict neutrality, pose Establishment Clause questions.
Among these are the inscription of "In God We Trust" on American currency;
the recognition of America as "one nation under God" in the official pledge of
allegiance to the flag; the Supreme Court’s time-honored practice of opening
oral argument with the invocation "God save the United States and this
Honorable Court"; and the practice of Congress and every state legislature of
paying a chaplain, usually of a particular Protestant denomination, to lead
representatives in prayer. These practices clearly show the preference for
one theological viewpoint—the existence of and potential for intervention by
a god—over the contrary theological viewpoint of atheism. Church and
government agencies also cooperate in the building of low-cost housing and
in other forms of poor relief, in the treatment of alcoholism and drug
addiction, in foreign aid and other government activities with strong moral
dimension. 44
Examples of accommodations in American jurisprudence also abound,
including, but not limited to the U.S. Court declaring the following acts as
constitutional: a state hiring a Presbyterian minister to lead the legislature in
daily prayers,45 or requiring employers to pay workers compensation when
the resulting inconsistency between work and Sabbath leads to discharge;46
for government to give money to religiously-affiliated organizations to teach
adolescents about proper sexual behavior;47 or to provide religious school
pupils with books;48 or bus rides to religious schools;49 or with cash to pay
for state-mandated standardized tests.50
(1) Legislative Acts and the Free Exercise Clause
As with the other rights under the Constitution, the rights embodied in the
Religion clauses are invoked in relation to governmental action, almost
invariably in the form of legislative acts.
Generally speaking, a legislative act that purposely aids or inhibits religion
will be challenged as unconstitutional, either because it violates the Free
Exercise Clause or the Establishment Clause or both. This is true whether
one subscribes to the separationist approach or the benevolent neutrality or
accommodationist approach.
But the more difficult religion cases involve legislative acts which have a
secular purpose and general applicability, but may incidentally or
inadvertently aid or burden religious exercise. Though the government action
is not religiously motivated, these laws have a "burdensome effect" on
religious exercise.
The benevolent neutrality theory believes that with respect to these
governmental actions, accommodation of religion may be allowed, not to
promote the government’s favored form of religion, but to allow individuals
and groups to exercise their religion without hindrance. The purpose of
accommodations is to remove a burden on, or facilitate the exercise of, a
person’s or institution’s religion. As Justice Brennan explained, the
"government [may] take religion into account…to exempt, when possible,
from generally applicable governmental regulation individuals whose
religious beliefs and practices would otherwise thereby be infringed, or to
create without state involvement an atmosphere in which voluntary religious
exercise may flourish."51 In the ideal world, the legislature would recognize
the religions and their practices and would consider them, when practical, in
enacting laws of general application. But when the legislature fails to do so,
religions that are threatened and burdened may turn to the courts for
protection.52
Thus, what is sought under the theory of accommodation is not a declaration
of unconstitutionality of a facially neutral law, but an exemption from its
application or its "burdensome effect," whether by the legislature or the
courts.53 Most of the free exercise claims brought to the U.S. Court are for
exemption, not invalidation of the facially neutral law that has a
"burdensome" effect.54
(2) Free Exercise Jurisprudence: Sherbert, Yoder and Smith
The pinnacle of free exercise protection and the theory of accommodation in
the U.S. blossomed in the case of Sherbert v. Verner,55 which ruled that
state regulation that indirectly restrains or punishes religious belief or conduct
must be subjected to strict scrutiny under the Free Exercise Clause.56
According to Sherbert, when a law of general application infringes religious
exercise, albeit incidentally, the state interest sought to be promoted must be
so paramount and compelling as to override the free exercise claim.
Otherwise, the Court itself will carve out the exemption.
In this case, Sherbert, a Seventh Day Adventist, claimed unemployment
compensation under the law as her employment was terminated for refusal to
work on Saturdays on religious grounds. Her claim was denied. She sought
recourse in the Supreme Court. In laying down the standard for determining
whether the denial of benefits could withstand constitutional scrutiny, the
Court ruled, viz:
Plainly enough, appellee’s conscientious objection to Saturday work
constitutes no conduct prompted by religious principles of a kind within the
reach of state legislation. If, therefore, the decision of the South Carolina
Supreme Court is to withstand appellant’s constitutional challenge, it must be
either because her disqualification as a beneficiary represents no
infringement by the State of her constitutional right of free exercise, or
because any incidental burden on the free exercise of appellant’s religion
may be justified by a "compelling state interest in the regulation of a subject
within the State’s constitutional power to regulate. . . ."57 (emphasis
supplied)
The Court stressed that in the area of religious liberty, it is basic that it is not
sufficient to merely show a rational relationship of the substantial
infringement to the religious right and a colorable state interest. "(I)n this
highly sensitive constitutional area, ‘[o]nly the gravest abuses, endangering
paramount interests, give occasion for permissible limitation.’"58 The Court
found that there was no such compelling state interest to override Sherbert’s
religious liberty. It added that even if the state could show that Sherbert’s
exemption would pose serious detrimental effects to the unemployment
compensation fund and scheduling of work, it was incumbent upon the state
to show that no alternative means of regulations would address such
detrimental effects without infringing religious liberty. The state, however, did
not discharge this burden. The Court thus carved out for Sherbert an
exemption from the Saturday work requirement that caused her
disqualification from claiming the unemployment benefits. The Court
reasoned that upholding the denial of Sherbert’s benefits would force her to
choose between receiving benefits and following her religion. This choice
placed "the same kind of burden upon the free exercise of religion as would a
fine imposed against (her) for her Saturday worship." This germinal case of
Sherbert firmly established the exemption doctrine, 59 viz:
It is certain that not every conscience can be accommodated by all the laws
of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interest"
intervenes.
Thus, Sherbert and subsequent cases held that when government action
burdens, even inadvertently, a sincerely held religious belief or practice, the
state must justify the burden by demonstrating that the law embodies a
compelling interest, that no less restrictive alternative exists, and that a
religious exemption would impair the state’s ability to effectuate its
compelling interest. As in other instances of state action affecting
fundamental rights, negative impacts on those rights demand the highest
level of judicial scrutiny. After Sherbert, this strict scrutiny balancing test
resulted in court-mandated religious exemptions from facially-neutral laws of
general application whenever unjustified burdens were found. 60
Then, in the 1972 case of Wisconsin v. Yoder,61 the U.S. Court again ruled
that religious exemption was in order, notwithstanding that the law of general
application had a criminal penalty. Using heightened scrutiny, the Court
overturned the conviction of Amish parents for violating Wisconsin
compulsory school-attendance laws. The Court, in effect, granted exemption
from a neutral, criminal statute that punished religiously motivated conduct.
Chief Justice Burger, writing for the majority, held, viz:
It follows that in order for Wisconsin to compel school attendance beyond the
eighth grade against a claim that such attendance interferes with the practice
of a legitimate religious belief, it must appear either that the State does not
deny the free exercise of religious belief by its requirement, or that there is a
state interest of sufficient magnitude to override the interest claiming
protection under the Free Exercise Clause. Long before there was general
acknowledgement of the need for universal education, the Religion Clauses
had specially and firmly fixed the right of free exercise of religious beliefs,
and buttressing this fundamental right was an equally firm, even if less
explicit, prohibition against the establishment of any religion. The values
underlying these two provisions relating to religion have been zealously
protected, sometimes even at the expense of other interests of admittedly
high social importance. . .
The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can
overbalance legitimate claims to the free exercise of religion. . .
. . . our decisions have rejected the idea that religiously grounded conduct is
always outside the protection of the Free Exercise Clause. It is true that
activities of individuals, even when religiously based, are often subject to
regulation by the States in the exercise of their undoubted power to promote
the health, safety, and general welfare, or the Federal government in the
exercise of its delegated powers . . . But to agree that religiously grounded
conduct must often be subject to the broad police power of the State is not to
deny that there are areas of conduct protected by the Free Exercise Clause
of the First Amendment and thus beyond the power of the State to control,
even under regulations of general applicability. . . .This case, therefore, does
not become easier because respondents were convicted for their "actions" in
refusing to send their children to the public high school; in this context belief
and action cannot be neatly confined in logic-tight compartments. . . 62
The cases of Sherbert and Yoder laid out the following doctrines: (a) free
exercise clause claims were subject to heightened scrutiny or compelling
interest test if government substantially burdened the exercise of religion; (b)
heightened scrutiny or compelling interest test governed cases where the
burden was direct, i.e., the exercise of religion triggered a criminal or civil
penalty, as well as cases where the burden was indirect, i.e., the exercise of
religion resulted in the forfeiture of a government benefit;63 and (c) the Court
could carve out accommodations or exemptions from a facially neutral law of
general application, whether general or criminal.
The Sherbert-Yoder doctrine had five main components. First, action was
protected—conduct beyond speech, press, or worship was included in the
shelter of freedom of religion. Neither Sherbert’s refusal to work on the
Sabbath nor the Amish parents’ refusal to let their children attend ninth and
tenth grades can be classified as conduct protected by the other clauses of
the First Amendment. Second, indirect impositions on religious conduct, such
as the denial of twenty-six weeks of unemployment insurance benefits to
Adel Sherbert, as well as direct restraints, such as the criminal prohibition at
issue in Yoder, were prohibited. Third, as the language in the two cases
indicate, the protection granted was extensive. Only extremely strong
governmental interests justified impingement on religious conduct, as the
absolute language of the test of the Free Exercise Clause suggests. 64
Fourth, the strong language was backed by a requirement that the
government provide proof of the important interest at stake and of the
dangers to that interest presented by the religious conduct at issue. Fifth, in
determining the injury to the government’s interest, a court was required to
focus on the effect that exempting religious claimants from the regulation
would have, rather than on the value of the regulation in general. Thus, injury
to governmental interest had to be measured at the margin: assuming the
law still applied to all others, what would be the effect of exempting the
religious claimant in this case and other similarly situated religious claimants
in the future? Together, the fourth and fifth elements required that facts,
rather than speculation, had to be presented concerning how the
government’s interest would be harmed by excepting religious conduct from
the law being challenged. 65
Sherbert and Yoder adopted a balancing test for free exercise jurisprudence
which would impose a discipline to prevent manipulation in the balancing of
interests. The fourth and the fifth elements prevented the likelihood of
exaggeration of the weight on the governmental interest side of the balance,
by not allowing speculation about the effects of a decision adverse to those
interests nor accepting that those interests would be defined at a higher level
of generality than the constitutional interests on the other side of the balance.
66
Thus, the strict scrutiny and compelling state interest test significantly
increased the degree of protection afforded to religiously motivated conduct.
While not affording absolute immunity to religious activity, a compelling
secular justification was necessary to uphold public policies that collided with
religious practices. Although the members of the U.S. Court often disagreed
over which governmental interests should be considered compelling, thereby
producing dissenting and separate opinions in religious conduct cases, this
general test established a strong presumption in favor of the free exercise of
religion.67 Most scholars and courts agreed that under Sherbert and Yoder,
the Free Exercise Clause provided individuals some form of heightened
scrutiny protection, if not always a compelling interest one.68 The 1990 case
of Employment Division, Oregon Department of Human Resources v.
Smith,69 drastically changed all that.
Smith involved a challenge by Native Americans to an Oregon law prohibiting
use of peyote, a hallucinogenic substance. Specifically, individuals
challenged the state’s determination that their religious use of peyote, which
resulted in their dismissal from employment, was misconduct disqualifying
them from receipt of unemployment compensation benefits. 70
Justice Scalia, writing for the majority, rejected the claim that free exercise of
religion required an exemption from an otherwise valid law. Scalia said that
"[w]e have never held that an individual’s religious beliefs excuse him from
compliance with an otherwise valid law prohibiting conduct that the State is
free to regulate. On the contrary, the record of more than a century of our
free exercise jurisprudence contradicts that proposition." 71 Scalia thus
declared "that the right of free exercise does not relieve an individual of the
obligation to comply with a ‘valid and neutral law of general applicability of
the ground that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes).’" 72
Justice Scalia’s opinion then reviewed the cases where free exercise
challenges had been upheld—such as Cantwell, Murdock, Follet, Pierce, and
Yoder—and said that none involved the free exercise clause claims alone. All
involved "the Free Exercise Clause in conjunction with other constitutional
protections, such as freedom of speech and of the press, or the right of
parents to direct the education of their children." 73 The Court said that Smith
was distinguishable because it did not involve such a "hybrid situation," but
was a free exercise claim "unconnected with any communicative activity or
parental right." 74
Moreover, the Court said that the Sherbert line of cases applied only in the
context of the denial of unemployment benefits; it did not create a basis for
an exemption from criminal laws. Scalia wrote that "[e]ven if we were inclined
to breathe into Sherbert some life beyond the unemployment compensation
field, we would not apply it to require exemptions from a generally applicable
criminal law." 75
The Court expressly rejected the use of strict scrutiny for challenges to
neutral laws of general applicability that burden religion. Justice Scalia said
that "[p]recisely because ‘we are a cosmopolitan nation made up of people of
almost conceivable religious preference,’ and precisely because we value
and protect that religious divergence, we cannot afford the luxury of deeming
presumptively invalid, as applied to the religious objector, every regulation of
conduct that does not protect an interest of the highest order." The Court said
that those seeking religious exemptions from laws should look to the
democratic process for protection, not the courts. 76
Smith thus changed the test for the free exercise clause. Strict or heightened
scrutiny and the compelling justification approach were abandoned for
evaluating laws burdening religion; neutral laws of general applicability only
have to meet the rational basis test, no matter how much they burden
religion. 77
Justice O’Connor wrote a concurring opinion sharply criticizing the rejection
of the compelling state interest test, asserting that "(t)he compelling state
interest test effectuates the First Amendment’s command that religious liberty
is an independent liberty, that it occupies a preferred position, and that the
Court will not permit encroachments upon this liberty, whether direct or
indirect, unless required by clear and compelling government interest ‘of the
highest order.’"78 She said that strict scrutiny is appropriate for free exercise
challenges because "[t]he compelling interest test reflects the First
Amendment’s mandate of preserving religious liberty to the fullest extent
possible in a pluralistic society." 79
Justice O’Connor also disagreed with the majority’s description of prior cases
and especially its leaving the protection of minority religions to the political
process. She said that, "First Amendment was enacted precisely to protect
the rights of those whose religious practice are not shared by the majority
and may be viewed with hostility." 80
Justice Blackmun wrote a dissenting opinion that was joined by Justices
Brennan and Marshall. The dissenting Justices agreed with Justice O’Connor
that the majority had mischaracterized precedents, such as in describing
Yoder as a "hybrid" case rather than as one under the free exercise clause.
The dissent also argued that strict scrutiny should be used in evaluating
government laws burdening religion. 81
Criticism of Smith was intense and widespread.82 Academics, Justices, and
a bipartisan majority of Congress noisily denounced the decision.83 Smith
has the rather unusual distinction of being one case that is almost universally
despised (and this is not too strong a word) by both the liberals and
conservatives.84 Liberals chasten the Court for its hostility to minority faiths
which, in light of Smith’s general applicability rule, will allegedly suffer at the
hands of the majority faith whether through outright hostility or neglect.
Conservatives bemoan the decision as an assault on religious belief leaving
religion, more than ever, subject to the caprice of an ever more secular
nation that is increasingly hostile to religious belief as an oppressive and
archaic anachronism. 85
The Smith doctrine is highly unsatisfactory in several respects and has been
criticized as exhibiting a shallow understanding of free exercise
jurisprudence.86 First, the First amendment was intended to protect minority
religions from the tyranny of the religious and political majority. 87 Critics of
Smith have worried about religious minorities, who can suffer
disproportionately from laws that enact majoritarian mores.88 Smith, in effect
would allow discriminating in favor of mainstream religious groups against
smaller, more peripheral groups who lack legislative clout,89 contrary to the
original theory of the First Amendment.90 Undeniably, claims for judicial
exemption emanate almost invariably from relatively politically powerless
minority religions and Smith virtually wiped out their judicial recourse for
exemption.91 Second, Smith leaves too much leeway for pervasive welfare-
state regulation to burden religion while satisfying neutrality. After all, laws
not aimed at religion can hinder observance just as effectively as those that
target religion.92 Government impairment of religious liberty would most
often be of the inadvertent kind as in Smith considering the political culture
where direct and deliberate regulatory imposition of religious orthodoxy is
nearly inconceivable. If the Free Exercise Clause could not afford protection
to inadvertent interference, it would be left almost meaningless.93 Third, the
Reynolds-Gobitis-Smith94 doctrine simply defies common sense. The state
should not be allowed to interfere with the most deeply held fundamental
religious convictions of an individual in order to pursue some trivial state
economic or bureaucratic objective. This is especially true when there are
alternative approaches for the state to effectively pursue its objective without
serious inadvertent impact on religion.95
At bottom, the Court’s ultimate concern in Smith appeared to be two-fold: (1)
the difficulty in defining and limiting the term "religion" in today’s pluralistic
society, and (2) the belief that courts have no business determining the
significance of an individual’s religious beliefs. For the Smith Court, these two
concerns appear to lead to the conclusion that the Free Exercise Clause
must protect everything or it must protect virtually nothing. As a result, the
Court perceives its only viable options are to leave free exercise protection to
the political process or to allow a "system in which each conscience is a law
unto itself." 96 The Court’s characterization of its choices have been soundly
rejected as false, viz:
If one accepts the Court’s assumption that these are the only two viable
options, then admittedly, the Court has a stronger argument. But the Free
Exercise Clause cannot be summarily dismissed as too difficult to apply and
this should not be applied at all. The Constitution does not give the judiciary
the option of simply refusing to interpret its provisions. The First Amendment
dictates that free exercise of "religion" must be protected. Accordingly, the
Constitution compels the Court to struggle with the contours of what
constitutes "religion." There is no constitutional opt-out provision for
constitutional words that are difficult to apply.
Nor does the Constitution give the Court the option of simply ignoring
constitutional mandates. A large area of middle ground exists between the
Court’s two opposing alternatives for free exercise jurisprudence.
Unfortunately, this middle ground requires the Court to tackle difficult issues
such as defining religion and possibly evaluating the significance of a
religious belief against the importance of a specific law. The Court describes
the results of this middle ground where "federal judges will regularly balance
against the importance of general laws the significance of religious practice,"
and then dismisses it as a "parade of horribles" that is too "horrible to
contemplate."
It is not clear whom the Court feels would be most hurt by this "parade of
horribles." Surely not religious individuals; they would undoubtedly prefer
their religious beliefs to be probed for sincerity and significance rather than
acquiesce to the Court’s approach of simply refusing to grant any
constitutional significance to their beliefs at all. If the Court is concerned
about requiring lawmakers at times constitutionally to exempt religious
individuals from statutory provisions, its concern is misplaced. It is the
lawmakers who have sought to prevent the Court from dismantling the Free
Exercise Clause through such legislation as the [Religious Freedom
Restoration Act of 1993], and in any case, the Court should not be overly
concerned about hurting legislature’s feelings by requiring their laws to
conform to constitutional dictates. Perhaps the Court is concerned about
putting such burden on judges. If so, it would truly be odd to say that
requiring the judiciary to perform its appointed role as constitutional
interpreters is a burden no judge should be expected to fulfill.97
Parenthetically, Smith’s characterization that the U.S. Court has "never held
that an individual’s religious beliefs excuse him from compliance with an
otherwise valid law prohibiting conduct that the state is free to regulate"—an
assertion which Mr. Justice Carpio adopted unequivocally in his dissent—has
been sharply criticized even implicitly by its supporters, as blatantly untrue.
Scholars who supported Smith frequently did not do so by opposing the
arguments that the Court was wrong as a matter of original meaning [of the
religion clauses] or that the decision conflicted with precedent [i.e. the Smith
decision made shocking use of precedent]—those points were often
conceded. 98
To justify its perversion of precedent, the Smith Court attempted to
distinguish the exemption made in Yoder, by asserting that these were
premised on two constitutional rights combined—the right of parents to direct
the education of their children and the right of free exercise of religion. Under
the Court’s opinion in Smith, the right of free exercise of religion standing
alone would not allow Amish parents to disregard the compulsory school
attendance law, and under the Court’s opinion in Yoder, parents whose
objection to the law was not religious would also have to obey it. The fatal
flaw in this argument, however, is that if two constitutional claims will fail on
its own, how would it prevail if combined?99 As for Sherbert, the Smith Court
attempted to limit its doctrine as applicable only to denials of unemployment
compensation benefits where the religiously-compelled conduct that leads to
job loss is not a violation of criminal law. And yet, this is precisely why the
rejection of Sherbert was so damaging in its effect: the religious person was
more likely to be entitled to constitutional protection when forced to choose
between religious conscience and going to jail than when forced to choose
between religious conscience and financial loss. 100
Thus, the Smith decision elicited much negative public reaction especially
from the religious community, and commentaries insisted that the Court was
allowing the Free Exercise Clause to disappear.101 So much was the uproar
that a majority in Congress was convinced to enact the Religious Freedom
Restoration Act (RFRA) of 1993.102 The RFRA was adopted to negate the
Smith test and require strict scrutiny for free exercise claims. Indeed, the
findings section of the Act notes that Smith "virtually eliminated the
requirement that the government justify burdens on religious exercise
imposed by laws neutral toward religion."103 The Act declares that its
purpose is to restore the compelling interest test as set forth in Sherbert v.
Verner and Wisconsin v. Yoder, and to guarantee its application in all cases
where free exercise of religion is substantially burdened; and to provide a
claim of defense to a person whose religious exercise is substantially
burdened by government.104 The RFRA thus sought to overrule Smith and
make strict scrutiny the test for all free exercise clause claims. 105
In the City of Boerne v. Flores, 106 the U.S. Supreme Court declared the
RFRA unconstitutional, ruling that Congress had exceeded its power under
the Fourteenth Amendment in enacting the law. The Court ruled that
Congress is empowered to enact laws "to enforce the amendment," but
Congress is not "enforcing" when it creates new constitutional rights or
expands the scope of rights. 107
City of Boerne also drew public backlash as the U.S. Supreme Court was
accused of lack of judicial respect for the constitutional decision-making by a
coordinate branch of government. In Smith, Justice Scalia wrote:
"Values that are protected against governmental interference through
enshrinement in the Bill of Rights are not thereby banished from the political
process. Just as society believes in the negative protection accorded to the
press by the First Amendment is likely to enact laws that affirmatively foster
the dissemination of the printed word, so also a society that believes in the
negative protection accorded to religious belief can be expected to be
solicitous of that value in its legislation as well."
By invalidating RFRA, the Court showed a marked disrespect of the
solicitude of a nearly unanimous Congress. Contrary to the Court’s
characterization of the RFRA as a kind of usurpation of the judicial power to
say what the Constitution means, the law offered no definition of Free
Exercise, and on its face appeared to be a procedural measure establishing
a standard of proof and allocating the duty of meeting it. In effect, the Court
ruled that Congress had no power in the area of religion. And yet, Free
Exercise exists in the First Amendment as a negative on Congress. The
power of Congress to act towards the states in matters of religion arises from
the Fourteenth Amendment. 108
From the foregoing, it can be seen that Smith, while expressly recognizing
the power of legislature to give accommodations, is in effect contrary to the
benevolent neutrality or accommodation approach. Moreover, if we consider
the history of the incorporation of the religion clauses in the U.S., the
decision in Smith is grossly inconsistent with the importance placed by the
framers on religious faith. Smith is dangerous precedent because it
subordinates fundamental rights of religious belief and practice to all neutral,
general legislation. Sherbert recognized the need to protect religious
exercise in light of the massive increase in the size of government, the
concerns within its reach, and the number of laws administered by it.
However, Smith abandons the protection of religious exercise at a time when
the scope and reach of government has never been greater. It has been
pointed out that Smith creates the legal framework for persecution: through
general, neutral laws, legislatures are now able to force conformity on
religious minorities whose practice irritate or frighten an intolerant
majority.109
The effect of Smith is to erase entirely the concept of mandatory
accommodations, thereby emasculating the Free Exercise Clause. Smith left
religious freedom for many in the hands of the political process, exactly
where it would be if the religion clauses did not exist in the Bill of Rights. Like
most protections found in the Bill of Rights, the religion clauses of the First
Amendment are most important to those who cannot prevail in the political
process. The Court in Smith ignores the fact that the protections found in the
Bill of Rights were deemed too important to leave to the political process.
Because mainstream religions generally have been successful in protecting
their interests through the political process, it is the non-mainstream religions
that are adversely affected by Smith. In short, the U.S. Supreme Court has
made it clear to such religions that they should not look to the First
Amendment for religious freedom. 110
(3) Accommodation under the Religion Clauses
A free exercise claim could result to three kinds of accommodation: (a) those
which are found to be constitutionally compelled, i.e., required by the Free
Exercise Clause; (b) those which are discretionary or legislative, i.e., not
required by the Free Exercise Clause but nonetheless permitted by the
Establishment Clause; and (c) those which the religion clauses prohibit.111
Mandatory accommodation results when the Court finds that accommodation
is required by the Free Exercise Clause, i.e, when the Court itself carves out
an exemption. This accommodation occurs when all three conditions of the
compelling interest test are met, i.e, a statute or government action has
burdened claimant’s free exercise of religion, and there is no doubt as to the
sincerity of the religious belief; the state has failed to demonstrate a
particularly important or compelling governmental goal in preventing an
exemption; and that the state has failed to demonstrate that it used the least
restrictive means. In these cases, the Court finds that the injury to religious
conscience is so great and the advancement of public purposes is
incomparable that only indifference or hostility could explain a refusal to
make exemptions. Thus, if the state’s objective could be served as well or
almost as well by granting an exemption to those whose religious beliefs are
burdened by the regulation, the Court must grant the exemption. The Yoder
case is an example where the Court held that the state must accommodate
the religious beliefs of the Amish who objected to enrolling their children in
high school as required by law. The Sherbert case is another example where
the Court held that the state unemployment compensation plan must
accommodate the religious convictions of Sherbert.112
In permissive accommodation, the Court finds that the State may, but is not
required to, accommodate religious interests. The U.S. Walz case illustrates
this situation where the U.S. Supreme Court upheld the constitutionality of
tax exemption given by New York to church properties, but did not rule that
the state was required to provide tax exemptions. The Court declared that
"(t)he limits of permissible state accommodation to religion are by no means
co-extensive with the noninterference mandated by the Free Exercise
Clause."113 Other examples are Zorach v. Clauson,114 allowing released
time in public schools and Marsh v. Chambers,115 allowing payment of
legislative chaplains from public funds. Parenthetically, the Court in Smith
has ruled that this is the only accommodation allowed by the Religion
Clauses.
Finally, when the Court finds no basis for a mandatory accommodation, or it
determines that the legislative accommodation runs afoul of the
establishment or the free exercise clause, it results to a prohibited
accommodation. In this case, the Court finds that establishment concerns
prevail over potential accommodation interests. To say that there are valid
exemptions buttressed by the Free Exercise Clause does not mean that all
claims for free exercise exemptions are valid.116 An example where
accommodation was prohibited is McCollum v. Board of Education,117
where the Court ruled against optional religious instruction in the public
school premises.118
Given that a free exercise claim could lead to three different results, the
question now remains as to how the Court should determine which action to
take. In this regard, it is the strict scrutiny-compelling state interest test which
is most in line with the benevolent neutrality-accommodation approach.
Under the benevolent-neutrality theory, the principle underlying the First
Amendment is that freedom to carry out one’s duties to a Supreme Being is
an inalienable right, not one dependent on the grace of legislature. Religious
freedom is seen as a substantive right and not merely a privilege against
discriminatory legislation. With religion looked upon with benevolence and
not hostility, benevolent neutrality allows accommodation of religion under
certain circumstances.
Considering that laws nowadays are rarely enacted specifically to disable
religious belief or practice, free exercise disputes arise commonly when a law
that is religiously neutral and generally applicable on its face is argued to
prevent or burden what someone’s religious faith requires, or alternatively,
requires someone to undertake an act that faith would preclude. In essence,
then, free exercise arguments contemplate religious exemptions from
otherwise general laws.119
Strict scrutiny is appropriate for free exercise challenges because "[t]he
compelling interest test reflects the First Amendment’s mandate of
preserving religious liberty to the fullest extent possible in a pluralistic
society.120 Underlying the compelling state interest test is the notion that
free exercise is a fundamental right and that laws burdening it should be
subject to strict scrutiny.121
In its application, the compelling state interest test follows a three-step
process, summarized as follows:
If the plaintiff can show that a law or government practice inhibits the free
exercise of his religious beliefs, the burden shifts to the government to
demonstrate that the law or practice is necessary to the accomplishment of
some important (or ‘compelling’) secular objective and that it is the least
restrictive means of achieving that objective. If the plaintiff meets this burden
and the government does not, the plaintiff is entitled to exemption from the
law or practice at issue. In order to be protected, the claimant’s beliefs must
be ‘sincere’, but they need not necessarily be consistent, coherent, clearly
articulated, or congruent with those of the claimant’s religious denomination.
‘Only beliefs rooted in religion are protected by the Free Exercise Clause’;
secular beliefs, however sincere and conscientious, do not suffice.122
In sum, the U.S. Court has invariably decided claims based on the religion
clauses using either the separationist approach, or the benevolent neutrality
approach. The benevolent neutrality approach has also further been split by
the view that the First Amendment requires accommodation, or that it only
allows permissible legislative accommodations. The current prevailing view
as pronounced in Smith, however, is that that there are no required
accommodation under the First Amendment, although it permits of legislative
accommodations.
3. Religion Clauses in the Philippine Context: Constitution, Jurisprudence
and Practice
a. US Constitution and jurisprudence vis-à-vis Philippine Constitution
By juxtaposing the American Constitution and jurisprudence against that of
the Philippines, it is immediately clear that one cannot simply conclude that
we have adopted—lock, stock and barrel—the religion clauses as embodied
in the First Amendment, and therefore, the U.S. Court’s interpretation of the
same. Unlike in the U.S. where legislative exemptions of religion had to be
upheld by the U.S. Supreme Court as constituting permissive
accommodations, similar exemptions for religion are mandatory
accommodations under our own constitutions. Thus, our 1935, 1973 and
1987 Constitutions contain provisions on tax exemption of church
property,123 salary of religious officers in government institutions,124 and
optional religious instruction.125 Our own preamble also invokes the aid of a
divine being.126 These constitutional provisions are wholly ours and have no
counterpart in the U.S. Constitution or its amendments. They all reveal
without doubt that the Filipino people, in adopting these constitutions,
manifested their adherence to the benevolent neutrality approach that
requires accommodations in interpreting the religion clauses.127
The argument of Mr. Justice Carpio that the August 4, 2003 ponencia was
erroneous insofar as it asserted that the 1935 Constitution incorporates the
Walz ruling as this case was decided subsequent to the 1935 Constitution is
a misreading of the ponencia. What the ponencia pointed out was that even
as early as 1935, or more than three decades before the U.S. Court could
validate the exemption in Walz as a form or permissible accommodation, we
have already incorporated the same in our Constitution, as a mandatory
accommodation.
There is no ambiguity with regard to the Philippine Constitution’s departure
from the U.S. Constitution, insofar as religious accommodations are
concerned. It is indubitable that benevolent neutrality-accommodation,
whether mandatory or permissive, is the spirit, intent and framework
underlying the Philippine Constitution.128 As stated in our Decision, dated
August 4, 2003:
The history of the religion clauses in the 1987 Constitution shows that these
clauses were largely adopted from the First Amendment of the U.S.
Constitution xxxx Philippine jurisprudence and commentaries on the religious
clauses also continued to borrow authorities from U.S. jurisprudence without
articulating the stark distinction between the two streams of U.S.
jurisprudence [i.e., separation and benevolent neutrality]. One might simply
conclude that the Philippine Constitutions and jurisprudence also inherited
the disarray of U.S. religion clause jurisprudence and the two identifiable
streams; thus, when a religion clause case comes before the Court, a
separationist approach or a benevolent neutrality approach might be adopted
and each will have U.S. authorities to support it. Or, one might conclude that
as the history of the First Amendment as narrated by the Court in Everson
supports the separationist approach, Philippine jurisprudence should also
follow this approach in light of the Philippine religion clauses’ history. As a
result, in a case where the party claims religious liberty in the face of a
general law that inadvertently burdens his religious exercise, he faces an
almost insurmountable wall in convincing the Court that the wall of separation
would not be breached if the Court grants him an exemption. These
conclusions, however, are not and were never warranted by the 1987, 1973
and 1935 Constitutions as shown by other provisions on religion in all three
constitutions. It is a cardinal rule in constitutional construction that the
constitution must be interpreted as a whole and apparently conflicting
provisions should be reconciled and harmonized in a manner that will give to
all of them full force and effect. From this construction, it will be ascertained
that the intent of the framers was to adopt a benevolent neutrality approach
in interpreting the religious clauses in the Philippine constitutions, and the
enforcement of this intent is the goal of construing the constitution.129
[citations omitted]
We therefore reject Mr. Justice Carpio’s total adherence to the U.S. Court’s
interpretation of the religion clauses to effectively deny accommodations on
the sole basis that the law in question is neutral and of general application.
For even if it were true that "an unbroken line of U.S. Supreme Court
decisions" has never held that "an individual’s religious beliefs [do not]
excuse him from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate," our own Constitutions have made
significant changes to accommodate and exempt religion. Philippine
jurisprudence shows that the Court has allowed exemptions from a law of
general application, in effect, interpreting our religion clauses to cover both
mandatory and permissive accommodations.130
To illustrate, in American Bible Society v. City of Manila,131 the Court
granted to plaintiff exemption from a law of general application based on the
Free Exercise Clause. In this case, plaintiff was required by an ordinance to
secure a mayor’s permit and a municipal license as ordinarily required of
those engaged in the business of general merchandise under the city’s
ordinances. Plaintiff argued that this amounted to "religious censorship and
restrained the free exercise and enjoyment of religious profession, to wit: the
distribution and sale of bibles and other religious literature to the people of
the Philippines." Although the Court categorically held that the questioned
ordinances were not applicable to plaintiff as it was not engaged in the
business or occupation of selling said "merchandise" for profit, it also ruled
that applying the ordinance to plaintiff and requiring it to secure a license and
pay a license fee or tax would impair its free exercise of religious profession
and worship and its right of dissemination of religious beliefs "as the power to
tax the exercise of a privilege is the power to control or suppress its
enjoyment." The decision states in part, viz:
The constitutional guaranty of the free exercise and enjoyment of religious
profession and worship carries with it the right to disseminate religious
information. Any restraint of such right can only be justified like other
restraints of freedom of expression on the grounds that there is a clear and
present danger of any substantive evil which the State has the right to
prevent. (citations omitted, emphasis supplied)
Another case involving mandatory accommodation is Ebralinag v. The
Division Superintendent of Schools.132 The case involved several Jehovah’s
Witnesses who were expelled from school for refusing to salute the flag, sing
the national anthem and recite the patriotic pledge, in violation of the
Administrative Code of 1987. In resolving the religious freedom issue, a
unanimous Court overturned an earlier ruling denying such exemption,133
using the "grave and imminent danger" test, viz:
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German v. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to
prevent. Absent such a threat to public safety, the expulsion of the petitioners
from the schools is not justified.134 (emphases supplied)
In these two cases, the Court itself carved out an exemption from a law of
general application, on the strength directly of the Free Exercise Clause.
We also have jurisprudence that supports permissive accommodation. The
case of Victoriano v. Elizalde Rope Workers Union135 is an example of the
application of Mr. Justice Carpio’s theory of permissive accommodation,
where religious exemption is granted by a legislative act. In Victoriano, the
constitutionality of Republic Act No. 3350 was questioned. The said R.A.
exempt employees from the application and coverage of a closed shop
agreement—mandated in another law—based on religious objections. A
unanimous Court upheld the constitutionality of the law, holding that
"government is not precluded from pursuing valid objectives secular in
character even if the incidental result would be favorable to a religion or
sect." Interestingly, the secular purpose of the challenged law which the
Court upheld was the advancement of "the constitutional right to the free
exercise of religion."136
Having established that benevolent neutrality-accommodation is the
framework by which free exercise cases must be decided, the next question
then turned to the test that should be used in ascertaining the limits of the
exercise of religious freedom. In our Decision dated August 4, 2003, we
reviewed our jurisprudence, and ruled that in cases involving purely conduct
based on religious belief, as in the case at bar, the compelling state interest
test, is proper, viz:
Philippine jurisprudence articulates several tests to determine these limits.
Beginning with the first case on the Free Exercise Clause, American Bible
Society, the Court mentioned the "clear and present danger" test but did not
employ it. Nevertheless, this test continued to be cited in subsequent cases
on religious liberty. The Gerona case then pronounced that the test of
permissibility of religious freedom is whether it violates the established
institutions of society and law. The Victoriano case mentioned the "immediate
and grave danger" test as well as the doctrine that a law of general
applicability may burden religious exercise provided the law is the least
restrictive means to accomplish the goal of the law. The case also used,
albeit inappropriately, the "compelling state interest" test. After Victoriano,
German went back to the Gerona rule. Ebralinag then employed the "grave
and immediate danger" test and overruled the Gerona test. The fairly recent
case of Iglesia ni Cristo went back to the "clear and present danger" test in
the maiden case of American Bible Society. Not surprisingly, all the cases
which employed the "clear and present danger" or "grave and immediate
danger" test involved, in one form or another, religious speech as this test is
often used in cases on freedom of expression. On the other hand, the
Gerona and German cases set the rule that religious freedom will not prevail
over established institutions of society and law. Gerona, however, which was
the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test. Victoriano was the only
case that employed the "compelling state interest" test, but as explained
previously, the use of the test was inappropriate to the facts of the case.
The case at bar does not involve speech as in American Bible Society,
Ebralinag and Iglesia ni Cristo where the "clear and present danger" and
"grave and immediate danger" tests were appropriate as speech has easily
discernible or immediate effects. The Gerona and German doctrine, aside
from having been overruled, is not congruent with the benevolent neutrality
approach, thus not appropriate in this jurisdiction. Similar to Victoriano, the
present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the
whole gamut of human conduct has different effects on the state’s interests:
some effects may be immediate and short-term while others delayed and far-
reaching. A test that would protect the interests of the state in preventing a
substantive evil, whether immediate or delayed, is therefore necessary.
However, not any interest of the state would suffice to prevail over the right to
religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all
human rights", in the words of Jefferson. This right is sacred for an invocation
of the Free Exercise Clause is an appeal to a higher sovereignty. The entire
constitutional order of limited government is premised upon an
acknowledgment of such higher sovereignty, thus the Filipinos implore the
"aid of Almighty God in order to build a just and humane society and
establish a government." As held in Sherbert, only the gravest abuses,
endangering paramount interests can limit this fundamental right. A mere
balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the
state can prevail over the fundamental right to religious liberty. The test
requires the state to carry a heavy burden, a compelling one, for to do
otherwise would allow the state to batter religion, especially the less powerful
ones until they are destroyed. In determining which shall prevail between the
state’s interest and religious liberty, reasonableness shall be the guide. The
"compelling state interest" serves the purpose of revering religious liberty
while at the same time affording protection to the paramount interests of the
state. This was the test used in Sherbert which involved conduct, i.e. refusal
to work on Saturdays. In the end, the "compelling state interest" test, by
upholding the paramount interests of the state, seeks to protect the very
state, without which, religious liberty will not be preserved. 137 (citations
omitted)
At this point, we take note of Mr. Justice Carpio’s dissent, which, while
loosely disputing the applicability of the benevolent neutrality framework and
compelling state interest test, states that "[i]t is true that a test needs to be
applied by the Court in determining the validity of a free exercise claim of
exemption as made here by Escritor." This assertion is inconsistent with the
position negating the benevolent neutrality or accommodation approach. If it
were true, indeed, that the religion clauses do not require accommodations
based on the free exercise of religion, then there would be no need for a test
to determine the validity of a free exercise claim, as any and all claims for
religious exemptions from a law of general application would fail.
Mr. Justice Carpio also asserts that "[m]aking a distinction between
permissive accommodation and mandatory accommodation is more critically
important in analyzing free exercise exemption claims because it forces the
Court to confront how far it can validly set the limits of religious liberty under
the Free Exercise Clause, rather than presenting the separation theory and
accommodation theory as opposite concepts, and then rejecting relevant and
instructive American jurisprudence (such as the Smith case) just because it
does not espouse the theory selected." He then asserts that the Smith
doctrine cannot be dismissed because it does not really espouse the strict
neutrality approach, but more of permissive accommodation.
Mr. Justice Carpio’s assertion misses the point. Precisely because the
doctrine in Smith is that only legislative accommodations are allowed under
the Free Exercise Clause, it cannot be used in determining a claim of religion
exemption directly anchored on the Free Exercise Clause. Thus, even
assuming that the Smith doctrine actually espouses the theory of
accommodation or benevolent neutrality, the accommodation is limited to the
permissive, or legislative exemptions. It, therefore, cannot be used as a test
in determining the claims of religious exemptions directly under the Free
Exercise Clause because Smith does not recognize such exemption.
Moreover, Mr. Justice Carpio’s advocacy of the Smith doctrine would
effectively render the Free Exercise protection—a fundamental right under
our Constitution—nugatory because he would deny its status as an
independent source of right.
b. The Compelling State Interest Test
As previously stated, the compelling state interest test involves a three-step
process. We explained this process in detail, by showing the questions which
must be answered in each step, viz:
…First, "[H]as the statute or government action created a burden on the free
exercise of religion?" The courts often look into the sincerity of the religious
belief, but without inquiring into the truth of the belief because the Free
Exercise Clause prohibits inquiring about its truth as held in Ballard and
Cantwell. The sincerity of the claimant’s belief is ascertained to avoid the
mere claim of religious beliefs to escape a mandatory regulation. xxx
xxx xxx xxx
Second, the court asks: "[I]s there a sufficiently compelling state interest to
justify this infringement of religious liberty?" In this step, the government has
to establish that its purposes are legitimate for the state and that they are
compelling. Government must do more than assert the objectives at risk if
exemption is given; it must precisely show how and to what extent those
objectives will be undermined if exemptions are granted. xxx
xxx xxx xxx
Third, the court asks: "[H]as the state in achieving its legitimate purposes
used the least intrusive means possible so that the free exercise is not
infringed any more than necessary to achieve the legitimate goal of the
state?" The analysis requires the state to show that the means in which it is
achieving its legitimate state objective is the least intrusive means, i.e., it has
chosen a way to achieve its legitimate state end that imposes as little as
possible on religious liberties xxx.138 [citations omitted]
Again, the application of the compelling state interest test could result to
three situations of accommodation: First, mandatory accommodation would
result if the Court finds that accommodation is required by the Free Exercise
Clause. Second, if the Court finds that the State may, but is not required to,
accommodate religious interests, permissive accommodation results. Finally,
if the Court finds that that establishment concerns prevail over potential
accommodation interests, then it must rule that the accommodation is
prohibited.
One of the central arguments in Mr. Justice Carpio’s dissent is that only
permissive accommodation can carve out an exemption from a law of
general application. He posits the view that the law should prevail in the
absence of a legislative exemption, and the Court cannot make the
accommodation or exemption.
Mr. Justice Carpio’s position is clearly not supported by Philippine
jurisprudence. The cases of American Bible Society, Ebralinag, and
Victoriano demonstrate that our application of the doctrine of benevolent
neutrality-accommodation covers not only the grant of permissive, or
legislative accommodations, but also mandatory accommodations. Thus, an
exemption from a law of general application is possible, even if anchored
directly on an invocation of the Free Exercise Clause alone, rather than a
legislative exemption.
Moreover, it should be noted that while there is no Philippine case as yet
wherein the Court granted an accommodation/exemption to a religious act
from the application of general penal laws, permissive accommodation based
on religious freedom has been granted with respect to one of the crimes
penalized under the Revised Penal Code, that of bigamy.
In the U.S. case of Reynolds v. United States,139 the U.S. Court expressly
denied to Mormons an exemption from a general federal law criminalizing
polygamy, even if it was proven that the practice constituted a religious duty
under their faith.140 In contradistinction, Philippine law accommodates the
same practice among Moslems, through a legislative act. For while the act of
marrying more than one still constitutes bigamy under the Revised Penal
Code, Article 180 of P.D. No. 1083, otherwise known as the Code of Muslim
Personal Laws of the Philippines, provides that the penal laws relative to the
crime of bigamy "shall not apply to a person married…under Muslim law."
Thus, by legislative action, accommodation is granted of a Muslim practice
which would otherwise violate a valid and general criminal law. Mr. Justice
Carpio recognized this accommodation when, in his dissent in our Decision
dated August 4, 2003 and citing Sulu Islamic Association of Masjid
Lambayong v. Malik,141 he stated that a Muslim Judge "is not criminally
liable for bigamy because Shari’a law allows a Muslim to have more than one
wife."
From the foregoing, the weakness of Mr. Justice Carpio’s "permissive-
accommodation only" advocacy in this jurisdiction becomes manifest. Having
anchored his argument on the Smith doctrine that "the guaranty of religious
liberty as embodied in the Free Exercise Clause does not require the grant of
exemptions from generally applicable laws to individuals whose religious
practice conflict with those laws," his theory is infirmed by the showing that
the benevolent neutrality approach which allows for both mandatory and
permissive accommodations was unequivocally adopted by our framers in
the Philippine Constitution, our legislature, and our jurisprudence.
Parenthetically, it should be pointed out that a "permissive accommodation-
only" stance is the antithesis to the notion that religion clauses, like the other
fundamental liberties found in the Bill or Rights, is a preferred right and an
independent source of right.
What Mr. Justice Carpio is left with is the argument, based on Smith, that the
test in Sherbert is not applicable when the law in question is a generally
applicable criminal law. Stated differently, even if Mr. Justice Carpio
conceded that there is no question that in the Philippine context,
accommodations are made, the question remains as to how far the
exemptions will be made and who would make these exemptions.
On this point, two things must be clarified: first, in relation to criminal statutes,
only the question of mandatory accommodation is uncertain, for Philippine
law and jurisprudence have, in fact, allowed legislative accommodation.
Second, the power of the Courts to grant exemptions in general (i.e., finding
that the Free Exercise Clause required the accommodation, or mandatory
accommodations) has already been decided, not just once, but twice by the
Court. Thus, the crux of the matter is whether this Court can make
exemptions as in Ebralinag and the American Bible Society, in cases
involving criminal laws of general application.
We hold that the Constitution itself mandates the Court to do so for the
following reasons.
First, as previously discussed, while the U.S. religion clauses are the
precursors to the Philippine religion clauses, the benevolent neutrality-
accommodation approach in Philippine jurisdiction is more pronounced and
given leeway than in the U.S.
Second, the whole purpose of the accommodation theory, including the
notion of mandatory accommodations, was to address the "inadvertent
burdensome effect" that an otherwise facially neutral law would have on
religious exercise. Just because the law is criminal in nature, therefore,
should not bring it out of the ambit of the Free Exercise Clause. As stated by
Justice O’Connor in her concurring opinion in Smith, "[t]here is nothing
talismanic about neutral laws of general applicability or general criminal
prohibitions, for laws neutral towards religion can coerce a person to violate
his religious conscience or intrude upon his religious duties just as effectively
as laws aimed at religion."142
Third, there is wisdom in accommodation made by the Court as this is the
recourse of minority religions who are likewise protected by the Free
Exercise Clause. Mandatory accommodations are particularly necessary to
protect adherents of minority religions from the inevitable effects of
majoritarianism, which include ignorance and indifference and overt hostility
to the minority. As stated in our Decision, dated August 4, 2003:
....In a democratic republic, laws are inevitably based on the presuppositions
of the majority, thus not infrequently, they come into conflict with the religious
scruples of those holding different world views, even in the absence of a
deliberate intent to interfere with religious practice. At times, this effect is
unavoidable as a practical matter because some laws are so necessary to
the common good that exceptions are intolerable. But in other instances, the
injury to religious conscience is so great and the advancement of public
purposes so small or incomparable that only indifference or hostility could
explain a refusal to make exemptions. Because of plural traditions, legislators
and executive officials are frequently willing to make such exemptions when
the need is brought to their attention, but this may not always be the case
when the religious practice is either unknown at the time of enactment or is
for some reason unpopular. In these cases, a constitutional interpretation
that allows accommodations prevents needless injury to the religious
consciences of those who can have an influence in the legislature; while a
constitutional interpretation that requires accommodations extends this
treatment to religious faiths that are less able to protect themselves in the
political arena.
Fourth, exemption from penal laws on account of religion is not entirely an
alien concept, nor will it be applied for the first time, as an exemption of such
nature, albeit by legislative act, has already been granted to Moslem
polygamy and the criminal law of bigamy.
Finally, we must consider the language of the Religion Clauses vis-à-vis the
other fundamental rights in the Bill of Rights. It has been noted that unlike
other fundamental rights like the right to life, liberty or property, the Religion
Clauses are stated in absolute terms, unqualified by the requirement of "due
process," "unreasonableness," or "lawful order." Only the right to free speech
is comparable in its absolute grant. Given the unequivocal and unqualified
grant couched in the language, the Court cannot simply dismiss a claim of
exemption based on the Free Exercise Clause, solely on the premise that the
law in question is a general criminal law. 143 If the burden is great and the
sincerity of the religious belief is not in question, adherence to the benevolent
neutrality-accommodation approach require that the Court make an individual
determination and not dismiss the claim outright.
At this point, we must emphasize that the adoption of the benevolent
neutrality-accommodation approach does not mean that the Court ought to
grant exemptions every time a free exercise claim comes before it. This is an
erroneous reading of the framework which the dissent of Mr. Justice Carpio
seems to entertain. Although benevolent neutrality is the lens with which the
Court ought to view religion clause cases, the interest of the state should
also be afforded utmost protection. This is precisely the purpose of the test—
to draw the line between mandatory, permissible and forbidden religious
exercise. Thus, under the framework, the Court cannot simply dismiss a
claim under the Free Exercise Clause because the conduct in question
offends a law or the orthodox view, as proposed by Mr. Justice Carpio, for
this precisely is the protection afforded by the religion clauses of the
Constitution.144 As stated in the Decision:
xxx While the Court cannot adopt a doctrinal formulation that can eliminate
the difficult questions of judgment in determining the degree of burden on
religious practice or importance of the state interest or the sufficiency of the
means adopted by the state to pursue its interest, the Court can set a
doctrine on the ideal towards which religious clause jurisprudence should be
directed. We here lay down the doctrine that in Philippine jurisdiction, we
adopt the benevolent neutrality approach not only because of its merits as
discussed above, but more importantly, because our constitutional history
and interpretation indubitably show that benevolent neutrality is the launching
pad from which the Court should take off in interpreting religion clause cases.
The ideal towards which this approach is directed is the protection of
religious liberty "not only for a minority, however small- not only for a
majority, however large but for each of us" to the greatest extent possible
within flexible constitutional limits.145
II. THE CURRENT PROCEEDINGS
We now resume from where we ended in our August 4, 2003 Decision. As
mentioned, what remained to be resolved, upon which remand was
necessary, pertained to the final task of subjecting this case to the careful
application of the compelling state interest test, i.e., determining whether
respondent is entitled to exemption, an issue which is essentially factual or
evidentiary in nature.
After the termination of further proceedings with the OCA, and with the
transmittal of the Hearing Officer’s report,146 along with the evidence
submitted by the OSG, this case is once again with us, to resolve the
penultimate question of whether respondent should be found guilty of the
administrative charge of "disgraceful and immoral conduct." It is at this point
then that we examine the report and documents submitted by the hearing
officer of this case, and apply the three-step process of the compelling state
interest test based on the evidence presented by the parties, especially the
government.
On the sincerity of religious belief, the Solicitor General categorically
concedes that the sincerity and centrality of respondent’s claimed religious
belief and practice are beyond serious doubt.147 Thus, having previously
established the preliminary conditions required by the compelling state
interest test, i.e., that a law or government practice inhibits the free exercise
of respondent’s religious beliefs, and there being no doubt as to the sincerity
and centrality of her faith to claim the exemption based on the free exercise
clause, the burden shifted to the government to demonstrate that the law or
practice justifies a compelling secular objective and that it is the least
restrictive means of achieving that objective.
A look at the evidence that the OSG has presented fails to demonstrate "the
gravest abuses, endangering paramount interests" which could limit or
override respondent’s fundamental right to religious freedom. Neither did the
government exert any effort to show that the means it seeks to achieve its
legitimate state objective is the least intrusive means.
The OSG merely offered the following as exhibits and their purposes:
1. Exhibit "A-OSG" and submarking — The September 30, 2003 Letter to the
OSG of Bro. Raymond B. Leach, Legal Representative of the Watch Tower
Bible and Tract Society of the Philippines, Inc.
Purpose: To show that the OSG exerted efforts to examine the sincerity and
centrality of respondent’s claimed religious belief and practice.
2. Exhibit "B-OSG" and submarking — The duly notarized certification dated
September 30, 2003 issued and signed by Bro. Leach.
PURPOSES: (1) To substantiate the sincerity and centrality of respondent’s
claimed religious belief and practice; and (2) to prove that the Declaration of
Pledging Faithfulness, being a purely internal arrangement within the
congregation of the Jehovah’s Witnesses, cannot be a source of any legal
protection for respondent.
In its Memorandum-In-Intervention, the OSG contends that the State has a
compelling interest to override respondent’s claimed religious belief and
practice, in order to protect marriage and the family as basic social
institutions. The Solicitor General, quoting the Constitution148 and the
Family Code,149 argues that marriage and the family are so crucial to the
stability and peace of the nation that the conjugal arrangement embraced in
the Declaration of Pledging Faithfulness should not be recognized or given
effect, as "it is utterly destructive of the avowed institutions of marriage and
the family for it reduces to a mockery these legally exalted and socially
significant institutions which in their purity demand respect and dignity."150
Parenthetically, the dissenting opinion of Mr. Justice Carpio echoes the
Solicitor General in so far as he asserts that the State has a compelling
interest in the preservation of marriage and the family as basic social
institutions, which is ultimately the public policy underlying the criminal
sanctions against concubinage and bigamy. He also argues that in
dismissing the administrative complaint against respondent, "the majority
opinion effectively condones and accords a semblance of legitimacy to her
patently unlawful cohabitation..." and "facilitates the circumvention of the
Revised Penal Code." According to Mr. Justice Carpio, by choosing to turn a
blind eye to respondent’s criminal conduct, the majority is in fact recognizing
a practice, custom or agreement that subverts marriage. He argues in a
similar fashion as regards the state’s interest in the sound administration of
justice.
There has never been any question that the state has an interest in
protecting the institutions of marriage and the family, or even in the sound
administration of justice. Indeed, the provisions by which respondent’s
relationship is said to have impinged, e.g., Book V, Title I, Chapter VI, Sec.
46(b)(5) of the Revised Administrative Code, Articles 334 and 349 of the
Revised Penal Code, and even the provisions on marriage and family in the
Civil Code and Family Code, all clearly demonstrate the State’s need to
protect these secular interests.
Be that as it may, the free exercise of religion is specifically articulated as
one of the fundamental rights in our Constitution. It is a fundamental right that
enjoys a preferred position in the hierarchy of rights — "the most inalienable
and sacred of human rights," in the words of Jefferson. Hence, it is not
enough to contend that the state’s interest is important, because our
Constitution itself holds the right to religious freedom sacred. The State must
articulate in specific terms the state interest involved in preventing the
exemption, which must be compelling, for only the gravest abuses,
endangering paramount interests can limit the fundamental right to religious
freedom. To rule otherwise would be to emasculate the Free Exercise Clause
as a source of right by itself.
Thus, it is not the State’s broad interest in "protecting the institutions of
marriage and the family," or even "in the sound administration of justice" that
must be weighed against respondent’s claim, but the State’s narrow interest
in refusing to make an exception for the cohabitation which respondent’s faith
finds moral. In other words, the government must do more than assert the
objectives at risk if exemption is given; it must precisely show how and to
what extent those objectives will be undermined if exemptions are
granted.151 This, the Solicitor General failed to do.
To paraphrase Justice Blackmun’s application of the compelling interest test,
the State’s interest in enforcing its prohibition, in order to be sufficiently
compelling to outweigh a free exercise claim, cannot be merely abstract or
symbolic. The State cannot plausibly assert that unbending application of a
criminal prohibition is essential to fulfill any compelling interest, if it does not,
in fact, attempt to enforce that prohibition. In the case at bar, the State has
not evinced any concrete interest in enforcing the concubinage or bigamy
charges against respondent or her partner. The State has never sought to
prosecute respondent nor her partner. The State’s asserted interest thus
amounts only to the symbolic preservation of an unenforced prohibition.
Incidentally, as echoes of the words of Messrs. J. Bellosillo and Vitug, in their
concurring opinions in our Decision, dated August 4, 2003, to deny the
exemption would effectively break up "an otherwise ideal union of two
individuals who have managed to stay together as husband and wife
[approximately twenty-five years]" and have the effect of defeating the very
substance of marriage and the family.
The Solicitor General also argued against respondent’s religious freedom on
the basis of morality, i.e., that "the conjugal arrangement of respondent and
her live-in partner should not be condoned because adulterous relationships
are constantly frowned upon by society";152 and "that State laws on
marriage, which are moral in nature, take clear precedence over the religious
beliefs and practices of any church, religious sect or denomination on
marriage. Verily, religious beliefs and practices should not be permitted to
override laws relating to public policy such as those of marriage."153
The above arguments are mere reiterations of the arguments raised by Mme.
Justice Ynares-Santiago in her dissenting opinion to our Decision dated
August 4, 2003, which she offers again in toto. These arguments have
already been addressed in our decision dated August 4, 2003.154 In said
Decision, we noted that Mme. Justice Ynares-Santiago’s dissenting opinion
dwelt more on the standards of morality, without categorically holding that
religious freedom is not in issue.155 We, therefore, went into a discussion on
morality, in order to show that:
(a) The public morality expressed in the law is necessarily secular for in our
constitutional order, the religion clauses prohibit the state from establishing a
religion, including the morality it sanctions.156 Thus, when the law speaks of
"immorality" in the Civil Service Law or "immoral" in the Code of Professional
Responsibility for lawyers,157 or "public morals" in the Revised Penal
Code,158 or "morals" in the New Civil Code,159 or "moral character" in the
Constitution,160 the distinction between public and secular morality on the
one hand, and religious morality, on the other, should be kept in mind;161
(b) Although the morality contemplated by laws is secular, benevolent
neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests;162
(c) The jurisdiction of the Court extends only to public and secular morality.
Whatever pronouncement the Court makes in the case at bar should be
understood only in this realm where it has authority.163
(d) Having distinguished between public and secular morality and religious
morality, the more difficult task is determining which immoral acts under this
public and secular morality fall under the phrase "disgraceful and immoral
conduct" for which a government employee may be held administratively
liable.164 Only one conduct is in question before this Court, i.e., the conjugal
arrangement of a government employee whose partner is legally married to
another which Philippine law and jurisprudence consider both immoral and
illegal.165
(e) While there is no dispute that under settled jurisprudence, respondent’s
conduct constitutes "disgraceful and immoral conduct," the case at bar
involves the defense of religious freedom, therefore none of the cases cited
by Mme. Justice Ynares-Santiago apply.166 There is no jurisprudence in
Philippine jurisdiction holding that the defense of religious freedom of a
member of the Jehovah’s Witnesses under the same circumstances as
respondent will not prevail over the laws on adultery, concubinage or some
other law. We cannot summarily conclude therefore
that her conduct is likewise so "odious" and "barbaric" as to be immoral and
punishable by law.167
Again, we note the arguments raised by Mr. Justice Carpio with respect to
charging respondent with conduct prejudicial to the best interest of the
service, and we reiterate that the dissent offends due process as respondent
was not given an opportunity to defend herself against the charge of "conduct
prejudicial to the best interest of the service." Indeed, there is no evidence of
the alleged prejudice to the best interest of the service.168
Mr. Justice Carpio’s slippery slope argument, on the other hand, is non-
sequitur. If the Court grants respondent exemption from the laws which
respondent Escritor has been charged to have violated, the exemption would
not apply to Catholics who have secured church annulment of their marriage
even without a final annulment from a civil court. First, unlike Jehovah’s
Witnesses, the Catholic faith considers cohabitation without marriage as
immoral. Second, but more important, the Jehovah’s Witnesses have
standards and procedures which must be followed before cohabitation
without marriage is given the blessing of the congregation. This includes an
investigative process whereby the elders of the congregation verify the
circumstances of the declarants. Also, the Declaration is not a blanket
authority to cohabit without marriage because once all legal impediments for
the couple are lifted, the validity of the Declaration ceases, and the
congregation requires that the couple legalize their union.
At bottom, the slippery slope argument of Mr. Justice Carpio is speculative.
Nevertheless, insofar as he raises the issue of equality among religions, we
look to the words of the Religion Clauses, which clearly single out religion for
both a benefit and a burden: "No law shall be made respecting an
establishment of religion, or prohibiting the free exercise thereof…" On its
face, the language grants a unique advantage to religious conduct, protecting
it from governmental imposition; and imposes a unique disadvantage,
preventing the government from supporting it. To understand this as a
provision which puts religion on an equal footing with other bases for action
seems to be a curious reading. There are no "free exercise" of
"establishment" provisions for science, sports, philosophy, or family relations.
The language itself thus seems to answer whether we have a paradigm of
equality or liberty; the language of the Clause is clearly in the form of a grant
of liberty. 169
In this case, the government’s conduct may appear innocent and
nondiscriminatory but in effect, it is oppressive to the minority. In the
interpretation of a document, such as the Bill of Rights, designed to protect
the minority from the majority, the question of which perspective is
appropriate would seem easy to answer. Moreover, the text, history,
structure and values implicated in the interpretation of the clauses, all point
toward this perspective. Thus, substantive equality—a reading of the religion
clauses which leaves both politically dominant and the politically weak
religious groups equal in their inability to use the government (law) to assist
their own religion or burden others—makes the most sense in the
interpretation of the Bill of Rights, a document designed to protect minorities
and individuals from mobocracy in a democracy (the majority or a coalition of
minorities). 170
As previously discussed, our Constitution adheres to the benevolent
neutrality approach that gives room for accommodation of religious exercises
as required by the Free Exercise Clause.171 Thus, in arguing that
respondent should be held administratively liable as the arrangement she
had was "illegal per se because, by universally recognized standards, it is
inherently or by its very nature bad, improper, immoral and contrary to good
conscience,"172 the Solicitor General failed to appreciate that benevolent
neutrality could allow for accommodation of morality based on religion,
provided it does not offend compelling state interests.173
Finally, even assuming that the OSG has proved a compelling state interest,
it has to further demonstrate that the state has used the least intrusive
means possible so that the free exercise is not infringed any more than
necessary to achieve the legitimate goal of the state, i.e., it has chosen a
way to achieve its legitimate state end that imposes as little as possible on
religious liberties.174 Again, the Solicitor General utterly failed to prove this
element of the test. Other than the two documents offered as cited above
which established the sincerity of respondent’s religious belief and the fact
that the agreement was an internal arrangement within respondent’s
congregation, no iota of evidence was offered. In fact, the records are bereft
of even a feeble attempt to procure any such evidence to show that the
means the state adopted in pursuing this compelling interest is the least
restrictive to respondent’s religious freedom.
Thus, we find that in this particular case and under these distinct
circumstances, respondent Escritor’s conjugal arrangement cannot be
penalized as she has made out a case for exemption from the law based on
her fundamental right to freedom of religion. The Court recognizes that state
interests must be upheld in order that freedoms - including religious freedom
- may be enjoyed. In the area of religious exercise as a preferred freedom,
however, man stands accountable to an authority higher than the state, and
so the state interest sought to be upheld must be so compelling that its
violation will erode the very fabric of the state that will also protect the
freedom. In the absence of a showing that such state interest exists, man
must be allowed to subscribe to the Infinite.
IN VIEW WHEREOF, the instant administrative complaint is dismissed.
SO ORDERED.
West Va Board of Education vs. Barnette [319 U.S. 624 (1943)]
Facts of the case
In 1942, the West Virginia Board of Education required public schools to
include salutes to the flag by teachers and students as a mandatory part of
school activities. The children in a family of Jehovah's Witnesses refused to
perform the salute and were sent home from school for non-compliance.
They were also threatened with reform schools used for criminally active
children, and their parents faced prosecutions for causing juvenile
delinquency.
Question
Did the compulsory flag-salute for public schoolchildren violate the First
Amendment?
In a 6-to-3 decision, the Court overruled its decision in Minersville School
District v. Gobitis and held that compelling public schoolchildren to salute the
flag was unconstitutional. In an opinion written by Robert Houghwout
Jackson, the Court found that the First Amendment cannot enforce a
unanimity of opinion on any topic, and national symbols like the flag should
not receive a level of deference that trumps constitutional protections. He
argued that curtailing or eliminating dissent was an improper and ineffective
way of generating unity.
Justices Black and Douglas concurred to repudiate their earlier opinions in
First Amendment decisions.
Justice Frankfurter dissented. He believed the Court was exceeding the
scope of the judicial role and was taking on a legislative function in striking
down the law.
Ebralinag vs. Division Superintendent March 1, 1993)
These two special civil actions for certiorari, Mandamus and Prohibition were
consolidated because they raise essentially the same issue: whether school
children who are members or a religious sect known as Jehovah's Witnesses
may be expelled from school (both public and private), for refusing, on
account of their religious beliefs, to take part in the flag ceremony which
includes playing (by a band) or singing the Philippine national anthem,
saluting the Philippine flag and reciting the patriotic pledge.
In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of
Schools of Cebu and Manuel F. Biongcog, Cebu District Supervisor," the
petitioners are 43 high school and elementary school students in the towns of
Daan Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. All
minors, they are assisted by their parents who belong to the religious group
known as Jehovah's Witnesses which claims some 100,000 "baptized
publishers" in the Philippines.
In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools
of Cebu and Antonio A. Sangutan," the petitioners are 25 high school and
grade school students enrolled in public schools in Asturias, Cebu, whose
parents are Jehovah's Witnesses. Both petitions were prepared by the same
counsel, Attorney Felino M. Ganal.
All the petitioners in these two cases were expelled from their classes by the
public school authorities in Cebu for refusing to salute the flag, sing the
national anthem and recite the patriotic pledge as required by Republic Act
No. 1265 of July 11, 1955, and by Department Order No. 8 dated July 21,
1955 of the Department of Education, Culture and Sports (DECS) making the
flag ceremony compulsory in all educational institutions. Republic Act No.
1265 provides:
Sec. 1. All educational institutions shall henceforth observe daily flag
ceremony, which shall be simple and dignified and shall include the playing
or singing of the Philippine National anthem.
Sec. 2. The Secretary of Education is hereby authorized and directed to
issue or cause to be issued rules and regulations for the proper conduct of
the flag ceremony herein provided.
Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act
and in accordance with rules and regulations issued by the Secretary of
Education, after proper notice and hearing, shall subject the educational
institution concerned and its head to public censure as an administrative
punishment which shall be published at least once in a newspaper of general
circulation.
In case of failure to observe for the second time the flag-ceremony provided
by this Act, the Secretary of Education, after proper notice and hearing, shall
cause the cancellation of the recognition or permit of the private educational
institution responsible for such failure.
The implementing rules and regulations in Department Order No. 8 provide:
RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY
IN ALL EDUCATIONAL INSTITUTIONS.
1. The Filipino Flag shall be displayed by all educational institutions, public
and private, every school day throughout the year. It shall be raised at
sunrise and lowered at sunset. The flag-staff must be straight, slightly and
gently tapering at the end, and of such height as would give the Flag a
commanding position in front of the building or within the compound.
2. Every public and private educational institution shall hold a flag-raising
ceremony every morning except when it is raining, in which event the
ceremony may be conducted indoors in the best way possible. A retreat shall
be held in the afternoon of the same day. The flag-raising ceremony in the
morning shall be conducted in the following manner:
a. Pupils and teachers or students and faculty members who are in school
and its premises shall assemble in formation facing the flag. At command,
books shall be put away or held in the left hand and everybody shall come to
attention. Those with hats shall uncover. No one shall enter or leave the
school grounds during the ceremony.
b. The assembly shall sing the Philippine National Anthem accompanied by
the school band or without the accompaniment if it has none; or the anthem
may be played by the school band alone. At the first note of the Anthem, the
flag shall be raised briskly. While the flag is being raised, all persons present
shall stand at attention and execute a salute. Boys and men with hats shall
salute by placing the hat over the heart. Those without hat may stand with
their arms and hands down and straight at the sides. Those in military or Boy
Scout uniform shall give the salute prescribed by their regulations. The salute
shall be started as the Flag rises, and completed upon last note of the
anthem.
c. Immediately following the singing of the Anthem, the assembly shall recite
in unison the following patriotic pledge (English or vernacular version), which
may bring the ceremony to a close. This is required of all public schools and
of private schools which are intended for Filipino students or whose
population is predominantly Filipino.
English Version
I love the Philippines.
It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.
xxx xxx xxx
Jehovah's Witnesses admittedly teach their children not to salute the flag,
sing the national anthem, and recite the patriotic pledge for they believe that
those are "acts of worship" or "religious devotion" (p. 10, Rollo) which they
"cannot conscientiously give . . . to anyone or anything except God" (p. 8,
Rollo). They feel bound by the Bible's command to "guard ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol
representing the State (p. 10, Rollo). They think the action of the local
authorities in compelling the flag salute and pledge transcends constitutional
limitations on the State's power and invades the sphere of the intellect and
spirit which the Constitution protect against official control (p. 10, Rollo).
This is not the first time that the question, of whether the children of
Jehovah's Witnesses may be expelled from school for disobedience of R.A.
No. 1265 and Department Order No. 8, series of 1955, has been raised
before this Court.
The same issue was raised in 1959 in Gerona, et al. vs. Secretary of
Education, et al., 106 Phil. 2 (1959) and Balbuna, et al. vs. Secretary of
Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the
expulsion of the students, thus:
The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and of
freedom and liberty which it and the Constitution guarantee and protect.
Under a system of complete separation of church and state in the
government, the flag is utterly devoid of any religious significance. Saluting
the flag does not involve any religious ceremony. The flag salute is no more
a religious ceremony than the taking of an oath of office by a public official or
by a candidate for admission to the bar.
In requiring school pupils to participate in the flag salute, the State thru the
Secretary of Education is not imposing a religion or religious belief or a
religious test on said students. It is merely enforcing a
non-discriminatory school regulation applicable to all alike whether Christian,
Moslem, Protestant or Jehovah's Witness. The State is merely carrying out
the duty imposed upon it by the Constitution which charges it with
supervision over and regulation of all educational institutions, to establish
and maintain a complete and adequate system of public education, and see
to it that all schools aim to develop, among other things, civic conscience and
teach the duties of citizenship.
The children of Jehovah's Witnesses cannot be exempted from participation
in the flag ceremony. They have no valid right to such exemption. Moreover,
exemption to the requirement will disrupt school discipline and demoralize
the rest of the school population which by far constitutes the great majority.
The freedom of religious belief guaranteed by the Constitution does not and
cannot mean exemption from or non-compliance with reasonable and non-
discriminatory laws, rules and regulations promulgated by competent
authority. (pp. 2-3).
Gerona was reiterated in Balbuna, as follows:
The Secretary of Education was duly authorized by the Legislature thru
Republic Act 1265 to promulgate said Department Order, and its provisions
requiring the observance of the flag salute, not being a religious ceremony
but an act and profession of love and allegiance and pledge of loyalty to the
fatherland which the flag stands for, does not violate the constitutional
provision on freedom of religion. (Balbuna, et al. vs. Secretary of Education,
et al., 110 Phil. 150).
Republic Act No. 1265 and the ruling in Gerona have been incorporated in
Section 28, Title VI, Chapter 9 of the Administrative Code of 1987 (Executive
Order No. 292) which took effect on September 21, 1988 (one year after its
publication in the Official Gazette, Vol. 63, No. 38 of September 21, 1987).
Paragraph 5 of Section 28 gives legislative cachet to the ruling in Gerona,
thus:
5. Any teacher or student or pupil who refuses to join or participate in the flag
ceremony may be dismissed after due investigation.
However, the petitioners herein have not raised in issue the constitutionality
of the above provision of the new Administrative Code of 1987. They have
targeted only Republic Act No. 1265 and the implementing orders of the
DECS.
In 1989, the DECS Regional Office in Cebu received complaints about
teachers and pupils belonging to the Jehovah's Witnesses, and enrolled in
various public and private schools, who refused to sing the Philippine
national anthem, salute the Philippine flag and recite the patriotic pledge.
Division Superintendent of Schools, Susana B. Cabahug of the Cebu
Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division
Superintendent, recalling this Court's decision in Gerona, issued Division
Memorandum No. 108, dated November 17, 1989 (pp. 147-148, Rollo of
G.R. No. 95770) directing District Supervisors, High School Principals and
Heads of Private Educational institutions as follows:
1. Reports reaching this Office disclose that there are a number of teachers,
pupils, students, and school employees in public schools who refuse to
salute the Philippine flag or participate in the daily flag ceremony because of
some religious belief.
2. Such refusal not only undermines Republic Act No. 1265 and the DECS
Department Order No. 8, Series of 1955 (Implementing Rules and
Regulations) but also strikes at the heart of the DECS sustained effort to
inculcate patriotism and nationalism.
3. Let it be stressed that any belief that considers the flag as an image is not
in any manner whatever a justification for not saluting the Philippine flag or
not participating in flag ceremony. Thus, the Supreme Court of the Philippine
says:
The flag is not an image but a symbol of the Republic of the Philippines, an
emblem of national sovereignty, of national unity and cohesion and freedom
and liberty which it and the Constitution guarantee and protect. (Gerona, et
al. vs. Sec. of Education, et al., 106 Phil. 11.)
4. As regards the claim for freedom of belief, which an objectionist may
advance, the Supreme Court asserts:
But between the freedom of belief and the exercise of said belief, there is
quite a stretch of road to travel. If the exercise of said religious belief clashes
with the established institutions of society and with the law, then the former
must yield and give way to the latter. (Gerona, et al. vs. Sec. of Education, et
al., 106 Phil. 11.)
5. Accordingly, teachers and school employees who choose not to participate
in the daily flag ceremony or to obey the flag salute regulation spelled out in
Department Order No. 8, Series of 1955, shall be considered removed from
the service after due process.
6. In strong language about pupils and students who do the same the
Supreme Court has this to say:
If they choose not to obey the flag salute regulation, they merely lost the
benefits of public education being maintained at the expense of their fellow
Citizens, nothing more. According to a popular expression, they could take it
or leave it! Having elected not to comply with the regulation about the flag
salute they forfeited their right to attend public schools. (Gerona, et al. vs.
Sec. of Education, et al., 106 Phil. 15.)
7. School administrators shall therefore submit to this Office a report on
those who choose not to participate in flag ceremony or salute the Philippine
flag. (pp. 147-148, Rollo of G.R. No. 95770; Emphasis supplied).
Cebu school officials resorted to a number of ways to persuade the children
of Jehovah's Witnesses to obey the memorandum. In the Buenavista
Elementary School, the children were asked to sign an Agreement
(Kasabutan) in the Cebuano dialect promising to sing the national anthem,
place their right hand on their breast until the end of the song and recite the
pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and
p. 48, Rollo of G.R. No. 95887), but they refused to sign the "Kasabutan" (p.
20, Rollo of G.R. No. 95770).
In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A.
Sangutan, met with the Jehovah's Witnesses' parents, as disclosed in his
letter of October 17, 1990, excerpts from which reveal the following:
After two (2) fruitless confrontation meetings with the Jehovah's Witnesses'
parents on October 2, 1990 and yesterday due to their firm stand not to
salute the flag of the Republic of the Philippines during Flag Ceremony and
other occasions, as mandated by law specifically Republic Act No. 1265, this
Office hereby orders the dropping from the list in the School Register (BPS
Form I) of all teachers, all Jehovah Witness pupils from Grade I up to Grade
VI effective today.
xxx xxx xxx
This order is in compliance with Division Memorandum No. 108 s. 1989
dated November 17, 1989 by virtue of Department Order No. 8 s. 1955 dated
July 21, 1955 in accordance with Republic Act No. 1265 and Supreme Court
Decision of a case "Genaro Gerona, et al., Petitioners and Appellants vs. The
Honorable Secretary of Education, et al., Respondents and Appellees' dated
August 12, 1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)
In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog,
ordered the "dropping from the rolls" of students who "opted to follow their
religious belief which is against the Flag Salute Law" on the theory that "they
forfeited their right to attend public schools." (p. 47, Rollo of G.R. No. 95770.)
1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.
Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo
Elementary School with the information that this office is sad to order the
dropping of Jeremias Diamos and Jeaneth Diamos, Grades III and IV pupils
respectively from the roll since they opted to follow their religious belief which
is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of
1955, having elected not to comply with the regulation about the flag salute
they forfeited their right to attend public schools (Gerona, et al. vs. Sec. of
Education, et al., 106 Philippines 15). However, should they change their
mind to respect and follow the Flag Salute Law they may be re-accepted.
(Sgd.) MANUEL F. BIONGCOG
District Supervisor
(p. 47, Rollo of G.R. No. 95770.)
The expulsion as of October 23, 1990 of the 43 petitioning students of the
Daanbantayan National High School, Agujo Elementary School, Calape
Barangay National High School, Pinamungajan Provincial High School,
Tabuelan Central School, Canasojan Elementary School, Liboron
Elementary School, Tagaytay Primary School, San Juan Primary School and
Northern Central Elementary School of San Fernando, Cebu, upon order of
then Acting Division Superintendent Marcelo Bacalso, prompted some
Jehovah's Witnesses in Cebu to appeal to the Secretary of Education Isidro
Cariño but the latter did not answer their letter. (p. 21, Rollo.)
The petition in G.R. No. 95887 was filed by 25 students who were similarly
expelled because Dr. Pablo Antopina, who succeeded Susana Cabahug as
Division Superintendent of Schools, would not recall the expulsion orders of
his predecessor. Instead, he verbally caused the expulsion of some more
children of Jehovah's Witnesses.
On October 31, 1990, the students and their parents filed these special civil
actions for Mandamus, Certiorari and Prohibition alleging that the public
respondents acted without or in excess of their jurisdiction and with grave
abuse of discretion — (1) in ordering their expulsion without prior notice and
hearing, hence, in violation of their right to due process, their right to free
public education, and their right to freedom of speech, religion and worship
(p. 23, Rollo). The petitioners pray that:
c. Judgment be rendered:
i. declaring null and void the expulsion or dropping from the rolls of herein
petitioners from their respective schools;
ii. prohibiting and enjoining respondent from further barring the petitioners
from their classes or otherwise implementing the expulsion ordered on
petitioners; and
iii. compelling the respondent and all persons acting for him to admit and
order the re-admission of petitioners to their respective schools. (p. 41,
Rollo.)
and that pending the determination of the merits of these cases, a temporary
restraining order be issued enjoining the respondents from enforcing the
expulsion of the petitioners and to re-admit them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining order and a
writ of preliminary mandatory injunction commanding the respondents to
immediately re-admit the petitioners to their respective classes until further
orders from this Court (p. 57, Rollo).
The Court also ordered the Secretary of Education and Cebu District
Supervisor Manuel F. Biongcog to be impleaded as respondents in these
cases.
On May 13, 1991, the Solicitor General filed a consolidated comment to the
petitions (p. 98, Rollo) defending the expulsion orders issued by the public
respondents on the grounds that:
1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious
and anti-social school children and consequently disloyal and mutant Filipino
citizens.
2. There are no new and valid grounds to sustain the charges of the
Jehovah's Witnesses that the DECS' rules and regulations on the flag salute
ceremonies are violative of their freedom of religion and worship.
3. The flag salute is devoid of any religious significance; instead, it inculcates
respect and love of country, for which the flag stands.
4. The State's compelling interests being pursued by the DECS' lawful
regulations in question do not warrant exemption of the school children of the
Jehovah's Witnesses from the flag salute ceremonies on the basis of their
own self-perceived religious convictions.
5. The issue is not freedom of speech but enforcement of law and
jurisprudence.
6. State's power to regulate repressive and unlawful religious practices
justified, besides having scriptural basis.
7. The penalty of expulsion is legal and valid, more so with the enactment of
Executive Order No. 292 (The Administrative Code of 1987).
Our task here is extremely difficult, for the 30-year old decision of this court in
Gerona upholding the flag salute law and approving the expulsion of students
who refuse to obey it, is not lightly to be trifled with.
It is somewhat ironic however, that after the Gerona ruling had received
legislative cachet by its in corporation in the Administrative Code of 1987, the
present Court believes that the time has come to re-examine it. The idea that
one may be compelled to salute the flag, sing the national anthem, and recite
the patriotic pledge, during a flag ceremony on pain of being dismissed from
one's job or of being expelled from school, is alien to the conscience of the
present generation of Filipinos who cut their teeth on the Bill of Rights which
guarantees their rights to free speech ** and the free exercise of religious
profession and worship (Sec. 5, Article III, 1987 Constitution; Article IV,
Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).
Religious freedom is a fundamental right which is entitled to the highest
priority and the amplest protection among human rights, for it involves the
relationship of man to his Creator (Chief Justice Enrique M. Fernando's
separate opinion in German vs. Barangan, 135 SCRA 514, 530-531).
The right to religious profession and worship has a two-fold aspect, vis.,
freedom to believe and freedom to act on one's belief. The first is absolute as
long as the belief is confined within the realm of thought. The second is
subject to regulation where the belief is translated into external acts that
affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).
Petitioners stress, however, that while they do not take part in the
compulsory flag ceremony, they do not engage in "external acts" or behavior
that would offend their countrymen who believe in expressing their love of
country through the observance of the flag ceremony. They quietly stand at
attention during the flag ceremony to show their respect for the right of those
who choose to participate in the solemn proceedings (Annex F, Rollo of G.R.
No. 95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not
engage in disruptive behavior, there is no warrant for their expulsion.
The sole justification for a prior restraint or limitation on the exercise of
religious freedom (according to the late Chief Justice Claudio Teehankee in
his dissenting opinion in German vs. Barangan, 135 SCRA 514, 517) is the
existence of a grave and present danger of a character both grave and
imminent, of a serious evil to public safety, public morals, public health or any
other legitimate public interest, that the State has a right (and duty) to
prevent." Absent such a threat to public safety, the expulsion of the
petitioners from the schools is not justified.
The situation that the Court directly predicted in Gerona that:
The flag ceremony will become a thing of the past or perhaps conducted with
very few participants, and the time will come when we would have citizens
untaught and uninculcated in and not imbued with reverence for the flag and
love of country, admiration for national heroes, and patriotism — a pathetic,
even tragic situation, and all because a small portion of the school population
imposed its will, demanded and was granted an exemption. (Gerona, p. 24.)
has not come to pass. We are not persuaded that by exempting the
Jehovah's Witnesses from saluting the flag, singing the national anthem and
reciting the patriotic pledge, this religious group which admittedly comprises
a "small portion of the school population" will shake up our part of the globe
and suddenly produce a nation "untaught and uninculcated in and unimbued
with reverence for the flag, patriotism, love of country and admiration for
national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all,
what the petitioners seek only is exemption from the flag ceremony, not
exclusion from the public schools where they may study the Constitution, the
democratic way of life and form of government, and learn not only the arts,
sciences, Philippine history and culture but also receive training for a
vocation of profession and be taught the virtues of "patriotism, respect for
human rights, appreciation for national heroes, the rights and duties of
citizenship, and moral and spiritual values (Sec. 3[2], Art. XIV, 1987
Constitution) as part of the curricula. Expelling or banning the petitioners
from Philippine schools will bring about the very situation that this Court had
feared in Gerona. Forcing a small religious group, through the iron hand of
the law, to participate in a ceremony that violates their religious beliefs, will
hardly be conducive to love of country or respect for dully constituted
authorities.
As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624
(1943):
. . . To believe that patriotism will not flourish if patriotic ceremonies are
voluntary and spontaneous instead of a compulsory routine is to make an
unflattering estimate of the appeal of our institutions to free minds. . . . When
they [diversity] are so harmless to others or to the State as those we deal
with here, the price is not too great. But freedom to differ is not limited to
things that do not matter much. That would be a mere shadow of freedom.
The test of its substance is the right to differ as to things that touch the heart
of the existing order.
Furthermore, let it be noted that coerced unity and loyalty even to the
country, . . . — assuming that such unity and loyalty can be attained through
coercion — is not a goal that is constitutionally obtainable at the expense of
religious liberty. A desirable end cannot be promoted by prohibited means.
(Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)
Moreover, the expulsion of members of Jehovah's Witnesses from the
schools where they are enrolled will violate their right as Philippine citizens,
under the 1987 Constitution, to receive free education, for it is the duty of the
State to "protect and promote the right of all citizens to quality education . . .
and to make such education accessible to all (Sec. 1, Art. XIV).
In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we
upheld the exemption of members of the Iglesia ni Cristo, from the coverage
of a closed shop agreement between their employer and a union because it
would violate the teaching of their church not to join any labor group:
. . . It is certain that not every conscience can be accommodated by all the
laws of the land; but when general laws conflict with scruples of conscience,
exemptions ought to be granted unless some "compelling state interests"
intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83 S.
Ct. 1790.)
We hold that a similar exemption may be accorded to the Jehovah's
Witnesses with regard to the observance of the flag ceremony out of respect
for their religious beliefs, however "bizarre" those beliefs may seem to others.
Nevertheless, their right not to participate in the flag ceremony does not give
them a right to disrupt such patriotic exercises. Paraphrasing the warning
cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the
highest regard must be afforded their right to the free exercise of their
religion, "this should not be taken to mean that school authorities are
powerless to discipline them" if they should commit breaches of the peace by
actions that offend the sensibilities, both religious and patriotic, of other
persons. If they quietly stand at attention during the flag ceremony while their
classmates and teachers salute the flag, sing the national anthem and recite
the patriotic pledge, we do not see how such conduct may possibly disturb
the peace, or pose "a grave and present danger of a serious evil to public
safety, public morals, public health or any other legitimate public interest that
the State has a right (and duty) to prevent (German vs. Barangan, 135 SCRA
514, 517).
Before we close this decision, it is appropriate to recall the Japanese
occupation of our country in 1942-1944 when every Filipino, regardless of
religious persuasion, in fear of the invader, saluted the Japanese flag and
bowed before every Japanese soldier. Perhaps, if petitioners had lived
through that dark period of our history, they would not quibble now about
saluting the Philippine flag. For when liberation came in 1944 and our own
flag was proudly hoisted aloft again, it was a beautiful sight to behold that
made our hearts pound with pride and joy over the newly-regained freedom
and sovereignty of our nation.
Although the Court upholds in this decision the petitioners' right under our
Constitution to refuse to salute the Philippine flag on account of their religious
beliefs, we hope, nevertheless, that another foreign invasion of our country
will not be necessary in order for our countrymen to appreciate and cherish
the Philippine flag.
WHEREFORE, the petition for certiorari and prohibition is GRANTED. The
expulsion orders issued by the public respondents against the petitioners are
hereby ANNULLED AND SET ASIDE. The temporary restraining order which
was issued by this Court is hereby made permanent.
SO ORDERED.
American Bible Society vs. City of Manila [181 Phil. 386 (1957)]
Plaintiff-appellant is a foreign, non-stock, non-profit, religious, missionary
corporation duly registered and doing business in the Philippines through its
Philippine agency established in Manila in November, 1898, with its principal
office at 636 Isaac Peral in said City. The defendant appellee is a municipal
corporation with powers that are to be exercised in conformity with the
provisions of Republic Act No. 409, known as the Revised Charter of the City
of Manila.
In the course of its ministry, plaintiff's Philippine agency has been distributing
and selling bibles and/or gospel portions thereof (except during the Japanese
occupation) throughout the Philippines and translating the same into several
Philippine dialects. On May 29 1953, the acting City Treasurer of the City of
Manila informed plaintiff that it was conducting the business of general
merchandise since November, 1945, without providing itself with the
necessary Mayor's permit and municipal license, in violation of Ordinance
No. 3000, as amended, and Ordinances Nos. 2529, 3028 and 3364, and
required plaintiff to secure, within three days, the corresponding permit and
license fees, together with compromise covering the period from the 4th
quarter of 1945 to the 2nd quarter of 1953, in the total sum of P5,821.45
(Annex A).
Plaintiff protested against this requirement, but the City Treasurer demanded
that plaintiff deposit and pay under protest the sum of P5,891.45, if suit was
to be taken in court regarding the same (Annex B). To avoid the closing of its
business as well as further fines and penalties in the premises on October
24, 1953, plaintiff paid to the defendant under protest the said permit and
license fees in the aforementioned amount, giving at the same time notice to
the City Treasurer that suit would be taken in court to question the legality of
the ordinances under which, the said fees were being collected (Annex C),
which was done on the same date by filing the complaint that gave rise to
this action. In its complaint plaintiff prays that judgment be rendered
declaring the said Municipal Ordinance No. 3000, as amended, and
Ordinances Nos. 2529, 3028 and 3364 illegal and unconstitutional, and that
the defendant be ordered to refund to the plaintiff the sum of P5,891.45 paid
under protest, together with legal interest thereon, and the costs, plaintiff
further praying for such other relief and remedy as the court may deem just
equitable.
Defendant answered the complaint, maintaining in turn that said ordinances
were enacted by the Municipal Board of the City of Manila by virtue of the
power granted to it by section 2444, subsection (m-2) of the Revised
Administrative Code, superseded on June 18, 1949, by section 18,
subsection (1) of Republic Act No. 409, known as the Revised Charter of the
City of Manila, and praying that the complaint be dismissed, with costs
against plaintiff. This answer was replied by the plaintiff reiterating the 15,774.55
unconstitutionality of the often-repeated ordinances.
3rd quarter 1947
Before trial the parties submitted the following stipulation of facts:
14,654.13
COME NOW the parties in the above-entitled case, thru their undersigned
attorneys and respectfully submit the following stipulation of facts: 4th quarter 1947

1. That the plaintiff sold for the use of the purchasers at its principal office at 12,590.94
636 Isaac Peral, Manila, Bibles, New Testaments, bible portions and bible
concordance in English and other foreign languages imported by it from the 1st quarter 1948
United States as well as Bibles, New Testaments and bible portions in the
local dialects imported and/or purchased locally; that from the fourth quarter 11,143.90
of 1945 to the first quarter of 1953 inclusive the sales made by the plaintiff
were as follows: 2nd quarter 1948

Quarter 14,715.26

Amount of Sales 3rd quarter 1948

4th quarter 1945 38,333.83

P1,244.21 4th quarter 1948

1st quarter 1946 16,179.90

2,206.85 1st quarter 1949

2nd quarter 1946 23,975.10

1,950.38 2nd quarter 1949

3rd quarter 1946 17,802.08

2,235.99 3rd quarter 1949

4th quarter 1946 16,640.79

3,256.04 4th quarter 1949

1st quarter 1947 15,961.38

13,241.07 1st quarter 1950

2nd quarter 1947 18,562.46

2nd quarter 1950 29,516.21

21,816.32 2. That the parties hereby reserve the right to present evidence of other facts
not herein stipulated.
3rd quarter 1950
WHEREFORE, it is respectfully prayed that this case be set for hearing so
25,004.55 that the parties may present further evidence on their behalf. (Record on
Appeal, pp. 15-16).
4th quarter 1950
When the case was set for hearing, plaintiff proved, among other things, that
45,287.92 it has been in existence in the Philippines since 1899, and that its parent
society is in New York, United States of America; that its, contiguous real
1st quarter 1951 properties located at Isaac Peral are exempt from real estate taxes; and that
it was never required to pay any municipal license fee or tax before the war,
37,841.21 nor does the American Bible Society in the United States pay any license fee
or sales tax for the sale of bible therein. Plaintiff further tried to establish that
2nd quarter 1951 it never made any profit from the sale of its bibles, which are disposed of for
as low as one third of the cost, and that in order to maintain its operating cost
29,103.98 it obtains substantial remittances from its New York office and voluntary
contributions and gifts from certain churches, both in the United States and in
3rd quarter 1951 the Philippines, which are interested in its missionary work. Regarding
plaintiff's contention of lack of profit in the sale of bibles, defendant retorts
20,181.10 that the admissions of plaintiff-appellant's lone witness who testified on
cross-examination that bibles bearing the price of 70 cents each from
4th quarter 1951 plaintiff-appellant's New York office are sold here by plaintiff-appellant at
P1.30 each; those bearing the price of $4.50 each are sold here at P10 each;
22,968.91 those bearing the price of $7 each are sold here at P15 each; and those
bearing the price of $11 each are sold here at P22 each, clearly show that
1st quarter 1952 plaintiff's contention that it never makes any profit from the sale of its bible, is
evidently untenable.
23,002.65
After hearing the Court rendered judgment, the last part of which is as
2nd quarter 1952 follows:

17,626.96 As may be seen from the repealed section (m-2) of the Revised
Administrative Code and the repealing portions (o) of section 18 of Republic
3rd quarter 1952 Act No. 409, although they seemingly differ in the way the legislative intent is
expressed, yet their meaning is practically the same for the purpose of taxing
17,921.01 the merchandise mentioned in said legal provisions, and that the taxes to be
levied by said ordinances is in the nature of percentage graduated taxes
4th quarter 1952 (Sec. 3 of Ordinance No. 3000, as amended, and Sec. 1, Group 2, of
Ordinance No. 2529, as amended by Ordinance No. 3364).
24,180.72

1st quarter 1953

IN VIEW OF THE FOREGOING CONSIDERATIONS, this Court is of the
opinion and so holds that this case should be dismissed, as it is hereby
dismissed, for lack of merits, with costs against the plaintiff.
Not satisfied with this verdict plaintiff took up the matter to the Court of
Appeals which certified the case to Us for the reason that the errors assigned
to the lower Court involved only questions of law.
Appellant contends that the lower Court erred:
1. In holding that Ordinances Nos. 2529 and 3000, as respectively amended,
are not unconstitutional;
2. In holding that subsection m-2 of Section 2444 of the Revised
Administrative Code under which Ordinances Nos. 2592 and 3000 were
promulgated, was not repealed by Section 18 of Republic Act No. 409;
3. In not holding that an ordinance providing for taxes based on gross sales
or receipts, in order to be valid under the new Charter of the City of Manila,
must first be approved by the President of the Philippines; and
4. In holding that, as the sales made by the plaintiff-appellant have assumed
commercial proportions, it cannot escape from the operation of said
municipal ordinances under the cloak of religious privilege.
The issues. — As may be seen from the proceeding statement of the case,
the issues involved in the present controversy may be reduced to the
following: (1) whether or not the ordinances of the City of Manila, Nos. 3000,
as amended, and 2529, 3028 and 3364, are constitutional and valid; and (2)
whether the provisions of said ordinances are applicable or not to the case at
bar.
Section 1, subsection (7) of Article III of the Constitution of the Republic of
the Philippines, provides that:
(7) No law shall be made respecting an establishment of religion, or
prohibiting the free exercise thereof, and the free exercise and enjoyment of
religious profession and worship, without discrimination or preference, shall
forever be allowed. No religion test shall be required for the exercise of civil
or political rights.
Predicated on this constitutional mandate, plaintiff-appellant contends that
Ordinances Nos. 2529 and 3000, as respectively amended, are
unconstitutional and illegal in so far as its society is concerned, because they
provide for religious censorship and restrain the free exercise and enjoyment
of its religious profession, to wit: the distribution and sale of bibles and other
religious literature to the people of the Philippines.
Before entering into a discussion of the constitutional aspect of the case, We
shall first consider the provisions of the questioned ordinances in relation to
their application to the sale of bibles, etc. by appellant. The records, show
that by letter of May 29, 1953 (Annex A), the City Treasurer required plaintiff
to secure a Mayor's permit in connection with the society's alleged business
of distributing and selling bibles, etc. and to pay permit dues in the sum of
P35 for the period covered in this litigation, plus the sum of P35 for
compromise on account of plaintiff's failure to secure the permit required by
Ordinance No. 3000 of the City of Manila, as amended. This Ordinance is of
general application and not particularly directed against institutions like the
plaintiff, and it does not contain any provisions whatever prescribing religious
censorship nor restraining the free exercise and enjoyment of any religious
profession. Section 1 of Ordinance No. 3000 reads as follows:
SEC. 1. PERMITS NECESSARY. — It shall be unlawful for any person or
entity to conduct or engage in any of the businesses, trades, or occupations
enumerated in Section 3 of this Ordinance or other businesses, trades, or
occupations for which a permit is required for the proper supervision and
enforcement of existing laws and ordinances governing the sanitation,
security, and welfare of the public and the health of the employees engaged
in the business specified in said section 3 hereof, WITHOUT FIRST HAVING
OBTAINED A PERMIT THEREFOR FROM THE MAYOR AND THE
NECESSARY LICENSE FROM THE CITY TREASURER.
The business, trade or occupation of the plaintiff involved in this case is not
particularly mentioned in Section 3 of the Ordinance, and the record does not
show that a permit is required therefor under existing laws and ordinances for
the proper supervision and enforcement of their provisions governing the
sanitation, security and welfare of the public and the health of the employees
engaged in the business of the plaintiff. However, sections 3 of Ordinance
3000 contains item No. 79, which reads as follows:
79. All other businesses, trades or occupations not
mentioned in this Ordinance, except those upon which the
City is not empowered to license or to tax P5.00
Therefore, the necessity of the permit is made to depend upon the power of
the City to license or tax said business, trade or occupation.
As to the license fees that the Treasurer of the City of Manila required the
society to pay from the 4th quarter of 1945 to the 1st quarter of 1953 in the
sum of P5,821.45, including the sum of P50 as compromise, Ordinance No.
2529, as amended by Ordinances Nos. 2779, 2821 and 3028 prescribes the
following:
SEC. 1. FEES. — Subject to the provisions of section 578 of the Revised
Ordinances of the City of Manila, as amended, there shall be paid to the City
Treasurer for engaging in any of the businesses or occupations below
enumerated, quarterly, license fees based on gross sales or receipts realized
during the preceding quarter in accordance with the rates herein prescribed:
PROVIDED, HOWEVER, That a person engaged in any businesses or
occupation for the first time shall pay the initial license fee based on the
probable gross sales or receipts for the first quarter beginning from the date
of the opening of the business as indicated herein for the corresponding
business or occupation.
xxx xxx xxx
GROUP 2. — Retail dealers in new (not yet used) merchandise, which
dealers are not yet subject to the payment of any municipal tax, such as (1)
retail dealers in general merchandise; (2) retail dealers exclusively engaged
in the sale of . . . books, including stationery.
xxx xxx xxx
As may be seen, the license fees required to be paid quarterly in Section 1 of
said Ordinance No. 2529, as amended, are not imposed directly upon any
religious institution but upon those engaged in any of the business or
occupations therein enumerated, such as retail "dealers in general
merchandise" which, it is alleged, cover the business or occupation of selling
bibles, books, etc.
Chapter 60 of the Revised Administrative Code which includes section 2444,
subsection (m-2) of said legal body, as amended by Act No. 3659, approved
on December 8, 1929, empowers the Municipal Board of the City of Manila:
(M-2) To tax and fix the license fee on (a) dealers in new automobiles or
accessories or both, and (b) retail dealers in new (not yet used)
merchandise, which dealers are not yet subject to the payment of any
municipal tax.
For the purpose of taxation, these retail dealers shall be classified as (1)
retail dealers in general merchandise, and (2) retail dealers exclusively
engaged in the sale of (a) textiles . . . (e) books, including stationery, paper
and office supplies, . . .: PROVIDED, HOWEVER, That the combined total
tax of any debtor or manufacturer, or both, enumerated under these
subsections (m-1) and (m-2), whether dealing in one or all of the articles
mentioned herein, SHALL NOT BE IN EXCESS OF FIVE HUNDRED
PESOS PER ANNUM.
and appellee's counsel maintains that City Ordinances Nos. 2529 and 3000,
as amended, were enacted in virtue of the power that said Act No. 3669
conferred upon the City of Manila. Appellant, however, contends that said
ordinances are longer in force and effect as the law under which they were
promulgated has been expressly repealed by Section 102 of Republic Act
No. 409 passed on June 18, 1949, known as the Revised Manila Charter.
Passing upon this point the lower Court categorically stated that Republic Act
No. 409 expressly repealed the provisions of Chapter 60 of the Revised
Administrative Code but in the opinion of the trial Judge, although Section
2444 (m-2) of the former Manila Charter and section 18 (o) of the new
seemingly differ in the way the legislative intent was expressed, yet their
meaning is practically the same for the purpose of taxing the merchandise
mentioned in both legal provisions and, consequently, Ordinances Nos. 2529
and 3000, as amended, are to be considered as still in full force and effect
uninterruptedly up to the present.
Often the legislature, instead of simply amending the pre-existing statute, will
repeal the old statute in its entirety and by the same enactment re-enact all
or certain portions of the preexisting law. Of course, the problem created by
this sort of legislative action involves mainly the effect of the repeal upon
rights and liabilities which accrued under the original statute. Are those rights
and liabilities destroyed or preserved? The authorities are divided as to the
effect of simultaneous repeals and re-enactments. Some adhere to the view
that the rights and liabilities accrued under the repealed act are destroyed,
since the statutes from which they sprang are actually terminated, even
though for only a very short period of time. Others, and they seem to be in
the majority, refuse to accept this view of the situation, and consequently
maintain that all rights an liabilities which have accrued under the original
statute are preserved and may be enforced, since the re-enactment
neutralizes the repeal, therefore, continuing the law in force without
interruption. (Crawford-Statutory Construction, Sec. 322).
Appellant's counsel states that section 18 (o) of Republic Act No, 409
introduces a new and wider concept of taxation and is different from the
provisions of Section 2444(m-2) that the former cannot be considered as a
substantial re-enactment of the provisions of the latter. We have quoted
above the provisions of section 2444(m-2) of the Revised Administrative
Code and We shall now copy hereunder the provisions of Section 18,
subdivision (o) of Republic Act No. 409, which reads as follows:
(o) To tax and fix the license fee on dealers in general merchandise,
including importers and indentors, except those dealers who may be
expressly subject to the payment of some other municipal tax under the
provisions of this section.
Dealers in general merchandise shall be classified as (a) wholesale dealers
and (b) retail dealers. For purposes of the tax on retail dealers, general
merchandise shall be classified into four main classes: namely (1) luxury
articles, (2) semi-luxury articles, (3) essential commodities, and (4)
miscellaneous articles. A separate license shall be prescribed for each class
but where commodities of different classes are sold in the same
establishment, it shall not be compulsory for the owner to secure more than
one license if he pays the higher or highest rate of tax prescribed by
ordinance. Wholesale dealers shall pay the license tax as such, as may be
provided by ordinance.
For purposes of this section, the term "General merchandise" shall include
poultry and livestock, agricultural products, fish and other allied products.
The only essential difference that We find between these two provisions that
may have any bearing on the case at bar, is that, while subsection (m-2)
prescribes that the combined total tax of any dealer or manufacturer, or both,
enumerated under subsections (m-1) and (m-2), whether dealing in one or all
of the articles mentioned therein, shall not be in excess of P500 per annum,
the corresponding section 18, subsection (o) of Republic Act No. 409, does
not contain any limitation as to the amount of tax or license fee that the retail
dealer has to pay per annum. Hence, and in accordance with the weight of
the authorities above referred to that maintain that "all rights and liabilities
which have accrued under the original statute are preserved and may be
enforced, since the reenactment neutralizes the repeal, therefore continuing
the law in force without interruption", We hold that the questioned ordinances
of the City of Manila are still in force and effect.
Plaintiff, however, argues that the questioned ordinances, to be valid, must
first be approved by the President of the Philippines as per section 18,
subsection (ii) of Republic Act No. 409, which reads as follows:
(ii) To tax, license and regulate any business, trade or occupation being
conducted within the City of Manila, not otherwise enumerated in the
preceding subsections, including percentage taxes based on gross sales or
receipts, subject to the approval of the PRESIDENT, except amusement
taxes.
but this requirement of the President's approval was not contained in section
2444 of the former Charter of the City of Manila under which Ordinance No.
2529 was promulgated. Anyway, as stated by appellee's counsel, the
business of "retail dealers in general merchandise" is expressly enumerated
in subsection (o), section 18 of Republic Act No. 409; hence, an ordinance
prescribing a municipal tax on said business does not have to be approved
by the President to be effective, as it is not among those referred to in said
subsection (ii). Moreover, the questioned ordinances are still in force, having
been promulgated by the Municipal Board of the City of Manila under the
authority granted to it by law.
The question that now remains to be determined is whether said ordinances
are inapplicable, invalid or unconstitutional if applied to the alleged business
of distribution and sale of bibles to the people of the Philippines by a religious
corporation like the American Bible Society, plaintiff herein.
With regard to Ordinance No. 2529, as amended by Ordinances Nos. 2779,
2821 and 3028, appellant contends that it is unconstitutional and illegal
because it restrains the free exercise and enjoyment of the religious
profession and worship of appellant.
Article III, section 1, clause (7) of the Constitution of the Philippines
aforequoted, guarantees the freedom of religious profession and worship.
"Religion has been spoken of as a profession of faith to an active power that
binds and elevates man to its Creator" (Aglipay vs. Ruiz, 64 Phil., 201).It has
reference to one's views of his relations to His Creator and to the obligations
they impose of reverence to His being and character, and obedience to His
Will (Davis vs. Beason, 133 U.S., 342). The constitutional guaranty of the
free exercise and enjoyment of religious profession and worship carries with
it the right to disseminate religious information. Any restraints of such right
can only be justified like other restraints of freedom of expression on the
grounds that there is a clear and present danger of any substantive evil
which the State has the right to prevent". (Tañada and Fernando on the
Constitution of the Philippines, Vol. 1, 4th ed., p. 297). In the case at bar the
license fee herein involved is imposed upon appellant for its distribution and
sale of bibles and other religious literature:
In the case of Murdock vs. Pennsylvania, it was held that an ordinance
requiring that a license be obtained before a person could canvass or solicit
orders for goods, paintings, pictures, wares or merchandise cannot be made
to apply to members of Jehovah's Witnesses who went about from door to
door distributing literature and soliciting people to "purchase" certain religious
books and pamphlets, all published by the Watch Tower Bible & Tract
Society. The "price" of the books was twenty-five cents each, the "price" of
the pamphlets five cents each. It was shown that in making the solicitations
there was a request for additional "contribution" of twenty-five cents each for
the books and five cents each for the pamphlets. Lesser sum were accepted,
however, and books were even donated in case interested persons were
without funds.
On the above facts the Supreme Court held that it could not be said that
petitioners were engaged in commercial rather than a religious venture. Their
activities could not be described as embraced in the occupation of selling
books and pamphlets. Then the Court continued:
"We do not mean to say that religious groups and the press are free from all
financial burdens of government. See Grosjean vs. American Press Co., 297
U.S., 233, 250, 80 L. ed. 660, 668, 56 S. Ct. 444. We have here something
quite different, for example, from a tax on the income of one who engages in
religious activities or a tax on property used or employed in connection with
activities. It is one thing to impose a tax on the income or property of a
preacher. It is quite another to exact a tax from him for the privilege of
delivering a sermon. The tax imposed by the City of Jeannette is a flat
license tax, payment of which is a condition of the exercise of these
constitutional privileges. The power to tax the exercise of a privilege is the
power to control or suppress its enjoyment. . . . Those who can tax the
exercise of this religious practice can make its exercise so costly as to
deprive it of the resources necessary for its maintenance. Those who can tax
the privilege of engaging in this form of missionary evangelism can close all
its doors to all those who do not have a full purse. Spreading religious beliefs
in this ancient and honorable manner would thus be denied the needy. . . .
It is contended however that the fact that the license tax can suppress or
control this activity is unimportant if it does not do so. But that is to disregard
the nature of this tax. It is a license tax — a flat tax imposed on the exercise
of a privilege granted by the Bill of Rights . . . The power to impose a license
tax on the exercise of these freedom is indeed as potent as the power of
censorship which this Court has repeatedly struck down. . . . It is not a
nominal fee imposed as a regulatory measure to defray the expenses of
policing the activities in question. It is in no way apportioned. It is flat license
tax levied and collected as a condition to the pursuit of activities whose
enjoyment is guaranteed by the constitutional liberties of press and religion
and inevitably tends to suppress their exercise. That is almost uniformly
recognized as the inherent vice and evil of this flat license tax."
Nor could dissemination of religious information be conditioned upon the
approval of an official or manager even if the town were owned by a
corporation as held in the case of Marsh vs. State of Alabama (326 U.S.
501), or by the United States itself as held in the case of Tucker vs. Texas
(326 U.S. 517). In the former case the Supreme Court expressed the opinion
that the right to enjoy freedom of the press and religion occupies a preferred
position as against the constitutional right of property owners.
"When we balance the constitutional rights of owners of property against
those of the people to enjoy freedom of press and religion, as we must here,
we remain mindful of the fact that the latter occupy a preferred position. . . .
In our view the circumstance that the property rights to the premises where
the deprivation of property here involved, took place, were held by others
than the public, is not sufficient to justify the State's permitting a corporation
to govern a community of citizens so as to restrict their fundamental liberties
and the enforcement of such restraint by the application of a State statute."
(Tañada and Fernando on the Constitution of the Philippines, Vol. 1, 4th ed.,
p. 304-306).
Section 27 of Commonwealth Act No. 466, otherwise known as the National
Internal Revenue Code, provides:
SEC. 27. EXEMPTIONS FROM TAX ON CORPORATIONS. — The following
organizations shall not be taxed under this Title in respect to income received
by them as such —
(e) Corporations or associations organized and operated exclusively for
religious, charitable, . . . or educational purposes, . . .: Provided, however,
That the income of whatever kind and character from any of its properties,
real or personal, or from any activity conducted for profit, regardless of the
disposition made of such income, shall be liable to the tax imposed under
this Code;
Appellant's counsel claims that the Collector of Internal Revenue has
exempted the plaintiff from this tax and says that such exemption clearly
indicates that the act of distributing and selling bibles, etc. is purely religious
and does not fall under the above legal provisions.
It may be true that in the case at bar the price asked for the bibles and other
religious pamphlets was in some instances a little bit higher than the actual
cost of the same but this cannot mean that appellant was engaged in the
business or occupation of selling said "merchandise" for profit. For this
reason We believe that the provisions of City of Manila Ordinance No. 2529,
as amended, cannot be applied to appellant, for in doing so it would impair its
free exercise and enjoyment of its religious profession and worship as well as
its rights of dissemination of religious beliefs.
With respect to Ordinance No. 3000, as amended, which requires the
obtention the Mayor's permit before any person can engage in any of the
businesses, trades or occupations enumerated therein, We do not find that it
imposes any charge upon the enjoyment of a right granted by the
Constitution, nor tax the exercise of religious practices. In the case of
Coleman vs. City of Griffin, 189 S.E. 427, this point was elucidated as
follows:
An ordinance by the City of Griffin, declaring that the practice of distributing
either by hand or otherwise, circulars, handbooks, advertising, or literature of
any kind, whether said articles are being delivered free, or whether same are
being sold within the city limits of the City of Griffin, without first obtaining
written permission from the city manager of the City of Griffin, shall be
deemed a nuisance and punishable as an offense against the City of Griffin,
does not deprive defendant of his constitutional right of the free exercise and
enjoyment of religious profession and worship, even though it prohibits him
from introducing and carrying out a scheme or purpose which he sees fit to
claim as a part of his religious system.
It seems clear, therefore, that Ordinance No. 3000 cannot be considered
unconstitutional, even if applied to plaintiff Society. But as Ordinance No.
2529 of the City of Manila, as amended, is not applicable to plaintiff-appellant
and defendant-appellee is powerless to license or tax the business of plaintiff
Society involved herein for, as stated before, it would impair plaintiff's right to
the free exercise and enjoyment of its religious profession and worship, as
well as its rights of dissemination of religious beliefs, We find that Ordinance
No. 3000, as amended is also inapplicable to said business, trade or
occupation of the plaintiff.
Wherefore, and on the strength of the foregoing considerations, We hereby
reverse the decision appealed from, sentencing defendant return to plaintiff
the sum of P5,891.45 unduly collected from it. Without pronouncement as to
costs. It is so ordered.
Swaggart Ministries vs. Cal Bd. of Equalization [493 U.S. 378 (1990)]
Syllabus
California law requires retailers to pay a 6% sales tax on in-state sales of
tangible personal property and to collect from state residents a 6% use tax
on such property purchased outside the State. During the tax period in
question, appellant religious organization, which is incorporated in Louisiana,
sold a variety of religious materials at "evangelistic crusades" within
California and made mail-order sales of other such materials to California
residents. Appellee State Board of Equalization (Board) audited appellant
and advised it that it should register as a seller as required by state law and
report and pay sales and use taxes on the aforementioned sales. Appellant
paid the taxes and the Board ruled against it on its petitions for
redetermination and refund, rejecting its contention that the tax on religious
materials violated the First Amendment. The state trial court entered
judgment for the Board in appellant's refund suit, the State Court of Appeal
affirmed, and the State Supreme Court denied discretionary review.
Held:
1. California's imposition of sales and use tax liability on appellant's sales of
religious materials does not contravene the Religion Clauses of the First
Amendment. Pp. 493 U. S. 384-397.
(a) The collection and payment of the tax imposes no constitutionally
significant burden on appellant's religious practices or beliefs under the Free
Exercise Clause, which accordingly does not require the State to grant
appellant a tax exemption. Appellant misreads Murdock v. Pennsylvania, 319
U. S. 105, and Follett v. McCormick, 321 U. S. 573, which, although holding
flat license taxes on commercial sales unconstitutional with regard to the
evangelical distribution of religious materials, nevertheless specifically stated
that religious activity may constitutionally be subjected to a generally
applicable income or property tax akin to the California tax at issue. Those
cases apply only where a flat license tax operates as a prior restraint on the
free exercise of religious belief. As such, they do not invalidate California's
generally applicable sales and use tax, which is not a flat tax, represents only
a small fraction of any sale, and applies neutrally to all relevant sales
regardless of the nature of the seller or purchaser, so that there is no danger
that appellant's
Page 493 U. S. 379
religious activity is being singled out for special and burdensome treatment.
Moreover, the concern in Murdock and Follett that flat license taxes operate
as a precondition to the exercise of evangelistic activity is not present here,
because the statutory registration requirement and the tax itself do not act as
prior restraints -- no fee is charged for registering, the tax is due regardless
of preregistration, and the tax is not imposed as a precondition of
disseminating the message. Furthermore, since appellant argues that the
exercise of its beliefs is unconstitutionally burdened by the reduction in its
income resulting from the presumably lower demand for its wares (caused by
the marginally higher price generated by the tax) and from the costs
associated with administering the tax, its free exercise claim is in significant
tension with Hernandez v. Commissioner, 490 U. S. 680, 490 U. S. 699,
which made clear that, to the extent that imposition of a generally applicable
tax merely decreases the amount of money appellant has to spend on its
religious activities, any such burden is not constitutionally significant because
it is no different from that imposed by other generally applicable laws and
regulations to which religious organizations must adhere. While a more
onerous tax rate than California's, even if generally applicable, might
effectively choke off an adherent's religious practices, that situation is not
before, or considered by, this Court. Pp. 493 U. S. 384-392.
(b) Application of the California tax to appellant's sale of religious materials
does not violate the Establishment Clause by fostering an excessive
governmental entanglement with religion. The evidence of administrative
entanglement is thin, since the Court of Appeal expressly found that, in light
of appellant's sophisticated accounting staff and computerized accounting
methods, the record did not support its assertion that the collection and
payment of the tax impose severe accounting burdens on it. Moreover,
although collection and payment will require some contact between appellant
and the State, generally applicable administrative and recordkeeping
burdens may be imposed on religious organizations without running afoul of
the Clause. See e.g., Hernandez, supra, at 490 U. S. 696-697. The fact that
appellant must bear the cost of collecting and remitting the tax -- even if the
financial burden may vary from religion to religion -- does not enmesh the
government in religious affairs, since the statutory scheme requires neither
the involvement of state employees in, nor on-site continuing inspection of,
appellant's day-to-day operations. Most significantly, the imposition of the tax
without an exemption for appellant does not require the State to inquire into
the religious content of the items sold or the religious motivation for selling or
purchasing them, since they are subject to the tax regardless of content or
motive. Pp. 493 U. S. 392-397.
Page 493 U. S. 380
2. The merits of appellant's Commerce and Due Process Clause claim are
not properly before, and will not be reached by, this Court, since both the trial
court and the Court of Appeal ruled that the claim was procedurally barred
because it was not presented to the Board as required by state law. See,
e.g., Michigan v. Long, 463 U. S. 1032, 463 U. S. 1041-1042. Appellant has
failed to substantiate any claim that the California courts in general apply the
procedural bar rule and a pertinent exception in an irregular, arbitrary, or
inconsistent manner. Pp. 493 U. S. 397-399.
204 Cal. App. 3d 1269, 250 Cal. Rptr. 891, affirmed.
O'CONNOR, J., delivered the opinion for a unanimous Court.
Justice O'CONNOR delivered the opinion of the Court.
This case presents the question whether the Religion Clauses of the First
Amendment prohibit a State from imposing a generally applicable sales and
use tax on the distribution of religious materials by a religious organization.
Page 493 U. S. 381
I California -- each lasting one to three days, with one crusade lasting six days
California's Sales and Use Tax Law requires retailers to pay a sales tax "[f]or
the privilege of selling tangible personal property at retail." Cal.Rev. &
Tax.Code Ann. § 6051 (West 1987). A "sale" includes any transfer of title or
possession of tangible personal property for consideration. Cal.Rev. &
Tax.Code Ann. § 6006(a) (West Supp.1989).
The use tax, as a complement to the sales tax, reaches out-of-state
purchases by residents of the State. It is "imposed on the storage, use, or
other consumption in this state of tangible personal property purchased from
any retailer," § 6201, at the same rate as the sales tax (6 percent). Although
the use tax is imposed on the purchaser, § 6202, it is generally collected by
the retailer at the time the sale is made. §§ 6202-6206. Neither the State
Constitution nor the State Sales and Use Tax Law exempts religious
organizations from the sales and use tax, apart from a limited exemption for
the serving of meals by religious organizations, § 6363.5.
During the tax period in question (1974 to 1981), appellant Jimmy Swaggart
Ministries was a religious organization incorporated as a Louisiana nonprofit
corporation and recognized as such by the Internal Revenue Service
pursuant to § 501(c)(3) of the Internal Revenue Code of 1954, as amended,
26 U.S.C. § 501(c)(3) (1982 ed.), and by the California State Controller
pursuant to the Inheritance Tax and Gift Tax Laws of the State of California.
Appellant's constitution and by-laws provide that it "is called for the purpose
of establishing and maintaining an evangelistic outreach for the worship of
Almighty God." App. 107. This outreach is to be performed "by all available
means, both at home and in foreign lands," and
"shall specifically include evangelistic crusades; missionary endeavors; radio
broadcasting (as owner, broadcaster, and placement agency); television
broadcasting (both as owner and broadcaster); and audio production and
reproduction
Page 493 U. S. 382
of music; audio production and reproduction of preaching; audio production
and reproduction of teaching; writing, printing and publishing; and, any and
all other individual or mass media methods that presently exist or may be
devised in the future to proclaim the good news of Jesus Christ."
Id. at 107-108.
From 1974 to 1981, appellant conducted numerous "evangelistic crusades"
in auditoriums and arenas across the country in cooperation with local
churches. Id. at 61. During this period, appellant held 23 crusades in
-- for a total of 52 days. Id. at 19-20. At the crusades, appellant conducted
religious services that included preaching and singing. Some of these
services were recorded for later sale or broadcast. Appellant also sold
religious books, tapes, records, and other religious and nonreligious
merchandise at the crusades.
Appellant also published a monthly magazine, "The Evangelist," which was
sold nationwide by subscription. The magazine contained articles of a
religious nature as well as advertisements for appellant's religious books,
tapes, and records. The magazine included an order form listing the various
items for sale in the particular issue and their unit price, with spaces for
purchasers to fill in the quantity desired and the total price. Appellant also
offered its items for sale through radio, television, and cable television
broadcasts, including broadcasts through local California stations.
In 1980, appellee Board of Equalization of the State of California (Board)
informed appellant that religious materials were not exempt from the sales
tax and requested appellant to register as a seller to facilitate reporting and
payment of the tax. See Cal.Rev. & Tax.Code Ann. §§ 6066-6074 (West
1987 and Supp.1989) (tax registration requirements). Appellant responded
that it was exempt from such taxes under the First Amendment. In 1981, the
Board audited appellant and advised appellant that it should register as a
seller and report and pay sales tax on all sales made at its
Page 493 U. S. 383
California crusades. The Board also opined that appellant had a sufficient
nexus with the State of California to require appellant to collect and report
use tax on its mail-order sales to California purchasers.
Based on the Board's review of appellant's records, the parties stipulated
"that [appellant] sold for use in California tangible personal property for the
period April 1, 1974, through December 31, 1981, measured by payment to
[appellant] of $1,702,942.00 for mail order sales from Baton Rouge,
Louisiana and $240,560.00 for crusade merchandise sales in California."
App. 58. These figures represented the sales and use in California of
merchandise with specific religious content -- bibles, bible study manuals,
printed sermons and collections of sermons, audiocassette tapes of
sermons, religious books and pamphlets, and religious music in the form of
songbooks, tapes, and records. See App. to Juris. Statement B-l to B-3.
Based on the sales figures for appellant's religious materials, the Board
notified appellant that it owed sales and use taxes of $118,294.54, plus
interest of $36,021.11, and a penalty of $11,829.45, for a total amount due of
$166,145.10. App. 8. Appellant did not contest the Board's assessment of tax
liability for the sale and use of certain nonreligious merchandise, including
such items as
"T-shirts with JSM logo, mugs, bowls, plates, replicas of crown of thorns, ark
of the covenant, Roman coin, candlesticks, Bible stand, pen and pencil sets,
prints of religious scenes, bud vase, and communion cups."
Id. at 59-60.
Appellant filed a petition for redetermination with the Board, reiterating its
view that the tax on religious materials violated the First Amendment.
Following a hearing and an appeal to the Board, the Board deleted the
penalty, but otherwise redetermined the matter without adjustment in the
amount of $118,294.54 in taxes owing, plus $65,043.55 in interest. Pursuant
to state procedural law, appellant paid the amount and filed a petition for
redetermination and refund with the Board. See Cal.Rev. & Tax.Code Ann. §
6902
Page 493 U. S. 384
(West 1987). The Board denied appellant's petition, and appellant brought
suit in state court, seeking a refund of the tax paid.
The trial court entered judgment for the Board, ruling that appellant was not
entitled to a refund of any tax. The California Court of Appeal affirmed, 204
Cal. App. 3d 1269, 250 Cal. Rptr. 891 (1988), and the California Supreme
Court denied discretionary review. We noted probable jurisdiction pursuant to
28 U.S.C. § 1257(2) (1982 ed.) (amended in 1988), 490 U.S. 1018 (1989),
and now affirm.
II
Appellant's central contention is that the State's imposition of sales and use
tax liability on its sale of religious materials contravenes the First
Amendment's command, made applicable to the States by the Fourteenth
Amendment, to "make no law respecting an establishment of religion, or
prohibiting the free exercise thereof." Appellant challenges the sales and use
tax law under both the Free Exercise and Establishment Clauses.
A
The Free Exercise Clause, we have noted,
"withdraws from legislative power, state and federal, the exertion of any
restraint on the free exercise of religion. Its purpose is to secure religious
liberty in the individual by prohibiting any invasions thereof by civil authority."
Abington School Dist. v. Schempp, 374 U. S. 203, 374 U. S. 222-223 (1963).
Indeed,

"[a] regulation neutral on its face may, in its application, nonetheless offend
the constitutional requirement for governmental neutrality if it unduly burdens
the free exercise of religion."
Wisconsin v. Yoder, 406 U. S. 205, 406 U. S. 220 (1972). Our cases have
established that
"[t]he free exercise inquiry asks whether government has placed a
substantial burden on the observation of a central religious belief or practice
and, if so, whether a compelling governmental interest justifies the
Page 493 U. S. 385
burden."
Hernandez v. Commissioner, 490 U. S. 680, 490 U. S. 699 (1989) (citations
omitted).
Appellant relies almost exclusively on our decisions in Murdock v.
Pennsylvania, 319 U. S. 105 (1943), and Follett v. McCormick, 321 U. S.
573, 321 U. S. 576 (1944), for the proposition that a State may not impose a
sales or use tax on the evangelical distribution of religious material by a
religious organization. Appellant contends that the State's imposition of use
and sales tax liability on it burdens its evangelical distribution of religious
materials in a manner identical to the manner in which the evangelists in
Murdock and Follett were burdened.
We reject appellant's expansive reading of Murdock and Follett as contrary to
the decisions themselves. In Murdock, we considered the constitutionality of
a city ordinance requiring all persons canvassing or soliciting within the city
to procure a license by paying a flat fee. Reversing the convictions of
Jehovah's Witnesses convicted under the ordinance of soliciting and
distributing religious literature
Page 493 U. S. 386
without a license, we explained:
"The hand distribution of religious tracts is an age-old form of missionary
evangelism . . . [and] has been a potent force in various religious movements
down through the years. This form of evangelism is utilized today on a large
scale by various religious sects whose colporteurs carry the Gospel to
thousands upon thousands of homes and seek through personal visitations
to win adherents to their faith. It is more than preaching; it is more than
distribution of religious literature. It is a combination of both. Its purpose is as
evangelical as the revival meeting. This form of religious activity occupies the
same high estate under the First Amendment as do worship in the churches
and preaching in the pulpits."
319 U.S. at 319 U. S. 108-109 (footnotes omitted). Accordingly, we held that
"spreading one's religious beliefs or preaching the Gospel through
distribution of religious literature and through personal visitations is an age-
old type of evangelism with as high a claim to constitutional protection as the
more orthodox types."
Id. at 110; see also Jones v. Opelika, 319 U. S. 103 (1943); Martin v.
Struthers, 319 U. S. 141 (1943).
We extended Murdock the following Term by invalidating, as applied to "one
who earns his livelihood as an evangelist or preacher in his home town," an
ordinance (similar to that involved in Murdock) that required all booksellers to
pay a flat fee to procure a license to sell books. Follett v. McCormick, 321
U.S. at 321 U. S. 576. Reaffirming our observation in Murdock that "the
power to tax the exercise of a privilege is the power to control or suppress its
enjoyment,'" id., at 321 U. S. 577 (quoting Murdock, 319 U.S. at 319 U. S.
112), we reasoned that
"[t]he protection of the First Amendment is not restricted to orthodox religious
practices any more than it is to the expression of orthodox economic views.
He who makes a profession of evangelism is not in a less preferred position
than the casual worker."
321 U.S. at 321 U. S. 577.
Our decisions in these cases, however, resulted from the particular nature of
the challenged taxes -- flat license taxes that operated as a prior restraint on
the exercise of religious liberty. In Murdock, for instance, we emphasized that
the tax at issue was "a license tax -- a flat tax imposed on the exercise of a
privilege granted by the Bill of Rights," 319 U.S. at 319 U. S. 113, and
cautioned that
"[w]e do not mean to say that religious groups and the press are free from all
financial burdens of government. . . . We have here something quite different,
for example, from a tax on the income of one who engages in religious
activities or a tax on property used or employed in connection with those
activities."
Id. at 319 U. S. 112 (citing Grosjean v. American Press Co., 297 U. S. 233,
297 U. S. 250 (1936)); see also 319 U.S. at 319 U. S. 115 ("This tax is not a
charge for the enjoyment of a privilege or benefit bestowed by the state"). In
Follett, we reiterated that a preacher is not "free from all financial burdens of
government, including taxes on income
Page 493 U. S. 387
or property" and, "like other citizens, may be subject to general taxation." 321
U.S. at 321 U. S. 578 (emphasis added).
Significantly, we noted in both cases that a primary vice of the ordinances at
issue was that they operated as prior restraints of constitutionally protected
conduct:
"In all of these cases [in which license taxes have been invalidated] the
issuance of the permit or license is dependent on the payment of a license
tax. And the license tax is fixed in amount and unrelated to the scope of the
activities of petitioners or to their realized revenues. It is not a nominal fee
imposed as a regulatory measure to defray the expenses of policing the
activities in question. It is in no way apportioned. It is a flat license tax levied
and collected as a condition to the pursuit of activities whose enjoyment is
guaranteed by the First Amendment. Accordingly, it restrains in advance
those constitutional liberties of press and religion and inevitably tends to
suppress their exercise. That is almost uniformly recognized as the inherent
vice and evil of this flat license tax."
Murdock, supra, 319 U.S. at 319 U. S. 113-114 (emphasis added). See also
Follett, supra, 321 U.S. at 321 U. S. 577 ("[t]he exaction of a tax as a
condition to the exercise of the great liberties guaranteed by the First
Amendment is as obnoxious as the imposition of a censorship or a previous
restraint") (citations omitted). Thus, although Murdock and Follett establish
that appellant's form of religious exercise has "as high a claim to
constitutional protection as the more orthodox types," Murdock, supra, 319
U.S. at 319 U. S. 110, those cases are of no further help to appellant. Our
concern in Murdock and Follett -- that a flat license tax would act as a
precondition to the free exercise of religious beliefs -- is simply not present
where a tax applies to all sales and uses of tangible personal property in the
State.
Our reading of Murdock and Follett is confirmed by our decision in
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460
U. S. 575 (1983), where we considered
Page 493 U. S. 388
a newspaper's First Amendment challenge to a state use tax on ink and
paper products used in the production of periodic publications. In the course
of striking down the tax, we rejected the newspaper's suggestion, premised
on Murdock and Follett, that a generally applicable sales tax could not be
applied to publications. Construing those cases as involving
"a flat tax, unrelated to the receipts or income of the speaker or to the
expenses of administering a valid regulatory scheme, as a condition of the
right to speak,"
460 U.S. at 460 U. S. 587, n. 9 (emphasis in original), we noted:
"By imposing the tax as a condition of engaging in protected activity, the
defendants in those cases imposed a form of prior restraint on speech,
rendering the tax highly susceptible to constitutional challenge. In that
regard, the cases cited by Star Tribune do not resemble a generally
applicable sales tax. Indeed, our cases have consistently recognized that
nondiscriminatory taxes on the receipts or income of newspapers would be
permissible." Ibid. (citations omitted).
Accord, Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221, 481 U. S.
229 (1987) ("a genuinely nondiscriminatory tax on the receipts of
newspapers would be constitutionally permissible").
We also note that, just last Term, a plurality of the Court rejected the precise
argument appellant now makes. In Texas Monthly Inc. v. Bullock, 489 U. S. 1
(1989), Justice BRENNAN, writing for three Justices, held that a state sales
tax exemption for religious publications violated the Establishment Clause.
Id. at 489 U. S. 14-21 (plurality opinion). In so concluding, the plurality further
held that the Free Exercise Clause did not prevent the State from
withdrawing its exemption, noting that
"[t]o the extent our opinions in Murdock and Follett might be read . . . to
suggest that the State and the Federal Government may never tax the sale
of religious or other publications, we reject those dicta."
489 U.S. at 489 U. S. 24. Justice WHITE, concurring in the judgment,
concluded
Page 493 U. S. 389
that the exemption violated the Free Press Clause because the content of a
publication determined its tax-exempt status. Id. at 489 U. S. 24-25. Justice
BLACKMUN, joined by Justice O'CONNOR, concurred in the plurality's
holding that the tax exemption at issue in that case contravened the
Establishment Clause, but reserved the question whether
"the Free Exercise Clause requires a tax exemption for the sale of religious
literature by a religious organization; in other words, defining the ultimate
scope of Follett and Murdock may be left for another day."
Id. at 489 U. S. 28. In this case, of course, California has not chosen to
create a tax exemption for religious materials, and we therefore have no
need to revisit the Establishment Clause question presented in Texas
Monthly.
We do, however, decide the Free Exercise question left open by Justice
BLACKMUN's concurrence in Texas Monthly by limiting Murdock and Follett
to apply only where a flat license tax operates as a prior restraint on the free
exercise of religious beliefs. As such, Murdock and Follett plainly do not
support appellant's free exercise claim. California's generally applicable sales
and use tax is not a flat tax, represents only a small fraction of any retail sale,
and applies neutrally to all retail sales of tangible personal property made in
California. California imposes its sales and use tax even if the seller or the
purchaser is charitable, religious, nonprofit, or state or local governmental in
nature. See Union League Club v. Johnson, 18 Cal. 2d 275, 278, 115 P.2d
425, 426 (1941); People v. Imperial County, 76 Cal. App. 2d 572, 576-577,
173 P.2d 352, 354 (1946); Bank of America National Trust & Savings Assn.
v. State Board of Equalization, 209 Cal. App. 2d 780, 796-797, 26 Cal. Rptr.
348, 357-358 (1962). Thus, the sales and use tax is not a tax on the right to
disseminate religious information, ideas, or beliefs per se; rather, it is a tax
on the privilege of making retail sales of tangible personal property and on
the storage, use, or other consumption of tangible personal property in
California. For example,
Page 493 U. S. 390
California treats the sale of a bible by a religious organization just as it would
treat the sale of a bible by a bookstore; as long as both are in-state retail
sales of tangible personal property, they are both subject to the tax
regardless of the motivation for the sale or the purchase. There is no danger
that appellant's religious activity is being singled out for special and
burdensome treatment.
Moreover, our concern in Murdock and Follett that flat license taxes operate
as a precondition to the exercise of evangelistic activity is not present in this
case, because the registration requirement, see Cal.Rev. & Tax.Code Ann.
§§ 6066-6074 (West 1987 and Supp.1989), and the tax itself do not act as
prior restraints -- no fee is charged for registering, the tax is due regardless
of preregistration, and the tax is not imposed as a precondition of
disseminating the message. Thus, unlike the license tax in Murdock, which
was "in no way apportioned" to the "realized revenues" of the itinerant
preachers forced to pay the tax, 319 U.S., at 113-114; see also Texas
Monthly, 489 U.S. at 489 U. S. 22, the tax at issue in this case is akin to a
generally applicable income or property tax, which Murdock and Follett
specifically state may constitutionally be imposed on religious activity.
In addition to appellant's misplaced reliance on Murdock and Follett,
appellant's free exercise claim is also in significant tension with the Court's
decision last Term in Hernandez v. Commissioner, 490 U. S. 490 U.S. 680
(1989), holding that the Government's disallowance of a tax deduction for
religious "auditing" and "training" services did not violate the Free Exercise
Clause. Id. at 490 U. S. 694-700. The Court reasoned that
"[a]ny burden imposed on auditing or training . . . derives solely from the fact
that, as a result of the deduction denial, adherents have less money to gain
access to such sessions. This burden is no different from that imposed by
any public tax or fee; indeed, the burden imposed by the denial of the
'contribution or gift' deduction
Page 493 U. S. 391
would seem to pale by comparison to the overall federal income tax burden
on an adherent."
Id. at 490 U. S. 699. There is no evidence in this case that collection and
payment of the tax violates appellant's sincere religious beliefs. California's
nondiscriminatory sales and use tax law requires only that appellant collect
the tax from its California purchasers and remit the tax money to the State.
The only burden on appellant is the claimed reduction in income resulting
from the presumably lower demand for appellant's wares (caused by the
marginally higher price) and from the costs associated with administering the
tax. As the Court made clear in Hernandez, however, to the extent that
imposition of a generally applicable tax merely decreases the amount of
money appellant has to spend on its religious activities, any such burden is
not constitutionally significant. See id. at 490 U. S. 699; Texas Monthly,
supra, at 489 U. S. 19-20 (plurality opinion); see also Bob Jones University v.
United States, 461 U. S. 574, 461 U. S. 603-604 (1983).
Appellant contends that the availability of a deduction (at issue in Hernandez)
and the imposition of a tax (at issue here) are distinguishable, but in both
cases adherents base their claim for an exemption on the argument that an
"incrementally larger tax burden interferes with their religious activities." 490
U.S. at 490 U. S. 700. It is precisely this argument -- rather than one
applicable only to deductions -- that the Court rejected in Hernandez. At
bottom, though we do not doubt the economic cost to appellant of complying
with a generally applicable sales and use tax, such a tax is no different from
other generally applicable laws and regulations -- such as health and safety
regulations -- to which appellant must adhere.
Finally, because appellant's religious beliefs do not forbid payment of the
sales and use tax, appellant's reliance on Sherbert v. Verner, 374 U. S. 398
(1963), and its progeny is misplaced, because in no sense has the State
"'condition[ed] receipt of an important benefit upon conduct proscribed by a
Page 493 U. S. 392
religious faith, or . . . denie[d] such a benefit because of conduct mandated
by religious belief, thereby putting substantial pressure on an adherent to
modify his behavior and to violate his beliefs.'"
Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U. S. 136, 480 U.
S. 141 (1987) (quoting Thomas v. Review Board of Indiana Employment
Security Div., 450 U. S. 707, 450 U. S. 717-718 (1981)). Appellant has never
alleged that the mere act of paying the tax, by itself, violates its sincere
religious beliefs.
We therefore conclude that the collection and payment of the generally
applicable tax in this case imposes no constitutionally significant burden on
appellant's religious practices or beliefs. The Free Exercise Clause
accordingly does not require the State to grant appellant an exemption from
its generally applicable sales and use tax. Although it is of course possible to
imagine that a more onerous tax rate, even if generally applicable, might
effectively choke off an adherent's religious practices, cf. Murdock, 319 U.S.
at 319 U. S. 115 (the burden of a flat tax could render itinerant evangelism
"crushed and closed out by the sheer weight of the toll or tribute which is
exacted town by town"), we face no such situation in this case. Accordingly,
we intimate no views as to whether such a generally applicable tax might
violate the Free Exercise Clause.
B calling for official and continuing surveillance leading to an impermissible
Appellant also contends that application of the sales and use tax to its sale of
religious materials violates the Establishment Clause because it fosters "an
excessive government entanglement with religion,'" Lemon v. Kurtzman, 403
U. S. 602, 403 U. S. 613 (1971) (quoting Walz v. Tax Comm'n of New York
City, 397 U. S. 664, 397 U. S. 674 (1970)). Appellant alleges, for example,
that the present controversy has featured on-site inspections of appellant's
evangelistic crusades, lengthy on-site audits, examinations of appellant's
books and records, threats of criminal prosecution, and layers of
administrative and judicial proceedings.
Page 493 U. S. 393
The Establishment Clause prohibits "sponsorship, financial support, and
active involvement of the sovereign in religious activity." Walz, supra, at 397
U. S. 668. The "excessive entanglement" prong of the tripartite purpose-
effect-entanglement Lemon test, see Lemon, 403 U.S. at 403 U. S. 612-613,
requires examination of
"the character and purposes of the institutions that are benefited, the nature
of the aid that the State provides, and the resulting relationship between the
government and the religious authority."
Id. at 403 U. S. 615; see also Walz, 397 U.S. at 397 U. S. 695 (separate
opinion of Harlan, J.) (warning of "programs, whose very nature is apt to
entangle the state in details of administration"). Indeed, in Walz we held that
a tax exemption for "religious organizations for religious properties used
solely for religious worship," as part of a general exemption for non-profit
institutions, id. at 397 U. S. 666-667, did not violate the Establishment
Clause. In upholding the tax exemption, we specifically noted that taxation of
religious properties would cause at least as much administrative
entanglement between government and religious authorities as did the
exemption:
"Either course, taxation of churches or exemption, occasions some degree of
involvement with religion. Elimination of exemption would tend to expand the
involvement of government by giving rise to tax valuation of church property,
tax liens, tax foreclosures, and the direct confrontations and conflicts that
follow in the train of these legal processes."
"Granting tax exemptions to churches necessarily operates to afford an
indirect economic benefit and also gives rise to some, but yet a lesser,
involvement than taxing them. In analyzing either alternative, the questions
are whether the involvement is excessive, and whether it is a continuing one
degree of entanglement."
Id. at 397 U. S. 674-675.
Page 493 U. S. 394
The issue presented, therefore, is whether the imposition of sales and use
tax liability in this case on appellant results in "excessive" involvement
between appellant and the State and "continuing surveillance leading to an
impermissible degree of entanglement."
At the outset, it is undeniable that a generally applicable tax has a secular
purpose and neither advances nor inhibits religion, for the very essence of
such a tax is that it is neutral and nondiscriminatory on questions of religious
belief. Thus, whatever the precise contours of the Establishment Clause, see
County of Allegheny v. American Civil Liberties Union of Pittsburgh, 492 U.
S. 573, 492 U. S. 589-594 (1989) (tracing evolution of Establishment Clause
doctrine); cf. Bowen v. Kendrick, 487 U. S. 589, 487 U. S. 615-618 (1988)
(applying but noting criticism of the entanglement prong of the Lemon test),
its undisputed core values are not even remotely called into question by the
generally applicable tax in this case.
Even applying the "excessive entanglement" prong of the Lemon test,
however, we hold that California's imposition of sales and use tax liability on
appellant threatens no excessive entanglement between church and state.
First, we note that the evidence of administrative entanglement in this case is
thin. Appellant alleges that collection and payment of the sales and use tax
impose severe accounting burdens on it. The Court of Appeal, however,
expressly found that the record did not support appellant's factual assertions,
noting that appellant
"had a sophisticated accounting staff and had recently computerized its
accounting, and that [appellant] in its own books and for purposes of
obtaining a federal income tax exemption segregated 'retail sales' and
'donations.'"
204 Cal. App. 3d at 1289, 250 Cal. Rptr. at 905.
Second, even assuming that the tax imposes substantial administrative
burdens on appellant, such administrative and recordkeeping burdens do not
rise to a constitutionally significant level. Collection and payment of the tax
will of course require some contact between appellant and the State,
Page 493 U. S. 395
but we have held that generally applicable administrative and recordkeeping
regulations may be imposed on religious organization without running afoul
of the Establishment Clause. See Hernandez, 490 U.S. at 490 U. S. 696-697
("[R]outine regulatory interaction [such as application of neutral tax laws]
which involves no inquiries into religious doctrine, . . . no delegation of state
power to a religious body, . . . and no detailed monitoring and close
administrative contact' between secular and religious bodies, . . . does not of
itself violate the nonentanglement command"); Tony and Susan Alamo
Foundation v. Secretary of Labor, 471 U. S. 290, 471 U. S. 305-306 (1985)
("The Establishment Clause does not exempt religious organizations from
such secular governmental activity as fire inspections and building and
zoning regulations, Lemon, supra, 403 U.S. at 403 U. S. 614, and the
recordkeeping requirements of the Fair Labor Standards Act, while perhaps
more burdensome in terms of paperwork, are not significantly more intrusive
into religious affairs"). To be sure, we noted in Tony and Susan Alamo
Foundation that the recordkeeping requirements at issue in that case
"appl[ied] only to commercial activities undertaken with a 'business purpose,'
and would therefore have no impact on petitioners' own evangelical
activities,"
id. at 471 U. S. 305, but that recognition did not bear on whether the
generally applicable regulation was nevertheless
"the kind of government surveillance the Court has previously held to pose
an intolerable risk of government entanglement with religion."
Ibid.
The fact that appellant must bear the cost of collecting and remitting a
generally applicable sales and use tax -- even if the financial burden of such
costs may vary from religion to religion -- does not enmesh government in
religious affairs. Contrary to appellant's contentions, the statutory scheme
requires neither the involvement of state employees in, nor on-site continuing
inspection of, appellant's day-to-day operations. There is no "official and
continuing surveillance," Walz, 397 U.S. at 397 U. S. 675, by government
auditors. The sorts of
Page 493 U. S. 396
government entanglement that we have found to violate the Establishment
Clause have been far more invasive than the level of contact created by the
administration of neutral tax laws. Cf. Aguilar v. Felton, 473 U. S. 402, 473 U.
S. 414 (1985); Larkin v. Grendel's Den, Inc., 459 U. S. 116, 459 U. S. 126-
127 (1982).
Most significantly, the imposition of the sales and use tax without an
exemption for appellant does not require the State to inquire into the religious
content of the items sold or the religious motivation for selling or purchasing
the items, because the materials are subject to the tax regardless of content
or motive. From the State's point of view, the critical question is not whether
the materials are religious, but whether there is a sale or a use, a question
which involves only a secular determination. Thus, this case stands on firmer
ground than Hernandez, because appellant offers the items at a stated price,
thereby relieving the State of the need to place a monetary value on
appellant's religious items. Compare Hernandez, 490 U.S. at 490 U. S. 697-
698 (where no comparable good or service is sold in the marketplace,
Internal Revenue Service looks to cost of providing the good or service), with
id. at 490 U. S. 706 (O'CONNOR, J., dissenting) ("It becomes impossible . . .
to compute the contribution' portion of a payment to charity where what is
received in return is not merely an intangible, but an intangible (or, for that
matter a tangible) that is not bought and sold except in donative contexts").
Although appellant asserts that donations often accompany payments made
for the religious items and that items are sometimes given away without
payment (or only nominal payment), it is plain that, in the first case,
appellant's use of "order forms" and "price lists" renders illusory any difficulty
in separating the two portions and that, in the second case, the question is
only whether any particular transfer constitutes a "sale." Ironically, appellant's
theory, under which government may not tax "religious core" activities but
may tax "nonreligious" activities, would require government to do precisely
what appellant asserts the Religion
Page 493 U. S. 397
Clauses prohibit: "determine which expenditures are religious and which are
secular." Lemon, 403 U.S. at 403 U. S. 621-622.
Accordingly, because we find no excessive entanglement between
government and religion in this case, we hold that the imposition of sales and
use tax liability on appellant does not violate the Establishment Clause.
III
Appellant also contends that the State's imposition of use tax liability on it
violates the Commerce and Due Process Clauses because, as an out-of-
state distributor, it had an insufficient "nexus" to the State. See National
Geographic Society v. California Board of Equalization, 430 U. S. 551, 430
U. S. 554 (1977); National Bellas Hess, Inc. v. Department of Revenue of
Illinois, 386 U. S. 753, 386 U. S. 756-760 (1967). We decline to reach the
merits of this claim, however, because the courts below ruled that the claim
was procedurally barred.
California law provides that an administrative claim for a tax refund "shall
state the specific grounds upon which the claim is founded," Cal.Rev. &
Tax.Code Ann. § 6904(a) (West Supp.1989), and that refund suits will be
entertained only if "a claim for refund or credit has been duly filed" with the
Board. § 6932. Suit may thereafter be brought only "on the grounds set forth
in the claim." § 6933. Thus, under state law,
"[t]he claim for refund delineates and restricts the issues to be considered in
a taxpayer's refund action. The trial court and [appellate] court are without
jurisdiction to consider grounds not set forth in the claim."
Atari, Inc. v. State Board of Equalization, 170 Cal. App. 3d 665, 672, 216 Cal.
Rptr. 267, 271 (1985) (citations omitted). This rule serves a legitimate state
interest in requiring parties to exhaust administrative remedies before
proceeding to court, for
"[s]uch a rule prevents having an overworked court consider issues and
remedies available through administrative channels."
Id. at 673, 216 Cal. Rptr. at 272.
Page 493 U. S. 398
The record in this case makes clear that appellant, in its refund claim before
the Board, failed even to cite the Commerce Clause or the Due Process
Clause, much less articulate legal arguments contesting the nexus issue.
See App. 34 (incorporating petition for redetermination, which in turn raised
only First Amendment arguments, see id. at 11-16). The Board's hearing
officer specifically noted, in forwarding his decision to the Board, that
appellant's "[c]ounsel does not argue nexus," id. at 22, and indeed the parties
stipulated before the trial court that appellant's request for a refund was
based on its First Amendment claim. Id. at 59. Accordingly, both the trial
court and the Court of Appeal declined to rule on the nexus issue on the
ground that appellant had failed to raise it in its refund claim before the
Board. 204 Cal. App. 3d at 1290-1292, 250 Cal.Rptr. at 905-906; App. 213.
This unambiguous application of state procedural law makes it unnecessary
for us to review the asserted claim. See Michigan v. Long, 463 U. S. 1032,
463 U. S. 1041-1042 (1983); Michigan v. Tyler, 436 U. S. 499, 436 U. S. 512,
n. 7 (1978).
Appellant nevertheless urges that the state procedural ground relied upon by
the courts below is inadequate because the procedural rule is not "strictly or
regularly followed.'" Hathorn v. Lovorn, 457 U. S. 255, 457 U. S. 263 (1982)
(quoting Barr v. City of Columbia, 378 U. S. 146, 378 U. S. 149 (1964)).
Appellant asserts that state courts in California retain the authority to hear
claims "involving important questions of public policy" notwithstanding the
parties' failure to raise those claims before an administrative agency. See
Lindeleaf v. Agricultural Labor Relations Bd., 41 Cal. 3d 861, 870-871, 226
Cal. Rptr. 119, 124-125, 718 P.2d 106, 112 (1986); Hale v. Morgan, 22 Cal.
3d 388, 394, 149 Cal. Rptr. 375, 379, 584 P.2d 512, 516 (1978). Appellant
observes, for example, that, although the Court of Appeal in this case found
appellant's nexus claim to be procedurally barred, it ignored the procedural
bar and ruled on the merits of appellant's Ninth and Tenth Amendment
arguments, see 204 Cal. App. 3d at 1292-1293, 250 Cal. Rptr. at 907-908,
even though those arguments
Page 493 U. S. 399
were likewise not raised in appellant's refund claim, see id. at 1292, n. 19,
250 Cal. Rptr. at 907, n. 19.
The Court of Appeal, however, specifically rejected appellant's claim that the
nexus issue raised "important questions of public policy," noting that the
issue instead "raise[d] factual questions, the determination of which is not a
matter of public policy' but a matter of evidence." Id. at 1292, 250 Cal. Rptr.
at 907. Even if the Court of Appeal erred as a matter of state law in declining
to rule on appellant's nexus claim, appellant has failed to substantiate any
claim that the California courts in general apply this exception in an irregular,
arbitrary, or inconsistent manner. Accordingly, we conclude that appellant's
Commerce Clause and Due Process Clause argument is not properly before
us. We thus express no opinion on the merits of the claim.
The judgment of the California Court of Appeal is affirmed.
It is so ordered.
Victoriano vs. Elizalde Rope Workers Union [59 SCRA 54 (1974)]
The undisputed facts that spawned the instant case follow:
Benjamin Victoriano (hereinafter referred to as Appellee), a member of the
religious sect known as the "Iglesia ni Cristo", had been in the employ of the
Elizalde Rope Factory, Inc. (hereinafter referred to as Company) since 1958.
As such employee, he was a member of the Elizalde Rope Workers' Union
(hereinafter referred to as Union) which had with the Company a collective
bargaining agreement containing a closed shop provision which reads as
follows:
Membership in the Union shall be required as a condition of employment for
all permanent employees workers covered by this Agreement.
The collective bargaining agreement expired on March 3, 1964 but was
renewed the following day, March 4, 1964.
Under Section 4(a), paragraph 4, of Republic Act No. 875, prior to its
amendment by Republic Act No. 3350, the employer was not precluded "from
making an agreement with a labor organization to require as a condition of
employment membership therein, if such labor organization is the
representative of the employees." On June 18, 1961, however, Republic Act
No. 3350 was enacted, introducing an amendment to — paragraph (4)
subsection (a) of section 4 of Republic Act No. 875, as follows: ... "but such
agreement shall not cover members of any religious sects which prohibit
affiliation of their members in any such labor organization".
Being a member of a religious sect that prohibits the affiliation of its members
with any labor organization, Appellee presented his resignation to appellant
Union in 1962, and when no action was taken thereon, he reiterated his
resignation on September 3, 1974. Thereupon, the Union wrote a formal
letter to the Company asking the latter to separate Appellee from the service
in view of the fact that he was resigning from the Union as a member. The
management of the Company in turn notified Appellee and his counsel that
unless the Appellee could achieve a satisfactory arrangement with the Union,
the Company would be constrained to dismiss him from the service. This
prompted Appellee to file an action for injunction, docketed as Civil Case No.
58894 in the Court of First Instance of Manila to enjoin the Company and the
Union from dismissing Appellee.1 In its answer, the Union invoked the "union
security clause" of the collective bargaining agreement; assailed the
constitutionality of Republic Act No. 3350; and contended that the Court had
no jurisdiction over the case, pursuant to Republic Act No. 875, Sections 24
and 9 (d) and (e).2 Upon the facts agreed upon by the parties during the pre-
trial conference, the Court a quo rendered its decision on August 26, 1965,
the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, judgment is rendered enjoining the
defendant Elizalde Rope Factory, Inc. from dismissing the plaintiff from his
present employment and sentencing the defendant Elizalde Rope Workers'
Union to pay the plaintiff P500 for attorney's fees and the costs of this
action.3
From this decision, the Union appealed directly to this Court on purely
questions of law, assigning the following errors:
I. That the lower court erred when it did not rule that Republic Act No. 3350 is
unconstitutional.
II. That the lower court erred when it sentenced appellant herein to pay
plaintiff the sum of P500 as attorney's fees and the cost thereof.
In support of the alleged unconstitutionality of Republic Act No. 3350, the
Union contented, firstly, that the Act infringes on the fundamental right to
form lawful associations; that "the very phraseology of said Republic Act
3350, that membership in a labor organization is banned to all those
belonging to such religious sect prohibiting affiliation with any labor
organization"4 , "prohibits all the members of a given religious sect from
joining any labor union if such sect prohibits affiliations of their members
thereto"5 ; and, consequently, deprives said members of their constitutional
right to form or join lawful associations or organizations guaranteed by the
Bill of Rights, and thus becomes obnoxious to Article III, Section 1 (6) of the
1935 Constitution. 6
Secondly, the Union contended that Republic Act No. 3350 is
unconstitutional for impairing the obligation of contracts in that, while the
Union is obliged to comply with its collective bargaining agreement
containing a "closed shop provision," the Act relieves the employer from its
reciprocal obligation of cooperating in the maintenance of union membership
as a condition of employment; and that said Act, furthermore, impairs the
Union's rights as it deprives the union of dues from members who, under the
Act, are relieved from the obligation to continue as such members.7
Thirdly, the Union contended that Republic Act No. 3350 discriminatorily
favors those religious sects which ban their members from joining labor
unions, in violation of Article Ill, Section 1 (7) of the 1935 Constitution; and
while said Act unduly protects certain religious sects, it leaves no rights or
protection to labor organizations.8
Fourthly, Republic Act No. 3350, asserted the Union, violates the
constitutional provision that "no religious test shall be required for the
exercise of a civil right," in that the laborer's exercise of his civil right to join
associations for purposes not contrary to law has to be determined under the
Act by his affiliation with a religious sect; that conversely, if a worker has to
sever his religious connection with a sect that prohibits membership in a
labor organization in order to be able to join a labor organization, said Act
would violate religious freedom.9
Fifthly, the Union contended that Republic Act No. 3350, violates the "equal
protection of laws" clause of the Constitution, it being a discriminately
legislation, inasmuch as by exempting from the operation of closed shop
agreement the members of the "Iglesia ni Cristo", it has granted said
members undue advantages over their fellow workers, for while the Act
exempts them from union obligation and liability, it nevertheless entitles them
at the same time to the enjoyment of all concessions, benefits and other
emoluments that the union might secure from the employer. 10
Sixthly, the Union contended that Republic Act No. 3350 violates the
constitutional provision regarding the promotion of social justice. 11
Appellant Union, furthermore, asserted that a "closed shop provision" in a
collective bargaining agreement cannot be considered violative of religious
freedom, as to call for the amendment introduced by Republic Act No. 3350;
12 and that unless Republic Act No. 3350 is declared unconstitutional, trade
unionism in this country would be wiped out as employers would prefer to
hire or employ members of the Iglesia ni Cristo in order to do away with labor
organizations. 13
Appellee, assailing appellant's arguments, contended that Republic Act No.
3350 does not violate the right to form lawful associations, for the right to join
associations includes the right not to join or to resign from a labor
organization, if one's conscience does not allow his membership therein, and
the Act has given substance to such right by prohibiting the compulsion of
workers to join labor organizations; 14 that said Act does not impair the
obligation of contracts for said law formed part of, and was incorporated into,
the terms of the closed shop agreement; 15 that the Act does not violate the
establishment of religion clause or separation of Church and State, for
Congress, in enacting said law, merely accommodated the religious needs of
those workers whose religion prohibits its members from joining labor unions,
and balanced the collective rights of organized labor with the constitutional
right of an individual to freely exercise his chosen religion; that the
constitutional right to the free exercise of one's religion has primacy and
preference over union security measures which are merely contractual 16 ;
that said Act does not violate the constitutional provision of equal protection,
for the classification of workers under the Act depending on their religious
tenets is based on substantial distinction, is germane to the purpose of the
law, and applies to all the members of a given class; 17 that said Act, finally,
does not violate the social justice policy of the Constitution, for said Act was
enacted precisely to equalize employment opportunities for all citizens in the
midst of the diversities of their religious beliefs." 18
I. Before We proceed to the discussion of the first assigned error, it is
necessary to premise that there are some thoroughly established principles
which must be followed in all cases where questions of constitutionality as
obtains in the instant case are involved. All presumptions are indulged in
favor of constitutionality; one who attacks a statute, alleging
unconstitutionality must prove its invalidity beyond a reasonable doubt, that a
law may work hardship does not render it unconstitutional; that if any
reasonable basis may be conceived which supports the statute, it will be
upheld, and the challenger must negate all possible bases; that the courts
are not concerned with the wisdom, justice, policy, or expediency of a
statute; and that a liberal interpretation of the constitution in favor of the
constitutionality of legislation should be adopted. 19
1. Appellant Union's contention that Republic Act No. 3350 prohibits and
bans the members of such religious sects that forbid affiliation of their
members with labor unions from joining labor unions appears nowhere in the
wording of Republic Act No. 3350; neither can the same be deduced by
necessary implication therefrom. It is not surprising, therefore, that appellant,
having thus misread the Act, committed the error of contending that said Act
is obnoxious to the constitutional provision on freedom of association.
Both the Constitution and Republic Act No. 875 recognize freedom of
association. Section 1 (6) of Article III of the Constitution of 1935, as well as
Section 7 of Article IV of the Constitution of 1973, provide that the right to
form associations or societies for purposes not contrary to law shall not be
abridged. Section 3 of Republic Act No. 875 provides that employees shall
have the right to self-organization and to form, join of assist labor
organizations of their own choosing for the purpose of collective bargaining
and to engage in concerted activities for the purpose of collective bargaining
and other mutual aid or protection. What the Constitution and the Industrial
Peace Act recognize and guarantee is the "right" to form or join associations.
Notwithstanding the different theories propounded by the different schools of
jurisprudence regarding the nature and contents of a "right", it can be safely
said that whatever theory one subscribes to, a right comprehends at least
two broad notions, namely: first, liberty or freedom, i.e., the absence of legal
restraint, whereby an employee may act for himself without being prevented
by law; and second, power, whereby an employee may, as he pleases, join
or refrain from Joining an association. It is, therefore, the employee who
should decide for himself whether he should join or not an association; and
should he choose to join, he himself makes up his mind as to which
association he would join; and even after he has joined, he still retains the
liberty and the power to leave and cancel his membership with said
organization at any time. 20 It is clear, therefore, that the right to join a union
includes the right to abstain from joining any union. 21 Inasmuch as what
both the Constitution and the Industrial Peace Act have recognized, and
guaranteed to the employee, is the "right" to join associations of his choice, it
would be absurd to say that the law also imposes, in the same breath, upon
the employee the duty to join associations. The law does not enjoin an
employee to sign up with any association.
The right to refrain from joining labor organizations recognized by Section 3
of the Industrial Peace Act is, however, limited. The legal protection granted
to such right to refrain from joining is withdrawn by operation of law, where a
labor union and an employer have agreed on a closed shop, by virtue of
which the employer may employ only member of the collective bargaining
union, and the employees must continue to be members of the union for the
duration of the contract in order to keep their jobs. Thus Section 4 (a) (4) of
the Industrial Peace Act, before its amendment by Republic Act No. 3350,
provides that although it would be an unfair labor practice for an employer "to
discriminate in regard to hire or tenure of employment or any term or
condition of employment to encourage or discourage membership in any
labor organization" the employer is, however, not precluded "from making an
agreement with a labor organization to require as a condition of employment
membership therein, if such labor organization is the representative of the
employees". By virtue, therefore, of a closed shop agreement, before the
enactment of Republic Act No. 3350, if any person, regardless of his religious
beliefs, wishes to be employed or to keep his employment, he must become
a member of the collective bargaining union. Hence, the right of said
employee not to join the labor union is curtailed and withdrawn.
To that all-embracing coverage of the closed shop arrangement, Republic
Act No. 3350 introduced an exception, when it added to Section 4 (a) (4) of
the Industrial Peace Act the following proviso: "but such agreement shall not
cover members of any religious sects which prohibit affiliation of their
members in any such labor organization". Republic Act No. 3350 merely
excludes ipso jure from the application and coverage of the closed shop
agreement the employees belonging to any religious sects which prohibit
affiliation of their members with any labor organization. What the exception
provides, therefore, is that members of said religious sects cannot be
compelled or coerced to join labor unions even when said unions have
closed shop agreements with the employers; that in spite of any closed shop
agreement, members of said religious sects cannot be refused employment
or dismissed from their jobs on the sole ground that they are not members of
the collective bargaining union. It is clear, therefore, that the assailed Act, far
from infringing the constitutional provision on freedom of association, upholds
and reinforces it. It does not prohibit the members of said religious sects from
affiliating with labor unions. It still leaves to said members the liberty and the
power to affiliate, or not to affiliate, with labor unions. If, notwithstanding their
religious beliefs, the members of said religious sects prefer to sign up with
the labor union, they can do so. If in deference and fealty to their religious
faith, they refuse to sign up, they can do so; the law does not coerce them to
join; neither does the law prohibit them from joining; and neither may the
employer or labor union compel them to join. Republic Act No. 3350,
therefore, does not violate the constitutional provision on freedom of
association.
2. Appellant Union also contends that the Act is unconstitutional for impairing
the obligation of its contract, specifically, the "union security clause"
embodied in its Collective Bargaining Agreement with the Company, by virtue
of which "membership in the union was required as a condition for
employment for all permanent employees workers". This agreement was
already in existence at the time Republic Act No. 3350 was enacted on June
18, 1961, and it cannot, therefore, be deemed to have been incorporated into
the agreement. But by reason of this amendment, Appellee, as well as others
similarly situated, could no longer be dismissed from his job even if he should
cease to be a member, or disaffiliate from the Union, and the Company could
continue employing him notwithstanding his disaffiliation from the Union. The
Act, therefore, introduced a change into the express terms of the union
security clause; the Company was partly absolved by law from the
contractual obligation it had with the Union of employing only Union members
in permanent positions, It cannot be denied, therefore, that there was indeed
an impairment of said union security clause.
According to Black, any statute which introduces a change into the express
terms of the contract, or its legal construction, or its validity, or its discharge,
or the remedy for its enforcement, impairs the contract. The extent of the
change is not material. It is not a question of degree or manner or cause, but
of encroaching in any respect on its obligation or dispensing with any part of
its force. There is an impairment of the contract if either party is absolved by
law from its performance. 22 Impairment has also been predicated on laws
which, without destroying contracts, derogate from substantial contractual
rights. 23
It should not be overlooked, however, that the prohibition to impair the
obligation of contracts is not absolute and unqualified. The prohibition is
general, affording a broad outline and requiring construction to fill in the
details. The prohibition is not to be read with literal exactness like a
mathematical formula, for it prohibits unreasonable impairment only. 24 In
spite of the constitutional prohibition, the State continues to possess authority
to safeguard the vital interests of its people. Legislation appropriate to
safeguarding said interests may modify or abrogate contracts already in
effect. 25 For not only are existing laws read into contracts in order to fix the
obligations as between the parties, but the reservation of essential attributes
of sovereign power is also read into contracts as a postulate of the legal
order. All contracts made with reference to any matter that is subject to
regulation under the police power must be understood as made in reference
to the possible exercise of that power. 26 Otherwise, important and valuable
reforms may be precluded by the simple device of entering into contracts for
the purpose of doing that which otherwise may be prohibited. The policy of
protecting contracts against impairment presupposes the maintenance of a
government by virtue of which contractual relations are worthwhile a
government which retains adequate authority to secure the peace and good
order of society. The contract clause of the Constitution must, therefore, be
not only in harmony with, but also in subordination to, in appropriate
instances, the reserved power of the state to safeguard the vital interests of
the people. It follows that not all legislations, which have the effect of
impairing a contract, are obnoxious to the constitutional prohibition as to
impairment, and a statute passed in the legitimate exercise of police power,
although it incidentally destroys existing contract rights, must be upheld by
the courts. This has special application to contracts regulating relations
between capital and labor which are not merely contractual, and said labor
contracts, for being impressed with public interest, must yield to the common
good. 27
In several occasions this Court declared that the prohibition against impairing
the obligations of contracts has no application to statutes relating to public
subjects within the domain of the general legislative powers of the state
involving public welfare. 28 Thus, this Court also held that the Blue Sunday
Law was not an infringement of the obligation of a contract that required the
employer to furnish work on Sundays to his employees, the law having been
enacted to secure the well-being and happiness of the laboring class, and
being, furthermore, a legitimate exercise of the police power. 29
In order to determine whether legislation unconstitutionally impairs contract
obligations, no unchanging yardstick, applicable at all times and under all
circumstances, by which the validity of each statute may be measured or
determined, has been fashioned, but every case must be determined upon
its own circumstances. Legislation impairing the obligation of contracts can
be sustained when it is enacted for the promotion of the general good of the
people, and when the means adopted to secure that end are reasonable.
Both the end sought and the means adopted must be legitimate, i.e., within
the scope of the reserved power of the state construed in harmony with the
constitutional limitation of that power. 30
What then was the purpose sought to be achieved by Republic Act No.
3350? Its purpose was to insure freedom of belief and religion, and to
promote the general welfare by preventing discrimination against those
members of religious sects which prohibit their members from joining labor
unions, confirming thereby their natural, statutory and constitutional right to
work, the fruits of which work are usually the only means whereby they can
maintain their own life and the life of their dependents. It cannot be gainsaid
that said purpose is legitimate.
The questioned Act also provides protection to members of said religious
sects against two aggregates of group strength from which the individual
needs protection. The individual employee, at various times in his working
life, is confronted by two aggregates of power — collective labor, directed by
a union, and collective capital, directed by management. The union, an
institution developed to organize labor into a collective force and thus protect
the individual employee from the power of collective capital, is, paradoxically,
both the champion of employee rights, and a new source of their frustration.
Moreover, when the Union interacts with management, it produces yet a third
aggregate of group strength from which the individual also needs protection
— the collective bargaining relationship. 31
The aforementioned purpose of the amendatory law is clearly seen in the
Explanatory Note to House Bill No. 5859, which later became Republic Act
No. 3350, as follows:
It would be unthinkable indeed to refuse employing a person who, on
account of his religious beliefs and convictions, cannot accept membership in
a labor organization although he possesses all the qualifications for the job.
This is tantamount to punishing such person for believing in a doctrine he
has a right under the law to believe in. The law would not allow discrimination
to flourish to the detriment of those whose religion discards membership in
any labor organization. Likewise, the law would not commend the deprivation
of their right to work and pursue a modest means of livelihood, without in any
manner violating their religious faith and/or belief. 32
It cannot be denied, furthermore, that the means adopted by the Act to
achieve that purpose — exempting the members of said religious sects from
coverage of union security agreements — is reasonable.
It may not be amiss to point out here that the free exercise of religious
profession or belief is superior to contract rights. In case of conflict, the latter
must, therefore, yield to the former. The Supreme Court of the United States
has also declared on several occasions that the rights in the First
Amendment, which include freedom of religion, enjoy a preferred position in
the constitutional system. 33 Religious freedom, although not unlimited, is a
fundamental personal right and liberty, 34 and has a preferred position in the
hierarchy of values. Contractual rights, therefore, must yield to freedom of
religion. It is only where unavoidably necessary to prevent an immediate and
grave danger to the security and welfare of the community that infringement
of religious freedom may be justified, and only to the smallest extent
necessary to avoid the danger.
3. In further support of its contention that Republic Act No. 3350 is
unconstitutional, appellant Union averred that said Act discriminates in favor
of members of said religious sects in violation of Section 1 (7) of Article Ill of
the 1935 Constitution, and which is now Section 8 of Article IV of the 1973
Constitution, which provides:
No law shall be made respecting an establishment of religion, or prohibiting
the free exercise thereof, and the free exercise and enjoyment of religious
profession and worship, without discrimination and preference, shall forever
be allowed. No religious test shall be required for the exercise of civil or
political rights.
The constitutional provision into only prohibits legislation for the support of
any religious tenets or the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed or the practice of any form
of worship, 35 but also assures the free exercise of one's chosen form of
religion within limits of utmost amplitude. It has been said that the religion
clauses of the Constitution are all designed to protect the broadest possible
liberty of conscience, to allow each man to believe as his conscience directs,
to profess his beliefs, and to live as he believes he ought to live, consistent
with the liberty of others and with the common good. 36 Any legislation
whose effect or purpose is to impede the observance of one or all religions,
or to discriminate invidiously between the religions, is invalid, even though
the burden may be characterized as being only indirect. 37 But if the stage
regulates conduct by enacting, within its power, a general law which has for
its purpose and effect to advance the state's secular goals, the statute is
valid despite its indirect burden on religious observance, unless the state can
accomplish its purpose without imposing such burden. 38
In Aglipay v. Ruiz 39 , this Court had occasion to state that the government
should not be precluded from pursuing valid objectives secular in character
even if the incidental result would be favorable to a religion or sect. It has
likewise been held that the statute, in order to withstand the strictures of
constitutional prohibition, must have a secular legislative purpose and a
primary effect that neither advances nor inhibits religion. 40 Assessed by
these criteria, Republic Act No. 3350 cannot be said to violate the
constitutional inhibition of the "no-establishment" (of religion) clause of the
Constitution.
The purpose of Republic Act No. 3350 is secular, worldly, and temporal, not
spiritual or religious or holy and eternal. It was intended to serve the secular
purpose of advancing the constitutional right to the free exercise of religion,
by averting that certain persons be refused work, or be dismissed from work,
or be dispossessed of their right to work and of being impeded to pursue a
modest means of livelihood, by reason of union security agreements. To help
its citizens to find gainful employment whereby they can make a living to
support themselves and their families is a valid objective of the state. In fact,
the state is enjoined, in the 1935 Constitution, to afford protection to labor,
and regulate the relations between labor and capital and industry. 41 More
so now in the 1973 Constitution where it is mandated that "the State shall
afford protection to labor, promote full employment and equality in
employment, ensure equal work opportunities regardless of sex, race or
creed and regulate the relation between workers and employers. 42
The primary effects of the exemption from closed shop agreements in favor
of members of religious sects that prohibit their members from affiliating with
a labor organization, is the protection of said employees against the
aggregate force of the collective bargaining agreement, and relieving certain
citizens of a burden on their religious beliefs; and by eliminating to a certain
extent economic insecurity due to unemployment, which is a serious menace
to the health, morals, and welfare of the people of the State, the Act also
promotes the well-being of society. It is our view that the exemption from the
effects of closed shop agreement does not directly advance, or diminish, the
interests of any particular religion. Although the exemption may benefit those
who are members of religious sects that prohibit their members from joining
labor unions, the benefit upon the religious sects is merely incidental and
indirect. The "establishment clause" (of religion) does not ban regulation on
conduct whose reason or effect merely happens to coincide or harmonize
with the tenets of some or all religions. 43 The free exercise clause of the
Constitution has been interpreted to require that religious exercise be
preferentially aided. 44
We believe that in enacting Republic Act No. 3350, Congress acted
consistently with the spirit of the constitutional provision. It acted merely to
relieve the exercise of religion, by certain persons, of a burden that is
imposed by union security agreements. It was Congress itself that imposed
that burden when it enacted the Industrial Peace Act (Republic Act 875), and,
certainly, Congress, if it so deems advisable, could take away the same
burden. It is certain that not every conscience can be accommodated by all
the laws of the land; but when general laws conflict with scrupples of
conscience, exemptions ought to be granted unless some "compelling state
interest" intervenes. 45 In the instant case, We see no such compelling state
interest to withhold exemption.
Appellant bewails that while Republic Act No. 3350 protects members of
certain religious sects, it leaves no right to, and is silent as to the protection
of, labor organizations. The purpose of Republic Act No. 3350 was not to
grant rights to labor unions. The rights of labor unions are amply provided for
in Republic Act No. 875 and the new Labor Code. As to the lamented silence
of the Act regarding the rights and protection of labor unions, suffice it to say,
first, that the validity of a statute is determined by its provisions, not by its
silence 46 ; and, second, the fact that the law may work hardship does not
render it unconstitutional. 47
It would not be amiss to state, regarding this matter, that to compel persons
to join and remain members of a union to keep their jobs in violation of their
religious scrupples, would hurt, rather than help, labor unions, Congress has
seen it fit to exempt religious objectors lest their resistance spread to other
workers, for religious objections have contagious potentialities more than
political and philosophic objections.
Furthermore, let it be noted that coerced unity and loyalty even to the
country, and a fortiori to a labor — union assuming that such unity and loyalty
can be attained through coercion — is not a goal that is constitutionally
obtainable at the expense of religious liberty. 48 A desirable end cannot be
promoted by prohibited means.
4. Appellants' fourth contention, that Republic Act No. 3350 violates the
constitutional prohibition against requiring a religious test for the exercise of a
civil right or a political right, is not well taken. The Act does not require as a
qualification, or condition, for joining any lawful association membership in
any particular religion or in any religious sect; neither does the Act require
affiliation with a religious sect that prohibits its members from joining a labor
union as a condition or qualification for withdrawing from a labor union.
Joining or withdrawing from a labor union requires a positive act. Republic
Act No. 3350 only exempts members with such religious affiliation from the
coverage of closed shop agreements. So, under this Act, a religious objector
is not required to do a positive act — to exercise the right to join or to resign
from the union. He is exempted ipso jure without need of any positive act on
his part. A conscientious religious objector need not perform a positive act or
exercise the right of resigning from the labor union — he is exempted from
the coverage of any closed shop agreement that a labor union may have
entered into. How then can there be a religious test required for the exercise
of a right when no right need be exercised?
We have said that it was within the police power of the State to enact
Republic Act No. 3350, and that its purpose was legal and in consonance
with the Constitution. It is never an illegal evasion of a constitutional provision
or prohibition to accomplish a desired result, which is lawful in itself, by
discovering or following a legal way to do it. 49
5. Appellant avers as its fifth ground that Republic Act No. 3350 is a
discriminatory legislation, inasmuch as it grants to the members of certain
religious sects undue advantages over other workers, thus violating Section
1 of Article III of the 1935 Constitution which forbids the denial to any person
of the equal protection of the laws. 50
The guaranty of equal protection of the laws is not a guaranty of equality in
the application of the laws upon all citizens of the state. It is not, therefore, a
requirement, in order to avoid the constitutional prohibition against inequality,
that every man, woman and child should be affected alike by a statute.
Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated
in law as though they were the same. The equal protection clause does not
forbid discrimination as to things that are different. 51 It does not prohibit
legislation which is limited either in the object to which it is directed or by the
territory within which it is to operate.
The equal protection of the laws clause of the Constitution allows
classification. Classification in law, as in the other departments of knowledge
or practice, is the grouping of things in speculation or practice because they
agree with one another in certain particulars. A law is not invalid because of
simple inequality. 52 The very idea of classification is that of inequality, so
that it goes without saying that the mere fact of inequality in no manner
determines the matter of constitutionality. 53 All that is required of a valid
classification is that it be reasonable, which means that the classification
should be based on substantial distinctions which make for real differences;
that it must be germane to the purpose of the law; that it must not be limited
to existing conditions only; and that it must apply equally to each member of
the class. 54 This Court has held that the standard is satisfied if the
classification or distinction is based on a reasonable foundation or rational
basis and is not palpably arbitrary. 55
In the exercise of its power to make classifications for the purpose of
enacting laws over matters within its jurisdiction, the state is recognized as
enjoying a wide range of discretion. 56 It is not necessary that the
classification be based on scientific or marked differences of things or in their
relation. 57 Neither is it necessary that the classification be made with
mathematical nicety. 58 Hence legislative classification may in many cases
properly rest on narrow distinctions, 59 for the equal protection guaranty
does not preclude the legislature from recognizing degrees of evil or harm,
and legislation is addressed to evils as they may appear.
We believe that Republic Act No. 3350 satisfies the aforementioned
requirements. The Act classifies employees and workers, as to the effect and
coverage of union shop security agreements, into those who by reason of
their religious beliefs and convictions cannot sign up with a labor union, and
those whose religion does not prohibit membership in labor unions. Tile
classification rests on real or substantial, not merely imaginary or whimsical,
distinctions. There is such real distinction in the beliefs, feelings and
sentiments of employees. Employees do not believe in the same religious
faith and different religions differ in their dogmas and cannons. Religious
beliefs, manifestations and practices, though they are found in all places, and
in all times, take so many varied forms as to be almost beyond imagination.
There are many views that comprise the broad spectrum of religious beliefs
among the people. There are diverse manners in which beliefs, equally
paramount in the lives of their possessors, may be articulated. Today the
country is far more heterogenous in religion than before, differences in
religion do exist, and these differences are important and should not be
ignored.
Even from the phychological point of view, the classification is based on real
and important differences. Religious beliefs are not mere beliefs, mere ideas
existing only in the mind, for they carry with them practical consequences
and are the motives of certain rules. of human conduct and the justification of
certain acts. 60 Religious sentiment makes a man view things and events in
their relation to his God. It gives to human life its distinctive character, its
tone, its happiness or unhappiness its enjoyment or irksomeness. Usually, a
strong and passionate desire is involved in a religious belief. To certain
persons, no single factor of their experience is more important to them than
their religion, or their not having any religion. Because of differences in
religious belief and sentiments, a very poor person may consider himself
better than the rich, and the man who even lacks the necessities of life may
be more cheerful than the one who has all possible luxuries. Due to their
religious beliefs people, like the martyrs, became resigned to the inevitable
and accepted cheerfully even the most painful and excruciating pains.
Because of differences in religious beliefs, the world has witnessed turmoil,
civil strife, persecution, hatred, bloodshed and war, generated to a large
extent by members of sects who were intolerant of other religious beliefs.
The classification, introduced by Republic Act No. 3350, therefore, rests on
substantial distinctions.
The classification introduced by said Act is also germane to its purpose. The
purpose of the law is precisely to avoid those who cannot, because of their
religious belief, join labor unions, from being deprived of their right to work
and from being dismissed from their work because of union shop security
agreements.
Republic Act No. 3350, furthermore, is not limited in its application to
conditions existing at the time of its enactment. The law does not provide that
it is to be effective for a certain period of time only. It is intended to apply for
all times as long as the conditions to which the law is applicable exist. As
long as there are closed shop agreements between an employer and a labor
union, and there are employees who are prohibited by their religion from
affiliating with labor unions, their exemption from the coverage of said
agreements continues.
Finally, the Act applies equally to all members of said religious sects; this is
evident from its provision. The fact that the law grants a privilege to members
of said religious sects cannot by itself render the Act unconstitutional, for as
We have adverted to, the Act only restores to them their freedom of
association which closed shop agreements have taken away, and puts them
in the same plane as the other workers who are not prohibited by their
religion from joining labor unions. The circumstance, that the other
employees, because they are differently situated, are not granted the same
privilege, does not render the law unconstitutional, for every classification
allowed by the Constitution by its nature involves inequality.
The mere fact that the legislative classification may result in actual inequality
is not violative of the right to equal protection, for every classification of
persons or things for regulation by law produces inequality in some degree,
but the law is not thereby rendered invalid. A classification otherwise
reasonable does not offend the constitution simply because in practice it
results in some inequality. 61 Anent this matter, it has been said that
whenever it is apparent from the scope of the law that its object is for the
benefit of the public and the means by which the benefit is to be obtained are
of public character, the law will be upheld even though incidental advantage
may occur to individuals beyond those enjoyed by the general public. 62
6. Appellant's further contention that Republic Act No. 3350 violates the
constitutional provision on social justice is also baseless. Social justice is
intended to promote the welfare of all the people. 63 Republic Act No. 3350
promotes that welfare insofar as it looks after the welfare of those who,
because of their religious belief, cannot join labor unions; the Act prevents
their being deprived of work and of the means of livelihood. In determining
whether any particular measure is for public advantage, it is not necessary
that the entire state be directly benefited — it is sufficient that a portion of the
state be benefited thereby.
Social justice also means the adoption by the Government of measures
calculated to insure economic stability of all component elements of society,
through the maintenance of a proper economic and social equilibrium in the
inter-relations of the members of the community. 64 Republic Act No. 3350
insures economic stability to the members of a religious sect, like the Iglesia
ni Cristo, who are also component elements of society, for it insures security
in their employment, notwithstanding their failure to join a labor union having
a closed shop agreement with the employer. The Act also advances the
proper economic and social equilibrium between labor unions and employees
who cannot join labor unions, for it exempts the latter from the compelling
necessity of joining labor unions that have closed shop agreements and
equalizes, in so far as opportunity to work is concerned, those whose religion
prohibits membership in labor unions with those whose religion does not
prohibit said membership. Social justice does not imply social equality,
because social inequality will always exist as long as social relations depend
on personal or subjective proclivities. Social justice does not require legal
equality because legal equality, being a relative term, is necessarily premised
on differentiations based on personal or natural conditions. 65 Social justice
guarantees equality of opportunity 66 , and this is precisely what Republic
Act No. 3350 proposes to accomplish — it gives laborers, irrespective of their
religious scrupples, equal opportunity for work.
7. As its last ground, appellant contends that the amendment introduced by
Republic Act No. 3350 is not called for — in other words, the Act is not
proper, necessary or desirable. Anent this matter, it has been held that a
statute which is not necessary is not, for that reason, unconstitutional; that in
determining the constitutional validity of legislation, the courts are
unconcerned with issues as to the necessity for the enactment of the
legislation in question. 67 Courts do inquire into the wisdom of laws. 68
Moreover, legislatures, being chosen by the people, are presumed to
understand and correctly appreciate the needs of the people, and it may
change the laws accordingly. 69 The fear is entertained by appellant that
unless the Act is declared unconstitutional, employers will prefer employing
members of religious sects that prohibit their members from joining labor
unions, and thus be a fatal blow to unionism. We do not agree. The threat to
unionism will depend on the number of employees who are members of the
religious sects that control the demands of the labor market. But there is
really no occasion now to go further and anticipate problems We cannot
judge with the material now before Us. At any rate, the validity of a statute is
to be determined from its general purpose and its efficacy to accomplish the
end desired, not from its effects on a particular case. 70 The essential basis
for the exercise of power, and not a mere incidental result arising from its
exertion, is the criterion by which the validity of a statute is to be measured.
71
II. We now pass on the second assignment of error, in support of which the
Union argued that the decision of the trial court ordering the Union to pay
P500 for attorney's fees directly contravenes Section 24 of Republic Act No.
875, for the instant action involves an industrial dispute wherein the Union
was a party, and said Union merely acted in the exercise of its rights under
the union shop provision of its existing collective bargaining contract with the
Company; that said order also contravenes Article 2208 of the Civil Code;
that, furthermore, Appellee was never actually dismissed by the defendant
Company and did not therefore suffer any damage at all . 72
In refuting appellant Union's arguments, Appellee claimed that in the instant
case there was really no industrial dispute involved in the attempt to compel
Appellee to maintain its membership in the union under pain of dismissal,
and that the Union, by its act, inflicted intentional harm on Appellee; that
since Appellee was compelled to institute an action to protect his right to
work, appellant could legally be ordered to pay attorney's fees under Articles
1704 and 2208 of the Civil Code. 73
The second paragraph of Section 24 of Republic Act No. 875 which is relied
upon by appellant provides that:
No suit, action or other proceedings shall be maintainable in any court
against a labor organization or any officer or member thereof for any act
done by or on behalf of such organization in furtherance of an industrial
dispute to which it is a party, on the ground only that such act induces some
other person to break a contract of employment or that it is in restraint of
trade or interferes with the trade, business or employment of some other
person or with the right of some other person to dispose of his capital or
labor. (Emphasis supplied)
That there was a labor dispute in the instant case cannot be disputed for
appellant sought the discharge of respondent by virtue of the closed shop
agreement and under Section 2 (j) of Republic Act No. 875 a question
involving tenure of employment is included in the term "labor dispute". 74
The discharge or the act of seeking it is the labor dispute itself. It being the
labor dispute itself, that very same act of the Union in asking the employer to
dismiss Appellee cannot be "an act done ... in furtherance of an industrial
dispute". The mere fact that appellant is a labor union does not necessarily
mean that all its acts are in furtherance of an industrial dispute. 75 Appellant
Union, therefore, cannot invoke in its favor Section 24 of Republic Act No.
875. This case is not intertwined with any unfair labor practice case existing
at the time when Appellee filed his complaint before the lower court.
Neither does Article 2208 of the Civil Code, invoked by the Union, serve as
its shield. The article provides that attorney's fees and expenses of litigation
may be awarded "when the defendant's act or omission has compelled the
plaintiff ... to incur expenses to protect his interest"; and "in any other case
where the court deems it just and equitable that attorney's fees and
expenses of litigation should be recovered". In the instant case, it cannot be
gainsaid that appellant Union's act in demanding Appellee's dismissal
caused Appellee to incur expenses to prevent his being dismissed from his
job. Costs according to Section 1, Rule 142, of the Rules of Court, shall be
allowed as a matter of course to the prevailing party.
WHEREFORE, the instant appeal is dismissed, and the decision, dated
August 26, 1965, of the Court of First Instance of Manila, in its Civil Case No.
58894, appealed from is affirmed, with costs against appellant Union. It is so
ordered.
Pamil vs. Watkins [367 U.S. 488 (1961)]
The novel question raised in this certiorari proceeding concerns the eligibility
of an ecclesiastic to an elective municipal position. Private respondent,
Father Margarito R. Gonzaga, was, in 1971, elected to the position of
municipal mayor of Alburquerque, Bohol. 1 Therefore, he was duly
proclaimed. A suit for quo warranto was then filed by petitioner, himself an
aspirant for the office, for his disqualification 2 based on this Administrative
Code provision: "In no case shall there be elected or appointed to a
municipal office ecclesiastics, soldiers in active service, persons receiving
salaries or compensation from provincial or national funds, or contractors for
public works of the municipality." 3 The suit did not prosper, respondent
Judge sustaining the right of Father Gonzaga to the office of municipal
mayor. He ruled that such statutory ineligibility was impliedly repealed by the
Election Code of 1971. The matter was then elevated to this Tribunal by
petitioner. It is his contention that there was no such implied repeal, that it is
still in full force and effect. Thus was the specific question raised.
There is no clear-cut answer from this Tribunal. After a lengthy and
protracted deliberation, the Court is divided on the issue. Seven members of
the Court are of the view that the judgment should be affirmed as the
challenged provision is no longer operative either because it was superseded
by the 1935 Constitution or repealed. Outside of the writer of this opinion, six
other Justices are of this mind They are Justices Teehankee, Muñoz Palma
Concepcion Jr., Santos, Fernandez, and Guerrero. For them, the overriding
principle of the supremacy of the Constitution or, at the very least, the repeal
of such provision bars a reversal. 4 The remaining five members of this
Court, Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and
Aquino, on the other hand, hold the position that such a prohibition against
an ecclesiastic running for elective office is not tainted with any constitutional
infirmity.
The vote is thus indecisive. While five members of the Court constitute a
minority, the vote of the remaining seven does not suffice to render the
challenged provision ineffective. Section 2175 of the Revised Administrative
Code, as far as ecclesiastics are concerned, must be accorded respect. The
presumption of validity calls for its application. Under the circumstances,
certiorari lies. That is the conclusion arrived at by the writer of this opinion,
joined by Justice Concepcion Jr., Santos, Fernandez, and Guerrero. They
have no choice then but to vote for the reversal of the lower court decision
and declare ineligible respondent Father Margarito R. Gonzaga for the office
of municipal mayor. With the aforesaid five other members, led by the Chief
Justice, entertaining no doubt as to his lack of eligibility, this petition for
certiorari must be granted.
Except for the dispositive part announcing the judgment of the Court, the
remainder of this opinion sets forth the reasons why there are constitutional
objections to the continuing force and effectivity of Section 2175 as far as
ecclesiastics are concerned.
1. The Revised Administrative Code was enacted in 1917. In the 1935
Constitution, as it is now under the present Charter, it is explicitly declared:
"No religious test shall be required for the exercise of civil or political rights."
5 The principle of the paramount character of the fundamental law 6 thus
comes into play. There are previous rulings to that effect. 6 The ban imposed
by the Administrative Code cannot survive. So the writer of this opinion would
hold.
2. This is to conform to this provision of the 1935 Charter: "All laws of the
Philippine Islands shall continue in force until the inauguration of the
Commonwealth of the Philippines; thereafter, such laws shall remain
operative, unless inconsistent with this Constitution, until amended, altered,
modified, or repealed by the Congress of the Philippines, and all references
in such laws to the government or officials of the Philippines shall be
construed, in so far as applicable, to refer to the Government and
corresponding officials under this Constitution." 7 It was first applied in
People v. Linsangan, 8 decided in December, 1935, barely a month after that
Constitution took effect. This Court held that Section 2718 of the Revised
Administrative Code that would allow the prosecution of a person who
remains delinquent in the payment of cedula tax, 9 was no longer in force. As
stated by the then Justice, later Chief Justice, Abad Santos, after setting forth
that the Constitution prohibits the imprisonment for debt or non-payment of
poll tax: 10 "It seems too clear to require demonstration that section 2718 of
the Revised Administrative Code is inconsistent with section 1, clause 12, of
Article Ill of the Constitution in that, while the former authorizes imprisonment
for non-payment of the poll or cedula tax, the latter forbids it. It follows that
upon the inauguration of the Government of the Commonwealth, said section
2718 of the Revised Administrative Code became inoperative, and no
judgment of conviction can be based thereon." 11
De los Santos v. Mallare 12 came next. The President, under the Revised
Administrative Code, could remove at pleasure any of the appointive officials
under the Charter of the City of Baguio. 13 Relying on such a provision, the
then President Quirino removed petitioner De los Santos, who was appointed
City Engineer of Baguio on July 16, 1946, and chose in his place respondent
Gil R. Mallare. Why such a power could not pass the test of validity under the
1935 Constitution was pointed out by Justice Tuason thus: "So, unlike
legislation that is passed in defiance of the Constitution, assertive and
menacing, the questioned part of section 2545 of the Revised Administrative
Code does not need a positive declaration of nullity by the court to put it out
of the way. To all intents and purposes, it is non-existent, outlawed and
eliminated from the statute book by the Constitution itself by express
mandate before the petitioner was appointed." 14
Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the
cited provision of the 1935 Constitution, as authoritatively construed, Article
145 of the Revised Penal Code was found to be inoperative. As therein
provided, the penalty of prision correccional is imposed on any public officer
or employee who, while the Congress was in regular or special session,
would arrest or search a member thereof, except in case he had committed a
crime punishable by a penalty higher than prision mayor. This Court ruled
that the Revised Penal Code extended unduly the legislative privilege of
freedom from arrest as ordained in the Constitution. 16 Such a provision then
was contrary to and in defiance of the clear expression of the will of the
Constitutional Convention of 1934 that such immunity was never intended to
exempt members of a legislative body from an arrest for a criminal offense,
the phrase treason, felony and breach of the peace being all-inclusive.
Reference was likewise made to the prevailing American doctrine to that
effect as enunciated by Williamson v. United States. 17
3. It would be an unjustified departure from a settled principle of the
applicable construction of the provision on what laws remain operative after
1935 if the plea of petitioner in this case were to be heeded. The challenged
Administrative Code provision, certainly insofar as it declares ineligible
ecclesiastics to any elective or appointive office, is, on its face, inconsistent
with the religious freedom guaranteed by the Constitution. To so exclude
them is to impose a religious test. Torcaso v. Watkins 18 an American
Supreme Court decision, has persuasive weight. What was there involved
was the validity of a provision in the Maryland Constitution prescribing that
"no religious test ought ever to be required as a disqualification for any office
or profit or trust in this State, other than a declaration of belief in the
existence of God ..." Such a constitutional requirement was assailed as
contrary to the First Amendment of the United States Constitution by an
appointee to the office of notary public in Maryland, who was refused a
commission as he would not declare a belief in God. He failed in the
Maryland Court of Appeals but prevailed in the United States Supreme Court,
which reversed the state court decision. It could not have been otherwise. As
emphatically declared by Justice Black: "this Maryland religious test for public
office unconstitutionally invades the appellant's freedom of belief and religion
and therefore cannot be enforced against him." 19
The analogy appears to be obvious. In that case, it was lack of belief in God
that was a disqualification. Here being an ecclesiastic and therefore
professing a religious faith suffices to disqualify for a public office. There is
thus an incompatibility between the Administrative Code provision relied
upon by petitioner and an express constitutional mandate. It is not a valid
argument against this conclusion to assert that under the Philippine
Autonomy Act of 1916, there was such a prohibition against a religious test,
and yet such a ban on holding a municipal position had not been nullified. It
suffices to answer that no question was raised as to its validity. In Vilar v.
Paraiso, 20 decided under the 1935 Constitution, it was assumed that there
was no conflict with the fundamental law.
4. This is the first case then where this Court has to face squarely such an
issue. This excerpt from the opinion of Justice Moreland in the leading case
of McGirr v. Hamilton, 21 a 1915 decision, has a force unimpaired by the
passage of time: "Relative to the theory that Act No. 1627 has stood so long
and been silently acquiesced in for so great a length of time that it should not
be disturbed, it may be said that the fact that certain individuals have, by
ignorance or neglect, failed to claim their fundamental rights, furnishes no
reason why another individual, alert to his rights and their proper
enforcement, should be prevented from asserting and sustaining those
rights. The fact that Smith and Jones have failed to demand their
constitutional rights furnishes no basis for the refusal to consider and uphold
the constitutional rights of Richard Roe In the case of Sadler v. Langham (34
Ala. 311), this same question was under consideration and the court in
resolving it said: 'It may be urged, that these statutes have stood, and been
silently acquiesced in for so great a length of time, they should not now be
disturbed. We are sensible of the force of this argument. It will be observed,
however, that in Tennessee, the decision which declared the private road law
unconstitutional was pronounced forty years after the enact. judgment of the
statute; and in New York, after seventy years had elapsed. It is, perhaps,
never too late to re- establish constitutional rights, the observance of which
had been silently neglected." 22 To support such a conclusion, no less than
the great Chief Justice Marshall, speaking for this Court in United States v.
More, in disposing of a contention by one of the parties as to appellate
jurisdiction having been previously exercised and therefore beyond dispute
was likewise relied upon. Thus: "No question was made in that case as to the
jurisdiction petition. It passed sub silentio, and the court does not consider
itself bound by that case. 23 So it should be in this litigation. As set forth at
the outset, it is not even necessary to annul the challenged Administrative
Code provision. It is merely declared inoperative by virtue of the mandate of
the 1935 Constitution, similarly found in the present Charter.
5. Nonetheless, tie above view failed to obtain the necessary eight votes
needed to give it binding force. The attack on the continuing effectivity of
Section 2175 having failed, it must be, as noted at the outset, given full force
and application.
WHEREFORE, the petition for certiorari is granted. The judgment a quo is
reversed and set aside. Respondent Gonzaga is hereby ordered immediately
to vacate the mayoralty of the municipality of Albuquerque, Bohol, there
being a failure to elect. No pronouncement as to costs.
Torcaso vs. Watkins [367 U.S. 488 (1961)]
Facts of the case
Roy R. Torcaso was appointed to the office of Notary Public by the Governor
of Maryland, but he could not receive his commission to serve because he
would not declare his belief in God as the Maryland Constitution required. He
sued for his commission in the Maryland Circuit Court on the grounds that
the requirement violated his First and Fourteenth Amendment rights. The
circuit court rejected his claims and the Court of Appeals of the State of
Maryland affirmed.
Question
Does a state requirement that a candidate for public office profess a belief in
God in order to be eligible violate the First Amendment protection of the
freedom of religion?
Yes. Justice Hugo L. Black delivered the unanimous opinion. The Court held
that such a requirement places the state of Maryland firmly on the side of
those people who believe in God and are willing to state their belief. With this
requirement, Maryland effectively aids religions that profess a belief in God at
the expense of any other form of belief or disbelief. The First Amendment
expressly prohibits a state from taking this position. Although the candidate
has the option of not pursuing public office rather than declaring a belief in
God, the test is an unconstitutional encroachment on the freedom of religion.
Justice Felix Frankfurter and Justice John M. Harlan concurred in the result.
PRIVACY OF COMMUNICATION AND CORRESPONDENCE
Gaanan vs. IAC [145 SCRA 113 (1986)]
This petition for certiorari asks for an interpretation of Republic Act (RA) No.
4200, otherwise known as the Anti-Wiretapping Act, on the issue of whether
or not an extension telephone is among the prohibited devices in Section 1 of
the Act, such that its use to overhear a private conversation would constitute
unlawful interception of communications between the two parties using a
telephone line.
The facts presented by the People and narrated in the respondent court's
decision are not disputed by the petitioner.
In the morning of October 22, 1975, complainant Atty. Tito Pintor and his
client Manuel Montebon were in the living room of complainant's residence
discussing the terms for the withdrawal of the complaint for direct assault
which they filed with the Office of the City Fiscal of Cebu against Leonardo
Laconico. After they had decided on the proposed conditions, complainant
made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).
That same morning, Laconico telephoned appellant, who is a lawyer, to
come to his office and advise him on the settlement of the direct assault case
because his regular lawyer, Atty. Leon Gonzaga, went on a business trip.
According to the request, appellant went to the office of Laconico where he
was briefed about the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).
When complainant called up, Laconico requested appellant to secretly listen
to the telephone conversation through a telephone extension so as to hear
personally the proposed conditions for the settlement. Appellant heard
complainant enumerate the following conditions for withdrawal of the
complaint for direct assault.
(a) the P5,000.00 was no longer acceptable, and that the figure had been
increased to P8,000.00. A breakdown of the P8,000.00 had been made
together with other demands, to wit: (a) P5,000.00 no longer for the teacher
Manuel Montebon, but for Atty. Pintor himself in persuading his client to
withdraw the case for Direct Assault against Atty. Laconico before the Cebu
City Fiscal's Office;
(b) Public apology to be made by Atty. Laconico before the students of Don
Bosco Technical High School;
(c) Pl,000.00 to be given to the Don Bosco Faculty club;
(d) transfer of son of Atty. Laconico to another school or another section of
Don Bosco Technical High School;
(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier
filed against Manuel Montebon at the Cebu City Fiscal's Office, whereas
Montebon's affidavit of desistance on the Direct Assault Case against Atty.
Laconico to be filed later;
(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical
School;
(g) Not to divulge the truth about the settlement of the Direct Assault Case to
the mass media;
(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-
48).
Twenty minutes later, complainant called up again to ask Laconico if he was
agreeable to the conditions. Laconico answered 'Yes'. Complainant then told
Laconico to wait for instructions on where to deliver the money. (tsn, March
10, 1983, pp. 2-12).
Complainant called up again and instructed Laconico to give the money to
his wife at the office of the then Department of Public Highways. Laconico
who earlier alerted his friend Colonel Zulueta of the Criminal Investigation
Service of the Philippine Constabulary, insisted that complainant himself
should receive the money. (tsn, March 10, 1982, pp. 26-33). When he
received the money at the Igloo Restaurant, complainant was arrested by
agents of the Philippine Constabulary.
Appellant executed on the following day an affidavit stating that he heard
complainant demand P8,000.00 for the withdrawal of the case for direct
assault. Laconico attached the affidavit of appellant to the complainant for
robbery/extortion which he filed against complainant. Since appellant listened
to the telephone conversation without complainant's consent, complainant
charged appellant and Laconico with violation of the Anti-Wiretapping Act.
After trial on the merits, the lower court, in a decision dated November 22,
1982, found both Gaanan and Laconico guilty of violating Section 1 of
Republic Act No. 4200. The two were each sentenced to one (1) year
imprisonment with costs. Not satisfied with the decision, the petitioner
appealed to the appellate court.
On August 16, 1984, the Intermediate Appellate Court affirmed the decision
of the trial court, holding that the communication between the complainant
and accused Laconico was private in nature and, therefore, covered by Rep.
Act No. 4200; that the petitioner overheard such communication without the
knowledge and consent of the complainant; and that the extension telephone
which was used by the petitioner to overhear the telephone conversation
between complainant and Laconico is covered in the term "device' as
provided in Rep. Act No. 4200.
In this petition for certiorari, the petitioner assails the decision of the appellate
court and raises the following issues; (a) whether or not the telephone
conversation between the complainant and accused Laconico was private in
nature; (b) whether or not an extension telephone is covered by the term
"device or arrangement" under Rep. Act No. 4200; (c) whether or not the
petitioner had authority to listen or overhear said telephone conversation and
(d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be
construed in favor of the petitioner.
Section 1 of Rep. Act No. 4200 provides:
Section 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described:
It shall be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceeding sentence, to knowingly possess any tape
record, wire record, disc record, or any other such record, or copies thereof,
of any communication or spoken word secured either before or after the
effective date of this Act in the manner prohibited by this law; or to replay the
same for any other person or persons; or to communicate the contents
thereof, either verbally or in writing, or to furnish transcriptions thereof,
whether complete or partial, to any other person: Provided, that the use of
such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in Section 3 hereof, shall not be
covered by this prohibition.
We rule for the petitioner.
We are confronted in this case with the interpretation of a penal statute and
not a rule of evidence. The issue is not the admissibility of evidence secured
over an extension line of a telephone by a third party. The issue is whether or
not the person called over the telephone and his lawyer listening to the
conversation on an extension line should both face prison sentences simply
because the extension was used to enable them to both listen to an alleged
attempt at extortion.
There is no question that the telephone conversation between complainant
Atty. Pintor and accused Atty. Laconico was "private" in the sense that the
words uttered were made between one person and another as distinguished
from words between a speaker and a public. It is also undisputed that only
one of the parties gave the petitioner the authority to listen to and overhear
the caller's message with the use of an extension telephone line. Obviously,
complainant Pintor, a member of the Philippine bar, would not have
discussed the alleged demand for an P8,000.00 consideration in order to
have his client withdraw a direct assault charge against Atty. Laconico filed
with the Cebu City Fiscal's Office if he knew that another lawyer was also
listening. We have to consider, however, that affirmance of the criminal
conviction would, in effect, mean that a caller by merely using a telephone
line can force the listener to secrecy no matter how obscene, criminal, or
annoying the call may be. It would be the word of the caller against the
listener's.
Because of technical problems caused by the sensitive nature of electronic
equipment and the extra heavy loads which telephone cables are made to
carry in certain areas, telephone users often encounter what are called
"crossed lines". An unwary citizzen who happens to pick up his telephone
and who overhears the details of a crime might hesitate to inform police
authorities if he knows that he could be accused under Rep. Act 4200 of
using his own telephone to secretly overhear the private communications of
the would be criminals. Surely the law was never intended for such
mischievous results.
The main issue in the resolution of this petition, however, revolves around
the meaning of the phrase "any other device or arrangement." Is an
extension of a telephone unit such a device or arrangement as would subject
the user to imprisonment ranging from six months to six years with the
accessory penalty of perpetual absolute disqualification for a public officer or
deportation for an alien? Private secretaries with extension lines to their
bosses' telephones are sometimes asked to use answering or recording
devices to record business conversations between a boss and another
businessman. Would transcribing a recorded message for the use of the
boss be a proscribed offense? or for that matter, would a "party line" be a
device or arrangement under the law?
The petitioner contends that telephones or extension telephones are not
included in the enumeration of "commonly known" listening or recording
devices, nor do they belong to the same class of enumerated electronic
devices contemplated by law. He maintains that in 1964, when Senate Bill
No. 9 (later Rep. Act No. 4200) was being considered in the Senate,
telephones and extension telephones were already widely used instruments,
probably the most popularly known communication device.
Whether or not listening over a telephone party line would be punishable was
discussed on the floor of the Senate. Yet, when the bill was finalized into a
statute, no mention was made of telephones in the enumeration of devices
"commonly known as a dictaphone or dictagraph, detectaphone or walkie
talkie or tape recorder or however otherwise described." The omission was
not a mere oversight. Telephone party lines were intentionally deleted from
the provisions of the Act.
The respondent People argue that an extension telephone is embraced and
covered by the term "device" within the context of the aforementioned law
because it is not a part or portion of a complete set of a telephone apparatus.
It is a separate device and distinct set of a movable apparatus consisting of a
wire and a set of telephone receiver not forming part of a main telephone set
which can be detached or removed and can be transferred away from one
place to another and to be plugged or attached to a main telephone line to
get the desired communication corning from the other party or end.
The law refers to a "tap" of a wire or cable or the use of a "device or
arrangement" for the purpose of secretly overhearing, intercepting, or
recording the communication. There must be either a physical interruption
through a wiretap or the deliberate installation of a device or arrangement in
order to overhear, intercept, or record the spoken words.
An extension telephone cannot be placed in the same category as a
dictaphone, dictagraph or the other devices enumerated in Section 1 of RA
No. 4200 as the use thereof cannot be considered as "tapping" the wire or
cable of a telephone line. The telephone extension in this case was not
installed for that purpose. It just happened to be there for ordinary office use.
It is a rule in statutory construction that in order to determine the true intent of
the legislature, the particular clauses and phrases of the statute should not
be taken as detached and isolated expressions, but the whole and every part
thereof must be considered in fixing the meaning of any of its parts. (see
Commissioner of Customs v. Esso Estandard Eastern, Inc., 66 SCRA
113,120).
In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444),
we ruled:
Likewise, Article 1372 of the Civil Code stipulates that 'however general the
terms of a contract may be, they shall not be understood to comprehend
things that are distinct and cases that are different from those upon which the
parties intended to agree.' Similarly, Article 1374 of the same Code provides
that 'the various stipulations of a contract shall be interpreted together,
attributing to the doubtful ones that sense which may result from all of them
taken jointly.
xxx xxx xxx
Consequently, the phrase 'all liabilities or obligations of the decedent' used in
paragraph 5(c) and 7(d) should be then restricted only to those listed in the
Inventory and should not be construed as to comprehend all other obligations
of the decedent. The rule that 'particularization followed by a general
expression will ordinarily be restricted to the former' is based on the fact in
human experience that usually the minds of parties are addressed specially
to the particularization, and that the generalities, though broad enough to
comprehend other fields if they stood alone, are used in contemplation of that
upon which the minds of the parties are centered. (Hoffman v. Eastern
Wisconsin R., etc., Co., 134 Wis. 603, 607, 115 NW 383, cited in Francisco,
Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).
Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200,
although not exclusive to that enumerated therein, should be construed to
comprehend instruments of the same or similar nature, that is, instruments
the use of which would be tantamount to tapping the main line of a
telephone. It refers to instruments whose installation or presence cannot be
presumed by the party or parties being overheard because, by their very
nature, they are not of common usage and their purpose is precisely for
tapping, intercepting or recording a telephone conversation.
An extension telephone is an instrument which is very common especially
now when the extended unit does not have to be connected by wire to the
main telephone but can be moved from place ' to place within a radius of a
kilometer or more. A person should safely presume that the party he is
calling at the other end of the line probably has an extension telephone and
he runs the risk of a third party listening as in the case of a party line or a
telephone unit which shares its line with another. As was held in the case of
Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):
Common experience tells us that a call to a particular telephone number may
cause the bell to ring in more than one ordinarily used instrument. Each party
to a telephone conversation takes the risk that the other party may have an
extension telephone and may allow another to overhear the conversation.
When such takes place there has been no violation of any privacy of which
the parties may complain. Consequently, one element of 605, interception,
has not occurred.
In the same case, the Court further ruled that the conduct of the party would
differ in no way if instead of repeating the message he held out his hand-set
so that another could hear out of it and that there is no distinction between
that sort of action and permitting an outsider to use an extension telephone
for the same purpose.
Furthermore, it is a general rule that penal statutes must be construed strictly
in favor of the accused. Thus, in case of doubt as in the case at bar, on
whether or not an extension telephone is included in the phrase "device or
arrangement", the penal statute must be construed as not including an
extension telephone. In the case of People v. Purisima, 86 SCRA 542, 562,
we explained the rationale behind the rule:
American jurisprudence sets down the reason for this rule to be the
tenderness of the law of the rights of individuals; the object is to establish a
certain rule by conformity to which mankind would be safe, and the discretion
of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S
Ct 609; Braffith v. Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind
531, 69 NE2d; Jennings v. Commonwealth, 109 VA 821,63 SE 1080, all cited
in 73 Am Jur 2d 452). The purpose is not to enable a guilty person to escape
punishment through a technicality but to provide a precise definition of
forbidden acts." (State v. Zazzaro, 20 A 2d 737, quoted in Martin's Handbook
on Statutory Construction, Rev. Ed. pp. 183-184).
In the same case of Purisima, we also ruled that on the construction or
interpretation of a legislative measure, the primary rule is to search for and
determine the intent and spirit of the law. A perusal of the Senate
Congressional Records will show that not only did our lawmakers not
contemplate the inclusion of an extension telephone as a prohibited device or
arrangement" but of greater importance, they were more concerned with
penalizing the act of recording than the act of merely listening to a telephone
conversation.
xxx xxx xxx
Senator Tañada. Another possible objection to that is entrapment which is
certainly objectionable. It is made possible by special amendment which
Your Honor may introduce.
Senator Diokno.Your Honor, I would feel that entrapment would be less
possible with the amendment than without it, because with the amendment
the evidence of entrapment would only consist of government testimony as
against the testimony of the defendant. With this amendment, they would
have the right, and the government officials and the person in fact would
have the right to tape record their conversation.
Senator Tañada. In case of entrapment, it would be the government.
Senator Diokno. In the same way, under this provision, neither party could
record and, therefore, the court would be limited to saying: "Okay, who is
more credible, the police officers or the defendant?" In these cases, as
experienced lawyers, we know that the Court go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).
xxx xxx xxx
Senator Diokno. The point I have in mind is that under these conditions, with
an agent outside listening in, he could falsify the testimony and there is no
way of checking it. But if you allow him to record or make a recording in any
form of what is happening, then the chances of falsifying the evidence is not
very much.
Senator Tañada. Your Honor, this bill is not intended to prevent the
presentation of false testimony. If we could devise a way by which we could
prevent the presentation of false testimony, it would be wonderful. But what
this bill intends to prohibit is the use of tape record and other electronic
devices to intercept private conversations which later on will be used in court.
(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).
It can be readily seen that our lawmakers intended to discourage, through
punishment, persons such as government authorities or representatives of
organized groups from installing devices in order to gather evidence for use
in court or to intimidate, blackmail or gain some unwarranted advantage over
the telephone users. Consequently, the mere act of listening, in order to be
punishable must strictly be with the use of the enumerated devices in RA No.
4200 or others of similar nature. We are of the view that an extension
telephone is not among such devices or arrangements.
WHEREFORE, the petition is GRANTED. The decision of the then
Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET
ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep.
Act No. 4200, otherwise known as the Anti-Wiretapping Act.
SO ORDERED.
Katz vs. U.S. [389 U.S. 347 (1967)]
Facts of the case
Acting on a suspicion that Katz was transmitting gambling information over
the phone to clients in other states, Federal agents attached an
eavesdropping device to the outside of a public phone booth used by Katz.
Based on recordings of his end of the conversations, Katz was convicted
under an eight-count indictment for the illegal transmission of wagering
information from Los Angeles to Boston and Miami. On appeal, Katz
challenged his conviction arguing that the recordings could not be used as
evidence against him. The Court of Appeals rejected this point, noting the
absence of a physical intrusion into the phone booth itself. The Court granted
certiorari.
Question
Does the Fourth Amendment protection against unreasonable searches and
seizures require the police to obtain a search warrant in order to wiretap a
public pay phone?
Yes. The Court ruled that Katz was entitled to Fourth Amendment protection
for his conversations and that a physical intrusion into the area he occupied
was unnecessary to bring the Amendment into play. "The Fourth Amendment
protects people, not places," wrote Justice Potter Stewart for the Court. A
concurring opinion by John Marshall Harlan introduced the idea of a
'reasonable' expectation of Fourth Amendment protection.
Ramirez vs. CA (G.R. No. 93833, September 28, 1995)
A civil case damages was filed by petitioner Socorro D. Ramirez in the
Regional Trial Court of Quezon City alleging that the private respondent,
Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed,
insulted and humiliated her in a "hostile and furious mood" and in a manner
offensive to petitioner's dignity and personality," contrary to morals, good
customs and public policy."1
In support of her claim, petitioner produced a verbatim transcript of the event
and sought moral damages, attorney's fees and other expenses of litigation
in the amount of P610,000.00, in addition to costs, interests and other reliefs
awardable at the trial court's discretion. The transcript on which the civil case
was based was culled from a tape recording of the confrontation made by
petitioner.2 The transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot
ka na kung paano ka napunta rito, porke member ka na, magsumbong ka
kung ano ang gagawin ko sa 'yo.
CHUCHI — Kasi, naka duty ako noon.
ESG — Tapos iniwan no. (Sic)
CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing
ganoon —
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka,
kasi hanggang 10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako
ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply ka sa review mo, kung
kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin
makakahingi.
CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to
10:00 p.m.
ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel.
Magsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano
ka nakapasok dito "Do you think that on your own makakapasok ka kung
hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI — Itutuloy ko na M'am sana ang duty ko.
ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on
your own merit alam ko naman kung gaano ka "ka bobo" mo. Marami ang
nag-aaply alam kong hindi ka papasa.
CHUCHI — Kumuha kami ng exam noon.
ESG — Oo, pero hindi ka papasa.
CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG — Kukunin ka kasi ako.
CHUCHI — Eh, di sana —
ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala
mo ba makukuha ka dito kung hindi ako.
CHUCHI — Mag-eexplain ako.
ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung
paano ka puma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay
at tatay mo ang mga magulang ko.
ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka
puwede ka ng hindi pumasok, okey yan nasaloob ka umalis ka doon.
CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.
ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka
makakapasok kung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin,
dahil tapos ka na.
CHUCHI — Ina-ano ko m'am na utang na loob.
ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no,
nilapastangan mo ako.
CHUCHI — Paano kita nilapastanganan?
ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo.
Lumabas ka na. Magsumbong ka.3
As a result of petitioner's recording of the event and alleging that the said act
of secretly taping the confrontation was illegal, private respondent filed a
criminal case before the Regional Trial Court of Pasay City for violation of
Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and
other related violations of private communication, and other purposes." An
information charging petitioner of violation of the said Act, dated October 6,
1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of
Violation of Republic Act No. 4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro
Manila, Philippines, and within the jurisdiction of this honorable court, the
above-named accused, Socorro D. Ramirez not being authorized by Ester S.
Garcia to record the latter's conversation with said accused, did then and
there willfully, unlawfully and feloniously, with the use of a tape recorder
secretly record the said conversation and thereafter communicate in writing
the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the
Information on the ground that the facts charged do not constitute an offense,
particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court
granted the Motion to Quash, agreeing with petitioner that 1) the facts
charged do not constitute an offense under R.A. 4200; and that 2) the
violation punished by R.A. 4200 refers to a the taping of a communication by
a person other than a participant to the communication.4
From the trial court's Order, the private respondent filed a Petition for Review
on Certiorari with this Court, which forthwith referred the case to the Court of
Appeals in a Resolution (by the First Division) of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed
Decision declaring the trial court's order of May 3, 1989 null and void, and
holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1
of R.A. 4200. In thus quashing the information based on the ground that the
facts alleged do not constitute an offense, the respondent judge acted in
grave abuse of discretion correctible by certiorari.5
Consequently, on February 21, 1990, petitioner filed a Motion for
Reconsideration which respondent Court of Appeals denied in its
Resolution6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue"7 that the
applicable provision of Republic Act 4200 does not apply to the taping of a
private conversation by one of the parties to the conversation. She contends
that the provision merely refers to the unauthorized taping of a private
conversation by a party other than those involved in the communication.8 In
relation to this, petitioner avers that the substance or content of the
conversation must be alleged in the Information, otherwise the facts charged
would not constitute a violation of R.A. 4200.9 Finally, petitioner agues that
R.A. 4200 penalizes the taping of a "private communication," not a "private
conversation" and that consequently, her act of secretly taping her
conversation with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a
statute. Where the language of a statute is clear and unambiguous, the law is
applied according to its express terms, and interpretation would be resorted
to only where a literal interpretation would be either impossible 11 or absurb
or would lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire
Tapping and Other Related Violations of Private Communication and Other
Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape recorder, or however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any
person, not authorized by all the parties to any private communication to
secretly record such communication by means of a tape recorder. The law
makes no distinction as to whether the party sought to be penalized by the
statute ought to be a party other than or different from those involved in the
private communication. The statute's intent to penalize all persons
unauthorized to make such recording is underscored by the use of the
qualifier "any". Consequently, as respondent Court of Appeals correctly
concluded, "even a (person) privy to a communication who records his
private conversation with another without the knowledge of the latter (will)
qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the
respondent court's conclusion that in enacting R.A. 4200 our lawmakers
indeed contemplated to make illegal, unauthorized tape recording of private
conversations or communications taken either by the parties themselves or
by third persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of
secrecy would not appear to be material. Now, suppose, Your Honor, the
recording is not made by all the parties but by some parties and involved not
criminal cases that would be mentioned under section 3 but would cover, for
example civil cases or special proceedings whereby a recording is made not
necessarily by all the parties but perhaps by some in an effort to show the
intent of the parties because the actuation of the parties prior, simultaneous
even subsequent to the contract or the act may be indicative of their
intention. Suppose there is such a recording, would you say, Your Honor,
that the intention is to cover it within the purview of this bill or outside?
Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of
offense but as evidence to be used in Civil Cases or special proceedings?
Senator Tañada: That is right. This is a complete ban on tape recorded
conversations taken without the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not sporting to record
the observation of one without his knowing it and then using it against him. It
is not fair, it is not sportsmanlike. If the purpose; Your honor, is to record the
intention of the parties. I believe that all the parties should know that the
observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tañada: Well no. For example, I was to say that in meetings of the
board of directors where a tape recording is taken, there is no objection to
this if all the parties know. It is but fair that the people whose remarks and
observations are being made should know that the observations are being
recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of persons, we say:
"Please be informed that whatever you say here may be used against you."
That is fairness and that is what we demand. Now, in spite of that warning,
he makes damaging statements against his own interest, well, he cannot
complain any more. But if you are going to take a recording of the
observations and remarks of a person without him knowing that it is being
taped or recorded, without him knowing that what is being recorded may be
used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the
bill as now worded, if a party secretly records a public speech, he would be
penalized under Section 1? Because the speech is public, but the recording
is done secretly.
Senator Tañada: Well, that particular aspect is not contemplated by the bill. It
is the communication between one person and another person — not
between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with
the above-quoted deliberations from the Congressional Record, therefore
plainly supports the view held by the respondent court that the provision
seeks to penalize even those privy to the private communications. Where the
law makes no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the
statute. The substance of the same need not be specifically alleged in the
information. What R.A. 4200 penalizes are the acts of secretly overhearing,
intercepting or recording private communications by means of the devices
enumerated therein. The mere allegation that an individual made a secret
recording of a private communication by means of a tape recorder would
suffice to constitute an offense under Section 1 of R.A. 4200. As the Solicitor
General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be regarded as a
violator, the nature of the conversation, as well as its communication to a
third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in
Section 1 of R.A. 4200 does not include "private conversations" narrows the
ordinary meaning of the word "communication" to a point of absurdity. The
word communicate comes from the latin word communicare, meaning "to
share or to impart." In its ordinary signification, communication connotes the
act of sharing or imparting signification, communication connotes the act of
sharing or imparting, as in a conversation, 15 or signifies the "process by
which meanings or thoughts are shared between individuals through a
common system of symbols (as language signs or gestures)" 16 These
definitions are broad enough to include verbal or non-verbal, written or
expressive communications of "meanings or thoughts" which are likely to
include the emotionally-charged exchange, on February 22, 1988, between
petitioner and private respondent, in the privacy of the latter's office. Any
doubts about the legislative body's meaning of the phrase "private
communication" are, furthermore, put to rest by the fact that the terms
"conversation" and "communication" were interchangeably used by Senator
Tañada in his Explanatory Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their
conversations being overheard. But this statement ignores the usual nature
of conversations as well the undeniable fact that most, if not all, civilized
people have some aspects of their lives they do not wish to expose. Free
conversations are often characterized by exaggerations, obscenity,
agreeable falsehoods, and the expression of anti-social desires of views not
intended to be taken seriously. The right to the privacy of communication,
among others, has expressly been assured by our Constitution. Needless to
state here, the framers of our Constitution must have recognized the nature
of conversations between individuals and the significance of man's spiritual
nature, of his feelings and of his intellect. They must have known that part of
the pleasures and satisfactions of life are to be found in the unaudited, and
free exchange of communication between individuals — free from every
unjustifiable intrusion by whatever means.17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the
issue of telephone wiretapping, we held that the use of a telephone extension
for the purpose of overhearing a private conversation without authorization
did not violate R.A. 4200 because a telephone extension devise was neither
among those "device(s) or arrangement(s)" enumerated therein, 19 following
the principle that "penal statutes must be construed strictly in favor of the
accused."20 The instant case turns on a different note, because the
applicable facts and circumstances pointing to a violation of R.A. 4200 suffer
from no ambiguity, and the statute itself explicitly mentions the unauthorized
"recording" of private communications with the use of tape-recorders as
among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and
unambiguous and leaves us with no discretion, the instant petition is hereby
DENIED. The decision appealed from is AFFIRMED. Costs against
petitioner.
SO ORDERED.
Salcedo-Ortanez vs. CA [235 SCRA 111 (1994)]
This is a petition for review under Rule 45 of the Rules of Court which seeks
to reverse the decision * of respondent Court of Appeals in CA-G. R. SP No.
28545 entitled "Teresita Salcedo-Ortanez versus Hon. Romeo F. Zamora,
Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S.
Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional
Trial Court of Quezon City a complaint for annulment of marriage with
damages against petitioner Teresita Salcedo-Ortanez, on grounds of lack of
marriage license and/or psychological incapacity of the petitioner. The
complaint was docketed as Civil Case No. Q-90-5360 and raffled to Branch
94, RTC of Quezon City presided over by respondent Judge Romeo F.
Zamora.
Private respondent, after presenting his evidence, orally formally offered in
evidence Exhibits "A" to "M".
Among the exhibits offered by private respondent were three (3) cassette
tapes of alleged telephone conversations between petitioner and unidentified
persons.
Petitioner submitted her Objection/Comment to private respondent's oral
offer of evidence on 9 June 1992; on the same day, the trial court admitted
all of private respondent's offered evidence.
A motion for reconsideration from petitioner was denied on 23 June 1992.
A petition for certiorari was then filed by petitioner in the Court of Appeals
assailing the admission in evidence of the aforementioned cassette tapes.
On 10 June 1993, the Court of Appeals rendered judgment which is the
subject of the present petition, which in part reads:
It is much too obvious that the petition will have to fail, for two basic reasons:
(1) Tape recordings are not inadmissible per se. They and any other variant
thereof can be admitted in evidence for certain purposes, depending on how
they are presented and offered and on how the trial judge utilizes them in the
interest of truth and fairness and the even handed administration of justice.
(2) A petition for certiorari is notoriously inappropriate to rectify a supposed
error in admitting evidence adduced during trial. The ruling on admissibility is
interlocutory; neither does it impinge on jurisdiction. If it is erroneous, the
ruling should be questioned in the appeal from the judgment on the merits
and not through the special civil action of certiorari. The error, assuming
gratuitously that it exists, cannot be anymore than an error of law, properly
correctible by appeal and not by certiorari. Otherwise, we will have the sorry
spectacle of a case being subject of a counterproductive "ping-pong" to and
from the appellate court as often as a trial court is perceived to have made
an error in any of its rulings with respect to evidentiary matters in the course
of trial. This we cannot sanction.
WHEREFORE, the petition for certiorari being devoid of merit, is hereby
DISMISSED. 1
From this adverse judgment, petitioner filed the present petition for review,
stating:
Grounds for Allowance of the Petition
10. The decision of respondent [Court of Appeals] has no basis in law nor
previous decision of the Supreme Court.
10.1 In affirming the questioned order of respondent judge, the Court of
Appeals has decided a question of substance not theretofore determined by
the Supreme Court as the question of admissibility in evidence of tape
recordings has not, thus far, been addressed and decided squarely by the
Supreme Court.
11. In affirming the questioned order of respondent judge, the Court of
Appeals has likewise rendered a decision in a way not in accord with law and
with applicable decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in nature, the same can
still be [the] subject of a petition for certiorari. 2
The main issue to be resolved is whether or not the remedy of certiorari
under Rule 65 of the Rules of Court was properly availed of by the petitioner
in the Court of Appeals.
The extraordinary writ of certiorari is generally not available to challenge an
interlocutory order of a trial court. The proper remedy in such cases is an
ordinary appeal from an adverse judgment, incorporating in said appeal the
grounds for assailing the interlocutory order.
However, where the assailed interlocutory order is patently erroneous and
the remedy of appeal would not afford adequate and expeditious relief, the
Court may allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed order admitting all of
the evidence offered by private respondent, including tape recordings of
telephone conversations of petitioner with unidentified persons. These tape
recordings were made and obtained when private respondent allowed his
friends from the military to wire tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping
and Other Related Violations of the Privacy of Communication, and for other
purposes" expressly makes such tape recordings inadmissible in evidence.
The relevant provisions of Rep. Act No. 4200 are as follows:
Sec. 1. It shall be unlawful for any person, not being authorized by all the
parties to any private communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement, to secretly overhear,
intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-
talkie or tape-recorder, or however otherwise described. . . .
Sec. 4. Any communication or spoken word, or the existence, contents,
substance, purport, or meaning of the same or any part thereof, or any
information therein contained, obtained or secured by any person in violation
of the preceding sections of this Act shall not be admissible in evidence in
any judicial, quasi-judicial, legislative or administrative hearing or
investigation.
Clearly, respondents trial court and Court of Appeals failed to consider the
afore-quoted provisions of the law in admitting in evidence the cassette tapes
in question. Absent a clear showing that both parties to the telephone
conversations allowed the recording of the same, the inadmissibility of the
subject tapes is mandatory under Rep. Act No. 4200.
Additionally, it should be mentioned that the above-mentioned Republic Act
in Section 2 thereof imposes a penalty of imprisonment of not less than six
(6) months and up to six (6) years for violation of said Act. 5
We need not address the other arguments raised by the parties, involving the
applicability of American jurisprudence, having arrived at the conclusion that
the subject cassette tapes are inadmissible in evidence under Philippine law.
WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No.
28545 is hereby SET ASIDE. The subject cassette tapes are declared
inadmissible in evidence.
SO ORDERED.
Alejano vs. Cabuay (G.R. No. 160792, August 25, 2005)
The Case
This petition for review1 seeks to nullify the Decision2 of the Court of
Appeals dated 17 September 2003 and Resolution dated 13 November 2003
in CA-G.R. SP No. 78545. The Court of Appeals’ Decision and Resolution
dismissed the petition for habeas corpus filed by lawyers Homobono Adaza
and Roberto Rafael Pulido ("petitioners") on behalf of their detained clients
Capt. Gary Alejano (PN-Marines), Capt. Nicanor Faeldon (PN-Marines),
Capt. Gerardo Gambala (PA), Lt. SG James Layug (PN), Capt. Milo
Maestrecampo (PA), and Lt. SG Antonio Trillanes IV (PN) ("detainees").
Petitioners named as respondent Gen. Pedro Cabuay ("Gen. Cabuay"),
Chief of the Intelligence Service of the Armed Forces of the Philippines
("ISAFP"), who has custody of the detainees. Petitioners impleaded Gen.
Narciso Abaya ("Gen. Abaya"), Sec. Angelo Reyes and Roilo Golez, who are
respectively the Chief of Staff of the Armed Forces of the Philippines ("AFP"),
Secretary of National Defense and National Security Adviser, because they
have command responsibility over Gen. Cabuay.
Antecedent Facts
Early morning of 27 July 2003, some 321 armed soldiers, led by the now
detained junior officers, entered and took control of the Oakwood Premier
Luxury Apartments ("Oakwood"), an upscale apartment complex, located in
the business district of Makati City. The soldiers disarmed the security
officers of Oakwood and planted explosive devices in its immediate
surroundings. The junior officers publicly renounced their support for the
administration and called for the resignation of President Gloria Macapagal-
Arroyo and several cabinet members.
Around 7:00 p.m. of the same date, the soldiers voluntarily surrendered to
the authorities after several negotiations with government emissaries. The
soldiers later defused the explosive devices they had earlier planted. The
soldiers then returned to their barracks.
On 31 July 2003, Gen. Abaya, as the Chief of Staff of the AFP, issued a
directive to all the Major Service Commanders to turn over custody of ten
junior officers to the ISAFP Detention Center. The transfer took place while
military and civilian authorities were investigating the soldiers’ involvement in
the Oakwood incident.
On 1 August 2003, government prosecutors filed an Information for coup
d’etat with the Regional Trial Court of Makati City, Branch 61, against the
soldiers involved in the 27 July 2003 Oakwood incident. The government
prosecutors accused the soldiers of coup d’etat as defined and penalized
under Article 134-A of the Revised Penal Code of the Philippines, as
amended. The case was docketed as Criminal Case No. 03-2784. The trial
court later issued the Commitment Orders giving custody of junior officers Lt.
SG Antonio Trillanes IV ("Trillanes") and Capt. Gerardo Gambala to the
Commanding Officers of ISAFP.
On 2 August 2003, Gen. Abaya issued a directive to all Major Service
Commanders to take into custody the military personnel under their
command who took part in the Oakwood incident except the detained junior
officers who were to remain under the custody of ISAFP.
On 11 August 2003, petitioners filed a petition for habeas corpus with the
Supreme Court. On 12 August 2003, the Court issued a Resolution, which
resolved to:
(a) ISSUE the WRIT OF HABEAS CORPUS; (b) require respondents to
make a RETURN of the writ on Monday, 18 August 2003, at 10:00 a.m.
before the Court of Appeals; (c) refer the case to the Court of Appeals for
RAFFLE among the Justices thereof for hearing, further proceedings and
decision thereon, after which a REPORT shall be made to this Court within
ten (10) days from promulgation of the decision.3
Thus, the Court issued a Writ of Habeas Corpus dated 12 August 2003
directing respondents to make a return of the writ and to appear and produce
the persons of the detainees before the Court of Appeals on the scheduled
date for hearing and further proceedings.
On the same date, the detainees and their other co-accused filed with the
Regional Trial Court of Makati City a Motion for Preliminary Investigation,
which the trial court granted.
On 18 August 2003, pursuant to the directives of the Court, respondents
submitted their Return of the Writ and Answer to the petition and produced
the detainees before the Court of Appeals during the scheduled hearing.
After the parties filed their memoranda on 28 August 2003, the appellate
court considered the petition submitted for decision.
On 17 September 2003, the Court of Appeals rendered its decision
dismissing the petition. Nonetheless, the appellate court ordered Gen.
Cabuay, who was in charge of implementing the regulations in the ISAFP
Detention Center, to uphold faithfully the rights of the detainees in
accordance with Standing Operations Procedure No. 0263-04. The appellate
court directed Gen. Cabuay to adhere to his commitment made in court
regarding visiting hours and the detainees’ right to exercise for two hours a
day.
The Ruling of the Court of Appeals
The Court of Appeals found the petition bereft of merit. The appellate court
pointed out that the detainees are already charged of coup d’etat before the
Regional Trial Court of Makati. Habeas corpus is unavailing in this case as
the detainees’ confinement is under a valid indictment, the legality of which
the detainees and petitioners do not even question.
The Court of Appeals recognized that habeas corpus may also be the
appropriate remedy to assail the legality of detention if there is a deprivation
of a constitutional right. However, the appellate court held that the
constitutional rights alleged to have been violated in this case do not directly
affect the detainees’ liberty. The appellate court ruled that the regulation of
the detainees’ right to confer with their counsels is reasonable under the
circumstances.
The appellate court declared that while the opening and reading of Trillanes’
letter is an abhorrent violation of his right to privacy of communication, this
does not justify the issuance of a writ of habeas corpus. The violation does
not amount to illegal restraint, which is the proper subject of habeas corpus
proceedings.
The Court of Appeals thus dismissed the petition and ordered Gen. Cabuay
to fulfill the promise he made in open court to uphold the visiting hours and
the right of the detainees to exercise for two hours a day. The dispositive
portion of the appellate court’s decision reads:
WHEREFORE, the foregoing considered, the instant petition is hereby
DISMISSED. Respondent Cabuay is hereby ORDERED to faithfully adhere
to his commitment to uphold the constitutional rights of the detainees in
accordance with the Standing Operations Procedure No. 0263-04 regarding
visiting hours and the right of the detainees to exercise for two (2) hours a
day.
SO ORDERED.4
The Issues
Petitioners raise the following issues for resolution:
A. THE COURT OF APPEALS ERRED IN REVIEWING AND REVERSING A
DECISION OF THE SUPREME COURT;
B. THE COURT OF APPEALS ERRED IN NOT ACKNOWLEDGING THE
APPROPRIATENESS OF THE REMEDY PETITIONERS SEEK; and
C. THE COURT OF APPEALS ERRED IN ASSERTING THE LEGALITY OF
THE CONDITIONS OF THE DETAINED JUNIOR OFFICERS’
DETENTION.5
The Ruling of the Court
The petition lacks merit.
Petitioners claim that the Court’s 12 August 2003 Order granted the petition
and the Court remanded the case to the Court of Appeals only for a factual
hearing. Petitioners thus argue that the Court’s Order had already foreclosed
any question on the propriety and merits of their petition.
Petitioners’ claim is baseless. A plain reading of the 12 August 2003 Order
shows that the Court referred to the Court of Appeals the duty to inquire into
the cause of the junior officers’ detention. Had the Court ruled for the
detainees’ release, the Court would not have referred the hearing of the
petition to the Court of Appeals. The Court would have forthwith released the
detainees had the Court upheld petitioners’ cause.
In a habeas corpus petition, the order to present an individual before the
court is a preliminary step in the hearing of the petition.6 The respondent
must produce the person and explain the cause of his detention.7 However,
this order is not a ruling on the propriety of the remedy or on the substantive
matters covered by the remedy. Thus, the Court’s order to the Court of
Appeals to conduct a factual hearing was not an affirmation of the propriety
of the remedy of habeas corpus.
For obvious reasons, the duty to hear the petition for habeas corpus
necessarily includes the determination of the propriety of the remedy. If a
court finds the alleged cause of the detention unlawful, then it should issue
the writ and release the detainees. In the present case, after hearing the
case, the Court of Appeals found that habeas corpus is inapplicable. After
actively participating in the hearing before the Court of Appeals, petitioners
are estopped from claiming that the appellate court had no jurisdiction to
inquire into the merits of their petition.
The Court of Appeals correctly ruled that the remedy of habeas corpus is not
the proper remedy to address the detainees’ complaint against the
regulations and conditions in the ISAFP Detention Center. The remedy of
habeas corpus has one objective: to inquire into the cause of detention of a
person.8 The purpose of the writ is to determine whether a person is being
illegally deprived of his liberty.9 If the inquiry reveals that the detention is
illegal, the court orders the release of the person. If, however, the detention
is proven lawful, then the habeas corpus proceedings terminate. The use of
habeas corpus is thus very limited. It is not a writ of error.10 Neither can it
substitute for an appeal.11
Nonetheless, case law has expanded the writ’s application to circumstances
where there is deprivation of a person’s constitutional rights. The writ is
available where a person continues to be unlawfully denied of one or more of
his constitutional freedoms, where there is denial of due process, where the
restraints are not merely involuntary but are also unnecessary, and where a
deprivation of freedom originally valid has later become arbitrary.12
However, a mere allegation of a violation of one’s constitutional right is not
sufficient. The courts will extend the scope of the writ only if any of the
following circumstances is present: (a) there is a deprivation of a
constitutional right resulting in the unlawful restraint of a person; (b) the court
had no jurisdiction to impose the sentence; or (c) an excessive penalty is
imposed and such sentence is void as to the excess.13 Whatever situation
the petitioner invokes, the threshold remains high. The violation of
constitutional right must be sufficient to void the entire proceedings.14
Petitioners admit that they do not question the legality of the detention of the
detainees. Neither do they dispute the lawful indictment of the detainees for
criminal and military offenses. What petitioners bewail is the regulation
adopted by Gen. Cabuay in the ISAFP Detention Center preventing
petitioners as lawyers from seeing the detainees – their clients – any time of
the day or night. The regulation allegedly curtails the detainees’ right to
counsel and violates Republic Act No. 7438 ("RA 7438").15 Petitioners claim
that the regulated visits made it difficult for them to prepare for the important
hearings before the Senate and the Feliciano Commission.
Petitioners also point out that the officials of the ISAFP Detention Center
violated the detainees’ right to privacy of communication when the ISAFP
officials opened and read the personal letters of Trillanes and Capt. Milo
Maestrecampo ("Maestrecampo"). Petitioners further claim that the ISAFP
officials violated the detainees’ right against cruel and unusual punishment
when the ISAFP officials prevented the detainees from having contact with
their visitors. Moreover, the ISAFP officials boarded up with iron bars and
plywood slabs the iron grills of the detention cells, limiting the already poor
light and ventilation in the detainees’ cells.
Pre-trial detainees do not forfeit their constitutional rights upon
confinement.16 However, the fact that the detainees are confined makes
their rights more limited than those of the public.17 RA 7438, which specifies
the rights of detainees and the duties of detention officers, expressly
recognizes the power of the detention officer to adopt and implement
reasonable measures to secure the safety of the detainee and prevent his
escape. Section 4(b) of RA 7438 provides:
Section 4. Penalty Clause. – a) x x x
b) Any person who obstructs, prevents or prohibits any lawyer, any member
of the immediate family of a person arrested, detained or under custodial
investigation, or any medical doctor or priest or religious minister or by his
counsel, from visiting and conferring privately chosen by him or by any
member of his immediate family with him, or from examining and treating
him, or from ministering to his spiritual needs, at any hour of the day or, in
urgent cases, of the night shall suffer the penalty of imprisonment of not less
than four (4) years nor more than six (6) years, and a fine of four thousand
pesos (₱200.00 fine pursuant to Section 44 of Act4,000.00).
The provisions of the above Section notwithstanding, any security officer with
custodial responsibility over any detainee or prisoner may undertake such
reasonable measures as may be necessary to secure his safety and prevent
his escape. (Emphasis supplied)
True, Section 4(b) of RA 7438 makes it an offense to prohibit a lawyer from
visiting a detainee client "at any hour of the day or, in urgent cases, of the
night." However, the last paragraph of the same Section 4(b) makes the
express qualification that "notwithstanding" the provisions of Section 4(b), the
detention officer has the power to undertake such reasonable measures as
may be necessary to secure the safety of the detainee and prevent his
escape.
The last paragraph of Section 4(b) of RA 7438 prescribes a clear standard.
The regulations governing a detainee’s confinement must be "reasonable
measures x x x to secure his safety and prevent his escape." Thus, the
regulations must be reasonably connected to the government’s objective of
securing the safety and preventing the escape of the detainee. The law
grants the detention officer the authority to "undertake such reasonable
measures" or regulations.
Petitioners contend that there was an actual prohibition of the detainees’ right
to effective representation when petitioners’ visits were limited by the
schedule of visiting hours. Petitioners assert that the violation of the
detainees’ rights entitle them to be released from detention.
Petitioners’ contention does not persuade us. The schedule of visiting hours
does not render void the detainees’ indictment for criminal and military
offenses to warrant the detainees’ release from detention. The ISAFP
officials did not deny, but merely regulated, the detainees’ right to counsel.
The purpose of the regulation is not to render ineffective the right to counsel,
but to secure the safety and security of all detainees. American cases are
instructive on the standards to determine whether regulations on pre-trial
confinement are permissible.
In Bell v. Wolfish,18 the United States (U.S.) Supreme Court held that
regulations must be reasonably related to maintaining security and must not
be excessive in achieving that purpose. Courts will strike down a restriction
that is arbitrary and purposeless.19 However, Bell v. Wolfish expressly
discouraged courts from skeptically questioning challenged restrictions in
detention and prison facilities.20 The U.S. Supreme Court commanded the
courts to afford administrators "wide-ranging deference" in implementing
policies to maintain institutional security.21
In our jurisdiction, the last paragraph of Section 4(b) of RA 7438 provides the
standard to make regulations in detention centers allowable: "such
reasonable measures as may be necessary to secure the detainee’s safety
and prevent his escape." In the present case, the visiting hours accorded to
the lawyers of the detainees are reasonably connected to the legitimate
purpose of securing the safety and preventing the escape of all detainees.
While petitioners may not visit the detainees any time they want, the fact that
the detainees still have face-to-face meetings with their lawyers on a daily
basis clearly shows that there is no impairment of detainees’ right to counsel.
Petitioners as counsels could visit their clients between 8:00 a.m. and 5:00
p.m. with a lunch break at 12:00 p.m. The visiting hours are regular business
hours, the same hours when lawyers normally entertain clients in their law
offices. Clearly, the visiting hours pass the standard of reasonableness.
Moreover, in urgent cases, petitioners could always seek permission from the
ISAFP officials to confer with their clients beyond the visiting hours.
The scheduled visiting hours provide reasonable access to the detainees,
giving petitioners sufficient time to confer with the detainees. The detainees’
right to counsel is not undermined by the scheduled visits. Even in the
hearings before the Senate and the Feliciano Commission,22 petitioners
were given time to confer with the detainees, a fact that petitioners
themselves admit.23 Thus, at no point were the detainees denied their right
to counsel.
Petitioners further argue that the bars separating the detainees from their
visitors and the boarding of the iron grills in their cells with plywood amount
to unusual and excessive punishment. This argument fails to impress us. Bell
v. Wolfish pointed out that while a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of law, detention
inevitably interferes with a detainee’s desire to live comfortably.24 The fact
that the restrictions inherent in detention intrude into the detainees’ desire to
live comfortably does not convert those restrictions into punishment.25 It is
when the restrictions are arbitrary and purposeless that courts will infer intent
to punish.26 Courts will also infer intent to punish even if the restriction
seems to be related rationally to the alternative purpose if the restriction
appears excessive in relation to that purpose.27 Jail officials are thus not
required to use the least restrictive security measure.28 They must only
refrain from implementing a restriction that appears excessive to the purpose
it serves.29
We quote Bell v. Wolfish:
One further point requires discussion. The petitioners assert, and
respondents concede, that the "essential objective of pretrial confinement is
to insure the detainees’ presence at trial." While this interest undoubtedly
justifies the original decision to confine an individual in some manner, we do
not accept respondents’ argument that the Government’s interest in ensuring
a detainee’s presence at trial is the only objective that may justify restraints
and conditions once the decision is lawfully made to confine a person. "If the
government could confine or otherwise infringe the liberty of detainees only
to the extent necessary to ensure their presence at trial, house arrest would
in the end be the only constitutionally justified form of detention." The
Government also has legitimate interests that stem from its need to manage
the facility in which the individual is detained. These legitimate operational
concerns may require administrative measures that go beyond those that
are, strictly speaking, necessary to ensure that the detainee shows up at trial.
For example, the Government must be able to take steps to maintain security
and order at the institution and make certain no weapons or illicit drugs reach
detainees. Restraints that are reasonably related to the institution’s interest in
maintaining jail security do not, without more, constitute unconstitutional
punishment, even if they are discomforting and are restrictions that the
detainee would not have experienced had he been released while awaiting
trial. We need not here attempt to detail the precise extent of the legitimate
governmental interests that may justify conditions or restrictions of pretrial
detention. It is enough simply to recognize that in addition to ensuring the
detainees’ presence at trial, the effective management of the detention
facility once the individual is confined is a valid objective that may justify
imposition of conditions and restrictions of pretrial detention and dispel any
inference that such restrictions are intended as punishment.30
An action constitutes a punishment when (1) that action causes the inmate to
suffer some harm or "disability," and (2) the purpose of the action is to punish
the inmate.31 Punishment also requires that the harm or disability be
significantly greater than, or be independent of, the inherent discomforts of
confinement.32
Block v. Rutherford,33 which reiterated Bell v. Wolfish, upheld the blanket
restriction on contact visits as this practice was reasonably related to
maintaining security. The safety of innocent individuals will be jeopardized if
they are exposed to detainees who while not yet convicted are awaiting trial
for serious, violent offenses and may have prior criminal conviction.34
Contact visits make it possible for the detainees to hold visitors and jail staff
hostage to effect escapes.35 Contact visits also leave the jail vulnerable to
visitors smuggling in weapons, drugs, and other contraband.36 The
restriction on contact visits was imposed even on low-risk detainees as they
could also potentially be enlisted to help obtain contraband and weapons.37
The security consideration in the imposition of blanket restriction on contact
visits was ruled to outweigh the sentiments of the detainees.38
Block v. Rutherford held that the prohibition of contact visits bore a rational
connection to the legitimate goal of internal security.39 This case reaffirmed
the "hands-off" doctrine enunciated in Bell v. Wolfish, a form of judicial self-
restraint, based on the premise that courts should decline jurisdiction over
prison matters in deference to administrative expertise.40
In the present case, we cannot infer punishment from the separation of the
detainees from their visitors by iron bars, which is merely a limitation on
contact visits. The iron bars separating the detainees from their visitors
prevent direct physical contact but still allow the detainees to have visual,
verbal, non-verbal and limited physical contact with their visitors. The
arrangement is not unduly restrictive. In fact, it is not even a strict non-
contact visitation regulation like in Block v. Rutherford. The limitation on the
detainees’ physical contacts with visitors is a reasonable, non-punitive
response to valid security concerns.
The boarding of the iron grills is for the furtherance of security within the
ISAFP Detention Center. This measure intends to fortify the individual cells
and to prevent the detainees from passing on contraband and weapons from
one cell to another. The boarded grills ensure security and prevent disorder
and crime within the facility. The diminished illumination and ventilation are
but discomforts inherent in the fact of detention, and do not constitute
punishments on the detainees.
We accord respect to the finding of the Court of Appeals that the conditions
in the ISAFP Detention Center are not inhuman, degrading and cruel. Each
detainee, except for Capt. Nicanor Faeldon and Capt. Gerardo Gambala, is
confined in separate cells, unlike ordinary cramped detention cells. The
detainees are treated well and given regular meals. The Court of Appeals
noted that the cells are relatively clean and livable compared to the
conditions now prevailing in the city and provincial jails, which are congested
with detainees. The Court of Appeals found the assailed measures to be
reasonable considering that the ISAFP Detention Center is a high-risk
detention facility. Apart from the soldiers, a suspected New People’s Army
("NPA") member and two suspected Abu Sayyaf members are detained in
the ISAFP Detention Center.
We now pass upon petitioners’ argument that the officials of the ISAFP
Detention Center violated the detainees’ right to privacy when the ISAFP
officials opened and read the letters handed by detainees Trillanes and
Maestrecampo to one of the petitioners for mailing. Petitioners point out that
the letters were not in a sealed envelope but simply folded because there
were no envelopes in the ISAFP Detention Center. Petitioners contend that
the Constitution prohibits the infringement of a citizen’s privacy rights unless
authorized by law. The Solicitor General does not deny that the ISAFP
officials opened the letters.
Courts in the U.S. have generally permitted prison officials to open and read
all incoming and outgoing mail of convicted prisoners to prevent the
smuggling of contraband into the prison facility and to avert coordinated
escapes.41 Even in the absence of statutes specifically allowing prison
authorities from opening and inspecting mail, such practice was upheld
based on the principle of "civil deaths."42 Inmates were deemed to have no
right to correspond confidentially with anyone. The only restriction placed
upon prison authorities was that the right of inspection should not be used to
delay unreasonably the communications between the inmate and his
lawyer.43
Eventually, the inmates’ outgoing mail to licensed attorneys, courts, and
court officials received respect.44 The confidential correspondences could
not be censored.45 The infringement of such privileged communication was
held to be a violation of the inmates’ First Amendment rights.46 A prisoner
has a right to consult with his attorney in absolute privacy, which right is not
abrogated by the legitimate interests of prison authorities in the
administration of the institution.47 Moreover, the risk is small that attorneys
will conspire in plots that threaten prison security.48
American jurisprudence initially made a distinction between the privacy rights
enjoyed by convicted inmates and pre-trial detainees. The case of
Palmigiano v. Travisono49 recognized that pre-trial detainees, unlike
convicted prisoners, enjoy a limited right of privacy in communication.
Censorship of pre-trial detainees’ mail addressed to public officials, courts
and counsel was held impermissible. While incoming mail may be inspected
for contraband and read in certain instances, outgoing mail of pre-trial
detainees could not be inspected or read at all.
In the subsequent case of Wolff v. McDonnell,50 involving convicted
prisoners, the U.S. Supreme Court held that prison officials could open in the
presence of the inmates incoming mail from attorneys to inmates. However,
prison officials could not read such mail from attorneys. Explained the U.S.
Supreme Court:
The issue of the extent to which prison authorities can open and inspect
incoming mail from attorneys to inmates, has been considerably narrowed in
the course of this litigation. The prison regulation under challenge provided
that ‘(a)ll incoming and outgoing mail will be read and inspected,’ and no
exception was made for attorney-prisoner mail. x x x
Petitioners now concede that they cannot open and read mail from attorneys
to inmates, but contend that they may open all letters from attorneys as long
as it is done in the presence of the prisoners. The narrow issue thus
presented is whether letters determined or found to be from attorneys may
be opened by prison authorities in the presence of the inmate or whether
such mail must be delivered unopened if normal detection techniques fail to
indicate contraband.
xxx
x x x If prison officials had to check in each case whether a communication
was from an attorney before opening it for inspection, a near impossible task
of administration would be imposed. We think it entirely appropriate that the
State require any such communications to be specially marked as originating
from an attorney, with his name and address being given, if they are to
receive special treatment. It would also certainly be permissible that prison
authorities require that a lawyer desiring to correspond with a prisoner, first
identify himself and his client to the prison officials, to assure that the letters
marked privileged are actually from members of the bar. As to the ability to
open the mail in the presence of inmates, this could in no way constitute
censorship, since the mail would not be read. Neither could it chill such
communications, since the inmate’s presence insures that prison officials will
not read the mail. The possibility that contraband will be enclosed in letters,
even those from apparent attorneys, surely warrants prison officials’ opening
the letters. We disagree with the Court of Appeals that this should only be
done in ‘appropriate circumstances.’ Since a flexible test, besides being
unworkable, serves no arguable purpose in protecting any of the possible
constitutional rights enumerated by respondent, we think that petitioners, by
acceding to a rule whereby the inmate is present when mail from attorneys is
inspected, have done all, and perhaps even more, than the Constitution
requires.51
In Hudson v. Palmer,52 the U.S. Supreme Court ruled that an inmate has no
reasonable expectation of privacy inside his cell. The U.S. Supreme Court
explained that prisoners necessarily lose many protections of the
Constitution, thus:
However, while persons imprisoned for crime enjoy many protections of the
Constitution, it is also clear that imprisonment carries with it the
circumscription or loss of many significant rights. These constraints on
inmates, and in some cases the complete withdrawal of certain rights, are
"justified by the considerations underlying our penal system." The curtailment
of certain rights is necessary, as a practical matter, to accommodate a
myriad of "institutional needs and objectives" of prison facilities, chief among
which is internal security. Of course, these restrictions or retractions also
serve, incidentally, as reminders that, under our system of justice, deterrence
and retribution are factors in addition to correction.53
The later case of State v. Dunn,54 citing Hudson v. Palmer, abandoned
Palmigiano v. Travisono and made no distinction as to the detainees’ limited
right to privacy. State v. Dunn noted the considerable jurisprudence in the
United States holding that inmate mail may be censored for the furtherance
of a substantial government interest such as security or discipline. State v.
Dunn declared that if complete censorship is permissible, then the lesser act
of opening the mail and reading it is also permissible. We quote State v.
Dunn:
[A] right of privacy in traditional Fourth Amendment terms is fundamentally
incompatible with the close and continual surveillance of inmates and their
cells required to ensure institutional security and internal order. We are
satisfied that society would insist that the prisoner’s expectation of privacy
always yield to what must be considered a paramount interest in institutional
security. We believe that it is accepted by our society that "[l]oss of freedom
of choice and privacy are inherent incidents of confinement."
The distinction between the limited privacy rights of a pre-trial detainee and a
convicted inmate has been blurred as courts in the U.S. ruled that pre-trial
detainees might occasionally pose an even greater security risk than
convicted inmates. Bell v. Wolfish reasoned that those who are detained prior
to trial may in many cases be individuals who are charged with serious
crimes or who have prior records and may therefore pose a greater risk of
escape than convicted inmates.55 Valencia v. Wiggins56 further held that "it
is impractical to draw a line between convicted prisoners and pre-trial
detainees for the purpose of maintaining jail security."
American cases recognize that the unmonitored use of pre-trial detainees’
non-privileged mail poses a genuine threat to jail security.57 Hence, when a
detainee places his letter in an envelope for non-privileged mail, the detainee
knowingly exposes his letter to possible inspection by jail officials.58 A pre-
trial detainee has no reasonable expectation of privacy for his incoming
mail.59 However, incoming mail from lawyers of inmates enjoys limited
protection such that prison officials can open and inspect the mail for
contraband but could not read the contents without violating the inmates’
right to correspond with his lawyer.60 The inspection of privileged mail is
limited to physical contraband and not to verbal contraband.61
Thus, we do not agree with the Court of Appeals that the opening and
reading of the detainees’ letters in the present case violated the detainees’
right to privacy of communication. The letters were not in a sealed envelope.
The inspection of the folded letters is a valid measure as it serves the same
purpose as the opening of sealed letters for the inspection of contraband.
The letters alleged to have been read by the ISAFP authorities were not
confidential letters between the detainees and their lawyers. The petitioner
who received the letters from detainees Trillanes and Maestrecampo was
merely acting as the detainees’ personal courier and not as their counsel
when he received the letters for mailing. In the present case, since the letters
were not confidential communication between the detainees and their
lawyers, the officials of the ISAFP Detention Center could read the letters. If
the letters are marked confidential communication between the detainees
and their lawyers, the detention officials should not read the letters but only
open the envelopes for inspection in the presence of the detainees.
That a law is required before an executive officer could intrude on a citizen’s
privacy rights62 is a guarantee that is available only to the public at large but
not to persons who are detained or imprisoned. The right to privacy of those
detained is subject to Section 4 of RA 7438, as well as to the limitations
inherent in lawful detention or imprisonment. By the very fact of their
detention, pre-trial detainees and convicted prisoners have a diminished
expectation of privacy rights.
In assessing the regulations imposed in detention and prison facilities that
are alleged to infringe on the constitutional rights of the detainees and
convicted prisoners, U.S. courts "balance the guarantees of the Constitution
with the legitimate concerns of prison administrators."63 The deferential
review of such regulations stems from the principle that:
[s]ubjecting the day-to-day judgments of prison officials to an inflexible strict
scrutiny analysis would seriously hamper their ability to anticipate security
problems and to adopt innovative solutions to the intractable problems of
prison administration.64
The detainees in the present case are junior officers accused of leading 300
soldiers in committing coup d’etat, a crime punishable with reclusion
perpetua.65 The junior officers are not ordinary detainees but visible leaders
of the Oakwood incident involving an armed takeover of a civilian building in
the heart of the financial district of the country. As members of the military
armed forces, the detainees are subject to the Articles of War.66
Moreover, the junior officers are detained with other high-risk persons from
the Abu Sayyaf and the NPA. Thus, we must give the military custodian a
wider range of deference in implementing the regulations in the ISAFP
Detention Center. The military custodian is in a better position to know the
security risks involved in detaining the junior officers, together with the
suspected Abu Sayyaf and NPA members. Since the appropriate regulations
depend largely on the security risks involved, we should defer to the
regulations adopted by the military custodian in the absence of patent
arbitrariness.
The ruling in this case, however, does not foreclose the right of detainees
and convicted prisoners from petitioning the courts for the redress of
grievances. Regulations and conditions in detention and prison facilities that
violate the Constitutional rights of the detainees and prisoners will be
reviewed by the courts on a case-by-case basis. The courts could afford
injunctive relief or damages to the detainees and prisoners subjected to
arbitrary and inhumane conditions. However, habeas corpus is not the proper
mode to question conditions of confinement.67 The writ of habeas corpus will
only lie if what is challenged is the fact or duration of confinement.68
WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the
Court of Appeals in CA-G.R. SP No. 78545.
No pronouncement as to costs.
SO ORDERED.
In Re: Laureta [148 SCRA 382 (1987)]
In almost identical letters dated 20 October 1986, personally sent to Justices
Andres R. Narvasa, Ameurfina M. Herrera, and Isagani A. Cruz, and a fourth
letter, dated 22 October 1986 addressed to Justice Florentino P. Feliciano,
all members of the First Division of this COURT, (mcorporated herein by
reference), in feigned ignorance of the Constitutional requirement that the
Court's Divisions are composed of, and must act through, at least five (5)
members, and in a stance of dangling threats to effect a change of the
Court's adverse resolution, petitioner Eva Maravilla Ilustre wrote in part:
Please forgive us for taking the Liberty of addressing you this letter which we
do hope you will read very carefully.
It is important to call your attention to the dismissal of Case No. G.R. 68635
entitled Eva Maravilla Ilustre vs. Hon. Intermediate Appellate Court, et al. by
an untenable minute-resolution although an extended one, dated 14 May
1986 which we consider as an just resolution deliberately and knowingly
promulgated by the First Division of the Supreme Court of which you are a
member.
xxx xxx xxx
We consider the three minute-resolution: the first dated 14 May 1986; the
second, dated 9 July 1986; and the third, 3 September 1986, railroaded with
such hurry/ promptitude unequaled in the entire history of the Supreme Court
under circumstances that have gone beyond the limits of legal and judicial
ethic.
xxx xxx xxx
Your attention is called to minute-resolution of 9 July 1986 which writes finish
to our case before the Supreme Court (... THIS IS FINAL.) There is nothing
final in this world We assure you that this case is far from finished by a long
shot For at the proper time, we shall so act and bring this case before
another forum where the members of the Court can no longer deny our
action with minute resolutions that are not only unjust but are knowingly and
deuberat only promulgated. The people deserve to know how the members
of the highest tribunal of the land perform in the task of decision making by
affixing their respective signed on judgments that they render on petitions
that they themselves give due course.
Please understand that we are pursuing further remedies in our quest for
justice under the law. We intend to hold responsible members of the First
Division who participated in the promulgation of these three minute-
resolutions in question. For the members thereof cannot claim immunity
when their action runs afoul with penal sanctions, even in the performance of
official functions; like others, none of the division members are above the
law.
In our quest for justice, we wish to avoid doing injustice to anyone,
particularly the members of the First Division, providing that they had no
hand in the promulgation of the resolution in question. That is why we are
requesting you to inform us your participation in the promulgation of these
resolutions in question. Even we who are poor are also capable of playing
fair even to those who take advantage of our poverty by sheer power and
influence. We shall then wait for your reply. If, however, we do not hear from
you after a week, then we will consider your silence that you supported the
dismissal of our petition. We will then be guided accordingly. (Emphasis
supplied).
The letter also attacked the participation in the case of Justice Pedro L. Yap,
Chairman of the First Division in this wise:
As Division Chairman, Associate Justice Pedro Yap, as a copy of Resolution
dated 14 May 1986 we received indicate, did not even have the elementary
courtesy of putting on record that he voluntarily inhibited himself from
participating in the promulgation of this minute-resolution, although an
extended one, which he should have done consistent with judicial decorum
and the Canons of Judicial Ethics. After he is the law partner of Atty. Sedfrey
A. Ordonez counsel for respondents, now the distinguished Solicitor
General ... indicative that even at this stage of the proceeding in point of
time, the Supreme Court still recognizes Atty. Sedfrey A. Ordonez as counsel
for respondents, even as he is already the Solicitor General. For not
withdrawing from the case formally Atty. Ordonez has manifested his
unmitigated arrogance that he does not respect the Canons of Professional
Ethics, to the actuation of his law partner, Associate Justice Pedro Yap,
Chairman of the First Division of the Supreme Court, an act that further
aggravates the growing wrinkles in the domain of judicial statesmanship,
impressed as it is, with very serious and dangerous implications.
(9) By 11 April 1986, date of the reorganization of the First Division, Atty.
Sedfrey A. Ordonez already became the Solicitor General. With such
amazingly magical coincidence, Dr. Pedro Yap, law partner of Atty. Sedfrey
A. Ordonez in the law firm Salonga, Ordonez Yap, Padian became the
Chairman of the Division.
xxx xxx xxx
(11) So we see that on 11 August 1986 to 14 May 1986 when some
members of the Division were still busy putting their respective offices in
order and had possibly have no Idea about the Maravilla case.
Was it possible for Chairman Yap to have convinced the Division members
that Maravilla petition is without merit and since the members — the new
ones knew nothing about the case, readily agreed to the dismissal of the
petition by a minute. resolution — an extended one. After all, this was the
case of the Solicitor General. If this is what happened, then we are sorry to
say that you were deliberately "had"
After ala the 14 May 1986 untenable minute resolution although an extended
one, does not bear the signatures of the Division members. The members
should have signed the resolution, after ala the Supreme Court had given the
petition due course, indicating whether they concur, dissent or otherwise
abstain from voting.
The letter to Justice Herrera went on to state:
We assume, of course, that you had studied the case thoroughly since you
were with the original First Division under the chairmanship of then Justice
Claudio Teehankee. We assure you that we will bring this case before
another forum to hold responsible the members of the Division who
participated in the dismissal of the case by the unjust minute-resolutions,
knowingly rendered for intended objective that your conscience you are
aware.
xxx xxx xxx
We leave the next move to you by informing us your participation in the
promulgation of the minute-resolutions in question Please do not take this
matter rightly for we know justice in the end will prevail. For if we do not hear
from you within a week, we will consider your silence as your admission that
you supported the dismissal of the petition. In this way, we shall then be
guided accordingly. The moment we take action in the plans we are
completing, we will then call a press conference with TV and radio coverage.
Arrangements in this regard are being done. The people should or ought to
know why we were thwarted in our quest for plain justice.
xxx xxx xxx
Finally, in view of action that we are prepared to take in this case, that will no
doubt cause nationwide attention, and there should be anyone that will cause
me harm personally, may we request you to show this letter to the authorities
concerned so that they will know where to look, when it becomes necessary.
(Emphasis supplied)
The aforesaid letters were included in the Agenda of the First Division of 22
October 1986, were "Noted," and referred en consulta to the Court en banc.
On 28 October 1986, the Court en banc took up the background and history
of the case, found no reason to take any further action, and referred the case
back to the First Division 11 as set forth in the latter's resolution of October
27, 1986. " In this Resolution, the First Division traced the history of the case,
clarified that Justice Yap assumed his position in this Court only on 2 May
1986; that when the resolution of dismissal was issued on 14 May 1986,
Justice Abad Santos was the incumbent Chairman of the First Division, and
that Justice Yap was unaware that Atty. Ordonez was private respondents'
counsel; that upon realization thereof, Justice Yap inhibited himself from
further participation in the case; and that Justice Yap was designated
Chairman of the First Division only on 14 July 1986, after the compulsory
retirement of Justice Vicente Abad Santos on 12 July 1986. The Resolution
of the First Division (incorporated herein by reference) concluded thus:
The dispositions in this case were arrived at after careful study. Because a
case is resolved against the interests of a party, does not mean that it is an
"unjust decision" or that it has been "railroaded".
This Division declares without hesitation that it has consistently rendered
justice without fear or favor. YAP, J., took no part.
On 3 November 1986, petitioner again addressed similar letters to Justices
Narvasa, Herrera, and Cruz, (incorporated herein by reference), excerpts
from which follow:
It is rather amazing that when we wrote you our previous letter, we never
dreamed that you would rush, as you did rush for assistance en consults with
the Honorable Court en banc. The unfortunate part of it all is the fact that the
Court en banc had to promulgate its resolution dated 28 October 1986 which
to us when considered in its entirety, is just as untenable as the First Division
extended and unsigned minute-resolution of 14 May 1986.
Evidently you misunderstood our point of inquiry, to wit: 'Did you or did you
not approve the dismissal of our petition under
1) The l4 May l986 minute resolution? Yes or No.
2) The 9 July l986 minute resolution? Yes or No.
3) The 3 Sept. 1986 minute resolution? Yes or No.
That was we asked. The other matters contained in our letter were intended
merely to give you the highlights of our case. This is what we wanted to know
to properly guide us when we finally bring our case to the other forum of
justice.
Did it ever occur to you that when you and the other members of the First
Division referred our letters to the Honorable Court en banc en consults it
was all your fault that the Court en banc had to promulgate its unsigned
extended minute-resolution that unfortunately exposed the distinguished
members of the newly reorganized Supreme Court and, at the same time,
convicted themselves as guilty of distorting facts involved in our petition?
This, we are sure, will come as a shock to you. We will show you why.
xxx xxx xxx
This is just a sample of what we will expose to the nation before the other
forum of justice where we will soon bring this case beyond the reach of the
newly reorganized Supreme Court We are prepared to expose many more of
this kind of judicial performance readily constituting truvesty of justice Ponder
upon this well because it is our very firm conviction that the people deserve
to know how the distinguished members of the highest tribunal of the land
perform in duties in this most sensitive area of decision making.
Anyhow, whether you referred our letter to the Court en banc consults) or
not, the situation remains the same. At the proper time, as we said, we will
bring this case before another forum of justice where the members of the
First Division, in fact the Honorable Court en banc may no longer deny our
action by mere untenable and unjust minute resolutions. Better believe it that
we intend to hold responsible members of the First Division who took part in
the promulgation of the untenable and unjust extended minute-resolution that
is not even signed by any of those who promulgated it; therefore, to us, is
clearly bereft of judicial integrity from its very inception on 14 May 1986.
xxx xxx xxx
Thus, we will bring this case before another forum of justice as Eva Maravilla
Ilustre against the distinguished members of the First Division, in fact against
the entire membership of the newly organized Supreme Court (because of its
en banc unsigned extended minute-resolution that is without judicial integrity,
dated 28 October 1986). But do not be mislead (sic) for we are not alone in
this fight. Other lawyers, not just by their mere sympathy for me personally
and my case, but by their firm conviction that judicial statesmanship must be
maintained at nines in the highest tribunal of justice in the land, that they
have offered their free legal services when the legal confrontation begins.
xxx xxx xxx
Paragraph 4, found on page 3 of the en banc resolution projects the most
fantastic, most unbelievable picture of Division Chairman Justice Yap. It
states —
...When the resolution of dismissal on May 14, 1986, Justice Yap was
unaware that Atty. Sedfrey A. Ordonez was private respondent's counsel.
The Honorable Court en banc must think everybody stupid to swallow this
statement hook, line and sinker For Justice Yap we say. Tell that to the
marines. But more than this, we leave this matter to the conscience of
Justice Yap.
Ignoramus that we are, unschooled in the domain of law and procedure, but
we are learning a few as we promulgated our case within legitimate that we
state here that both resolutions that promulgated by the Court en banc of 28
October 1986 and that promulgated by the First Division dated 27 October
1986, are nothing but a desperate attempt when both are considered in their
respective entirety, to maneuver without success, some semblance of
justification on the untenable and unjust 14 May 1986 extended and
unsigned minute-resolution that is bereft of judicial integrity.
xxx xxx xxx
Thus, if the members of the First Division and those of the Honorable Court
en banc think for one minute that because of their respective 4-page minute
but extended resolutions apparently impressive for their lack of merit
deliberately unsigned that exposed their lack of judicial integrity, that we win
now give up the fight, just forget it. Ignoramus that we are, better believe it
when we say we are prepared to carry the fight before another forum of
justice. When we do, we shall call for a press conference with TV and radio
coverage, so that we can present to the entire nation our quest for justice
against the steam-roller of power and influence and, at the same time, to call
the attention of the people to the manner in which the members of the
highest tribunal of the land perform their respective individual and collective
functions in the domain of this most sensitive area of decision making.
Allow us to restate our previous and now, our present inquiry, to wit:
Did you or did you not approve the dismissal of our petition under —
a) The l4 May l986 minute resolution? Yes or No.
b) The 9 July l986 minute resolution? Yes or No.
c) The 3 Sept. 1986 minute resolution? Yes or No. (Emphasis supplied).
True to her threats, after having lost her case before this Court, petitioner
filed on 16 December 1986 an Affidavit-Complaint before the Tanodbayan,
totally disregarding the facts and circumstances and legal considerations set
forth in this Court's aforecited Resolutions of the First Division and en banc.
Some Members of this Court were maliciously charged with having knowingly
and deliberately rendered, with bad faith, an unjust, extended Minute
Resolution "making" her opponents the "illegal owners" of vast estates.
Some Justices of the Court of Appeals were similarly maliciously charged
with knowingly rendering their "unjust resolution" of 20 January 1984
"through manifest and evident bad faith," when their Resolution had in fact
and law been upheld by this Court. Additionally, Solicitor General Sedfrey A.
Ordonez and Justice Pedro Yap of this Court were also maliciously charged
with having used their power and influence in persuading and inducing the
members of the First Division of this Court into promulgating their "unjust
extended Minute Resolution of 14 May 1986."
All the foregoing, in complete disregard of the Resolutions of this Court, as
the tribunal of last resort, 1) upholding the challenged judgment of the Court
of Appeals; 2) dismissing the Petition on the ground that the doctrine of res
judicata was clearly applicable not only as to the probate of the Will of the
decedent but also as to the heirship of petitioner, among others, and their
right to intervene and participate in the proceedings; and 3) finding that there
was no attempt whatsoever on the part of Justice Yap nor Solicitor General
Ordonez to unduly influence the members of the First Division.
The Complaint before the Tanodbayan (incorporated herein by reference)
was allegedly filed "in my quest for justice, something that has been closed to
me by the Supreme Court forever" and specifically charged:
CHARGE NO. ONE —
Atty. Sedfrey A. Ordonez and Justice Pedro Yap of 1) "persuading, inducing,
influencing the members of the newly organized First Division ... into
promulgating their unjust, extended minute RESOLUTION of 14 May 1986,
knowingly with deliberate intent with such unusual hurry promptitude
unequaled in the entire history of the Supreme Court base on insignificant
issues and deliberately evading/prevaricating the more important substantial
ones raised in my petition, in violation of Section 3, sub-letter (a) of Republic
Act No. 3019, as amended, ... ; and
(2) Under the same Section 3, sub-letter (e) of the same Republic Act ... for
causing me and the other heirs of Ponciano Maravilla undue injury by using
their power and influence as Solicitor-General and Associate Justice,
respectively. ...
CHARGE NO. TWO —
Associate Justices Luis Javellana, Vicente Mendoza and Serafin Cuevas,
members of the then FOURTH SPECIAL CASES DIVISION, Intermediate
Appellate Court —
1) For knowingly rendering their unjust RESOLUTION dated 20 January
1984 in the exercise of their functions through manifest and evident bad faith
in CA-G.R. No. SP-13680, entitled "Francisco Q. Maravilla, et al. v. Hon.
Antonia Corpus Macandog, et al." in violation of article 204 of the revised
Penal Code,-
2) For causing me and the other heirs such undue injury' by deliberately,
knowingly rendering their unjust RESOLUTION dated 20 January 1984 ... in
violation of Republic Act No. 3019, as amended, Section 3 (e) thereof.
CHARGE NO THREE —
Associate Justice Vicente Abad Santos (retired) then Chairman of the First
Division of the Supreme Court as of 14 May 1986, and Associate Justice
Isagani Cruz, Andres Narvasa, Ameurfina M. Herrera and Pedro Yap, ... —
1) For knowingly and deliberately rendering their unjust extended MINUTE
RESOLUTION of 14 May 1986 dismissing my petition in G.R. No. 68635, ...
with manifest and evident bad faith to make the clients of Atty. Sedfrey A.
Ordonez now the distinguished Solicitor General the 'illegal owners' of the
vast estates of my aunt Digna Maravilla ...;
2) Under Section 3, sub-letter (e) Republic Act No. 3019, as amended, ... for
deliberately causing us heirs of Ponciano Maravilla undue injury by depriving
us of our rights over my aunt's vast estates because of their manifest and
evident bad faith in knowingly promulgating their unjust extended minute
RESOLUTION of 14 May 1986, deliberately intended to make the clients of
Atty. Sedfrey A. Ordonez, now the Solicitor General the "illegal owners" of
my aunt Digna Maravilla's estates when under the law, these Ordonez clients
are not entitled to own these vast properties whether under testate or
intestate succession or mixed succession (Emphasis supplied).
Atty. Laureta himself reportedly circulated copies of the Complaint to the
press, which was widely publicized in almost all dailies on 23 December
1986, without any copy furnished this Court nor the members who were
charged. The issue of the Daily Express of 23 December 1986 published a
banner headline reading —
ORDONEZ, 8 JUSTICES FACE GRAFT CHARGES
thereby making it unjustly appear that the Justices of this Court and the other
respondents were charged with "graft and corruption" when the Complaint
was actually filed by a disgruntled litigant and her counsel after having lost
her case thrice in this Court.
On 26 December 1986, the Tanodbayan (Ombudsman) dismissed
petitioner's Complaint and decreed in the dispositive portion of his Resolution
(herein incorporated by reference) that:
WHEREFORE, all the premises considered, this Office resolves to dismiss
the complaint against Justices Pedro Yap, Isagani Cruz, Andres Narvasa,
Ameurfina Melencio-Herrera, Vicente Abad Santos, and will continue
evaluating the complaint against Justices Serafin Cuevas, Luis Javellana and
Vicente Mendoza, Solicitor General Sedfrey Ordonez and the private
respondents.
The aforestated Resolution indicated at the bottom of the last page:
Copy Furnished:
DEAN WENCESLAO LAURETA
Counsel for the Complainant
919 Prudencio Street
Sampaloc, Manila
In the Resolution of this Court en banc, dated January 29, 1986, it required:
(1) Petitioner Eva Maravilla Ilustre to show cause, with in ten (10) days from
notice, why she should not be held in contempt for her aforecited statements,
conduct, acts and charges against the Supreme Court and/or official actions
of the Justices concerned, which statements, unless satisfactorily explained,
transcend the permissible bounds of propriety and undermine and degrade
the administration of justice; and
(2) Atty. Wenceslao Laureta, as an officer of the Court, to show cause, within
ten (10) days from notice, why no disciplinary action should be taken against
him for the aforecited statements, conduct, acts and charges against the
Supreme Court and the official actions of the Justices concerned, and for
hiding therefrom in anonymity behind his client's name, in an alleged quest
for justice but with the manifest intent to bring the Justices into disrepute and
to subvert public confidence in the Courts and the orderly administration of
justice. (pp. 383-384, Rollo).
(1)
In her Compliance-Answer filed on February 9, 1987, wherein Eva Maravilla
Ilustre prays that the contempt proceedings against her be dismissed, she
contends, in essence, that: (1) "there was no intention to affront the honor
and dignity" of the Court; (2) the letters addressed to the individual Justices
were private in character and were never meant for anybody, much less the
Supreme Court en banc, "there (being) a constitutional mandate affording
protection to privacy of communications;" (3) if her statements in those letters
were really contemptuous, the Court "should have immediately taken
disciplinary proceedings" against her, and not having done so, the Court has
"forfeited" that right and is now "estopped" from doing so; this citation for
contempt is a "vindictive reprisal" for her having filed the complaint before the
Tanodbayan, "an action that lacks sincerity, taken not in the spirit of judicial
statemanship;" (4) she instituted the complaint before the Tanodbayan "in my
honest behalf that I lost my case before the Supreme Court not because of
lack of merit or of its own merits, assisted by attorneys who offered their
services in the prosecution of my case;" (5) the newspaper publicity of this
case "was no fault of mine; neither is it the fault of my former counsel Dean
Wenceslao Laureta, " who prevailed upon her to call off the press conference
with TV and radio coverage; that she is not a "disgruntled litigant" who thrice
lost before the Court, rather, she has challenged the validity of the
resolutions of the Court "containing distortion of facts, conjectures and
mistaken inferences" particularly, in that (a) there is no res judicata, (b) the
Court of Appeals in its decision declared that the judgment of the trial Court
had long attained finality, so that it can no longer be set aside, (c) her 11
opponents," clients of Atty. Ordonez, are not entitled to own her aunt's "vast
properties" whether under the law of testate or intestate succession or mixed
succession," (d) that the statement in this Court's Resolution that the Court of
Appeals had denied intervention is an "unadulterated distortion of the facts;"
(b) the statement in the en banc Resolution that some Justices of the Court
of Appeals were similarly maliciously charged with knowingly rendering their
"unjust resolution" of 20 January 1984 is a bit "premature, a pre-judgment
over a case over which this Court does not have jurisdiction;" (7) Atty.
Laureta is not her counsel in the case before the Tanodbayan; (8) before the
latter body, she has "established not only probable cause but has also
proved the collective culpability (of the Justices concerned) as charged;" (9)
and that her 53 page Motion for Reconsideration before the Tanodbayan is
made an integral part of her Answer.
(2)
In his own Answer, Atty. Laureta maintains substantially that: (1) he is not
respondent Ilustre's counsel before the Tanodbayan and that she has
consulted and/or engaged the services of other attorneys in the course of the
prosecution of her case, fike Atty. Edgardo M. Salandanan and Atty.
Vedastro B. Gesmundo; that he just learned from other sources that
respondent llustre was planning to bring her case to the Tanodbayan with the
assistance of other lawyers who offered her their legal services; (2) it was he
who dissuaded her from calling her intended press conference and from
circulating copies of her complaint "not only in the performance of duty as an
officer of the court, but also as a former president of Manila III Chapter of the
Integrated Bar of the Philippines and as a professional lecturer in Legal and
Judicial Ethics in some Manila law schools in his desire to protect and uphold
the honor and dignity of the Supreme Court as the highest tribunal of the
land." He should, therefore, be given "a little bit of credit for what he did"
instead of taking this disciplinary proceeding against him; that Ms. Ilustre is
not a "disgruntled litigant" who "lost her case thrice in this Court;" (3) he did
not prepare respondent Ilustre's letters to the individual Justices, I
appearances to the contrary notwithstanding," that these letters were "never,
at any time, considered as constituting contempt of court" in the resolutions
of this Court, otherwise, "it would have taken immediate disciplinary action as
it is doing now;" the Court has lost its right to consider the statements in the
letters as constituting contempt and it is now "estopped" from proceeding
with this disciplinary action; (4) by doing so, this Court has "unmistakably
revealed the intent and character that underlie its present action as a
vindictive judicial vengeance, inconsistent with the spirit of judicial
statesmanship by hiding behind the well-recognized fact that the Supreme
Court is supreme in the domain of the administration of justice;" (5) "there
was no disregard intended to the Resolution of the Honorable Court, as the
tribunal of last resort, relative to its upholding the judgment of the Court of
Appeals;" he is just doing "his duty as an officer of the court to put the
records in this regard in their proper light;" particularly (a) that the judgment
of the trial court had attained its finality long ago, (b) the doctrine of res
judicata is inapplicable, otherwise, this Court would not have remanded the
case to the Court of Appeals for review, (c) the observation in the First
Division's extended Resolution of 14 July 1986 that Justice Yap was unaware
that Atty. Ordonez was private respondents' counsel "defies every vestige of
human understanding," that Justice Yap had forthwith inhibited himself from
participating in the case is not borne out by the record of this case. Justice
Yap had "never voluntarily entered on the record his inhibition" when he
should have done so when respondent Ilustre's petition was taken up; Justice
Yap's partner, Atty. Ordonez, continued to be recognized by this Court as
counsel for private respondents even as he was the Solicitor General; (b)
finally, "appearances to the contrary notwithstanding, he has not colted acts
unworthy of his profession. The truth of the matter is, he should at least be
credited in whatever small way for his acts and efforts taken by him to protect
and uphold the honor and dignity of the Honorable Court.

We find the explanations of both Ms. Ilustre and Atty. Laureta unsatisfactory.
Their claims that they had done nothing that could constitute an affront to the
honor and dignity of this Court dissipate in the face of attendant facts and
circumstances and "defy every vestige of human understanding," to use their
own language. Indeed, they should not "think that they will win a hearing by
the sheer multiplication of words." (Mathew 6:7).
Respondents' reliance on the "privacy of communication" is misplaced.
Letters addressed to individual Justices, in connection with the performance
of their judicial functions become part of the judicial record and are a matter
of concern for the entire Court. The contumacious character of those letters
constrained the First Division to refer the same to the Court en banc, en
consults and so that the Court en banc could pass upon the judicial acts of
the Division. It was only in the exercise of forbearance by the Court that it
refrained from issuing immediately a show cause order in the expectancy
that after having read the Resolution of the Court en banc of October 28,
1986, respondents would realize the unjustness and unfairness of their
accusations.
The Court is far from "estopped" in initiating these proceedings. The Chief
Justice had promptly announced his Statement, dated December 23, 1986,
that "the Supreme Court will take appropriate steps on the matter upon its
resumption of sessions on the first working day of the year. "
There is no vindicative reprisal involved. The Court's authority and duty under
the premises is unmistakable. It must act to preserve its honor and dignity
from the scurrilous attacks of an irate lawyer, mouthed by his client, and to
safeguard the morals and ethics of the legal profession.
We are not convinced that Atty. Laureta had nothing to do with respondent
Ilustre's letters to the individual Justices, nor with the com plaint filed before
the Tanodbayan. In the Motion for Reconsideration, dated June 11, 1986,
filed by Atty. Laureta in the main petition, he stressed:
10. The composition of the First Division was reduced to five members.
Strangely enough, about one month later, the Honorable Court promulgated
its extended resolution with such promptitude in the entire history of the
Supreme Court, unequaled in a manner of speaking, ...
In the Manifestation and Motion, dated June 25, 1986, filed by Atty. Laureta
(p. 311, Rollo), the same phrases were incanted:
the promptitude with which the Resolution of 14 May 1986 was promulgated
(par. 9, Motion for Reconsideration, p. 5) unequaled in the entire history of
the Supreme Court in so far as petitions given due course is concerned ...
(Emphasis given)
Those same terms are reproduced verbatim in the letters ostensibly authored
by respondent Ilustre addressed to the individual Justices whom respondents
have charged. Thus:
We consider the three minute resolutions ... railroaded with such
hurry/promptitude unequalled in the entire history of the Supreme Court
under circumstances that have gone beyond the limits of legal and judicial
ethics" ltr., to Justice Narvasa, p. 2; Itr., to Justice Herrera, p. 2; Itr., to
Justice Cruz, p. 2).
xxx xxx xxx
with such unusual hurry/promptitude unequalled in the entire history of the
Supreme Court (Ltr., to Justice Narvasa, p. 5; Itr., to Justice Herrera, p. 5;
Itr., to Justice Cruz, p. 5).
The same terminologies are reiterated in the Complaint and in the Motion for
Reconsideration filed before the Tanodbayan (p. 2).
Further, in his Manifestation & Motion, dated June 25, 1986, Atty. Laureta
stated:
counsel for petitioner personally inquired from Division Clerk of Court
Corazon Served the following:
(1) When was the above-entitled case deliberated by the First Division?
(2) Are there recorded minutes of such deliberation?
(3) Who among the members of the Division voted for dismissal of the
petition to be promulgated by resolution and who did not, if any?
(4) Who prepared the Resolution? (p.312, Rollo).
Atty. Laureta's obsession to receive the answer to his queries surfaces again
in the second letters dated November 3, 1986 to the individual Justices under
the supposed signatures of respondent Ilustre, thus:
Evidently you misunderstood our point of in our first letter. It is a very simple
inquiry, to wit Did you or did you not approve the dismissal of our petition
under
1) The l4 May l986 minute resoluTion? Yes or No

2) The 9 July l986 minute resoluTion? Yes or No
3) The 3 Sept. 1986 minute resolution? Yes or No. (Emphasis supplied) ltr.,
to Justice Narvasa, p. 1; to Justice Herrera, p. 1; to Justice Cruz, p. 1)
Additionally, the disparaging remarks like: exertion of "undue" and "powerful
influence" by Atty. Ordonez and Justice Yap; "distortion of facts, conjectures
and mistaken references"; "untenable minute resolution although extend.
"unjust minute resolution" repeated by Atty. Laureta in his several pleadings,
echoed and re-echoed in the individual letters to the Justices, as well as in
the Complaint and the Motion for Reconsideration before the Tanodbayan,
reveal the not-too-hidden hand of Atty. Laureta.
The foregoing is bolstered by the reports received by the members of the
Court that copies of the complaint filed with the Tanodbayan were distributed
to the editors of the metropolitan newspapers in envelopes bearing the name
of respondent Laureta, who was heard over the radio speaking on the same
complaint, and that he was following up the complaint and the motion for
reconsideration of the order of dismissal of the Tanodbayan.
Furthermore, respondent Laureta as his co-respondent Ilustre's lawyer had
control of the proceedings. As stressed by this Court in an early case, as
such lawyer, "Whatever steps his client takes should be within his knowledge
and responsibility. Indeed, Canon 16 of the Canons of Legal E times should
be reminded him that '(a) lawyer should use his best efforts to restrain and to
prevent his clients from doing those things which the lawyer himself ought
not to do, particularly with reference to their conduct towards courts, judicial
officers, jurors, witnesses and suitors. If a client pursuits in such wrongdoing
the lawyer should terminate their relation.' " (In Re: Contempt Proceedings in
Surigao Mineral Reservation Board vs. Cloribel, 31 SCRA 1, 23) Respondent
Laureta manifestly failed to discharge such responsibility. For all intents and
purposes, he appears to have encouraged and abetted his client in
denigrating the members of the First Division of this Court, by baselessly
charging them with rendering an "unjust" resolution with "deliberate bad
faith," because of his stubborn insistence on his untenable arguments which
had been rejected as without merit by the Court's First Division, whose
Resolution was upheld by the Court en banc. Worse, the dissemination in the
print and broadcast media in bold captions falsely depicting the Justices as
"FAC(ING) GRAFT CHARGES" instead of the baseless rantings of a
disgruntled litigant appear to have been timed to place them in a bad light at
the height of the Christmas season.
We come now to the specific accusations of respondents.
They charge Associate Justices Vicente Abad Santos (retired) then
Chairman of the First Division of the Supreme Court as of May 14,1986,
Andres Narvasa, Ameurfina M. Herrera, and Pedro Yap for knowingly and
deliberately rendering their "unjust, extended Resolution of May 14, 1986"
dismissing their petition in this case with manifest and evident bad faith to
make the clients of Atty. Sedfrey A. Ordonez (now the Solicitor General) the
"illegal owners" of the estates of Digna Maravilla, thereby causing the heirs of
Ponciano Maravilla (Digna's eldest brother) undue injury by depriving them of
their rights over the estates of Digna Maravilla (Charge No. Three before the
Tanodbayan). They further charge Justice Yap (and Atty. Sedfrey Ordonez)
of having 11 persuade(ed), inducted(ed) and influence(ed) the members of
the newly organized First Division into promulgating their "unjust, extended
minute Resolution of 14 May 1986" (Charge No. One before the
Tanodbayan), which Resolution, (the "Division Resolution, " for short) is
herewith attached as Annex "A ".
Preliminarily, respondents deny that respondent Ilustre lost three times in this
Court. It cannot be denied, however, that, as stated in the Resolution of
October 28, 1986 of the Court en banc, this is the third time (in fact, the
fourth, if we include Fernandez, et al. vs. Maravilla, L-18799, 10 SCRA 589
[1964]) that a controversy involving the estate of the late Digna Maravilla is
elevated to this Court. The first was in G.R. No. L-23225 (37 SCRA 672
[1971], where this Court ruled:
IN VIEW OF THE FOREGOING, the decree of the court below denying
probate of the 1944 will of Digna Maravilla (Exhibit "A") is reversed and the
said testament is hereby ordered probated. Let the records be returned to the
Court of origin for further proceedings conformable to law. ...
As stated in the en banc Resolution of October 28, 1986 (hereto attached as
Annex " B ", and hereinafter referred to as the "Banc Decision") while
respondent Ilustre was not a party in that case, upon remand of the case to
the probate Court, she and other children of the deceased brothers and
sisters of the testatrix filed two Motions for Intervention. Respondent Ilustre's
participation in the state involved, therefore, harks back to that first case.
The Court of Appeals resolved the issue of intervention in CA-G.R. No.
05394, entitled "Heirs of Pastor Maravilla, et al. vs. Hon. Ernesto S. Tengco,
et al." in a Decision penned by Justice Venicio E scolin (hereinafter referred
to as the "Escolin Decision") wherein it was categorically ruled that there was
no point to allowing intervention on the part of respondent Ilustre, et al., "for
failure to show any right or interest in the estate in question. " Thus:
(2) As heretofore stated, private respondents, in their counter-petition for
mandamus, seek this Court's resolution on the petitioners' motion for
intervention in Sp. Proc. No. 4977. In their respective pleadings and
memoranda, the parties have lengthily discussed the issue of whether or not
petitioners may be allowed to intervene; and the same may as well be
determined in the present case, if only 'to avoid or, at least, minimize further
protracted controversy' between the parties (PCIB vs. Hon. Escolin, 56
SCRA 266). A resolution of this issue should render moot and academic the
question anent the disqualification of respondent Judge.
We agree with private respondents that petitioners' motions for intervention
are devoid of merit, for failure on their part to show any right or interest in the
estate in question. There is no dispute that the last will and testament of the
late Digna Maravilla had already been admitted to probate in a final judgment
which the Supreme Court promulgated on March 2, 1971 (G.R. No. L-
23225). In the said will Digna instituted her husband Herminio Maravilla as —
xxx xxx xxx
The above testamentary provision for the universal heirship of Herminio
Maravilla over the residue of the decedent's present and future property
legally and completely excluded the petitioners, as collateral relatives of the
testatrix, from inheriting any part of the latter's estate through intestate
succession or mixed succession. Having no forced or compulsory heirs,
except her husband, the testatrix had the absolute freedom to institute the
latter as her sole, universal heir, and such freedom is recognized by Article
842 of the Civil Code which provides:
ART. 842. One who has no compulsory heirs may dispose by will of all his
estate or any part of it in favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does
not contravene the provisions of this Code with regard to the legitimate of
said heirs.
There is therefore no point in allowing the petitioners, who clearly appear to
have no interest in the estate, to intervene in the proceedings involving the
settlement thereof.
xxx xxx xxx
The aforesaid Decision was affirmed by this Court in G.R. No. L-46155 on
November 9, 1977 and has become final. That was the second case
involving the estate filed before this Court.
Respondents' contention, therefore, that the statement in the Banc
Resolution "that the Court of Appeals had denied intervention" is an
"unadulterated distortion of the facts" is obviously erroneous and intended to
mislead.
The "Escolin Decision" (in CA-G.R. No. 05394-R), which had become final,
also finally foreclosed any claim that respondent Ilustre, and those who
sought to intervene with her, may have had on the estate of Digna Maravilla.
In unmistakable terms, what the Court of Appeals held in that Decision,
affirmed by this Court, bears repeating:
The above testamentary provision for the universal heirship of Herminio
Maravilla over the residue of the decedent's present and future property
legally and completely excluded the petitioners, as collateral relatives of the
testatrix, from inheriting any part of the latter's estate through intestate
succession or mixed succession. ...
To circumvent that judgment, however, two years later, or on February 29,
1979, respondent Ilustre, with respondent Laureta as counsel, filed a
complaint for partition of Digna Maravilla's estate and for damages against
the heirs of Digna Maravilla's husband, who had then passed away
(docketed as Civil Case No. X-404), before the Court of First Instance of
Negros Occidental, San Carlos City, Branch X, presided over by Judge
Antonia Corpuz Macandog. That Court, after declaring defendants therein
(private respondents in the petition under review) in default, ordered "all
properties of Digna Maravilla mentioned in this case to go back to their trunk
of origin, the plaintiffs herein who are represented by Eva Maravilla Ilustre
and Eva Maravilla Ilustre herself" (hereinafter referred to as the "Macandog
Decision"). In addition, the judgment awarded damages to the respondent
Ilustre, et al., (the plaintiffs therein), and the sum of P100,000.00 to their
counsel, respondent Laureta.
A special civil action for certiorari was filed by the defeated parties (private
respondents in the petition under review) before this Court, docketed as G.R.
No. L-58014, praying that the lower Court's declaration of default in Civil
Case No. X-404 and all other actions or decisions taken thereafter be
declared null and void and that the dismissal of the complaint be ordered. On
January 21, 1982, this Court resolved to refer the case to the Court of
Appeals in aid of its appellate jurisdiction, questions of fact being involved.
In a Decision dated January 14, 1983, the Court of Appeals (Fourth
Division)', 1 in AC-G.R. SP No. 13680 (hereafter called the Busran
Decision"), dismissed the petition and denied certiorari stating in one breath
that "the judgment subject of assail had long become final" (at p. 13), and in
another "for all we know, the judgment below had already attained finality
long ago." The reason relied upon was that petitioners therein had the
remedy of appeal but instead availed of Certiorari, which is not a substitute
therefor.
On motion for reconsideration, however, filed by petitioners (private
respondents in the petition under review), in that appealed case AC-GR SP
No. 13680), the same Court of Appeals (Fourth Special Cases Division) 2 in
its Resolution of January 20, 1984 (the "Javellana Resolution"), reconsidered
and set aside the BusRan Decision" and entered another one:
1. Annulling the order of default of the Hon. respondent Court dated 29 April
1980 and its decision dated 11 August 1981; and
2. Dismissing private respondents' complaint in Civil Case No. X-404 and
ordering the Hon. respondent Court not to take further action therein.
Respondent Ilustre challenged that reversal in the present Petition for
Review filed on October 22, 1984. This is the third case brought before this
Court involving the same estate. Review was denied in an extended
Resolution by the First Division of this Court in the challenged Resolution of
May 14, 1986, for the following reasons:
The appealed Decision stands on firm legal grounds.
(1) The Order of Default of the Trial Court was issued in grave abuse of
discretion. The Answer was only one day late besides the fact that when so
filed, the Order of default had not yet been issued by the Trial Court.
(2) While appeal is, indeed, the remedy from a judgment by default, certiorari
may be resorted to when a party has been illegally declared in 4 default
Omico Mining & Industrial Corporation vs. Vallejos 63 SCRA 300-301
[19751), or where it is necessary to restore order to proceedings in the Court
below (Lim Tanhu vs. Ramolete, 66 SCRA 462-463 [19751).
(3) More importantly, the judgment of the Trial Court, in Civil Case No. X-404
declaring that the Testatrix's collateral relatives have a rightful claim to her
estate to the exclusion of the husband who was designated her sole and
universal heir, nullifies the Will already probated by final judgment and
overturns the pronouncements of both the Appellate Court and this Court on
the case.
There being former judgments on the issues which have become final
rendered by Courts having jurisdiction of the subject matter and the parties,
the said judgments having been rendered on the merits, and there being
between the prior and subsequent action Identity of parties, subject matter
and substantial Identity of cause of action, it is clear that the complaint below
in Civil Case X-404 is barred by the principle of res adjudicata, and whatever
transpired therein are nun and void ab initio and without any legal effect.
To rule otherwise would upset the fundamental issue on which res judicata
rests that parties ought not to be permitted to litigate the same issue more
than once, that when a right or fact has been judicially determined, the
judgment of the Court, so long as it remains unreversed, should be
conclusive upon the parties and those in privity with them in law or estate
(Sarabia vs. Sec. of Agriculture and Natural Resources, 2 SCRA 54 [1961]).
ACCORDINGLY, the review sought for is denied and respondent Court's
judgment in CA-G.R. SP No. 13080 is hereby affirmed.
SO ORDERED.
Respondents decry the fact that the First Division set aside the due course
Order and denied review in an extended Minute Resolution instead of in a
signed Decision. They allege that said Resolution was "railroaded with such
hurry/promptitude unequalled in the entire history of the Supreme Court
under circumstances that have gone beyond the limits of legal and judicial
ethics," unduly "persuaded, induced and influenced" by Solicitor General
Ordonez and Justice Pedro Yap.
Nothing is farthest from the truth. As explained in the "Banc Resolution"
The petition for review was assigned to the then First Division of seven
Justices, which initially gave it due course because the resolution of the
Intermediate Appellate Court had reversed a decision originally rendered by
the then Court of Appeals, and in order to have more time for further study.
Pleadings were submitted, the last being on May 3, 1985, which can be
considered as the date when this case was submitted for resolution.
The First Division of seven (7) was not able to act on the case up to the
February, 1986 political upheaval The last incident in the case was a motion
for the early release of decision filed by petitioner on November 19, 1985.
When this Court was reorganized in April of 1986, the membership of the
First Division was reduced to five (5) Justices. Taking account of the motion
of petitioner for early release of decision, the new First Division, then
chairmanned by Justice Abad Santos, realizing that the doctrine of res
judicata was clearly applicable not only as to the probate of the will but also
as to the heirship of petitioner, among others, and their right to intervene and
participate in the proceedings — resolved, on May 14, 1986 to dismiss the
petition through an extended resolution which at the same time recalled the
due course order. The new Division of 5 acted unanimously.
The recall of a due course Order after a review of the records of the case is a
common occurrence in the Court. Respondents speak as if it were only their
petition which has been subjected to such recall. They have lost all objectivity
in this regard. They are hardly qualified, and cannot presume to speak of the
I entire history" of the Supreme Court.
As to the participation of Justice Yap in the ease, the "Banc Resolution"
stated:
Justice Yap clarified that he was an official mission to Switzerland for the
Presidential Conunission on Good Government after his appointment to the
Supreme Court an April 11, 1986 and did not assume his position in the
Supreme Court his return on May 2, 1986. When the resolution of dismissal
on May 14, 1986 was issued, Justice Yap was unaware that Atty. Sedfrey
Ordonez was private respondent's counsel.
On June 11, 1986, petitioner filed a motion for reconsideration, which was
taken up by the First Division on July 9, 1986 with Justice Abad Santos still
the Chairman. This time, Justice Yap, realizing that his former partner, Atty.
Ordonez, had submitted the pleadings for petitioner, inhibited himself and
Justice Edgardo L. Paras was designated under Special Order No. 21, dated
July 9, 1986, to sit in the Division in his place. The motion for reconsideration
was denied with finality on July 9, 1986.
Justice Yap was designated Chairman of the First Division on July 14, 1986.
On August 7, 1986, petitioner asked leave to file a second motion for
reconsideration, which was denied on September 3, 1986, entry of judgment
of the May 14, 1986 resolution having been made on July 28, 1986. Justice
Yap again took no part in the deliberation of the case.
But respondents continue to claim derisively that Justice Yap could not have
been "unaware" of the appearance of Atty. Sedfrey Ordonez. They reacted
by saying "ten it to the marines" (Letters of November 3, 1986 to Justices
Narvasa, Herrera, and Cruz, at p. 8, respectively). But that was the true and
untarnished fact. With so many cases being handled by the Court, the
appearances of lawyers during deliberative sessions very often escape
attention, concentration being centered on the issues to be resolved.
Respondents also fault the Court for "still recogniz(ing) Atty. Ordonez as
counsel" for their opponents in the case. In the same " Banc Resolution," it
was clarified:
A copy of the resolution, dated May 14, 1986, was sent by the Releasing
Clerks to Atty. Sedfrey A. Ordonez as his name still appears on the cover
page of the Rollo. It was not necessarily because the Supreme Court still
recognizes him as counsel for respondents (at p. 4)
The fact of the matter is that even Atty. Laureta continued to recognize Atty.
Ordonez as counsel as shown by his pleadings filed before the Court, which
inevitably contained the notation "copy furnished Atty. Sedfrey Ordonez." No
withdrawal of appearance having been presented by Atty. Ordonez in the
main petition, his name continues to be in the Rollo of the case and the
personnel concerned continue to furnish him with copies of Resolutions of
this Court.
In respect of the charge that the Resolutions of the First Division of May 14,
1986, July 9, 1986 denying the Motion for Reconsideration with finality, and
September 3, 1986 denying leave to file a second motion for reconsideration
since entry of judgment of the May 14, 1986 Resolution had been made on
July 28, 1986, were "unjust" and were "railroaded," the Banc Resolution,
adopting the Division Resolution, explained:
The aforesaid resolutions were by no means 'railroaded.' The pleadings filed
by the parties, as in any other case, were included in the Agenda of the First
Division as soon as feasible. The Division acts promptly on all Agenda items,
and the minutes of its deliberations are released as soon as possible after
Agenda day.
xxx xxx xxx
The dispositions in this case were arrived at after careful study. Because a
case is resolved against the interests of a party, does not mean that it is an
'unjust decision;' or that it has been "railroaded."
This Division declares without hesitation that it has consistently rendered
justice without fear or favor. (at p. 4)
Respondents insist that the doctrine of "res judicata" is inapplicable. In their
own words "the ordered probate of the 1944 Will of Digna Maravilla by
judgment of the Supreme Court in G.R. No. L-23225 is conclusive only as to
the genuineness and due execution of said will but not upon the validity of
testamentary provision, particularly with the invalid designation of Herminio
Maravilla as sole and universal heir of Digna Maravilla."
On this point, the "Javellana Resolution," in reversing the Busran Decision"
AC-GR SP No. 13680), aptly held:
The then Court of Appeals held that the questioned decision does not run
counter to the decision of the Hon. Supreme Court in G.R. No. L-23225
admitting the will of Digna Maravilla to probate because the latter refers to
the extrinsic validity of the will while the former concerns its intrinsic validity.
We cannot agree with this observation because it is quite clear from the
questioned decision that the will was in effect declared not to have been
freely and voluntarily executed by the deceased Digna Maravilla but was the
result of the evil and fraudulent machinations of her husband, Herminio
Maravilla, and sets aside said will The declaration that private respondents,
as collateral relatives of the deceased Digna Maravilla, are entitled to her
estate, is an indication that the Hon. respondent Court has nullified the will.
Private respondents are not compulsory heirs and, in the absence of their
being named legatees or devisees in the will, they could only lay claim to the
estate of Digna Maravilla if the latter died without a will, pursuant to Art. 1003
of the New Civil Code, to wit:
Art. 1003. If there are no descendants ascendants, illegitimate children or a
surviving spouse, the collateral relatives shall succeed to the entire estate of
the deceased in accordance with the following articles.'
However, assuming arguendo, that the matter complain d of by private
respondents referred only to the intrinsic validity of the will, still, it was
improper for them to have instituted a separate action in a court other than
that in which the probate proceeding was pending.
xxx xxx xxx
It seems clear from these provisions of the law that while the estate is being
settled in the Court of First Instance in a special proceeding, no ordinary
action can be maintained in that court or in any other court by a person
claiming to be the heir, against the executor or against other persons
claiming to be heirs, for the purpose of having the rights of the plaintiffs in the
estate determined The very purpose of the trial or hearing provided for in
section 753 is to settle and determine those questions, and until they are
settled and determined in that proceeding and under that section no action
such as the present one can be maintained.
Considering that the "Escolin Decision, " as affirmed by this Court on
November 9, 1977 in G.R. No. L-46155, had become final, the "Javellana
Resolution" aptly observed:
3. The questioned decision of the Hon. respondent Court dated 12 August
1981 (referring to the "Macandog Decision") unsettles and reviews issues
which had long been laid to rest by the Hon. Supreme Court and the then
Court of Appeals.
But respondents ask: if res judicata were applicable, why did this Court, in
G.R. No. L-50814, refer the case to the Court of Appeals? The answer is
simple. The issue of whether the remedy of petitioners' in that case was
appeal and not certiorari had to be resolved. If certiorari were proper, then
the "Macandog Decision" had not become final. If appeal, its finality would be
the consequence. The "Javellana Resolution," which -reversed the Busran
Decision," held that certiorari was proper when a party has been illegally
declared in default. It follows that the "Macandog Decision" had not attained
finality.
Still undaunted, respondents claim that the Court of Appeals "deliberately
evaded divaricated" two important issues: (1) that the judgment of the Trial
Court (in CC No. X-404) had attained finality as in fact the Court of Appeals
had held that the "judgment of assail had long become final," and (2) that
Digna Maravilla's husband could not be instituted as the sole and universal
heir of the wife on indestructible ground of moral impossibility and could not
inherit wife's vast estate on the ground of utter unworthiness.
The penchant of respondents for making misleading statements is again
obvious. It was not in the "Javellana Resolution" that the Court of Appeals
held that "the judgment of assail (referring to the 'Macandog Decision') had
long become final." That was in the BurRan Decision," which was precisely
reversed by the " Javellana Resolution."
As to the alleged unworthiness of the husband to inherit from his wife, the
"Javellana Resolution" pointedly observed:
The last will and testament of Digna Maravilla which instituted her husband,
Herminio Maravilla, as her sole and universal heir, was admitted to probate,
pursuant to a final judgment of the Hon. Supreme Court in G.R. No. L-23225,
27 February 1971. This probate foreclosed all questions as to the age and
mental capacity of the testator, the signing of the document by the testator,
or by someone in his behalf, and the acknowledgment of the instrument by
him in the presence of the required member of witnesses who affix their
signatures to the will to attest the act. In re Estate of Johnson, 39 Phil. 156,
168). Yet, more than ten years later, the Hon. respondent Court would nullify
the effects of the probate by declaring that Digna Maravilla did not voluntarily
and sanely execute the probated last will and testament, unifying the
institution of Herminio Maravilla as her sole and universal heir, and ordering
the return of the properties of Digna Maravilla to the trunk of origin.
The soundness of the legal conclusions arrived at in the "Escolin Decision"
and "Javellana Resolution" commends itself. Only a disgruntled litigant and a
defeated lawyer would claim that those judgments were accepted "hook, line
and sinker" by this Court. The doctrine of res judicata is inescapably
applicable. Thus it was that the First Division, in its challenged Resolution of
May 14, 1986, found it unnecessary, after further study, to have a signed
Decision and, instead, recalled the due course Order, which it had previously
issued to give it "more time for further study" (p. 2, Banc Resolution, October
28, 1986). Contrary to respondents' claim, the Court is not "duty bound" to
render signed Decisions all the time. It has ample discretion to formulate
Decisions and/or minute Resolutions, provided a legal basis is given,
depending on its evaluation of a case.
But obdurately enough, respondents have seen fit to take their case to the
Tanodbayan charging the members of the First Division of this Court
collectively with having knowingly and deliberately rendered an "unjust
extended minute Resolution" with deliberate bad faith in violation of Article
204 of the Revised Penal Code 3 and for deliberately causing "undue injury"
to respondent Ilustre and her co-heirs because of the 11 unjust Resolution"
promulgated, in violation of the AntiGraft and Corrupt Practices Act.4
Respondents' action is brazenly unjustifiable. Nor can they plead ignorance.
As aptly declared in the Chief Justice's Statement of December 24, 1986,
which the Court hereby adopts in toto, "(I)t is elementary that the Supreme
Court is supreme the third great department of government entrusted
exclusively with the judicial power to adjudicate with finality all justiciable
disputes, public and private. No other department or agency may pass upon
its judgments or declare them "unjust." " It is elementary that "(A)s has ever
been stressed since the early case of Arnedo vs. Llorente (18 Phil. 257, 263
[1911]) "controlling and irresistible reasons of public policy and of sound
practice in the courts demand that at the risk of occasional error, judgments
of courts determining controversies submitted to them should become final at
some definite time fixed by law, or by a rule of practice recognized by law, so
as to be thereafter beyond the control even of the court which rendered them
for the purpose of correcting errors of fact or of law, into which, in the opinion
of the court it may have fallen. The very purpose for which the courts are
organized is to put an end to controversy, to decide the questions submitted
to the litigants, and to determine the respective rights of the parties." (Luzon
Brokerage Co., Inc. vs. Maritime Bldg., Co., Inc., 86 SCRA 305, 316-317)
Respondents should know that the provisions of Article 204 of the Revised
Penal Code as to "rendering knowingly unjust judgment" refer to an individual
judge who does so "in any case submitted to him for decision" and even
then, it is not the prosecutor who would pass judgment on the "unjustness" of
the decision rendered by him but the proper appellate court with jurisdiction
to review the same, either the Court of Appeals and/or the Supreme Court.
Respondents should likewise know that said penal article has no application
to the members of a collegiate court such as this Court or its Divisions who
reach their conclusions in consultation and accordingly render their collective
judgment after due deliberation. It also follows, consequently, that a charge
of violation of the AntiGraft and Corrupt Practices Act on the ground that
such a collective decision is "unjust" cannot prosper.
The Chief Justice's Statement of the supremacy of the Supreme Court's
judicial power is by no means a "display of arrogance" as per respondents'
puerile contention, but a restatement of the fundamental principle of
separation of powers and checks and balances under a republican form of
government such as ours, viz. that the three co-equal branches of
government, the executive, legislative and judicial, are each supreme and
independent within the limits of its own sphere Neither one can interfere with
the performance of the duties of the other. (Forbes vs. Chuoco 16 Phil. 534
[1910]). As restated by the late Justice Jose P. Laurel in the 1936 landmark
case of Angara vs. Electoral Commission (63 Phil. 134), our Constitution "as
a definition of the powers of government"placed upon the judiciary the great
burden of "determining the nature, scope and extent of such powers" and
'when the judiciary mediates to allocate constitutional boundaries, it does not
assert any superiority over the other departments . . . but only asserts the
solemn and sacred obligation entrusted to it by the Constitution to determine
conflicting claims of authority under the Constitution and to establish for the
parties in an actual controversy the rights which the instrument secures and
guarantees to them.' "
As an officer of the Court, respondent Laureta, should realize that the
cardinal principle he would grossly impair and violate is that of the
independence of the judiciary, which the members of the bar are called upon
to defend and preserve. The independence of the judiciary is the
indispensable means for enforcing the supremacy of the Constitution and the
rule of law.
To subject to the threat and ordeal of investigation and prosecution, a judge,
more so a member of the Supreme Court for official acts done by him in good
faith and in the regular exercise of official duty and judicial functions is to
subvert and undermine that very independence of the judiciary, and
subordinate the judiciary to the executive. "For it is a general principle of the
highest importance to the proper administration of justice that a judicial
officer in exercising the authority vested in him, shall be free to act upon his
own convictions, without apprehension of personal consequences to himself.
Liability to answer to everyone who might feel himself aggrieved by the
action of the judge would be inconsistent with the possession of this freedom,
and would destroy that independence without which no judiciary can be
either respectable or useful." (Bradley vs. Fisher, 80 U.S. 335).
Indeed, resolutions of the Supreme Court as a collegiate court, whether en
banc or division, speak for themselves and are entitled to full faith and
credence and are beyond investigation or inquiry under the same principle of
conclusiveness of enrolled bills of the legislature. (U.S. vs. Pons 34 Phil 729;
Gardiner, et al. vs. Parades, et al., 61 Phil. 118; Mabanag vs. Lopez Vito, 78
Phil. 1) The Supreme Court's pronouncement of the doctrine that "(I)t is well
settled that the enrolled bill . . . is conclusive upon the courts as regards the
tenor of the measure passed by Congress and approved by the President. If
there has been any mistake in the printing of the bill before it was certified by
the officers of Congress and approved by the Executive [as claimed by
petitioner-importer who unsuccessfully sought refund of margin fees] — on
which we cannot speculate, without jeopardizing the principle of separation of
powers and undermining one of the cornerstones of our democratic system
— the remedy is by amendment or curative legislation, not by judicial decree"
is fully and reciprocally applicable to Supreme Court orders, resolutions and
decisions, mutatis mutandis (Casco Phil. Chemical Co., Inc. vs. Gimenez, 7
SCRA 347, 350. (Citing Primicias vs. Paredes, 61 Phil. 118, 120; Mabanag
vs. Lopez Vito, 78 Phil. 1; Macias vs. Comelec, 3 SCRA 1)
The Court has consistently stressed that "the doctrine of separation of
powers calls for the executive, legislative and judicial departments being left
alone to discharge their duties as they see fit (Tan vs. Macapagal, 43 SCRA
677). It has thus maintained in the same way that the judiciary has a right to
expect that neither the President nor Congress would cast doubt on the
mainspring of its orders or decisions, it should refrain from speculating as to
alleged hidden forces at work that could have impelled either coordinate
branch into acting the way it did. The concept of separation of powers
presupposes mutual respect by and between the three departments of the
government. (Tecson vs. Salas, 34 SCRA 275, 286-287)
To allow litigants to go beyond the Court's resolution and claim that the
members acted "with deliberate bad faith" and rendered and "unjust
resolution" in disregard or violation of the duty of their high office to act upon
their own independent consideration and judgment of the matter at hand
would be to destroy the authenticity, integrity and conclusiveness of such
collegiate acts and resolutions and to disregard utterly the presumption of
regular performance of official duty. To allow such collateral attack would
destroy the separation of powers and undermine the role of the Supreme
Court as the final arbiter of all justiciable disputes.
Dissatisfied litigants and/or their counsels cannot without violating the
separation of powers mandated by the Constitution relitigate in another forum
the final judgment of this Court on legal issues submitted by them and their
adversaries for final determination to and by the Supreme Court and which
fall within the judicial power to determine and adjudicate exclusively vested
by the Constitution in the Supreme Court and in such inferior courts as may
be established by law.
In resume, we find that respondent Ilustre has transcended the permissible
bounds of fair comment and criticism to the detriment of the orderly
administration of justice in her letters addressed to the individual Justices
quoted in the show-cause Resolution of this Court en banc, particularly the
underlined portions thereof; in the language of the charges she filed before
the Tanodbayan quoted and underscored in the same Resolution; in her
statements, conduct, acts and charges against the Supreme Court and/or the
official actions of the Justices concerned and her ascription of improper
motives to them; and in her unjustified outburst that she can no longer expect
justice from this Court. The fact that said letters are not technically
considered pleadings, nor the fact that they were submitted after the main
petition had been finally resolved does not detract from the gravity of the
contempt committed. The constitutional right of freedom of speech or right to
privacy cannot be used as a shield for contemptuous acts against the Court.
We likewise find that Atty. Laureta has committed acts unbecoming an officer
of the Court for his stance of dangling threats of bringing the matter to the
"proper forum" to effect a change of the Court's adverse Resolution; for his
lack of respect for and exposing to public ridicule, the two highest Courts of
the land by challenging in bad faith their integrity and claiming that they
knowingly rendered unjust judgments (Montecillo vs. Gica 60 SCRA 234
[1974]); for authoring, or at the very least, assisting and/or abetting and/or
not preventing the contemptuous statements, conduct, acts and malicious
charges of his client, respondent Ilustre, notwithstanding his disclaimer that
he had absolutely nothing to do with them, which we find disputed by the
facts and circumstances of record as above stated; for totally disregarding
the facts and circumstances and legal considerations set forth in this Court's
Resolutions of the First Division and en banc, as the Tribunal of last resort;
for making it appear that the Justices of this Court and other respondents
before the Tanodbayan are charged with "graft and corruption" when the
complaint before the Tanodbayan, in essence, is a tirade from a disgruntled
litigant and a defeated counsel in a case that has been brought thrice before
this Court, and who would readily accept anything but the soundness of the
judgments of the Courts concerned, all with the manifest intent to bring the
Justices of this Court and of the Court of Appeals into disrepute and to
subvert public confidence in the Courts.
Atty. Laureta should be reminded that his first duty is not to his client but to
the administration of justice; to that end, his chent's success is wholly
subordinate; and his conduct ought to and must always be scrupulously
observant of law and ethics. For like the Court itself, "a lawyer is an
instrument or agency to advance the ends of justice." (Surigao Mineral
Conservation Board vs. Cloribel, 31 SCRA 1 [1970]; Castaneda vs. Ago, 65
SCRA 505 [1975[).
In assessing the penalty on respondent Laureta, the Court notes that
"disciplinary proceedings against lawyers are suit generis. Neither purely civil
nor purely criminal, they do not involve a trial of an action or a suit, but are
rather investigations by the Court into the conduct of one of its officers. Not
being intended to inflict punishment, it is in no sense a criminal prosecution.
Accordingly, there is neither a plaint nor a prosecutor therein. It may be
initiated by the Court motu proprio. Public interest is its primary objective,
and the real question for determination is whether or not the attorney is still a
fit person to be allowed the privileges as such. Hence, in the exercise of its
disciplinary powers, the Court merely calls upon a member of the Bar to
account for his actions as an officer of the Court with the end in view of
preserving the purity of the legal profession and the proper and honest
administration of justice by purging the profession of members who by their
misconduct have proved themselves no longer worthy to be entrusted with
the duties and responsibilities pertaining to the office of an attorney." Viewed
in the light of the demonstrated persistence of grave misconduct and
undermining public confidence in the honor and integrity of the Court and its
members (at a time when the Court is exerting every effort to regain public
confidence in our courts after the trauma and debacle undergone by them in
the past regime), the Court shall impose upon him an indefinite suspension,
leaving it to him to prove at some future and opportune time, that he shag
have once again regained the fitness to be allowed to resume the practice of
law as an officer of the Courts. (In re: Almacen, 31 SCRA 562)
ACCORDINGLY, (1) respondent Eva Maravilla Ilustre is hereby held in
contempt, and is hereby fined in the amount of P1,000.00 only, mindful that
the power of contempt should be exercised on the preservative and not on
the vindictive principle of punishment; and
(2) Atty. Wenceslao Laureta is found guilty of grave professional misconduct,
rendering him unfit to continue to be entrusted with the duties and
responsibilities belonging to the office of an attorney, and is hereby
suspended from the practice of law until further Orders, the suspension to
take effect immediately.
Let copies of this Resolution be circulated to all Courts of the country for their
information and guidance, and spread in the personal record of Atty.
Wenceslao Laureta.
SO ORDERED.
People vs. Albofera, [152 SCRA 123 (1987)]
Mandatory review of the Decision of the Regional Trial Court, Branch XVIII,
Digos, Davao del Sur, in Criminal Case No. 184.* which convicted accused
Alexander Albofera and Romeo Lawi-an of Murder, inflicted on them the
capital punishment, and ordered them to indemnify the heirs of the victim in
the amount of P35,000.00, "by way of moral as well as actual damages."
There is no direct evidence linking both accused to the crime charged, their
alleged participation therein having been found by the Trial Court to have
been proved by circumstantial evidence adduced by the prosecution as
follows:
Sometime in June or July 1980, at about 4:30 o'clock in the afternoon.
Rodrigo Esma was tending his onion farm located in Upper Bagong Silang,
Managa, Bansalan, Davao del Sur, near the place of the accused Romeo
Lawi-an, a long time acquaintance, when accused Alexander Albofera, whom
Esma also knew for years and likewise a resident of the same place, called
him and informed him they would ran after somebody. Esma acceded (tsn,
October 20, 1982, pp. 38-42). Together, Albofera and Esma proceeded at
once to the house of accused Lawi-an. There Lawi-an told Albofera that the
forester was around making a list of people engaged in "caingin" (tsn,
October 20, 1982, p. 43). Whereupon, Albofera asked Esma to join him in
going after the forester. The two were able to overtake the forester, a certain
Teodoro Carancio, at the lower portion of the road (tsn, October 20, 1982, p.
44). Albofera at once put his arm on the shoulder of Carancio and asked him
to go with them to the upper portion because they will do something there.
Carancio was taken to the house of accused Lawi-an where several persons
were already gathered, among whom were accused Lawi-an, a certain alias
Jun, Boy Lawi-an, and Joel Maldan. Once inside and seated, Albofera began
questioning Carancio about his purpose in the place. Carancio replied that he
was there to inspect the "caingin" as a forester Albofera resented this, telling
Carancio that his acts hurt the poor people who were making a plain and
simple living. Carancio answered that he was only complying with the orders
of the government. Albofera then asked Carancio should he be set free not to
come back anymore. Carancio, however, replied that he would still come
back and bring his nephew who is an army man. Thereupon, Albofera
intimated to Carancio that he is a member of the NPA and that the NPA's
were against the forestry personnel. Thereafter, the persons gathered
decided to kin Carancio. Right then and there, Albofera tied Carancio's hands
at the back. Carancio pleaded for mercy. Unheeding, Albofera, Romeo Lawi-
an, alias Jun, Boy Lawi-an, and Joel Maldan decided to bring, and they
indeed brought, Carancio to the forest some 200 meters away from Lawi-an's
house. Esma did not join the group but remained in the house of Lawi-an
(tsn, October 20, 1982, pp. 44-51). Not long after, the group returned to Lawi-
an's house, but without Carancio. Albofera's hands, as wen as alias Jun's
hands were bloodied. After washing their hands, Albofera announced that
they had already finished the killing. He also warned everyone, particularly
Esma, against revealing or saying anything to any person or the military,
otherwise he (Albofera) would hold him accountable. After that, E smaller
went home (tsn, October 20, 1982, pp. 52-54).
Meanwhile, at about the same time Efren Sisneros and his wife were
weeding their farm in Barangay Buenavista, Bansalan, which is adjacent to
Bagong Silang, Managa, also in Bansalan, when the son of accused Lawi-
an, who is his compadre, arrived and informed him that his father (the
accused) wanted him (Sisneros) in his house. So, Sisneros went with Lawi-
an's son (tsn, September 16, 1982, pp. 3-7, 11). On reaching the front yard of
the Lawi-ans, Sisneros saw the ac cused Lawi-an at the window. A lot of
people were likewise in the house, and he recognized Boy Lawi-an and a
certain Jun Menez among others. Sisneros called for accused Lawi-an. The
latter went down and they talked downstairs. Accused Lawi-an explained that
he had Sisneros fetched, because the people inside the house were
discussing on what to do with somebody — a Bureau of Forestry employee-
later on Identified as Teodoro Carancio — who was also inside the house at
the time, and that they were inclined to kill that person who, according to
Lawi-an, was a hindrance to the farmers, because he (the forester) had
caused Lawi-an's uncle and brother-in-law to be put in jail and fined for
cutting trees in the forest. Shocked, Sisneros could only say "do not do that
because killing a person is great sin toward God." Thereafter, accused Lawi-
an went upstairs. Sisneros who was left downstairs went home (tsn,
September 16, 1982, pp. 11-16, 21).
The following day, at about 9:00 o'clock in the morning, Sisneros was at his
farm when accused Lawi-an and Jun Menez passed by and called him.
When Sisneros got near the two, accused Lawi-an told him that the forester
was already killed and warned him not to reveal this matter to anybody
otherwise he would be killed (tsn, September 16, 1982, pp. 16-20.)
The threat to his life caused Sisneros to be cautious in not reporting at once
the matter to the authorities. However, in June 1981, Sisneros finally
reported the killing of that forester to his brother Margarito, a CHDF member
in Bansalan. Margarito then accompanied him to the municipal hall to see the
Chief of Police, P/Sgt. Arnulfo Gohol. Sisneros related the killing to Sgt.
Gohol. That forester must have already been reported missing, for Sgt.
Gohol told Sisneros that the slain forester was Teodoro Carancio. Sisneros
asked that his Identity be kept secret in the meantime pending the arrest of
Albofera and Lawi-an. Sgt. Gohol acceded (tsn. September 16, 1982, pp. 19-
20, 21-22).
The police authorities arrested accused Albofera on July 2, 1981. ...
xxx xxx xxx
Accused Romeo Lawi-an was subsequently arrested on July 4, 1981 (pp. 12,
15, Record).
Also in July, 1981, the two accused, shortly after their arrest, led the police
authorities to the place in Bagong Silang where they buried the slain forester,
specifically in a hilly portion near the forest where the trees were not quite big
besides a coffee plantation (tsn, January 6, 1983, pp, 84-87). And on the
very spot pointed to by the two accused, the authorities dug and recovered
the cadaver, together with the clothings, namely: a maroon sweater, a semi-
green trousers and fatigue briefs worn by the victim, still intact. After placing
these in a sack, the group left at about 6:00 o'clock p.m. and returned to the
municipal building at around 10:00 p.m. (tsn, January 6, 1983, pp. 87-89, 94-
101).
xxx xxx xxx1
On July 2, 1981, Albofera executed an extra-judicial confession before the
Municipal Circuit Judge. He stated therein that he was forced to join the NPA
movement for fear of his life; that said group had ordered the "arrest" of the
victim, Carancio, a Forest Guard in the National Park, because he was "a
very strict employee of the government who arrested several kaingeros
already in the National Park and Romeo Lawi-an being one of his victims
before, got mad of his actuations prompting the latter to report said person to
the NPA for possible punishments;" and that the group "sentenced him (the
victim) to die by stabbing." Albofera further declared:
Q. 21- Was said Carancio killed by the group?
A. Yes, sir, Carancio was stabbed to death by alias John, Romeo Lawi-an,
alias "Dolly" Fred, Albert and myself in succession.
Q. 22- Do you mean to say that you have participated in stabbing Carancio to
death?
A. I was the last to thrust said bolo but I know that said victim was already
dead when I did it.
Accused for their part, maintain:
That in or about the middle of 1980, both the accused-appellants
ALEXANDER ALBOFERA and ROMEO LAWI-AN, who were farmer-
residents at that time of Sitio Balutakay, Barangay Mansaga, a remote
settlement in the Municipality of Bansalan, Davao del Sur, were fetched from
their farm houses by four (4) persons, known to be NPA elements operating
in their locality and Identified with their aliases "Fred", "Dolly", "John", and
"Albert". Both accused together with Efren Sisneros and Rodrigo Esma were
brought by the said four (4) NPA's to a secluded forested area in order to
witness the execution of a man, whom the prosecution later claimed to be
one Teodoro Carancio, an employee of the Bureau of Forest Development.
Thereafter, both the accused, Efren Sisneros and Rodrigo Esma were
ordered by these armed NPA to bury the remains of the victim. Afterwards,
they were warned, with threat to their lives, not to reveal or report to the
government authorities. 2
In the course of the trial, the prosecution presented a letter written in the
Visayan dialect by accused Alexander Albofera, while under detention, to
witness Rodrigo Esma several days before the latter testified on October 20,
1982, which was translated into English by the Trial Court interpreter and
reads as follows:
10-5-82
Dear Odeng,
Ding first of all how are you are in good health. As to me if you will also ask
me I am here suffering from hardship, so that Ding, help me that I can get out
in this difficult condition because your affidavit is the one that has weight.
Ding, you go with Mining to my lawyer so that I can study your reason
because I will ride if what is your affidavit. If you will not appear before the
lawyer it will mean that you will pushed us. Ding, you know about this
incident and that I do not want this to happen but you were the one persisting
in fact I asked you and you acceded so that that happened. But now you are
going to put us down will you not pity the uncle of your wife and furthermore
you were not threatened by me we have agreed about this thing now you will
free yourself. Ding you must bear in mind that you are a part of this if that will
happen to me I will include you so that we will be together in jail anyway your
affidavit is there that you are one of those who apprehended the forestry and
Noy Roming will testify that no one threatened us and also according to him
that he will declare that the two of us apprehended so that the three of us win
be convicted. Ding why is it that we are not going to understand one another
so that we will not be hard-up we have still a way that will be taught by my
lawyer in which we have nothing to fear each one of us. Anyway you can still
be a witness of the other side my lawyer wants to know only your reason so
that he can study this in order that I ran prepare and ride on it so that you will
not be included and I can also get out from this case because if you will not
make any arrangement our reasons will contradict with each other even
though we have exculpated you we will instead be together here if how many
years will be my sentence yours will also be the same because I will include
you anyway you were present in the incident nobody force us nobody can
witness that you were force by me because that is not the truth. And Ding, I
have not squeal because it's difficult the other side no jail its's better for the
government because we will just be imprisoned you are the one who win
know how to understand we win help one another in order that no hazard of
both of us anyway you will not be imprisoned of this you will only help me in
order that I can get out here. This is our agreement, is it not.
I hope you will remember our being together before we are very close but
now because we have a misunderstanding but our complainant you do not
even know him will they look back at you after this.
Your mercy
(Sgd.) Alex Albofera. 3
Rodrigo Esma's Affidavit referred to in the letter taken on July 21, 1981,
mentioned accused "Albofera and "alias Jun" "as having killid the victim.
After trial, the lower Court found the circumstantial evidence sufficient to
warrant conviction beyond reasonable doubt of both accused for the crime
charged, and sentenced them to death in its Decision of October 5, 1984,
now before us.
The accused raise the following errors:
I
That the Regional Trial Court of Davao del Sur gravely erred in finding both
accused guilty of murder, as charged in the information, and ordaining a
sentence of death, instead of dismissing the charge anchor absolving them
as the entire proceedings on the case in the Municipal Court of Bansalan up
to rendition of judgment in the CFI of Davao del Sur are void ab initio and a
nullity for being tainted with serious illegalities and jurisdictional infirmities as
from the inception of appellant's illegal arrest, tortures, and detention without
bait their fundamental constitutional and human rights were blatantly violated,
brazenly trampled upon and utterly reduced to naught.
II
That the Regional Trial Court of Davao del Sur gravely erred-in failing to
consider at all the prosecution's evidence on record, which reasonably raises
doubt upon the conclusiveness of the bases as to the supposed victim's (1)
Identity; (2) his alleged fact of death as stated in the certificate of death [Exh.
D]; (3) the place of death and, the approximate or credible date of death;
and-consequently, in not finding that on the basis of the above-factual hiatus,
the evidence has failed to establish the guilt of both accused beyond that
quantum of reasonable doubt as zealously mandated by the constitution.
III
That the Court a quo erred in holding that evidence adduced against
accused-appellants conceded to be merely circumstantial in character and
confirmed as such in the appealed decision, has attained such degree of
proof and weight of moral persuasion as to leave no vestige of reasonable
doubt on the guilt of both accused.
IV
That the Court a quo erred in appreciating as competent evidence the letter
written by accused Alexander Albofera to Rodrigo Esma (Exh. B), the
admissibility thereof being specifically excluded under Sec. 4, Art. IV of the
1973 Constitution.
V charged with and held for the crime of murder, a capital offense and,
That the Regional Trial Court of Davao del Sur gravely erred in admitting and
considering as competent evidence the illegally extracted extra-judicial
confession of accused Alexander Albofera (Exh. C) in violation of, and
contrary to Sec. 20, Art. IV of the Philippine Constitution of 1973 and the
Supreme Court's judicial precedents in point.
VI
That the Trial Court gravely erred (1) in sustaining the prosecution's theory
that both accused-appellants were responsible and culpable for the killing of
the alleged victim; (2) in according credence to the testimonies of
prosecution's witnesses Efren Sisneros and Rodrigo K. Esma; (3) in failing to
sustain the defense theory; and (4) in convicting and sentencing both
accused-appellants.
VII
Furthermore, the lower court gravely incurred the following patent reversible
errors: (1) in finding aggravating and qualifying circumstances in the alleged
commission of murder, and (2) in not absolving the two accused-appellants,
and awarding damages. 4
Succintly stated, the essential issues posed are:
1) Whether or not "serious illegalities and jurisdictional infirmities," in fact,
attended the proceedings below and "constitutional and human rights of the
accused brazenly trampled upon."
2) Whether or not the extrjudicial confession of accused Alexander Albofera,
and his letter to Rodrigo Esma are admissible in evidence;
3) Whether or not the Identity of the victim and the fact of his death were duly
proved;
4) Whether or not the circumstantial evidence adduced is sufficient to warrant
conviction; and
5) Whether or not qualifying and aggravating circumstances were duly
proved.
On Irregularities alleged:
The charge of illegalities and infirmities is absolutely without basis. There
was nothing illegal in the accused's detention without bail. They were
therefore, were not entitled to bail where the evidence of guilt was strong.
That was for the Trial Court to evaluate. The preliminary investigation was far
from being "hasty and farcical." If the second stage thereof was not held it
was because the accused had waived the same and prayed for the
transmittal of the case to the then Court of First Instance for trial on the
merits; it was not because they were deprived of the right. Much less has due
process been denied the accused. They were duly informed of the charge
against them and they were given fun opportunity to interpose and prove
their defense.
On the Admissibility of the Extra-Judicial Confession of Accused A Alexander
Albofera:
The preliminary questions addressed to said accused when his Sworn
Statement was taken read:
P R E L I M I N A R Y:
Mr. Albofera, I am reminding you that you are now under investigation in
connection with the commission of an offense, but before I will proceed in it, I
would like to inform you that under the Constitution of the Philippines it is so
provided that you have the right to remain silent, the right to counsel of your
own choice to be present with you while being investigated, the right to self-
incrimination and the right to due process, do you understand this:
Answer — Yes sir, I do.
I would like to inform you further, that the manner in which this investigation
will be conducted in English, but however, the contents of the same will be
interpreted to you in dialect you fully understand and speak, and if you
choose to answer one of the question or questions propounded to you, your
answer will be reduced into writing and the same will be used in evidence
against you or to your favor in any court of justice in the country, do you
understand what I am explaining to you?
Answer — Yes. sir, I understand it because you explained it to me clearly.
Do you need then the assistance of counsel to assist you while investigated?
Answer — I think I do not need any yet this time because I know what I am
going to declare here it being the truth of the matter, sir.
Since you do not (have) any lawyer yet, are you willing to proceed with this
investigation and submit yourself freely into it?
Answer — I wish that this investigation will be continued because lawyer is
not necessary yet.
Are you willing to swear and sign this statement of yours freely to justify that
your submission into the said investigation is free and voluntary?
Answer — Yes sir, I will sign it if only to prove that all what I have stated are
true and to the best of my knowledge and ability.
(Sgd.) Alex Albofera
(Exhibits "C", "C-1").
Judicial precedents5 have laid down the rule that the foregoing form of
questioning, does not satisfy the Constitutional requirement that an accused
be apprised of his constitutional rights to remain silent and to counsel. It is, at
best, ceremonial and perfunctory, with the answers being mere formalisms
put into the mouth of the affiant. What is contemplated is the transmission of
meaningful information, comprehended by the person under investigation,
not a mere recitation of the Constitutional mandates.
More, the extra-judicial confession was extracted without the assistance of
counsel contrary to the rulings of this Court in Morales, Jr. vs. Enrile, No. L-
61016, April 26, 1983, 121 SCRA 538, affirmed in People vs. Galit, No. L-
51770, March 20, 1985, 135 SCRA 465, People vs. Burgos, L-68955,
September 4, 1986, 144 SCRA 1, that "no custodial investigation shall be
conducted unless it be in the presence of counsel engaged by the person
arrested, by any person on his behalf, or appointed by the court upon petition
either of the detainee himself or by anyone on his behalf."
While Albofera seemingly waived his right to counsel, which he is allowed to
do, aside from the fact that we are not convinced that the waiver was
voluntary, knowing and intelligent, the waiver was not valid because it was
made without the assistance of counsel.6 That principle is now enshrined in
the 1987 Constitution, which explicitly requires that the waiver be in writing
and in the presence of counsel.7
For failure to meet such exacting standards, the extrajudicial confession of
accused Albofera must be stricken out and held inadmissible in evidence
against him.8
On the admissibility of Albofera's Letter.
Accused Albofera contends that his letter to prosecution witness, Rodrigo
Esma (Exhibit "B"), is inadmissible in evidence against him under the
exclusionary provisions of Section 4, Article IV of the 1973 Constitution
(substantially reproduced in Section 3, Article III of the 1987 Constitution),
which provides:
Sec. 4 (1) The privacy of communication and correspondence shall be
inviolable except upon lawful order of the Court, or when public safety and
order require otherwise.
2) Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding.
The submission is untenable. The foregoing provision implements another
Constitutional provision on the security of a citizen against unreasonable
search and seizure. The production of that letter by the prosecution was not
the result of an unlawful search and seizure nor was it through unwarranted
intrusion or invasion into Albofera's privacy. Albofera admitted having sent
the letter and it was its recipient, Rodrigo Esma himself, who produced and
Identified the same in the course of his testimony in Court. Besides, there is
nothing really self-incriminatory in the letter. Albofera mainly pleaded that
Esma change his declaration in his Affidavit and testify in his (Albofera's)
favor. Furthermore, nothing Albofera stated in his letter is being taken against
him in arriving at a determination of his culpability.
On the Identity of the Victim and the Fact of Death:
Accused argue that corpus delicti had not been established as the body of
the victim, Teodoro Carancio, was not Identified, nor the fact, place and
approximate date of his death established.
The term corpus delicti stands for the substance of the crime, the fact that a
crime has actually been committed.9 The evidence adduced in this case
sufficiently proved the commission of the crime. In fact, the accused
themselves pointed to the grave where the body of a person, allegedly slain
in their presence, had been dumped and which, when dug, produced human
remains, which turned out to be those of the victim.
The skeletal remains of the victim were Identified by his brother, Benjamin
Carancio, through the victim's front teeth whose "base seemed rusty" and
which bore resemblance to his own, as well as through the victim's clothes,
fatigue briefs, maroon sweater and trousers, which Benjamin recognized.10
Prosecution witness Esma also Identified the victim from a photograph which
was presented to him.11
On the Circumstantial Evidence:

Circumstantial evidence is admissible in the absence of an eyewitness to the
commission of a crime, and it is sufficient for conviction if: (1) there is more
than one circumstance; (2) the facts from which the inferences are derived
are proven; and (3) the combination of all the circumstances is such as to
produce conviction beyond reasonable doubt.12
The circumstances testified to by prosecution witnesses meet the foregoing
criteria. Even disregarding Albofera's extra-judicial confession, the
combination of circumstances sufficiently point to his guilt. The presence of
both accused at the scene of the incident is admitted by them. They also
admit that they witnessed the execution of the victim, although they claim
that they were merely compelled to do so. The foregoing version, however, is
negated by Rodrigo Esma's testimony from which it is clear that it was
Albofera, his long-time friend, who had fetched witness Esma and informed
the latter that they would run after somebody. Together, they proceeded to
the house of accused Lawi-an who informed Albofera that the victim was
around making a list of "kaingeros." Albofera asked Esma to join him in going
after the forester. Overtaking the latter, Albofera took him to Lawi-an's house
where a group had already congregated and a discussion followed as to the
victim's fate. Albofera resented the victim's determination to do his duty and
the latter's statement that he was bringing an army man to help him.
Sufficient motive was provided to do away with the victim. Albofera tied the
victim's hands and, with Lawi-an and three others, took the victim to the
forest. When the group returned not long after, the victim was no longer with
them. Witness Esma noticed Albofera's and "alias Jun's" hands bloodied.
After they had washed their hands, Albofera announced to everyone present
at Lawi-an's house that the victim had been done away with and warned
everyone not to reveal the incident to anyone including the military.
Apparent from the foregoing narrated circumstances is the fact that it was
Albofera who was "calling the shots;" that it was he who was the leader of the
group and not "alias Jun" as he would want this Court to believe.
Esma's testimony is worthy of credence. He was a friend of long standing of
Albofera.lawphi1 There was no reason for him to attribute to Albofera the
commission of such a serious crime as Murder, if such not the truth.
Accused Lawi-an must be held equally culpable. That he was part of the
criminal design from its initial stages until its culmination is revealed through
the circumstances brought out by prosecution witness, Sisneros who testified
that while he was weeding his farm, Lawi-an, his "compadre," sent his son to
fetch him (Sisneros). With the son, they proceeded to Lawi-an's house where
Sisneros saw many people. Lawi-an went down the house and explained to
Sisneros that they were discussing what to do with the victim, and that they
were inclined to kill him. Sisneros advised against it and went home. The
following morning, Lawi-an passed by Sisneros farm and informed the latter
that the victim had already been killed with the warning to Sisneros not to
reveal the incident to anyone.
Prosecution witness, Esma, further buttressed the fact of Lawi-an's
participation in the criminal plot when he testified that it was Lawi-an who
informed Albofera that the victim was around making a list of "kaingeros;"
that it was on the strength of that information that Albofera coaxed Esma into
joining him to search for the victim; that Lawi-an was with Albofera and three
others who, starting from Lawi-an's house, took the victim to the forest and
then returned thereafter without the victim, obviously because the latter had
been done away with.
While the degree of actual participation by Lawi-an in committing the offense
is not described with accuracy, Lawi-an's conduct before and after the
commission of the crime shows that he acted in concert with his co-accused
Albofera. He indubitably cooperated with the latter and three other persons in
bringing about the death of the victim goaded by resentment against the
latter for his strict enforcement of forestry laws, which led to the incarceration
of Lawi-an's uncle and brother-in-law and the imposition of fines against
them. The circumstances proven sufficiently establish a community of
purpose-a conspiracy among the perpetrators — such that the crime
committed in furtherance thereof must be held to be the act of all regardless
of the extent and character of an accused's active participation.13
On the Attendance of Qualifying and Aggravating Circumstances:
No reversible error was committed by the Trial Court in appreciating the
presence of qualifying and aggravating circumstances.
The killing of the victim was committed treacherously, his hands having been
tied behind his back so that he was totally helpless and defenseless, and in
no position to resist nor fight back. The accused employed means which
tended directly to insure the execution of the crime without risk to themselves
arising from the defense which the victim might have made.
Evident premeditation was likewise present as both accused and their co-
conspirators had deliberately planned to commit the crime and had
persistently and continuously followed it notwithstanding that they had ample
time to reflect and allow their conscience to overcome their resolution to
kill.14
The accused likewise took advantage of superior strength although this
cannot be appreciated separately as it is deemed absorbed in treachery.15
The killing of the victim because of his strictness and the resentment against
him as a forester constitutes the aggravating circumstance of disregard of the
respect due the offended party on account of his rank,16 and not because
the victim was engaged in the discharge of his duties under Article 14 (5) of
the Revised Penal Code as found by the Trial Court.
With the attendance of the qualifying circumstance of treachery and two (2)
generic aggravating circumstances with no mitigating circumstance to offset
them, the crime committed is Murder and the death penalty imposed by the
Trial Court is proper. However, with the abolition of the death penalty under
Section 19(l), Article III of the 1987 Constitution, and as mandated therein the
death penalty imposed by the Trial Court should be reduced to reclusion
perpetua.
WHEREFORE, the judgment of conviction is hereby affirmed with
modification that the accused Alexander Albofera and Romeo Lawi-an are
hereby sentenced to suffer the penalty of reclusion perpetua, to indemnify
the heirs of the victim, Teodoro Carancio, in the amount of P30,000.00, and
each to pay one-half (1/2) of the costs.
SO ORDERED.
Zulueta vs. Court of Appeals [253 SCRA 699 (1996)]
This is a petition to review the decision of the Court of Appeals, affirming the
decision of the Regional Trial Court of Manila (Branch X) which ordered
petitioner to return documents and papers taken by her from private
respondent's clinic without the latter's knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On
March 26, 1982, petitioner entered the clinic of her husband, a doctor of
medicine, and in the presence of her mother, a driver and private
respondent's secretary, forcibly opened the drawers and cabinet in her
husband's clinic and took 157 documents consisting of private
correspondence between Dr. Martin and his alleged paramours, greetings
cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The
documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which
petitioner had filed against her husband.
Dr. Martin brought this action below for recovery of the documents and
papers and for damages against petitioner. The case was filed with the
Regional Trial Court of Manila, Branch X, which, after trial, rendered
judgment for private respondent, Dr. Alfredo Martin, declaring him "the
capital/exclusive owner of the properties described in paragraph 3 of
plaintiff's Complaint or those further described in the Motion to Return and
Suppress" and ordering Cecilia Zulueta and any person acting in her behalf
to a immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and
attorney's fees; and to pay the costs of the suit. The writ of preliminary
injunction earlier issued was made final and petitioner Cecilia Zulueta and
her attorneys and representatives were enjoined from "using or
submitting/admitting as evidence" the documents and papers in question. On
appeal, the Court of Appeals affirmed the decision of the Regional Trial
Court. Hence this petition.
There is no question that the documents and papers in question belong to
private respondent, Dr. Alfredo Martin, and that they were taken by his wife,
the herein petitioner, without his knowledge and consent. For that reason, the
trial court declared the documents and papers to be properties of private
respondent, ordered petitioner to return them to private respondent and
enjoined her from using them in evidence. In appealing from the decision of
the Court of Appeals affirming the trial court's decision, petitioner's only
ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the
documents and papers (marked as Annexes A-1 to J-7 of respondent's
comment in that case) were admissible in evidence and, therefore, their use
by petitioner's attorney, Alfonso Felix did not constitute malpractice or gross
misconduct, For this reason it is contended that the Court of Appeals erred in
affirming the decision of the trial court instead of dismissing private
respondent's complaint.
Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for
disbarment. Among other things, private respondent, Dr. Alfredo Martin, as
complainant in that case, charged that in using the documents in evidence,
Atty. Felix, Jr. committed malpractice or gross misconduct because of the
injunctive order of the trial court. In dismissing the complaint against Atty.
Felix, Jr., this Court took note of the following defense of Atty. Felix; Jr. which
it found to be "impressed with merit:"2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix,
Jr.], he maintains that:
....
4. When respondent refiled Cecilia's case for legal separation before the
Pasig Regional Trial Court, there was admittedly an order of the Manila
Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1
to J-7." On September 6, 1983, however having appealed the said order to
this Court on a petition for certiorari, this Court issued a restraining order on
aforesaid date which order temporarily set aside the order of the trial court.
Hence, during the enforceability of this Court's order, respondent's request
for petitioner to admit the genuineness and authenticity of the subject
annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin
finally admitted the truth and authenticity of the questioned annexes, At that
point in time, would it have been malpractice for respondent to use
petitioner's admission as evidence against him in the legal separation case
pending in the Regional Trial Court of Makati? Respondent submits it is not
malpractice.
Significantly, petitioner's admission was done not thru his counsel but by Dr.
Martin himself under oath, Such verified admission constitutes an affidavit,
and, therefore, receivable in evidence against him. Petitioner became bound
by his admission. For Cecilia to avail herself of her husband's admission and
use the same in her action for legal separation cannot be treated as
malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no
more than a declaration that his use of the documents and papers for the
purpose of securing Dr. Martin's admission as to their genuiness and
authenticity did not constitute a violation of the injunctive order of the trial
court. By no means does the decision in that case establish the admissibility
of the documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the
charge of violating the writ of preliminary injunction issued by the trial court, it
was only because, at the time he used the documents and papers,
enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for
certiorari filed by petitioner against the trial court's order was dismissed and,
therefore, the prohibition against the further use of the documents and
papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence.
The constitutional injunction declaring "the privacy of communication and
correspondence [to be] inviolable"3 is no less applicable simply because it is
the wife (who thinks herself aggrieved by her husband's infidelity) who is the
party against whom the constitutional provision is to be enforced. The only
exception to the prohibition in the Constitution is if there is a "lawful order
[from a] court or when public safety or order requires otherwise, as
prescribed by law."4 Any violation of this provision renders the evidence
obtained inadmissible "for any purpose in any proceeding." 5
The intimacies between husband and wife do not justify any one of them in
breaking the drawers and cabinets of the other and in ransacking them for
any telltale evidence of marital infidelity. A person, by contracting marriage,
does not shed his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.
The law insures absolute freedom of communication between the spouses by
making it privileged. Neither husband nor wife may testify for or against the
other without the consent of the affected spouse while the marriage
subsists.6 Neither may be examined without the consent of the other as to
any communication received in confidence by one from the other during the
marriage, save for specified exceptions.7 But one thing is freedom of
communication; quite another is a compulsion for each one to share what
one knows with the other. And this has nothing to do with the duty of fidelity
that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.
SO ORDERED.
Deano vs. Godinez [12 SCRA 483 (1964)]
This is an action for damages brought by Trinidad A. Deaño, assisted by her
husband Manuel Deaño against defendant Diogenes Godinez before the
Court of First Instance of Lanao del Norte based on a communication sent by
the latter as district supervisor to his immediate superior, the Division
Superintendent of Schools. Trinidad claims that with malice aforethought and
in disregard of proper decorum and accepted administrative practices,
defendant wrote the aforesaid communication making therein statements
which are contrary to morals, good customs or public policy, and to existing
rules and regulations, thereby causing irreparable damage to her personal
dignity and professional standing, for which reason she asks that she be paid
P30,000.00 as moral damages, P10,000.00 as exemplary damages, and
P10,000.00 attorney's fees for bringing the present action.
Defendant moved to dismiss the complaint on the ground that the letter
complained of is a privileged communication and the action has already
prescribed. The motion was upheld, and the court a quo dismissed the
complaint. Hence this appeal.
In paragraph 3 of the complaint, it is alleged that on or about March 20, 1956,
defendant, as a responsible public school official, wrote a letter to the
Division Superintendent of Schools, his immediate superior officer, the
contents of which we quote for ready reference:
Respectfully returned to the Division Superintendent of Schools, Camp
Keithley, Lanao, with the explanation to the alleged confusion in the dental-
medical reports of the district. It seems, the basic communication has been
written thru the deliberate misinformation of Dr. T. Deaño the School dentist.
If such be the case, she twisted the facts to satisfy her ulterior motives.
Immediately upon her arrival in the district, Dr. Deaño was informed of the
present set-up in the district. The teachers contribute twenty pesos (P20.)
each by installments to cover all the voluntary drives. Among other things, it
includes the dental-medical drive and the support to Boy Scout Rally, district,
provincial and Mindanao meets. Despite that information, she required the
teachers in the field to sign the blank form she was bringing with her not
filled, then later on put the amount of P20.00. It then tended to show that the
teachers contributed P20.00 each solely for the dental-medical drive.
Teachers in Lumbatan district can be asked individually to support the
contention of the undersigned. In view of the above, Dr. Deaño is a carping
critic, a fault finder and suspects every teacher or school official to be
potential grafters and swindlers of the medical-dental funds. If the Division
Superintendent of Schools after the above explanation still entertains doubts
of the funds, the undersigned welcomes a probe to clear his besmirched
reputation. But, the lady dentist must be ready to answer complaints of
teachers and pupils against her services while she was in Lumbatan District.
In this connection, the undersigned wishes to make record that the lady
dentist will not be welcomed in Lumbatan district next school year. If she will
be sent back, the undersigned and his teachers will not lift a finger in the
collection of dental-medical funds. She did more harm than good to the teeth
of the patients she treated.
The highlights of the letter may be boiled down as follows: Dr. Trinidad A.
Deaño plaintiff herein, as the school dentist of Lanao, required the teachers
in the field to sign blank forms indicating therein a contribution of P20.00
which she intended to be only for the dental-medical drive, when she knew
well that the drive included the Boy Scout Rally of the district. "In view of the
above, Dr. Deaño is a carping critic, a fault finder and suspects every teacher
or school official to be potential grafters and swindlers of the medical-dental
funds. ... The lady dentist will not be welcomed in Lumbatan district next
school year. ... She did more harm than good to the teeth of the patients she
treated."
The utterances or statements above referred to, if untrue, are indeed
derogatory to the personal dignity and professional standing of the plaintiff as
a high official in the government service as they in fact disturbed her peace
of mind to the extent that they caused her mental anguish, wounded her
feelings and made her suffer moral shock and social humiliation for which
she now asks for damages in retribution. But defendant claims that he made
those statements in pursuance of a legal duty or in the exercise of his
functions as a public official and as such they are justifiable under the
doctrine of privileged communication. In this sense, defendant contends, they
cannot be the basis of an action for damages.
The question that now arises is: Does the letter in which the alleged
defamatory statements appear partake of the nature of a privileged
communication?
Reading the complaint one may gather that the letter alleged to be
defamatory is embodied in an indorsement sent by defendant to the Division
Superintendent of Schools, his immediate superior, by way of an explanation
of an alleged confusion concerning a dental-medical report submitted relative
to the fund drive then being undertaken for certain public purpose.
Apparently, the explanation was given as a comment on a communication
referred to the defendant in his official capacity as district supervisor. And in
his indorsement defendant stated certain facts which came to his information
regarding the dental-medical drive then undertaken by the plaintiff, but that
the language he used was such that it somewhat hurt the feeling and pride of
plaintiff as a public school official. Nevertheless, we find that the
communication is privileged in nature and as such comes within the purview
of Article 354 of the Revised Penal Code, which we quote:
ART. 354. Requirement for publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.
Indeed, the communication now denounced by plaintiff as defamatory is one
sent by defendant to his immediate superior in the performance of a legal
duty, or in the nature of a report submitted in the exercise of an official
function. He sent it as in explanation of a matter contained in an indorsement
sent to him by his superior officer. It is a report submitted in obedience to a
lawful duty, though in doing so defendant employed a language somewhat
harsh and uncalled for. But such is excusable in the interest of public policy.
As it has been aptly said, "The doctrine of privileged communication rests
upon public policy, which looks to the free and unfettered administration of
justice, though, as an incidental result, it may in some instances afford an
immunity to the evil-disposed and malignant slanderer." (Abbott v. National
Bank of Commerce of Tacoma 175 U.S., 409, 411). The Philosophy behind
this privilege is well expressed thus:
Public policy is the foundation of the doctrine of privileged communications. It
is based upon the recognition of the fact that the right of the individual to
enjoy immunity from the publication of untruthful charges derogatory to his
character is not absolute and must at times yield to the superior necessity of
subjecting to investigation the conduct of persons charged with wrong-doing.
In order to accomplish this purpose and to permit private persons having, or
in good faith believing themselves to have, knowledge to such wrongdoing,
to perform the legal, moral, social duty resulting from such knowledge or
belief, without restraining them by the fear that an error, no matter how
innocently or honestly made, may subject them to punishment for
defamation, the doctrine of qualified privilege has been evolved. (U.S. v.
Cañete, et al., 38 Phil. 235)
The letter sent by defendant being a privileged communication, it is
presumed that it was sent without malice.1 It being a communication sent in
the discharge of a legal duty, the writer is not liable for damages.
It will be noted that all of the defendant's communications were of a public
nature and addressed to his superior officers, and that his investigation was
made in the line of his duty. There is no evidence that defendant was
actuated by any malicious motive ... .
In the instant case, the alleged libel is based upon the official letters of the
defendant to his superior officers, which were written in the discharge of his
official duties, and for which he is not liable in an action for damages. (Gilmer
v. Hilliard 43 Phil. 180.)
WHEREFORE, the order appealed from is affirmed. No costs.
Waterhouse Drug Corporation vs. NLRC (G.R. No. 113271. October 16,
1997)
Nor is he a true Servant [who] buys dear to share in the Profit with the
Seller.1
This petition for certiorari under Rule 65 of the Rules of Court seeks to
declare private respondent Antonia Melodia Catolico (hereafter Catolico) not
a "true Servant," thereby assailing the 30 September 1993 decision2 and
December 1993 Resolution3 of the National Labor Relations Commission
(NLRC) in NLRC-NCR CA No. 005160-93, which sustained the reinstatement
and monetary awards in favor of private respondent4 and denied the
petitioners' motion for reconsideration.5
The facts are as follows:
Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation
(hereafter WATEROUS) on 15 August 1988.
On 31 July 1989, Catolico received a memorandum6 from WATEROUS Vice
President-General Manager Emma R. Co warning her not to dispense
medicine to employees chargeable to the latter's accounts because the same
was a prohibited practice. On the same date, Co issued another
memorandum7 to Catolico warning her not to negotiate with suppliers of
medicine without consulting the Purchasing Department, as this would impair
the company's control of purchases and, besides she was not authorized to
deal directly with the suppliers.
As regards the first memorandum, Catolico did not deny her responsibility but
explained that her act was "due to negligence," since fellow employee Irene
Soliven "obtained the medicines in bad faith and through misrepresentation
when she claimed that she was given a charge slip by the Admitting Dept."
Catolico then asked the company to look into the fraudulent activities of
Soliven.8
In a memorandum9 dated 21 November 1989, WATEROUS Supervisor
Luzviminda E. Bautro warned Catolico against the "rush delivery of
medicines without the proper documents."
On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed
Co that he noticed an irregularity involving Catolico and Yung Shin
Pharmaceuticals, Inc. (hereafter YSP), which he described as follows:
. . . A case in point is medicine purchased under our Purchase Order (P.O.)
No. 19045 with YSP Sales Invoice No. 266 representing purchase of ten (10)
bottles of Voren tablets at P384.00 per unit. Previews P.O.s issued to YSP,
Inc. showed that the price per bottle is P320.00 while P.O. No. 19045 is
priced at P384.00 or an over price of P64.00 per bottle (or total of P640.00).
WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832 dated
December 15, 1988. Verification was made to YSP, Inc. to determine the
discrepancy and it was found that the cost per bottle was indeed overpriced.
YSP, Inc. Accounting Department (Ms. Estelita Reyes) confirmed that the
difference represents refund of jack-up price of ten bottles of Voren tablets
per sales invoice no. 266 as per their check voucher no. 629552 (shown to
the undersigned), which was paid to Ms. Catolico through China Bank check
no. 892068 dated November 9, 1989 . . . .
The undersigned talked to Ms. Catolico regarding the check but she denied
having received it and that she is unaware of the overprice. However, upon
conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, she
confirmed that the check amounting to P640.00 was actually received by Ms.
Catolico. As a matter of fact, Ms. Catolico even asked Ms. Saldana if she
opened the envelope containing the check but Ms. Saldana answered her
"talagang ganyan, bukas." It appears that the amount in question (P640.00)
had been pocketed by Ms. Catolico.10
Forthwith, in her memorandum11 dated 37 January 1990, Co asked Catolico
to explain, within twenty-four hours, her side of the reported irregularity.
Catolico asked for additional time to give her explanation,12 and she was
granted a 48-hour extension from 1 to 3 February 1990. However, on 2
February 1990, she was informed that effective 6 February 1990 to 7 March
1990, she would be placed on preventive suspension to protect the interests
of the company.13
In a letter dated 2 February 1990, Catolico requested access to the file
containing Sales Invoice No. 266 for her to be able to make a satisfactory
explanation. In said letter she protested Saldaña's invasion of her privacy
when Saldaña opened an envelope addressed to Catolico.14
In a letter15 to Co dated 10 February 1990, Catolico, through her counsel,
explained that the check she received from YSP was a Christmas gift and not
a "refund of overprice." She also averred that the preventive suspension was
ill-motivated, as it sprang from an earlier incident between her and Co's
secretary, Irene Soliven.
On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a
memorandum16 notifying Catolico of her termination; thus:
We received your letter of explanation and your lawyer's letter dated Feb. 2,
1990 and Feb. 10, 1990 respectively regarding our imposition of preventive
suspension on you for acts of dishonesty. However, said letters failed to
rebut the evidences [sic] in our possession which clearly shows that as a
Pharmacist stationed at Espana Branch, you actually made Purchase Orders
at YSP Phils., Inc. for 10 bottles of Voren tablets at P384.00/bottle with
previous price of P320.00/bottle only. A check which you received in the
amount of P640.00 actually represents the refund of over price of said
medicines and this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc.
Accounting Department.
Your actuation constitutes an act of dishonesty detrimental to the interest of
the company. Accordingly, you are hereby terminated effective March 8,
1990.
On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a
complaint for unfair labor practice, illegal dismissal, and illegal suspension.17
In his decision18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no
proof of unfair labor practice against petitioners. Nevertheless, he decided in
favor of Catolico because petitioners failed to "prove what [they] alleged as
complainant's dishonesty," and to show that any investigation was
conducted. Hence, the dismissal was without just cause and due process. He
thus declared the dismissal and suspension illegal but disallowed
reinstatement, as it would not be to the best interest of the parties.
Accordingly, he awarded separation pay to Catolico computed at one-half
month's pay for every year of service; back wages for one year; and the
additional sum of P2,000.00 for illegal suspension "representing 30 days
work." Arbiter Lopez computed the award in favor of Catolico as follows:
30 days Preventive Suspension P2,000.00
Backwages 26,858.50
1/12 of P26,858.50 2,238.21
Separation pay (3 years) 4,305.15
—————
TOTAL AWARD P35,401.86
—————
Petitioners seasonably appealed from the decision and urged the NLRC to
set it aside because the Labor Arbiter erred in finding that Catolico was
denied due process and that there was no just cause to terminate her
services.
In its decision19 of 30 September 1993, the NLRC affirmed the findings of
the Labor Arbiter on the ground that petitioners were not able to prove a just
cause for Catolico's dismissal from her employment. It found that petitioner's
evidence consisted only of the check of P640.00 drawn by YSP in favor of
complainant, which her co-employee saw when the latter opened the
envelope. But, it declared that the check was inadmissible in evidence
pursuant to Sections 2 and 3(1 and 2) of Article III of the Constitution.20 It
concluded:
With the smoking gun evidence of respondents being rendered inadmissible,
by virtue of the constitutional right invoked by complainants, respondents'
case falls apart as it is bereft of evidence which cannot be used as a legal
basis for complainant's dismissal.
The NLRC then dismissed the appeal for lack of merit, but modified the
dispositive portion of the appealed decision by deleting the award for illegal
suspension as the same was already included in the computation of the
aggregate of the awards in the amount of P35,401.86.
Their motion for reconsideration having been denied, petitioners filed this
special civil action for certiorari, which is anchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its findings of
facts.
II. Due process was duly accorded to private respondent.
III. Public respondent gravely erred in applying Section 3, Article III of the
1987 Constitution.
As to the first and second grounds, petitioners insist that Catolico had been
receiving "commissions" from YSP, or probably from other suppliers, and that
the check issued to her on 9 November 1989 was not the first or the last.
They also maintained that Catolico occupied a confidential position and that
Catolico's receipt of YSP's check, aggravated by her "propensity to violate
company rules," constituted breach of confidence. And contrary to the
findings of NLRC, Catolico was given ample opportunity to explain her side of
the controversy.
Anent the third ground, petitioners submit that, in light of the decision in the
People v. Marti,21 the constitutional protection against unreasonable
searches and seizures refers to the immunity of one's person from
interference by government and cannot be extended to acts committed by
private individuals so as to bring it within the ambit of alleged unlawful
intrusion by the government.
In its Manifestation in Lieu of Comment, the Office of the Solicitor General
(OSG) disagreed with the NLRC's decision, as it was of the persuasion that
(a) the conclusions reached by public respondent are inconsistent with its
findings of fact; and (b) the incident involving the opening of envelope
addressed to private respondent does not warrant the application of the
constitutional provisions. It observed that Catolico was given "several
opportunities" to explain her side of the check controversy, and concluded
that the opportunities granted her and her subsequent explanation "satisfy
the requirements of just cause and due process." The OSG was also
convinced that Catolico's dismissal was based on just cause and that
Catolico's admission of the existence of the check, as well as her "lame
excuse" that it was a Christmas gift from YSP, constituted substantial
evidence of dishonesty. Finally, the OSG echoed petitioners' argument that
there was no violation of the right of privacy of communication in this case,22
adding that petitioner WATEROUS was justified in opening an envelope from
one of its regular suppliers as it could assume that the letter was a business
communication in which it had an interest.
In its Comment which we required to be filed in view of the adverse stand of
the OSG, the NLRC contends that petitioners miserably failed to prove their
claim that it committed grave abuse of discretion in its findings of fact. It then
prays that we dismiss this petition.
In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to
justify her dismissal. The check in issue was given to her, and she had no
duty to turn it over to her employer. Company rules do not prohibit an
employee from accepting gifts from clients, and there is no indication in the
contentious check that it was meant as a refund for overpriced medicines.
Besides, the check was discovered in violation of the constitutional provision
on the right to privacy and communication; hence, as correctly held by the
NLRC, it was inadmissible in evidence.
Catolico likewise disputes petitioners' claim that the audit report and her
initial response that she never received a check were sufficient to justify her
dismissal. When she denied having received a check from YSP, she meant
that she did not receive any refund of overprice, consistent with her position
that what she received was a token gift. All that can be gathered from the
audit report is that there was apparently an overcharge, with no basis to
conclude that Catolico pocketed the amount in collusion with YSP. She thus
concluded that her dismissal was based on a mere suspicion.
Finally, Catolico insists that she could not have breached the trust and
confidence of WATEROUS because, being merely a pharmacist, she did not
handle "confidential information or sensitive properties." She was doing the
task of a saleslady: selling drugs and making requisitions when supplies
were low.
A thorough review of the record leads us to no other conclusion than that,
except as to the third ground, the instant petition must fail.
Concededly, Catolico was denied due process. Procedural due process
requires that an employee be apprised of the charge against him, given
reasonable time to answer the charge, allowed ample opportunity to be
heard and defend himself, and assisted by a representative if the employee
so
desires.23 Ample opportunity connotes every kind of assistance that
management must accord the employee to enable him to prepare adequately
for his defense, including legal representation.24
In the case at bar, although Catolico was given an opportunity to explain her
side, she was dismissed from the service in the memorandum of 5 March
1990 issued by her Supervisor after receipt of her letter and that of her
counsel. No hearing was ever conducted after the issues were joined through
said letters. The Supervisor's memorandum spoke of "evidences [sic] in
[WATEROUS] possession," which were not, however, submitted. What the
"evidences" [sic] other than the sales invoice and the check were, only the
Supervisor knew.
Catolico was also unjustly dismissed. It is settled that the burden is on the
employer to prove just and valid cause for dismissing an employee, and its
failure to discharge that burden would result in a finding that the dismissal is
unjustified.25 Here, WATEROUS proved unequal to the task.
It is evident from the Supervisor's memorandum that Catolico was dismissed
because of an alleged anomalous transaction with YSP. Unfortunately for
petitioners, their evidence does not establish that there was an overcharge.
Control Clerk Eugenio C. Valdez, who claims to have discovered Catolico's
inappropriate transaction, stated in his affidavit:26
4. My findings revealed that on or before the month of July 31, 1989, Ms.
Catolico in violation of the [company] procedure, made an under the table
deal with YSP Phils. to supply WDRC needed medicines like Voren tablets at
a jack-up price of P384.00 per bottle of 50 mg. which has a previous price of
only P320.00;
5. I verified the matter to YSP Phils. to determine the discrepancy and I found
out that the cost per bottle was indeed overpriced. The Accounting
Department of YSP Phils. through Ms. Estelita Reyes confirmed that there
was really an overprice and she said that the difference was refunded
through their check voucher no. 629552 which was shown to me and the
payee is Melodia Catolico, through a China Bank Check No. 892068 dated
November 9, 1989.
It clearly appears then that Catolico's dismissal was based on hearsay
information. Estelita Reyes never testified nor executed an affidavit relative to
this case; thus, we have to reject the statements attributed to her by Valdez.
Hearsay evidence carries no probative value.27
Besides, it was never shown that petitioners paid for the Voren tablets. While
Valdez informed Co, through the former's memorandum28 of 29 January
1990, that WATEROUS paid YSP P3,840.00 "thru MBTC Check No.
222832," the said check was never presented in evidence, nor was any
receipt from YSP offered by petitioners.
Moreover, the two purchase orders for Voren tablets presented by petitioners
do not indicate an overcharge. The purchase order dated 16 August 198929
stated that the Voren tablets cost P320.00 per box, while the purchase order
dated 5 October 198930 priced the Voren tablets at P384.00 per bottle. The
difference in price may then be attributed to the different packaging used in
each purchase order.
Assuming that there was an overcharge, the two purchase orders for the
Voren tablets were recommended by Director-MMG Mario R. Panuncio,
verified by AVP-MNG Noli M. Lopez and approved by Vice President-
General Manager Emma R. Co. The purchase orders were silent as to
Catolico's participation in the purchase. If the price increase was
objectionable to petitioners, they or their officers should have disapproved
the transaction. Consequently, petitioners had no one to blame for their
predicament but themselves. This set of facts emphasizes the exceedingly
incredible situation proposed by petitioners. Despite the memorandum
warning Catolico not to negotiate with suppliers of medicine, there was no
proof that she ever transacted, or that she had the opportunity to transact,
with the said suppliers. Again, as the purchase orders indicate, Catolico was
not at all involved in the sale of the Voren tablets. There was no occasion for
Catolico to initiate, much less benefit from, what Valdez called an "under the
table deal" with YSP.
Catolico's dismissal then was obviously grounded on mere suspicion, which
in no case can justify an employee's dismissal. Suspicion is not among the
valid causes provided by the Labor Code for the termination of
employment;31 and even the dismissal of an employee for loss of trust and
confidence must rest on substantial grounds and not on the employer's
arbitrariness, whims, caprices, or suspicion.32 Besides, Catolico was not
shown to be a managerial employee, to which class of employees the term
"trust and confidence" is restricted.33
As regards the constitutional violation upon which the NLRC anchored its
decision, we find no reason to revise the doctrine laid down in People vs.
Marti34 that the Bill of Rights does not protect citizens from unreasonable
searches and seizures perpetrated by private individuals. It is not true, as
counsel for Catolico claims, that the citizens have no recourse against such
assaults. On the contrary, and as said counsel admits, such an invasion
gives rise to both criminal and civil liabilities.
Finally, since it has been determined by the Labor Arbiter that Catolico's
reinstatement would not be to the best interest of the parties, he correctly
awarded separation pay to Catolico. Separation pay in lieu of reinstatement
is computed at one month's salary for every year of service.35 In this case,
however, Labor Arbiter Lopez computed the separation pay at one-half
month's salary for every year of service. Catolico did not oppose or raise an
objection. As such, we will uphold the award of separation pay as fixed by
the Labor Arbiter.
WHEREFORE, the instant petition is hereby DISMISSED and the challenged
decision and resolution of the National Labor Relations Commission dated 30
September 1993 and 2 December 1993, respectively, in NLRC-NCR CA No.
005160-93 are AFFIRMED, except as to its reason for upholding the Labor
Arbiter's decision, viz., that the evidence against private respondent was
inadmissible for having been obtained in violation of her constitutional rights
of privacy of communication and against unreasonable searches and
seizures which is hereby set aside.
Costs against petitioners.
SO ORDERED.
Silverthorne Lumber vs. US [251 US 385 (1920)]
Syllabus
The Fourth Amendment protects a corporation and its officers from
compulsory production of the corporate books and papers for use in a
criminal proceeding against them when the information upon which the
subpoenas were framed was derived by the Government through a previous
unconstitutional search and seizure, planned and executed by its officials
under color of a void writ, provided the defense of the Amendment be
seasonably interposed, and not first raised as a collateral issue at the trial of
the indictment. P. 251 U. S. 391.
The rights of a corporation against unlawful search and seizure are to be
protected even if it be not protected by the Fifth Amendment from
compulsory production of incriminating documents. P. 251 U. S. 362.
Reversed.
The case is stated in the opinion.
Page 251 U. S. 390
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a writ of error brought to reverse a judgment of the District Court fining
the Silverthorne Lumber Company two hundred and fifty dollars for contempt
of court and ordering Frederick W. Silverthorne to be imprisoned until he
should purge himself of a similar contempt. The contempt in question was a
refusal to obey subpoenas and an order of Court to produce books and
documents of the company before the grand jury to be used in regard to
alleged violation of the statutes of the United States by the said Silverthorne
and his father. One ground of the refusal was that the order of the Court
infringed the rights of the parties under the Fourth Amendment of the
Constitution of the United States.
The facts are simple. An indictment upon a single specific charge having
been brought against the two Silverthornes mentioned, they both were
arrested at their homes early in the morning of February 25, and were
detained in custody a number of hours. While they were thus detained,
representatives of the Department of Justice and the United States marshal,
without a shadow of authority, went to the office of their company and made
a clean sweep of all the books, papers and documents found there. All the
employes were taken or directed to go to the office of the District Attorney of
the United States, to which also the books, &c., were taken at once. An
application, was made as soon as might be to the District
Page 251 U. S. 391
Court for a return of what thus had been taken unlawfully. It was opposed by
the District Attorney so far as he had found evidence against the plaintiffs in
error, and it was stated that the evidence so obtained was before the grand
jury. Color had been given by the District Attorney to the approach of those
concerned in the act by an invalid subpoena for certain documents relating to
the charge in the indictment then on file. Thus, the case is not that of
knowledge acquired through the wrongful act of a stranger, but it must be
assumed that the Government planned or at all events ratified, the whole
performance. Photographs and copies of material papers were made, and a
new indictment was framed based upon the knowledge thus obtained. The
District Court ordered a return of the originals, but impounded the
photographs and copies. Subpoenas to produce the originals then were
served, and, on the refusal of the plaintiffs in error to produce them, the Court
made an order that the subpoenas should be complied with, although it had
found that all the papers had been seized in violation of the parties'
constitutional rights. The refusal to obey this order is the contempt alleged.
The Government now, while in form repudiating and condemning the illegal
seizure, seeks to maintain its right to avail itself of the knowledge obtained by
that means which otherwise it would not have had.
The proposition could not be presented more nakedly. It is that, although, of
course, its seizure was an outrage which the Government now regrets, it may
study the papers before it returns them, copy them, and then may use the
knowledge that it has gained to call upon the owners in a more regular form
to produce them; that the protection of the Constitution covers the physical
possession, but not any advantages that the Government can gain over the
object of its pursuit by doing the forbidden act. Weeks v. United States, 232
U. S. 383, to be sure, had established that laying the papers directly before
the grand jury was
Page 251 U. S. 392
unwarranted, but it is taken to mean only that two steps are required instead
of one. In our opinion, such is not the law. It reduces the Fourth Amendment
to a form of words. 232 U. S. 232 U.S. 393. The essence of a provision
forbidding the acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the Court, but that it shall not
be used at all. Of course, this does not mean that the facts thus obtained
become sacred and inaccessible. If knowledge of them is gained from an
independent source they may be proved like any others, but the knowledge
gained by the Government's own wrong cannot be used by it in the way
proposed. The numerous decisions, like Adams v. New York, 192 U. S. 585,
holding that a collateral inquiry into the mode in which evidence has been got
will not be allowed when the question is raised for the first time at the trial,
are no authority in the present proceeding, as is explained in Weeks v.
United States, 232 U. S. 383, 232 U. S. 394, 232 U. S. 395. Whether some of
those decisions have gone too far or have given wrong reasons it is
unnecessary to inquire; the principle applicable to the present case seems to
us plain. It is stated satisfactorily in Flagg v. United States, 233 Fed.Rep.
481, 483. In Linn v. United States, 251 Fed.Rep. 476, 480, it was thought
that a different rule applied to a corporation, on the ground that it was not
privileged from producing its books and papers. But the rights of a
corporation against unlawful search and seizure are to be protected even if
the same result might have been achieved in a lawful way.
Judgment reversed.
THE CHIEF JUSTICE and MR. JUSTICE PITNEY dissent.
People vs. Aruta (G.R. No. 120915, April 3, 1998)
With the pervasive proliferation of illegal drugs and its pernicious effects on
our society, our law enforcers tend at times to overreach themselves in
apprehending drug offenders to the extent of failing to observe well-
entrenched constitutional guarantees against illegal searches and arrests.
Consequently, drug offenders manage to evade the clutches of the law on
mere technicalities.
Accused-appellant Rosa Aruta y Menguin was arrested and charged with
violating Section 4, Article II of Republic Act No. 6425 or the Dangerous
Drugs Act. The information reads:
That on or about the fourteenth (14th) day of December, 1988, in the City of
Olongapo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, without being lawfully authorized, did then and there
willfully, unlawfully and knowingly engage in transporting approximately eight
(8) kilos and five hundred (500) grams of dried marijuana packed in plastic
bag marked "Cash Katutak" placed in a traveling bag, which are prohibited
drugs.
Upon arraignment, she pleaded "not guilty." After trial on the merits, the
Regional Trial Court of Olongapo City convicted and sentenced her to suffer
the penalty of life imprisonment and to pay a fine of twenty thousand
(P20,000.00) pesos.1
The prosecution substantially relied on the testimonies of P/Lt. Ernesto
Abello, Officer-in-Charge of the Narcotics Command (NARCOM) of
Olongapo City and P/Lt. Jose Domingo. Based on their testimonies, the court
a quo found the following:
On December 13, 1988, P/Lt. Abello was tipped off by his informant, known
only as Benjie, that a certain "Aling Rosa" would be arriving from Baguio City
the following day, December 14, 1988, with a large volume of marijuana.
Acting on said tip, P/Lt. Abello assembled a team composed of P/Lt. Jose
Domingo, Sgt. Angel Sudiacal, Sgt. Oscar Imperial, Sgt. Danilo Santiago and
Sgt. Efren Quirubin.
Said team proceeded to West Bajac-Bajac, Olongapo City at around 4:00 in
the afternoon of December 14, 1988 and deployed themselves near the
Philippine National Bank (PNB) building along Rizal Avenue and the Caltex
gasoline station. Dividing themselves into two groups, one group, made up of
P/Lt. Abello, P/Lt. Domingo and the informant posted themselves near the
PNB building while the other group waited near the Caltex gasoline station.
While thus positioned, a Victory Liner Bus with body number 474 and the
letters BGO printed on its front and back bumpers stopped in front of the
PNB building at around 6:30 in the evening of the same day from where two
females and a male got off. It was at this stage that the informant pointed out
to the team "Aling Rosa" who was then carrying a traveling bag.
Having ascertained that accused-appellant was "Aling Rosa," the team
approached her and introduced themselves as NARCOM agents. When P/Lt.
Abello asked "Aling Rosa" about the contents of her bag, the latter handed it
to the former.
Upon inspection, the bag was found to contain dried marijuana leaves
packed in a plastic bag marked "Cash Katutak." The team confiscated the
bag together with the Victory Liner bus ticket to which Lt. Domingo affixed his
signature. Accused-appellant was then brought to the NARCOM office for
investigation where a Receipt of Property Seized was prepared for the
confiscated marijuana leaves.
Upon examination of the seized marijuana specimen at the PC/INP Crime
Laboratory, Camp Olivas, Pampanga, P/Maj. Marlene Salangad, a Forensic
Chemist, prepared a Technical Report stating that said specimen yielded
positive results for marijuana, a prohibited drug.
After the presentation of the testimonies of the arresting officers and of the
above technical report, the prosecution rested its case.
Instead of presenting its evidence, the defense filed a "Demurrer to
Evidence" alleging the illegality of the search and seizure of the items
thereby violating accused-appellant's constitutional right against
unreasonable search and seizure as well as their inadmissibility in evidence.
The said "Demurrer to Evidence" was, however, denied without the trial court
ruling on the alleged illegality of the search and seizure and the
inadmissibility in evidence of the items seized to avoid pre-judgment. Instead,
the trial court continued to hear the case.
In view of said denial, accused-appellant testified on her behalf. As expected,
her version of the incident differed from that of the prosecution. She claimed
that immediately prior to her arrest, she had just come from Choice Theater
where she watched the movie "Balweg." While about to cross the road, an
old woman asked her help in carrying a shoulder bag. In the middle of the
road, Lt. Abello and Lt. Domingo arrested her and asked her to go with them
to the NARCOM Office.
During investigation at said office, she disclaimed any knowledge as to the
identity of the woman and averred that the old woman was nowhere to be
found after she was arrested. Moreover, she added that no search warrant
was shown to her by the arresting officers.
After the prosecution made a formal offer of evidence, the defense filed a
"Comment and/or Objection to Prosecution's Formal Offer of Evidence"
contesting the admissibility of the items seized as they were allegedly a
product of an unreasonable search and seizure.
Not convinced with her version of the incident, the Regional Trial Court of
Olongapo City convicted accused-appellant of transporting eight (8) kilos and
five hundred (500) grams of marijuana from Baguio City to Olongapo City in
violation of Section 4, Article 11 of R.A. No. 6425, as amended, otherwise
known as the Dangerous Drugs Act of 1972 and sentenced her to life
imprisonment and to pay a fine of twenty thousand (P20,000.00) pesos
without subsidiary imprisonment in case of insolvency.2
In this appeal, accused-appellant submits the following:
1. The trial court erred in holding that the NARCOM agents could not apply
for a warrant for the search of a bus or a passenger who boarded a bus
because one of the requirements for applying a search warrant is that the
place to be searched must be specifically designated and described.
2. The trial court erred in holding or assuming that if a search warrant was
applied for by the NARCOM agents, still no court would issue a search
warrant for the reason that the same would be considered a general search
warrant which may be quashed.
3. The trial court erred in not finding that the warrantless search resulting to
the arrest of accused-appellant violated the latter's constitutional rights.
4. The trial court erred in not holding that although the defense of denial is
weak yet the evidence of the prosecution is even weaker.
These submissions are impressed with merit.
In People v. Ramos,3 this Court held that a search may be conducted by law
enforcers only on the strength of a search warrant validly issued by a judge
as provided in Article III, Section 2 of the Constitution which provides:
Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
This constitutional guarantee is not a blanket prohibition against all searches
and seizures as it operates only against "unreasonable" searches and
seizures. The plain import of the language of the Constitution, which in one
sentence prohibits unreasonable searches and seizures and at the same
time prescribes the requisites for a valid warrant, is that searches and
seizures are normally unreasonable unless authorized by a validly issued
search warrant or warrant of arrest. Thus, the fundamental protection
accorded by the search and seizure clause is that between person and police
must stand the protective authority of a magistrate clothed with power to
issue or refuse to issue search warrants or warrants of arrest.4
Further, articles which are the product of unreasonable searches and
seizures are inadmissible as evidence pursuant to the doctrine pronounced
in Stonehill v. Diokno.5 This exclusionary rule was later enshrined in Article
III, Section 3(2) of the Constitution, thus:
Sec. 3(2). Any evidence obtained in violation of this or the preceding section
shall be inadmissible in evidence for any purpose in any proceeding.
From the foregoing, it can be said that the State cannot simply intrude
indiscriminately into the houses, papers, effects, and most importantly, on the
person of an individual. The constitutional provision guaranteed an
impenetrable shield against unreasonable searches and seizures. As such, it
protects the privacy and sanctity of the person himself against unlawful
arrests and other forms of restraint.6
Therewithal, the right of a person to be secured against any unreasonable
seizure of his body and any deprivation of his liberty is a most basic and
fundamental one. A statute, rule or situation which allows exceptions to the
requirement of a warrant of arrest or search warrant must perforce be strictly
construed and their application limited only to cases specifically provided or
allowed by law. To do otherwise is an infringement upon personal liberty and
would set back a right so basic and deserving of full protection and
vindication yet often violated.7
The following cases are specifically provided or allowed by law:
1. Warrantless search incidental to a lawful arrest recognized under Section
12, Rule 126 of the Rules of Court8 and by prevailing jurisprudence;
2. Seizure of evidence in "plain view," the elements of which are:
(a) a prior valid intrusion based on the valid warrantless arrest in which the
police are legally present in the pursuit of their official duties;
(b) the evidence was inadvertently discovered by the police who had the right
to be where they are;
(c) the evidence must be immediately apparent, and
(d) "plain view" justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the government, the
vehicle's inherent mobility reduces expectation of privacy especially when its
transit in public thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a criminal activity;
4. Consented warrantless search;
5. Customs search;9
6. Stop and Frisk;10 and
7. Exigent and Emergency Circumstances.11
The above exceptions, however, should not become unbridled licenses for
law enforcement officers to trample upon the constitutionally guaranteed and
more fundamental right of persons against unreasonable search and
seizures. The essential requisite of probable cause must still be satisfied
before a warrantless search and seizure can be lawfully conducted.
Although probable cause eludes exact and concrete definition, it generally
signifies a reasonable ground of suspicion supported by circumstances
sufficiently strong in themselves to warrant a cautious man to believe that the
person accused is guilty of the offense with which he is charged. It likewise
refers to the existence of such facts and circumstances which could lead a
reasonably discreet and prudent man to believe that an offense has been
committed and that the item(s), article(s) or object(s) sought in connection
with said offense or subject to seizure and destruction by law is in the place
to be searched.12
It ought to be emphasized that in determining probable cause, the average
man weighs facts and circumstances without resorting to the calibrations of
our rules of evidence of which his knowledge is technically nil. Rather, he
relies on the calculus of common sense which all reasonable men have in
abundance. The same quantum of evidence is required in determining
probable cause relative to search. Before a search warrant can be issued, it
must be shown by substantial evidence that the items sought are in fact
seizable by virtue of being connected with criminal activity, and that the items
will be found in the place to be searched.13
In searches and seizures effected without a warrant, it is necessary for
probable cause to be present. Absent any probable cause, the article(s)
seized could not be admitted and used as evidence against the person
arrested. Probable cause, in these cases, must only be based on reasonable
ground of suspicion or belief that a crime has been committed or is about to
be committed.
In our jurisprudence, there are instances where information has become a
sufficient probable cause to effect a warrantless search and seizure.
In People v. Tangliben,14 acting on information supplied by informers, police
officers conducted a surveillance at the Victory Liner Terminal compound in
San Fernando, Pampanga against persons who may commit misdemeanors
and also on those who may be engaging in the traffic of dangerous drugs. At
9:30 in the evening, the policemen noticed a person carrying a red traveling
bag who was acting suspiciously. They confronted him and requested him to
open his bag but he refused. He acceded later on when the policemen
identified themselves. Inside the bag were marijuana leaves wrapped in a
plastic wrapper. The police officers only knew of the activities of Tangliben on
the night of his arrest.
In instant case, the apprehending officers already had prior knowledge from
their informant regarding Aruta's alleged activities. In Tangliben policemen
were confronted with an on-the-spot tip. Moreover, the policemen knew that
the Victory Liner compound is being used by drug traffickers as their
"business address". More significantly, Tangliben was acting suspiciously.
His actuations and surrounding circumstances led the policemen to
reasonably suspect that Tangliben is committing a crime. In instant case,
there is no single indication that Aruta was acting suspiciously.
In People v. Malmstedt,15 the Narcom agents received reports that vehicles
coming from Sagada were transporting marijuana. They likewise received
information that a Caucasian coming from Sagada had prohibited drugs on
his person. There was no reasonable time to obtain a search warrant,
especially since the identity of the suspect could not be readily ascertained.
His actuations also aroused the suspicion of the officers conducting the
operation. The Court held that in light of such circumstances, to deprive the
agents of the ability and facility to act promptly, including a search without a
warrant, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.
Note, however, the glaring differences of Malmstedt to the instant case. In
present case, the police officers had reasonable time within which to secure
a search warrant. Second, Aruta's identity was priorly ascertained. Third,
Aruta was not acting suspiciously. Fourth, Malmstedt was searched aboard a
moving vehicle, a legally accepted exception to the warrant requirement.
Aruta, on the other hand, was searched while about to cross a street.
In People v. Bagista,16 the NARCOM officers had probable cause to stop
and search all vehicles coming from the north to Acop, Tublay, Benguet in
view of the confidential information they received from their regular informant
that a woman having the same appearance as that of accused-appellant
would be bringing marijuana from up north. They likewise had probable
cause to search accused-appellant's belongings since she fitted the
description given by the NARCOM informant. Since there was a valid
warrantless search by the NARCOM agents, any evidence obtained in the
course of said search is admissible against accused-appellant. Again, this
case differs from Aruta as this involves a search of a moving vehicle plus the
fact that the police officers erected a checkpoint. Both are exceptions to the
requirements of a search warrant.
In Manalili v. Court of Appeals and People,17 the policemen conducted a
surveillance in an area of the Kalookan Cemetery based on information that
drug addicts were roaming therein. Upon reaching the place, they chanced
upon a man in front of the cemetery who appeared to be "high" on drugs. He
was observed to have reddish eyes and to be walking in a swaying manner.
Moreover, he appeared to be trying to avoid the policemen. When
approached and asked what he was holding in his hands, he tried to resist.
When he showed his wallet, it contained marijuana. The Court held that the
policemen had sufficient reason to accost accused-appellant to determine if
he was actually "high" on drugs due to his suspicious actuations, coupled
with the fact that based on information, this area was a haven for drug
addicts.
In all the abovecited cases, there was information received which became
the bases for conducting the warrantless search. Furthermore, additional
factors and circumstances were present which, when taken together with the
information, constituted probable causes which justified the warrantless
searches and seizures in each of the cases.
In the instant case, the determination of the absence or existence of probable
cause necessitates a reexamination of the facts. The following have been
established: (1) In the morning of December 13, 1988, the law enforcement
officers received information from an informant named "Benjie" that a certain
"Aling Rosa" would be leaving for Baguio City on December 14, 1988 and
would be back in the afternoon of the same day carrying with her a large
volume of marijuana; (2) At 6:30 in the evening of December 14, 1988,
accused-appellant alighted from a Victory Liner Bus carrying a traveling bag
even as the informant pointed her out to the law enforcement officers; (3)
The law enforcement officers approached her and introduced themselves as
NARCOM agents; (4) When asked by Lt. Abello about the contents of her
traveling bag, she gave the same to him; (5) When they opened the same,
they found dried marijuana leaves; (6) Accused-appellant was then brought
to the NARCOM office for investigation.
This case is similar to People v. Aminnudin where the police received
information two days before the arrival of Aminnudin that the latter would be
arriving from Iloilo on board the M/V Wilcon 9. His name was known, the
vehicle was identified and the date of arrival was certain. From the
information they had received, the police could have persuaded a judge that
there was probable cause, indeed, to justify the issuance of a warrant.
Instead of securing a warrant first, they proceeded to apprehend Aminnudin.
When the case was brought before this Court, the arrest was held to be
illegal; hence any item seized from Aminnudin could not be used against him.
Another recent case is People v. Encinada where the police likewise
received confidential information the day before at 4:00 in the afternoon from
their informant that Encinada would be bringing in marijuana from Cebu City
on board M/V Sweet Pearl at 7:00 in the morning of the following day. This
intelligence information regarding the culprit's identity, the particular crime he
allegedly committed and his exact whereabouts could have been a basis of
probable cause for the lawmen to secure a warrant. This Court held that in
accordance with Administrative Circular No. 13 and Circular No. 19, series of
1987, the lawmen could have applied for a warrant even after court hours.
The failure or neglect to secure one cannot serve as an excuse for violating
Encinada's constitutional right.
In the instant case, the NARCOM agents were admittedly not armed with a
warrant of arrest. To legitimize the warrantless search and seizure of
accused-appellant's bag, accused-appellant must have been validly arrested
under Section 5 of Rule 113 which provides inter alia:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private
person may, without a warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense;
xxx xxx xxx
Accused-appellant Aruta cannot be said to be committing a crime. Neither
was she about to commit one nor had she just committed a crime. Accused-
appellant was merely crossing the street and was not acting in any manner
that would engender a reasonable ground for the NARCOM agents to
suspect and conclude that she was committing a crime. It was only when the
informant pointed to accused-appellant and identified her to the agents as
the carrier of the marijuana that she was singled out as the suspect. The
NARCOM agents would not have apprehended accused-appellant were it not
for the furtive finger of the informant because, as clearly illustrated by the
evidence on record, there was no reason whatsoever for them to suspect
that accused-appellant was committing a crime, except for the pointing finger
of the informant. This the Court could neither sanction nor tolerate as it is a
clear violation of the constitutional guarantee against unreasonable search
and seizure. Neither was there any semblance of any compliance with the
rigid requirements of probable cause and warrantless arrests.
Consequently, there was no legal basis for the NARCOM agents to effect a
warrantless search of accused-appellant's bag, there being no probable
cause and the accused-appellant not having been lawfully arrested. Stated
otherwise, the arrest being incipiently illegal, it logically follows that the
subsequent search was similarly illegal, it being not incidental to a lawful
arrest. The constitutional guarantee against unreasonable search and
seizure must perforce operate in favor of accused-appellant. As such, the
articles seized could not be used as evidence against accused-appellant for
these are "fruits of a poisoned tree" and, therefore, must be rejected,
pursuant to Article III, Sec. 3(2) of the Constitution.
Emphasis is to be laid on the fact that the law requires that the search be
incidental to a lawful arrest, in order that the search itself may likewise be
considered legal. Therefore, it is beyond cavil that a lawful arrest must
precede the search of a person and his belongings. Where a search is first
undertaken, and an arrest effected based on evidence produced by the
search, both such search and arrest would be unlawful, for being contrary to
law.18
As previously discussed, the case in point is People v. Aminnudin19 where,
this Court observed that:
. . . accused-appellant was not, at the moment of his arrest, committing a
crime nor was it shown that he was about to do so or that he had just done
so. What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently
disembarking from the vessel. It was only when the informer pointed to him
as the carrier of the marijuana that he suddenly became suspect and so
subject to apprehension. It was the furtive finger that triggered his arrest. The
identification by the informer was the probable cause as determined by the
officers (and not a judge) that authorized them to pounce upon Aminnudin
and immediately arrest him.
In the absence of probable cause to effect a valid and legal warrantless
arrest, the search and seizure of accused-appellant's bag would also not be
justified as seizure of evidence in "plain view" under the second exception.
The marijuana was obviously not immediately apparent as shown by the fact
that the NARCOM agents still had to request accused-appellant to open the
bag to ascertain its contents.
Neither would the search and seizure of accused-appellant's bag be justified
as a search of a moving vehicle. There was no moving vehicle to speak of in
the instant case as accused-appellant was apprehended several minutes
after alighting from the Victory Liner bus. In fact, she was accosted in the
middle of the street and not while inside the vehicle.
People v. Solayao,20 applied the stop and frisk principle which has been
adopted in Posadas v. Court of Appeals.21 In said case, Solayao attempted
to flee when he and his companions were accosted by government agents.
In the instant case, there was no observable manifestation that could have
aroused the suspicion of the NARCOM agents as to cause them to "stop and
frisk" accused-appellant. To reiterate, accused-appellant was merely
crossing the street when apprehended. Unlike in the abovementioned cases,
accused-appellant never attempted to flee from the NARCOM agents when
the latter identified themselves as such. Clearly, this is another indication of
the paucity of probable cause that would sufficiently provoke a suspicion that
accused-appellant was committing a crime.
The warrantless search and seizure could not likewise be categorized under
exigent and emergency circumstances, as applied in People v. De
Gracia.22 In said case, there were intelligence reports that the building was
being used as headquarters by the RAM during a coup d' etat. A surveillance
team was fired at by a group of armed men coming out of the building and
the occupants of said building refused to open the door despite repeated
requests. There were large quantities of explosives and ammunitions inside
the building. Nearby courts were closed and general chaos and disorder
prevailed. The existing circumstances sufficiently showed that a crime was
being committed. In short, there was probable cause to effect a warrantless
search of the building. The same could not be said in the instant case.
The only other exception that could possibly legitimize the warrantless
search and seizure would be consent given by the accused-appellant to the
warrantless search as to amount to a waiver of her constitutional right. The
Solicitor General argues that accused-appellant voluntarily submitted herself
to search and inspection citing People v. Malasugui23 where this Court ruled:
When one voluntarily submits to a search or consents to have it made on his
person or premises, he is precluded from complaining later thereof. (Cooley,
Constitutional Limitations, 8th ed., [V]ol. I, p. 631.) The right to be secure
from unreasonable search may, like every right, be waived and such waiver
may be made either expressly or impliedly.
In support of said argument, the Solicitor General cited the testimony of Lt.
Abello, thus:
Q When this informant by the name of alias Benjie pointed to Aling Rosa,
what happened after that?
A We followed her and introduced ourselves as NARCOM agents and
confronted her with our informant and asked her what she was carrying and if
we can see the bag she was carrying.
Q What was her reaction?
A She gave her bag to me.
Q So what happened after she gave the bag to you?
A I opened it and found out plastic bags of marijuana inside.24
This Court cannot agree with the Solicitor General's contention for the
Malasugui case is inapplicable to the instant case. In said case, there was
probable cause for the warrantless arrest thereby making the warrantless
search effected immediately thereafter equally lawful.25 On the contrary, the
most essential element of probable cause, as expounded above in detail, is
wanting in the instant case making the warrantless arrest unjustified and
illegal. Accordingly, the search which accompanied the warrantless arrest
was likewise unjustified and illegal. Thus, all the articles seized from the
accused-appellant could not be used as evidence against her.
Aside from the inapplicability of the abovecited case, the act of herein
accused-appellant in handing over her bag to the NARCOM agents could not
be construed as voluntary submission or an implied acquiescence to the
unreasonable search. The instant case is similar to People v. Encinada,26
where this Court held:
[T]he Republic's counsel avers that appellant voluntarily handed the chairs
containing the package of marijuana to the arresting officer and thus
effectively waived his right against the warrantless search. This he gleaned
from Bolonia's testimony.
Q: After Roel Encinada alighted from the motor tricycle, what happened
next?
A: I requested to him to see his chairs that he carried.
Q: Are you referring to the two plastic chairs?
A: Yes, sir.
Q: By the way, when Roel Encinada agreed to allow you to examine the two
chairs that he carried, what did you do next?
A: I examined the chairs and I noticed that something inside in between the
two chairs.
We are not convinced. While in principle we agree that consent will validate
an otherwise illegal search, we believe that appellant — based on the
transcript quoted above — did not voluntarily consent to Bolonia's search of
his belongings. Appellant's silence should not be lightly taken as consent to
such search. The implied acquiescence to the search, if there was any, could
not have been more than mere passive conformity given under intimidating
or coercive circumstances and is thus considered no consent at all within the
purview of the constitutional guarantee. Furthermore, considering that the
search was conducted irregularly, i.e., without a warrant, we cannot
appreciate consent based merely on the presumption of regularity of the
performance of duty." (Emphasis supplied)
Thus, accused-appellant's lack of objection to the search is not tantamount to
a waiver of her constitutional rights or a voluntary submission to the
warrantless search. As this Court held in People v. Barros:27
. . . [T]he accused is not to be presumed to have waived the unlawful search
conducted on the occasion of his warrantless arrest "simply because he
failed to object" —
. . . To constitute a waiver, it must appear first that the right exists; secondly,
that the person involved had knowledge, actual or constructive, of the
existence of such right; and lastly, that said person had an actual intention to
relinquish the right (Pasion Vda. de Garcia v. Locsin, 65 Phil. 698). The fact
that the accused failed to object to the entry into his house does not amount
to a permission to make a search therein (Magoncia v. Palacio, 80 Phil. 770).
As pointed out by Justice Laurel in the case of Pasion Vda. de Garcia v.
Locsin (supra):
xxx xxx xxx
. . . As the constitutional guaranty is not dependent upon any affirmative act
of the citizen, the courts do not place the citizen in the position of either
contesting an officer's authority by force, or waiving his constitutional rights;
but instead they hold that a peaceful submission to a search or seizure is not
a consent or an invitation thereto, but is merely a demonstration of regard for
the supremacy of the law. (Citation omitted).
We apply the rule that: "courts indulge every reasonable presumption against
waiver of fundamental constitutional rights and that we do not presume
acquiescence in the loss of fundamental rights."28 (Emphasis supplied)
To repeat, to constitute a waiver, there should be an actual intention to
relinquish the right. As clearly illustrated in People v. Omaweng,29 where
prosecution witness Joseph Layong testified thus:
PROSECUTOR AYOCHOK:
Q — When you and David Fomocod saw the travelling bag, what did you do?
A — When we saw that traveling bag, we asked the driver if we could see the
contents.
Q — And what did or what was the reply of the driver, if there was any?
A — He said "you can see the contents but those are only clothings" (sic).
Q — When he said that, what did you do?
A — We asked him if we could open and see it.
Q — When you said that, what did he tell you?
A — He said "you can see it".
Q — And when he said "you can see and open it," what did you do?
A — When I went inside and opened the bag, I saw that it was not clothings
(sic) that was contained in the bag.
Q — And when you saw that it was not clothings (sic), what did you do?
A — When I saw that the contents were not clothes, I took some of the
contents and showed it to my companion Fomocod and when Fomocod
smelled it, he said it was marijuana. (Emphasis supplied)
In the above-mentioned case, accused was not subjected to any search
which may be stigmatized as a violation of his Constitutional right against
unreasonable searches and seizures. If one had been made, this Court
would be the first to condemn it "as the protection of the citizen and the
maintenance of his constitutional rights is one of the highest duties and
privileges of the Court." He willingly gave prior consent to the search and
voluntarily agreed to have it conducted on his vehicle and traveling bag,
which is not the case with Aruta.
In an attempt to further justify the warrantless search, the Solicitor General
next argues that the police officers would have encountered difficulty in
securing a search warrant as it could be secured only if accused-appellant's
name was known, the vehicle identified and the date of its arrival certain, as
in the Aminnudin case where the arresting officers had forty-eight hours
within which to act.
This argument is untenable.
Article IV, Section 3 of the Constitution provides:
. . . [N]o search warrant or warrant of arrest shall issue except upon probable
cause to be determined by the judge, or such other responsible officer as
may be authorized by law, after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing
the place to be searched and the persons or things to be seized. (Emphasis
supplied)
Search warrants to be valid must particularly describe the place to be
searched and the persons or things to be seized. The purpose of this rule is
to limit the things to be seized to those and only those, particularly described
in the warrant so as to leave the officers of the law with no discretion
regarding what articles they shall seize to the end that unreasonable
searches and seizures may not be made.30
Had the NARCOM agents only applied for a search warrant, they could have
secured one without too much difficulty, contrary to the assertions of the
Solicitor General. The person intended to be searched has been
particularized and the thing to be seized specified. The time was also
sufficiently ascertained to be in the afternoon of December 14, 1988. "Aling
Rosa" turned out to be accused-appellant and the thing to be seized was
marijuana. The vehicle was identified to be a Victory Liner bus. In fact, the
NARCOM agents purposely positioned themselves near the spot where
Victory Liner buses normally unload their passengers. Assuming that the
NARCOM agents failed to particularize the vehicle, this would not in any way
hinder them from securing a search warrant. The above particulars would
have already sufficed. In any case, this Court has held that the police should
particularly describe the place to be searched and the person or things to be
seized, wherever and whenever it is feasible.31 (Emphasis supplied)
While it may be argued that by entering a plea during arraignment and by
actively participating in the trial, accused-appellant may be deemed to have
waived objections to the illegality of the warrantless search and to the
inadmissibility of the evidence obtained thereby, the same may not apply in
the instant case for the following reasons:
1. The waiver would only apply to objections pertaining to the illegality of the
arrest as her plea of "not guilty" and participation in the trial are indications of
her voluntary submission to the court's jurisdiction.32 The plea and active
participation in the trial would not cure the illegality of the search and
transform the inadmissible evidence into objects of proof. The waiver simply
does not extend this far.
2. Granting that evidence obtained through a warrantless search becomes
admissible upon failure to object thereto during the trial of the case, records
show that accused-appellant filed a Demurrer to Evidence and objected and
opposed the prosecution's Formal Offer of Evidence.
It is apropos to quote the case of People v. Barros,33 which stated:
It might be supposed that the non-admissibility of evidence secured through
an invalid warrantless arrest or a warrantless search and seizure may be
waived by an accused person. The a priori argument is that the invalidity of
an unjustified warrantless arrest, or an arrest effected with a defective
warrant of arrest may be waived by applying for and posting of bail for
provisional liberty, so as to estop an accused from questioning the legality or
constitutionality of his detention or the failure to accord him a preliminary
investigation. We do not believe, however, that waiver of the latter
necessarily constitutes, or carries with it, waiver of the former — an argument
that the Solicitor General appears to be making impliedly. Waiver of the non-
admissibility of the "fruits" of an invalid warrantless arrest and of a
warrantless search and seizure is not casually to be presumed, if the
constitutional right against unlawful searches and seizures is to retain its
vitality for the protection of our people. In the case at bar, defense counsel
had expressly objected on constitutional grounds to the admission of the
carton box and the four (4) kilos of marijuana when these were formally
offered in evidence by the prosecution. We consider that appellant's
objection to the admission of such evidence was made clearly and
seasonably and that, under the circumstances, no intent to waive his rights
under the premises can be reasonably inferred from his conduct before or
during the trial. (Emphasis supplied).
In fine, there was really no excuse for the NARCOM agents not to procure a
search warrant considering that they had more than twenty-four hours to do
so. Obviously, this is again an instance of seizure of the "fruit of the
poisonous tree," hence illegal and inadmissible subsequently in evidence.
The exclusion of such evidence is the only practical means of enforcing the
constitutional injunction against unreasonable searches and seizure. The
non-exclusionary rule is contrary to the letter and spirit of the prohibition
against unreasonable searches and seizures.34
While conceding that the officer making the unlawful search and seizure may
be held criminally and civilly liable, the Stonehill case observed that most
jurisdictions have realized that the exclusionary rule is "the only practical
means of enforcing the constitutional injunction" against abuse. This
approach is based on the justification made by Judge Learned Hand that
"only in case the prosecution which itself controls the seizing officials, knows
that it cannot profit by their wrong, will the wrong be repressed."35
Unreasonable searches and seizures are the menace against which the
constitutional guarantees afford full protection. While the power to search
and seize may at times be necessary to the public welfare, still it may be
exercised and the law enforced without transgressing the constitutional rights
of the citizens, for the enforcement of no statute is of sufficient importance to
justify indifference to the basic principles of government.36

Those who are supposed to enforce the law are not justified in disregarding
the rights of the individual in the name of order. Order is too high a price to
pay for the loss of liberty. As Justice Holmes declared: "I think it is less evil
that some criminals escape than that the government should play an ignoble
part." It is simply not allowed in free society to violate a law to enforce
another, especially if the law violated is the Constitution itself.37
WHEREFORE, in view of the foregoing, the decision of the Regional Trial
Court, Branch 73, Olongapo City, is hereby REVERSED and SET ASIDE.
For lack of evidence to establish her guilt beyond reasonable doubt,
accused-appellant ROSA ARUTA Y MENGUIN is hereby ACQUITTED and
ordered RELEASED from confinement unless she is being held for some
other legal grounds. No costs.
SO ORDERED.
People vs. Rondero (G.R. No.125687, December 9, 1999)
When an accused appeals from the judgment of the trial court, he waives the
constitutional safeguard against double jeopardy and throws the whole case
open for review of the appellate court, which is then called to render such
judgment as law and justice dictate, whether favorable or unfavorable. 1 With
this precept in mind, this Court as the ultimate dispenser of justice, will not
hesitate to render the proper imposable penalty, whenever it sees fit, even
the supreme penalty of death.
Before us is an appeal from a decision rendered by the Regional Trial Court
of Dagupan City, Branch 41, sentencing herein accused-appellant Delfin
Rondero y Sigua to suffer the penalty of reclusion perpetua for the crime of
homicide.
The facts of the case are as follows:
On the evening of March 25, 1994, Mardy Doria came home late from a
barrio fiesta. When he noticed that his nine year old sister, Mylene, was not
around, he woke up his parents to inquire about his sister's whereabouts.
Realizing that Mylene was missing, their father, Maximo Doria, sought the
help of a neighbor, Barangay Kagawad Andong Rondero to search for
Mylene. Maximo and Andong went to the house of a Barangay Captain to
ask for assistance and also requested their other neighbors in Pugaro,
Dagupan to look for Mylene.
The group began searching for Mylene at around 1:00 o'clock in the morning
of March 26, 1994. They scoured the campus of Pugaro Elementary School
and the seashore in vain. They even returned to the school and inspected
every classroom but to no avail. Tired and distraught, Maximo started on his
way home. When he was about five (5) meters away from his house,
Maximo, who was then carrying a flashlight, saw herein accused-appellant
Delfin Rondero pumping the artesian well about one (1) meter away.
Accused-appellant had an ice pick clenched in his mouth and was washing
his bloodied hands. 2
Maximo hastily returned to the school and told Kagawad Andong what he
saw without, however, revealing that the person he saw was the latter's own
son. 3 Maximo and Andong continued their search for Mylene but after failing
to find her, the two men decided to go home. After some time, a restless
Maximo began to search anew for her daughter. He again sought the help of
Andong and the barangay secretary. The group returned to Pugaro
Elementary School where they found Mylene's lifeless body lying on a
cemented pavement near the canteen. 4 Her right hand was raised above
her head, which was severely bashed, and her fractured left hand was
behind her back. She was naked from the waist down and had several
contusions and abrasions on different parts of her body. Tightly gripped in
her right hand were some hair strands. A blue rubber slipper with a tiny leaf
painted in red was found beside her body while the other slipper was found
behind her back.
Half an hour later, five (5) policemen arrived at the scene and conducted a
spot investigation. They found a pair of shorts 5 under Mylene's buttocks,
which Maximo identified as hers. Thereafter, Maximo led the policemen to
the artesian well where he had seen accused-appellant earlier washing his
hands. The policemen found that the artesian well was spattered with blood.
6 After the investigation, the policemen, together with Maximo, went back to
their headquarters in Dagupan City. There, Maximo disclosed that before
they found Mylene's body, he saw accused-appellant washing his
bloodstained hands at the artesian well. 7 Acting on this lead, the policemen
returned to Pugaro and arrested accused-appellant.
An autopsy of the body of the victim conducted by the Assistant City Health
Officer of Dagupan City, Dr. Tomas G. Cornel, revealed the following injuries:
EXTERNAL FINDINGS
1. Contusion hematoma, anterior chest wall, along the midclavicular line,
level of the 2nd intercostal space, right.
2. Contusion hematoma, along the parasternal line, level of the 1st
intercostal space, left.
3. Contusion hematoma, posterior aspect, shoulder, left.
4. Contusion hematoma, anterior axillary line, level of the 3rd intercostal
space, left.
5. Contusion hematoma, anterior aspect, neck.
6. Contusion hematoma, lower jaw, mid portion.
7. Contusion hematoma, periorbital, right.
8. Lacerated wound, 1" x 1/2" x 1/2", maxillary area, right.
9. Contusion hematoma, temporal area, left.
10. Contusion hematoma, mid frontal area.
11. Lacerated wound 1/2" x 1/4" x 1/4", frontal area, left.
12. Contusion hematoma, occipital area, right.
13. Abrasion, medial anterior aspect, elbow, left.
14. Abrasion, lateral aspect, buttock, right.
15. Abrasion, antero lateral aspect, iliac crest, right.
16. Contusion hematoma, upper lip.
17. Avulsion, upper central and lateral incisors.
18. Fresh laceration of the hymen at 1:00 o'clock, 6:00 o'clock and 9:00
o'clock position. Fresh laceration of the labia minora at 6:00 o'clock and 9:00
o'clock position.
INTERNAL FINDINGS
Massive intracranial hemorrhage with brain tissue injury. Fracture of the right
occipital bone.
Note:
Vaginal smear was done at the Gov. Teofilo Sison Memorial Prov'l Hosp.
laboratory and the result showed no sperm cell seen. (March 26, 1994)
Cause of death: Cardio Respiratory Arrest
Due to: Massive Intracranial Hemorrhage Traumatic 8
For Mylene's burial, her parents spent P5,043.00 during her wake, 9
P9,000.00 for funeral expenses 10 and P850.00 for church services and
entombment. 11
On March 28, 1994, the hair strands which were found on the victim's right
hand and at the scene of the crime, together with hair specimens taken from
the victim and accused-appellant, were sent to the National Bureau of
Investigation (NBI) for laboratory examination. 12
Meanwhile, on March 30, 1994, accused-appellant was formally charged with
the special complex crime of rape with homicide in an information which
reads:
The undersigned 4th Assistant City Prosecutor accuses DELFIN RONDERO
y Sigua, of Pugaro District, Dagupan City, of the crime of RAPE WITH
HOMICIDE, committed as follows:
That on or about the 26th day of March, 1994, in the city of Dagupan,
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused DELFIN RONDERO y Sigua, did then and there, wilfully,
unlawfully, criminally and forcibly have carnal knowledge with one MYLENE
J. DORIA, a 9-year old girl, against her will and consent, and thereafter, with
intent to kill, criminally and unlawfully employed violence against her person,
thereby causing the death of said MYLENE J. DORIA, as evidenced by the
Autopsy Report issued by Dr. Tomas G. Cornel, Asst. City Health Officer, this
city, to the damage and prejudice of the legal heirs of said deceased,
MYLENE J. DORIA in the amount of not less than FIFTY THOUSAND
PESOS (P50,000.00), Philippine currency, and other consequential
damages.
Contrary to Article 335 in relation to Article 249 of the Revised Penal Code.
Accused-appellant pleaded not guilty at his arraignment. In the meantime,
the NBI sent a fax message to the Dagupan City Police Station saying that it
could not conduct an examination on the hair strands because the proper
comparative specimens were not given. The NBI suggested that hair strands
be pulled, not cut, from the suspect and from the victim on the four regions of
their heads so that all parts of the hair strands, from root to tip, may be
presented. 13 Thereupon, accused-appellant, who executed a "waiver of
detention" including a waiver of the provisions of Section 12, Article III of the
Constitution on the rights of the accused during custodial investigation, 14
was allegedly convinced by a certain Major Wendy Ocampo to give sample
hair strands. Another police officer went to the Doria's residence to get hair
samples from Mylene, who had not yet been interred. The hair strands taken
from accused-appellant and the victim were later indorsed to the NBI for
laboratory testing. 15 Comparative micro-physical examination on the
specimens showed that the hair strands found on the right hand of the victim
had similar characteristics to those of accused-appellant's, while the hair
specimen taken from the crime scene showed similar characteristics to those
of the victim's. 16 Alicia P. Liberato, the NBI Senior Forensic Chemist who
conducted the microscopic examination on the hair samples, later reiterated
the aforesaid findings in court. 17
At the trial, Dr. Cornel, the physician who conducted the autopsy on Mylene
at around 9:30 o'clock in the morning of March 26, 1994, testified that the
victim's death probably occurred before 11:00 o'clock in the evening of March
25, 1994 judging from the rigidity of her lower and upper extremities. He
explained that the contusions and hematoma found on Mylene's body were
possibly caused by a blunt instrument, a clenched fist or a piece of wood. 18
The lacerated wounds on her face may have been caused by a bladed
instrument, not necessarily sharp, or by hitting her head on a concrete wall
with jagged edges. The abrasions on her elbow, right buttock and upper hip
may have been caused by a rough object that came in contact with her skin.
19 Dr. Cornel also explained that the victim's upper and lateral incisors may
have been avulsed by a sudden blow in the mouth using a blunt instrument,
stone or wood. He added that the fresh hymenal lacerations at 1:00 o'clock,
6:00 o'clock and 9:00 o'clock positions and the fresh laceration of the labia
minora at 6:00 o'clock and 9:00 o'clock positions could have been caused
either by sexual intercourse or by an object forcibly inserted in Mylene's
vagina. 20
Accused-appellant resolved not to testify at the trial, opting instead to present
his wife and his father as witnesses to account for his whereabouts on the
night of the gruesome incident.
Christine Gonzales, wife of accused-appellant, testified that on March 25,
1994, at around 7:00 o'clock in the evening, she had a quarrel with her
husband. Accused-appellant was then slightly drunk and apparently irked
when supper was not yet ready. He slapped his wife and shouted invectives
at her, causing a disturbance in the neighborhood and prompting his father,
who lived just a house away, to intervene. When accused-appellant refused
to be pacified, his father hit him in the nose, mouth and different parts of the
body. 21 His father left accused-appellant profusely bleeding. Accused-
appellant then changed his blood-stained clothes and went to bed with his
wife. It was a little after 8:00 o'clock in the evening.
Christine woke up the next day at around 7:00 o'clock in the morning. She
washed some clothes including the blood-stained ones her husband wore the
night before. After doing the laundry, she went out to pay her father a visit.
On her way back home, Christine was informed by a child that her husband
was arrested by the police. Christine rushed home and found some
policemen taking the newly washed undershirt and short pants of accused-
appellant from the clothesline. The policemen brought Christine with them to
the police headquarters for questioning. When asked about the blood on her
husband's clothes, Christine told them about their quarrel the night before. 22
Accused-appellant's father, Leonardo Rondero, corroborated Christine's
story. He testified that on the night in question, at around 7:00 o'clock in the
evening, he was resting at home, located only a house away from his son's,
when he heard the latter having a heated discussion with Christine.
Embarrassed at the scene that his son was creating at such an hour,
Leonardo went to the couple's house to pacify the slightly inebriated
accused-appellant. Accused-appellant ignored his father and continued
shouting at his wife. Leonardo then hit him several times causing his nose
and mouth to bleed profusely that it stained his sando and short pants.
Startled at the injuries that his son sustained, Leonardo went home. Early the
next morning, March 26, 1994, at around 1:30 o'clock, Leonardo was
awakened by his neighbor, Maximo Doria, who sought his assistance to
search for his missing nine-year old daughter Mylene. Leonardo willingly
obliged. Thus, Maximo, Leonardo and the barangay secretary searched the
nearby houses for hours but failed to find Mylene. 23
On October 13, 1995, the trial court rendered judgment 24 convicting
accused-appellant of the crime of murder and sentencing him to death. The
dispositive portion of the decision reads:
WHEREFORE:
For the crime you had wilfully and deliberately committed, this court finds you
guilty beyond reasonable doubt of the crime of murder defined and punished
by Section 6 of Republic Act No. 7659, in relation to Article 248 of the
Revised Penal Code, together with all its attendant aggravating
circumstances without any mitigating circumstance of whatever nature.
You, Delfin Rondero, are hereby therefore sentenced to die by electrocution
pursuant to Article 81 of Republic Act No. 7659, for your heinous crime as
charged in the information as a punishment and as an example to future
offenders.
You are hereby further ordered to indemnify the heirs of the victim by paying
to them an amount of P60,000.00 for the loss of life of Mylene J. Doria;
P15,000.00 for consequential damages and P100,000.00 as moral damages.
May God have mercy on your soul.
SO ORDERED. 25
Accused-appellant moved for reconsideration. On November 10, 1995, the
trial court issued an order modifying its earlier decision, convicting accused-
appellant of the crime of homicide and sentencing him to suffer the penalty of
reclusion perpetua instead, on the ground that under Section 10 of Republic
Act. No. 7610, otherwise known as the "Special Protection of Children
Against Child Abuse, Exploitation and Discrimination Act," the penalty for
homicide is reclusion perpetua when the victim is under twelve (12) years of
age. 26
In this appeal, accused-appellant raises the following assignment of errors:
I. THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT
GUILTY OF THE CRIME OF MURDER AMENDED TO HOMICIDE AND
SENTENCING HIM TO SUFFER LIFE IMPRISONMENT (sic) AND TO
INDEMNIFY THE AGGRIEVED PARTY IN THE AMOUNT OF P175,000.00
BASED ONLY ON CIRCUMSTANTIAL EVIDENCE.
II. THE LOWER COURT COMMITTED GRAVE ERROR IN CONVICTING
THE ACCUSED OF HOMICIDE.
III. THE LOWER COURT COMMITTED GRAVE ERROR IN FINDING
ACCUSED GUILTY TO (sic) THE CRIME OF HOMICIDE DESPITE
ILLEGAL ARREST AND ILLEGAL DETENTION OF ACCUSED-
APPELLANT. 27
The appeal has no merit.
Accused-appellant argues that the circumstantial evidence presented by the
prosecution is not strong enough to sustain his conviction, asserting that
Maximo Doria's testimony that he saw him about a meter away washing his
bloodied hands at an artesian well was highly improbable inasmuch as it was
dark at that time. Accused-appellant also considered it strange that when
Maximo saw him, he did not bother to ask if he had seen Mylene. Finally,
accused-appellant alleges that the slippers presented in court as evidence
are not the same ones which were recovered at the scene of the crime since
the pictures presented in court did not show the leaf painted in red on the left
slipper.
Sec. 4, Rule 133 of the Revised Rules of Court provides:
Sec. 4. Circumstantial evidence, when sufficient. — Circumstantial evidence
is sufficient for conviction if:
(a) There is more than one circumstances;
(b) The facts from which the inferences are derived are proven; and
(c) The combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
Circumstantial evidence is that evidence which proves a fact or series of
facts from which the facts in issue may be established by inference. 28 Such
evidence is founded on experience and observed facts and coincidences
establishing a connection between the known and proven facts and the facts
sought to be proved. 29 Circumstantial evidence is sufficient for conviction in
criminal cases when there is more than one circumstance, derived from facts
duly given and the combination of all is such as to produce conviction beyond
reasonable doubt. The test for accepting circumstantial evidence as proof of
guilt beyond reasonable doubt is: the series of circumstances duly proved
must be consistent with each other and that each and every circumstance
must be consistent with the accused's guilt and inconsistent with his
innocence.
In the case at bar, the prosecution avers that there are several
circumstances availing which, when pieced together, point to accused-
appellant as the author of the gruesome crime committed on the night of
March 25, 1994, to wit:
1. A few hours after the victim's probable time of death, Maximo saw
accused-appellant, with an ice pick clenched in his mouth, washing his
bloodied hands at an artesian well. 30
2 A pair of slippers which Maximo identified as belonging to accused-
appellant was found at the scene of the crime. One was found beside the
victim's body while the other was under her buttocks. 31 Maximo positively
pointed to accused-appellant as the owner of the pair of slippers because of
a distinguishing mark of the painting of a red leaf on the left slipper. Maximo
said accused-appellant used to frequent their house wearing the same pair of
slippers for over a year. 32
3. The hair strands which were found on Mylene's right hand and the hair
strands taken from accused-appellant were shown to have similar
characteristics when subjected to microscopic
examination. 33
4. Accused-appellant's undershirt and short pants which he wore on the night
of March 25, 1994 had bloodstains. His wife admitted having washed the
undershirt and short pants in the early morning of March 26, 1994. 34
Contrary to the allegations of accused-appellant, the evidence presented by
the prosecution is sufficient to sustain his conviction. Maximo stated on the
witness stand that he was able to identify accused-appellant because he
focused his flashlight on him while he was washing his bloodstained hands at
an artesian well located only a meter away from where Maximo was
standing. 35 Maximo considered it wise not to talk to accused-appellant
because at that time he had an ice pick clenched in his mouth and looked
slightly drunk. As to the allegation that the slippers presented in court were
not the same ones recovered at the scene of the crime, suffice it to say that
the photographs taken of the crime scene were not focused only on the pair
of slippers; hence, the red leaf may be too minuscule to be noticed. In any
case, the pair of slippers shown in the photographs corroborate the testimony
of the prosecution's witnesses that a pair of rubber slippers were indeed
recovered at the scene.
It might not be amiss to note that Maximo was not shown to have had any
motive to impute so grave a wrong on accused-appellant. Prior to the
incident, accused-appellant used to frequent Maximo's house for a visit. 36
On the night of the incident, Maximo even sought the help of accused-
appellant's father to search for Mylene.
On the other hand, the testimonies of the witnesses for the defense are
incredulous, to say the least. Leonardo Rondero, accused-appellant's father,
testified that he mauled his son in an effort to pacify him during a heated
altercation with his wife, Christine. Leonardo said that he felt embarrassed
because his son was shouting invectives at Christine and was causing a
scene in the neighborhood so he hit the accused-appellant several times.
Leonardo's curious way of pacifying his son resulted in bodily injuries on the
latter. Strangely, despite his sustained injuries and profuse bleeding,
accused-appellant and his wife just went to sleep after Leonardo left. 37 We
find it unnatural that a father, a barangay kagawad, would repeatedly hit his
son in an effort to pacify him in the middle of a marital spat. We find it even
more unnatural that one who was bleeding profusely would act so insouciant
as to just go to sleep without attending to his injuries.
Accused-appellant alleges that while in the custody of police officers, some
hair strands were taken from him without his consent and submitted to the
NBI for investigation, in violation of his right against self incrimination. Aside
from executing a waiver of the provisions of Article 125 of the Revised Penal
Code, accused-appellant executed a waiver of the provisions of Article III,
Section 12 of the Constitution regarding the rights of an accused during
custodial investigation. 38 It appears, however, that the waivers were
executed by the accused without the assistance of a counsel of his own
choice.
The use of evidence against the accused obtained by virtue of his testimony
or admission without the assistance of counsel while under custodial
investigation is proscribed under Sections 12 and 17, Article III of the
Constitution, to wit:
Sec. 12. (1) Any person under investigation for the commission of an offense
shall have the right to be informed of his right to remain silent and to have
competent and independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of
counsel.
(2) No torture, force, violence, threat, intimidation or any other means which
vitiate the free will shall be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.
xxx xxx xxx
Sec. 17. No person shall he compelled to be a witness against himself.
The aforesaid rules are set forth in the Constitution as a recognition of the
fact that the psychological if not physical atmosphere of custodial
investigations in the absence of procedural safeguards is inherently coercive
in nature. However, to paraphrase Justice Sanchez in the case of Chavez vs.
Court of Appeals, 39 "Compulsion does not necessarily connote the use of
violence; it may be the product of unintentional statements. Pressure which
operates to overbear his will, disable him from making a free and rational
choice or impair his capacity for making rational judgment would be
sufficient. So is moral coercion tending to force testimony from the unwilling
lips of the defendant." Needless to say, the above-mentioned provisions are
an affirmation that "coercion can be mental as well as physical and that the
blood of the accused is not the only hallmark of an unconstitutional
inquisition." 40
It bears emphasis, however, that under the above-quoted provisions, what is
actually proscribed is the use of physical or moral compulsion to extort
communication from the accused-appellant and not the inclusion of his body
in evidence when it may be material. For instance, substance emitted from
the body of the accused may be received as evidence in prosecution for acts
of lasciviousness 41 and morphine forced out of the mouth of the accused
may also be used as evidence against him. 42 Consequently, although
accused-appellant insists that hair samples were forcibly taken from him and
submitted to the NBI for forensic examination, the hair samples may be
admitted in evidence against him, for what is proscribed is the use of
testimonial compulsion or any evidence communicative in nature acquired
from the accused under duress.
On the other hand, the blood-stained undershirt and short pants taken from
the accused are inadmissible in evidence. They were taken without the
proper search warrant from the police officers. Accused-appellant's wife
testified that the police officers, after arresting her husband in their house,
took the garments from the clothesline without proper authority. 43 This was
never rebutted by the prosecution. Under the libertarian exclusionary rule
known as the "fruit of the poisonous tree," evidence illegally obtained by the
state should not be used to gain other evidence because the illegally
obtained evidence taints all evidence subsequently obtained. Simply put,
accused-appellant's garments, having been seized in violation of his
constitutional right against illegal searches and seizure, are inadmissible in
court as evidence.
Nevertheless, even without the admission of the bloodied garments of the
accused as corroborative evidence, the circumstances obtaining against
accused-appellant are sufficient to establish his guilt.
Having disposed of the foregoing, we now come to the issue of whether
accused-appellant should be convicted of the special complex crime of rape
with homicide.
It is a jurisprudential rule that an appeal throws a whole case to review and it
becomes the duty of the appellate court to correct such error as may be
found in the judgment appealed from whether they are made the subject of
assigned errors or not. 44
The trial court dismissed the charge of rape holding that it has not been
adequately proven due to the absence of spermatozoa in the victim's private
part. It is well settled that the absence of spermatozoa in the victim's private
part does not negate the commission of rape for the simple reason that the
mere touching of the pudenda by the male organ is already considered as
consummated rape. Mylene Doria was naked from waist down when she was
found. Her private organ had hymenal lacerations at 1:00 o'clock, 6:00
o'clock and 9:00 o'clock positions. There were fresh lacerations in the labia
minora at 6:00 o'clock and 9:00 o'clock positions as well. The trial judge even
noted that "it can be conclusively deduced that her sex organ was subjected
to a humiliating punishment." While the examining physician speculated that
the lacerations could have been caused by a piece of wood or rounded
object, he did not rule out the possibility of forcible sexual intercourse.
The presence of physical injuries on the victim strongly indicates the
employment of force on her person. Contusion was found on Mylene's face,
arms and thighs. In rape cases, when a woman is forcibly made to lie down,
she will utilize her elbow as the fulcrum so that abrasions will be observed. In
an attempt to stand, the victim will flex her neck forward. The offender will
then push her head backwards, causing hematoma at the region of the
occiput. To prevent penetration of the male organ, she will try to flex her
thighs and the offender will give a strong blow to the inner aspects of both
thighs so that the victim will be compelled to straighten them. 45
As aptly observed by the Solicitor General, aside from the hymenal
lacerations, the examining physician testified that Mylene sustained
abrasions on her left elbow, right buttock and right upper hip and contusion
hematoma at the occipital area, i.e., back part of the head, right side. 46
Indeed, the physical evidence indubitably tells a harrowing crime committed
against nine-year old Mylene Doria in a manner that no words can sufficiently
describe.
Anent accused-appellant's third assignment of error, it might be true that
accused-appellant's warrantless arrest was not lawful. The police officers
who arrested him had no personal knowledge of facts indicating that he was
the perpetrator of the crime just committed. His warrantless arrest was not
based on a personal knowledge of the police officers indicating facts that he
has committed the gruesome crime but solely on Maximo's suspicion that he
was involved in the slaying of Mylene since he was seen washing his
bloodied hands in the early morning of March 26, 1994. 47 Nevertheless, it is
hornbook knowledge that any irregularity attending the arrest of an accused
is deemed waived when, instead of quashing the information for lack of
jurisdiction over his person, the accused voluntarily submits himself to the
court by entering a plea of guilty or not guilty during the arraignment and
participating in the proceedings.
Finally, we reiterate that when an accused appeals from the sentence of the
trial court, he waives the constitutional safeguard against double jeopardy
and throws the whole case open to the review of the appellate court, which is
then called to render judgment as the law and justice dictate, whether
favorable or unfavorable, and whether they are made the subject of assigned
errors or not. This precept should be borne in mind by every lawyer of an
accused who unwittingly takes the risk involved when he decides to appeal
his sentence.
Accused-appellant's guilt having been established beyond reasonable doubt
for the rape and brutal slaying of Mylene Doria, this Court has no other
recourse but to impose the penalty of death upon accused-appellant Delfin
Rondero y Sigua. Under Article 335 of the Revised Penal Code, as amended
by Republic Act No. 7659, "when by reason or on occasion of the rape, a
homicide is committed, the penalty shall be death." At this juncture, it should
be stated that four justices of the court have continued to maintain the
unconstitutionality of R.A. No. 7659 insofar as it prescribes the death penalty;
nevertheless, they submit to the ruling of the majority to the effect that this
law is constitutional and that the death penalty can be lawfully imposed in the
case at bar.

The award of P50,000.00 as indemnity to the heirs of the victim is increased
to P75,000.00 in line with our ruling in People vs. Mahinay. 48 The award of
moral damages in the sum of P100,000.00 is reduced to P50,000.00.
Further, accused-appellant is ordered to pay the sum of P15,000.00 as
consequential damages.
WHEREFORE, the decision of the Regional Trial Court, Branch 41, Dagupan
City finding accused-appellant Delfin Rondero y Sigua guilty beyond
reasonable doubt of the crime of homicide is MODIFIED. Accused-appellant
Delfin Rondero y Sigua is found guilty beyond reasonable doubt of the
charge of special complex crime of rape with homicide committed against
Mylene J. Doria and is accordingly sentenced to suffer the supreme penalty
of DEATH. He is also ordered to pay the heirs of the victim the sum of
P75,000.00 by way of civil indemnity, P50,000.00 as moral damages and
P15,000.00 as consequential damages.
In accordance with Section 25 of Republic Act No. 7659, amending Article 83
of the Revised Penal Code, upon finality of this decision, let the records of
this case be forwarded to the Office of the President for possible exercise of
pardoning power.
SO ORDERED.
Aberca vs. Ver [160 SCRA 590 (1989)]
This petition for certiorari presents vital issues not heretofore passed upon by
this Court. It poses the question whether the suspension of the privilege of
the writ of habeas corpus bars a civil action for damages for illegal searches
conducted by military personnel and other violations of rights and liberties
guaranteed under the Constitution. If such action for damages may be
maintained, who can be held liable for such violations: only the military
personnel directly involved and/or their superiors as well.
This case stems from alleged illegal searches and seizures and other
violations of the rights and liberties of plaintiffs by various intelligence units of
the Armed Forces of the Philippines, known as Task Force Makabansa
(TFM) ordered by General Fabian Ver "to conduct pre-emptive strikes
against known communist-terrorist (CT) underground houses in view of
increasing reports about CT plans to sow disturbances in Metro Manila,"
Plaintiffs allege, among others, that complying with said order, elements of
the TFM raided several places, employing in most cases defectively issued
judicial search warrants; that during these raids, certain members of the
raiding party confiscated a number of purely personal items belonging to
plaintiffs; that plaintiffs were arrested without proper warrants issued by the
courts; that for some period after their arrest, they were denied visits of
relatives and lawyers; that plaintiffs were interrogated in violation of their
rights to silence and counsel; that military men who interrogated them
employed threats, tortures and other forms of violence on them in order to
obtain incriminatory information or confessions and in order to punish them;
that all violations of plaintiffs constitutional rights were part of a concerted
and deliberate plan to forcibly extract information and incriminatory
statements from plaintiffs and to terrorize, harass and punish them, said
plans being previously known to and sanctioned by defendants.
Plaintiffs sought actual/compensatory damages amounting to P39,030.00;
moral damages in the amount of at least P150,000.00 each or a total of
P3,000,000.00; exemplary damages in the amount of at least P150,000.00
each or a total of P3,000,000.00; and attorney's fees amounting to not less
than P200,000.00.
A motion to dismiss was filed by defendants, through their counsel, then
Solicitor-General Estelito Mendoza, alleging that (1) plaintiffs may not cause
a judicial inquiry into the circumstances of their detention in the guise of a
damage suit because, as to them, the privilege of the writ of habeas corpus
is suspended; (2) assuming that the courts can entertain the present action,
defendants are immune from liability for acts done in the performance of their
official duties; and (3) the complaint states no cause of action against the
defendants. Opposition to said motion to dismiss was filed by plaintiffs Marco
Palo, Danilo de la Fuente, Benjamin Sesgundo, Nel Etabag, Alfredo Mansos
and Rolando Salutin on July 8, 1983, and by plaintiffs Edwin Lopez, Manuel
Mario Guzman, Alan Jasminez, Nestor Bodino, Carlos Palma, Arturo Tabara,
Joseph Olayer, Rodolfo Benosa, Belen Diaz, Flores, Rogelio Aberca, Alex
Marcelino and Elizabeth Marcelino on July 21, 1983. On November 7, 1983,
a Consolidated Reply was filed by defendants' counsel.
Then, on November 8, 1983, the Regional Trial Court, National Capital
Region, Branch 95, Judge Willelmo C. Fortun, Presiding, 1 issued a
resolution granting the motion to dismiss. I sustained, lock, stock and barrel,
the defendants' contention (1) the plaintiffs may not cause a judicial inquiry
into the circumstances of their detention in the guise of a damage suit
because, as to them, the privilege of the writ of habeas corpus is suspended;
(2) that assuming that the court can entertain the present action, defendants
are immune from liability for acts done in the performance of their official
duties; and (3) that the complaint states no cause of action against
defendants, since there is no allegation that the defendants named in the
complaint confiscated plaintiffs' purely personal properties in violation of their
constitutional rights, and with the possible exception of Major Rodolfo
Aguinaldo and Sergeant Bienvenido Balabo committed acts of torture and
maltreatment, or that the defendants had the duty to exercise direct
supervision and control of their subordinates or that they had vicarious
liability as employers under Article 2180 of the Civil Code. The lower court
stated, "After a careful study of defendants' arguments, the court finds the
same to be meritorious and must, therefore, be granted. On the other hand,
plaintiffs' arguments in their opposition are lacking in merit."
A motion to set aside the order dismissing the complaint and a supplemental
motion for reconsideration was filed by the plaintiffs on November 18, 1983,
and November 24, 1983, respectively. On December 9, 1983, the defendants
filed a comment on the aforesaid motion of plaintiffs, furnishing a copy
thereof to the attorneys of all the plaintiffs, namely, Attys. Jose W. Diokno,
Procopio Beltran, Rene Sarmiento, Efren Mercado, Auguso Sanchez,
Antonio L. Rosales, Pedro B. Ella Jr., Arno V. Sanidad, Alexander Padilla,
Joker Arroyo, Rene Saguisag, Ramon Esguerra and Felicitas Aquino.
On December 15, 1983, Judge Fortun issued an order voluntarily inhibiting
himself from further proceeding in the case and leaving the resolution of the
motion to set aside the order of dismissal to Judge Lising, "to preclude any
suspicion that he (Judge Fortun) cannot resolve [the] aforesaid pending
motion with the cold neutrality of an impartial judge and to put an end to
plaintiffs assertion that the undersigned has no authority or jurisdiction to
resolve said pending motion." This order prompted plaintiffs to reesolve an
amplificatory motion for reconsideration signed in the name of the Free Legal
Assistance Group (FLAG) of Mabini Legal Aid Committee, by Attys. Joker P.
Arroyo, Felicitas Aquino and Arno Sanidad on April 12, 1984. On May
2,1984, the defendants filed a comment on said amplificatory motion for
reconsideration.
In an order dated May 11, 1984, the trial court, Judge Esteban Lising,
Presiding, without acting on the motion to set aside order of November 8,
1983, issued an order, as follows:
It appearing from the records that, indeed, the following plaintiffs, Rogelio
Aberca, Danilo de la Fuente and Marco Palo, represented by counsel, Atty.
Jose W. Diokno, Alan Jasminez represented by counsel, Atty. Augusta
Sanchez, Spouses Alex Marcelino and Elizabeth Protacio-Marcelino,
represented by counsel, Atty. Procopio Beltran, Alfredo Mansos represented
by counsel, Atty. Rene Sarmiento, and Rolando Salutin, represented by
counsel, Atty. Efren Mercado, failed to file a motion to reconsider the Order
of November 8, 1983, dismissing the complaint, nor interposed an appeal
therefrom within the reglementary period, as prayed for by the defendants,
said Order is now final against said plaintiffs.
Assailing the said order of May 11, 1984, the plaintiffs filed a motion for
reconsideration on May 28,1984, alleging that it was not true that plaintiffs
Rogelio Aberca, Danilo de la Fuente, Marco Palo, Alan Jasminez, Alex
Marcelino, Elizabeth Protacio-Marcelino, Alfredo Mansos and Rolando
Salutin failed to file a motion to reconsider the order of November 8, 1983
dismissing the complaint, within the reglementary period. Plaintiffs claimed
that the motion to set aside the order of November 8, 1983 and the
amplificatory motion for reconsideration was filed for all the plaintiffs,
although signed by only some of the lawyers.
In its resolution of September 21, 1984, the respondent court dealt with both
motions (1) to reconsider its order of May 11, 1984 declaring that with
respect to certain plaintiffs, the resolution of November 8, 1983 had already
become final, and (2) to set aside its resolution of November 8, 1983 granting
the defendants' motion to dismiss. In the dispositive portion of the order of
September 21, 1984, the respondent court resolved:
(1) That the motion to set aside the order of finality, dated May 11, 1984, of
the Resolution of dismissal of the complaint of plaintiffs Rogelio Aberca,
Danilo de la Fuente, Marco Palo, Alan Jasminez Alex Marcelino, Elizabeth
Protacio-Marcelino, Alfredo Mansos and Rolando Salutin is deed for lack of
merit;
(2) For lack of cause of action as against the following defendants, to wit:
1. Gen Fabian Ver
2. Col. Fidel Singson
3. Col. Rolando Abadilla
4. Lt. Col. Conrado Lantoria, Jr.
5. Col. Galileo Montanar
6. Col. Panfilo Lacson
7. Capt. Danilo Pizaro
8. 1 Lt Pedro Tango
9. Lt. Romeo Ricardo
10. Lt. Raul Bacalso
the motion to set aside and reconsider the Resolution of dismissal of the
present action or complaint, dated November 8, 1983, is also denied but in
so far as it affects and refers to defendants, to wit:
1. Major Rodolfo Aguinaldo, and

2. Master Sgt. Bienvenido Balaba
the motion to reconsider and set aside the Resolution of dismissal dated
November 3, 1983 is granted and the Resolution of dismissal is, in this
respect, reconsidered and modified.
Hence, petitioners filed the instant petition for certiorari on March 15, 1985
seeking to annul and set aside the respondent court's resolution of
November 8, 1983, its order of May 11, 1984, and its resolution dated
September 21, 1984. Respondents were required to comment on the
petition, which it did on November 9, 1985. A reply was filed by petitioners on
August 26, 1986.
We find the petition meritorious and decide to give it due course.
At the heart of petitioners' complaint is Article 32 of the Civil Code which
provides:
ART. 32. Any public officer or employee, or any private individual who
directly or indirectly obstructs, defeats, violates or in any manner impedes or
impairs any of the following rights and liberties of another person shall be
liable to the latter for damages:
(1) Freedom of religion;
(2) Freedom of speech;
(3) Freedom to write for the press or to maintain a periodical publication;
(4) Freedom from arbitrary or illegal detention;
(5) Freedom of suffrage;
(6) The right against deprivation of property without due process
(7) of law;
(8) The right to a just compensation when private property is taken for public
use;
(9) The right to the equal protection of the laws;
(10) The right to be secure in one's person, house, papers, and effects
against unreasonable searches and seizures;
(11) The liberty of abode and of changing the same;
(12) The privacy of cmmunication and correspondence;
(13) The right to become a member of associations or societies for purposes
not contrary to law;
(14) The right to take part in a peaceable assembly to petition the
Government for redress of grievances;
(15) The right to be free from involuntary servitude in any form;
(16) The rigth of the accused against excessive bail;
(17) The rigth of the aaccused to be heard by himself and counsel, to be
informed of the nature and cause of the accusation against him, to have a
speedy and public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witness in behalf;
(18) Freedom from being compelled to be a witness against ones self, or
from being forced to confess guilt, or from being induced by a promise of
immunity or reward to make such confession, except when the person
confessing becomes a State witness;
(19) Freedom from excessive fines or cruel and unusual punishment, unless
the same is imposed or inflicted in accordance with a statute which has not
been judicially declared unconstitutional; and
(20) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's
act or omission constitutes a criminal offense, the against grieved party has a
right to commence an entirely separate and distinct civil action for damages,
and for other relief. Such civil action shall proceed independently of any
criminal prosecution (if the latter be instituted), and may be proved by a
preponderance of evidence.
The indemnity shall include moral damages. Exemplary damages may also
be adjudicated.
The responsibility herein set forth is not demandable from a judge unless his
act or omission constitutes a violation of the Penal Code or other penal
statute.
It is obvious that the purpose of the above codal provision is to provide a
sanction to the deeply cherished rights and freedoms enshrined in the
Constitution. Its message is clear; no man may seek to violate those sacred
rights with impunity. In times of great upheaval or of social and political
stress, when the temptation is strongest to yield — borrowing the words of
Chief Justice Claudio Teehankee — to the law of force rather than the force
of law, it is necessary to remind ourselves that certain basic rights and
liberties are immutable and cannot be sacrificed to the transient needs or
imperious demands of the ruling power. The rule of law must prevail, or else
liberty will perish. Our commitment to democratic principles and to the rule of
law compels us to reject the view which reduces law to nothing but the
expression of the will of the predominant power in the community.
"Democracy cannot be a reign of progress, of liberty, of justice, unless the
law is respected by him who makes it and by him for whom it is made. Now
this respect implies a maximum of faith, a minimum of Idealism. On going to
the bottom of the matter, we discover that life demands of us a certain
residuum of sentiment which is not derived from reason, but which reason
nevertheless controls. 2
Seeking to justify the dismissal of plaintiffs' complaint, the respondents
postulate the view that as public officers they are covered by the mantle of
state immunity from suit for acts done in the performance of official duties or
function In support of said contention, respondents maintain that —
Respondents are members of the Armed Forces of the Philippines. Their
primary duty is to safeguard public safety and order. The Constitution no less
provides that the President may call them "to prevent or supress lawless
violence, invasion, insurrection or rebellion, or imminent danger thereof."
(Constitution, Article VII, Section 9).
On January 17, 1981, the President issued Proclamation No. 2045 lifting
martial law but providing for the continued suspension of the privilege of the
writ of habeas corpus in view of the remaining dangers to the security of the
nation. The proclamation also provided "that the call to the Armed Forces of
the Philippines to prevent or suppress lawless violence, insuitection rebellion
and subversion shall continue to be in force and effect."
Petitioners allege in their complaint that their causes of action proceed from
respondent General Ver's order to Task Force Makabansa to launch pre-
emptive strikes against communist terrorist underground houses in Metro
Manila. Petitioners claim that this order and its subsequent implementation
by elements of the task force resulted in the violation of their constitutional
rights against unlawful searches, seizures and arrest, rights to counsel and to
silence, and the right to property and that, therefore, respondents Ver and
the named members of the task force should be held liable for damages.
But, by launching a pre-emptive strike against communist terrorists,
respondent members of the armed forces merely performed their official and
constitutional duties. To allow petitioners to recover from respondents by way
of damages for acts performed in the exercise of such duties run contrary to
the policy considerations to shield respondents as public officers from undue
interference with their duties and from potentially disabling threats of hability
(Aarlon v. Fitzgerald 102 S. Ct. 2731-1 Forbes v. Chuoco Tiaco, 16 Phil.
634), and upon the necessity of protecting the performance of governmental
and public functions from being harassed unduly or constantly interrupted by
private suits (McCallan v. State, 35 Cal. App. 605; Metran v. Paredes, 79
Phil. 819).
xxx xxx xxx
The immunity of public officers from liability arising from the performance of
their duties is now a settled jurisprudence Alzua v. Johnson, 21 Phil. 308;
Zulueta v. Nicolas, 102 Phil. 944; Spalding v. Vilas, 161 US 483; 40 L. Ed.
780, 16 S. Ct. 631; Barr v. Mateo, 360; Butz v. Economon, 438 US 478; 57 L.
Ed. 2d 895, 98 S. Ct. 2894; Scheuer v. Rhodes, 416 US 232; Forbes v.
Chuoco Tiaco, supra; Miller v. de Leune, 602 F. 2d 198; Sami v. US, 617 F.
2d 755).
Respondents-defendants who merely obeyed the lawful orders of the
President and his call for the suppression of the rebellion involving petitioners
enjoy such immunity from Suit.3
We find respondents' invocation of the doctrine of state immunity from suit
totally misplaced. The cases invoked by respondents actually involved acts
done by officers in the performance of official duties written the ambit of their
powers. As held in Forbes, etc. vs. Chuoco Tiaco and Crossfield: 4
No one can be held legally responsible in damages or otherwise for doing in
a legal manner what he had authority, under the law, to do. Therefore, if the
Governor-General had authority, under the law to deport or expel the
defendants, and circumstances justifying the deportation and the method of
carrying it out are left to him, then he cannot be held liable in damages for
the exercise of this power. Moreover, if the courts are without authority to
interfere in any manner, for the purpose of controlling or interferring with the
exercise of the political powers vested in the chief executive authority of the
Government, then it must follow that the courts cannot intervene for the
purpose of declaring that he is liable in damages for the exeercise of this
authority.
It may be that the respondents, as members of the Armed Forces of the
Philippines, were merely responding to their duty, as they claim, "to prevent
or suppress lawless violence, insurrection, rebellion and subversion" in
accordance with Proclamation No. 2054 of President Marcos, despite the
lifting of martial law on January 27, 1981, and in pursuance of such objective,
to launch pre- emptive strikes against alleged communist terrorist
underground houses. But this cannot be construed as a blanket license or a
roving commission untramelled by any constitutional restraint, to disregard or
transgress upon the rights and liberties of the individual citizen enshrined in
and protected by the Constitution. The Constitution remains the supreme law
of the land to which all officials, high or low, civilian or military, owe
obedience and allegiance at all times.
Article 32 of the Civil Code which renders any public officer or employee or
any private individual liable in damages for violating the Constitutional rights
and liberties of another, as enumerated therein, does not exempt the
respondents from responsibility. Only judges are excluded from liability under
the said article, provided their acts or omissions do not constitute a violation
of the Penal Code or other penal statute.
This is not to say that military authorities are restrained from pursuing their
assigned task or carrying out their mission with vigor. We have no quarrel
with their duty to protect the Republic from its enemies, whether of the left or
of the right, or from within or without, seeking to destroy or subvert our
democratic institutions and imperil their very existence. What we are merely
trying to say is that in carrying out this task and mission, constitutional and
legal safeguards must be observed, otherwise, the very fabric of our faith will
start to unravel. In the battle of competing Ideologies, the struggle for the
mind is just as vital as the struggle of arms. The linchpin in that psychological
struggle is faith in the rule of law. Once that faith is lost or compromised, the
struggle may well be abandoned.
We do not find merit in respondents' suggestion that plaintiffs' cause of action
is barred by the suspension of the privilege of the writ of habeas corpus.
Respondents contend that "Petitioners cannot circumvent the suspension of
the privilege of the writ by resorting to a damage suit aimed at the same
purpose-judicial inquiry into the alleged illegality of their detention. While the
main relief they ask by the present action is indemnification for alleged
damages they suffered, their causes of action are inextricably based on the
same claim of violations of their constitutional rights that they invoked in the
habeas corpus case as grounds for release from detention. Were the
petitioners allowed the present suit, the judicial inquiry barred by the
suspension of the privilege of the writ will take place. The net result is that
what the courts cannot do, i.e. override the suspension ordered by the
President, petitioners will be able to do by the mere expedient of altering the
title of their action."
We do not agree. We find merit in petitioners' contention that the suspension
of the privilege of the writ of habeas corpus does not destroy petitioners' right
and cause of action for damages for illegal arrest and detention and other
violations of their constitutional rights. The suspension does not render valid
an otherwise illegal arrest or detention. What is suspended is merely the right
of the individual to seek release from detention through the writ of habeas
corpus as a speedy means of obtaining his liberty.
Moreover, as pointed out by petitioners, their right and cause of action for
damages are explicitly recognized in P.D. No. 1755 which amended Article
1146 of the Civil Code by adding the following to its text:
However, when the action (for injury to the rights of the plaintiff or for a quasi-
delict) arises from or out of any act, activity or conduct of any public officer
involving the exercise of powers or authority arising from Martial Law
including the arrest, detention and/or trial of the plaintiff, the same must be
brought within one (1) year.
Petitioners have a point in contending that even assuming that the
suspension of the privilege of the writ of habeas corpus suspends petitioners'
right of action for damages for illegal arrest and detention, it does not and
cannot suspend their rights and causes of action for injuries suffered
because of respondents' confiscation of their private belongings, the violation
of their right to remain silent and to counsel and their right to protection
against unreasonable searches and seizures and against torture and other
cruel and inhuman treatment.
However, we find it unnecessary to address the constitutional issue pressed
upon us. On March 25, 1986, President Corazon C. Aquino issued
Proclamation No. 2, revoking Proclamation Nos. 2045 and 2045-A and lifting
the suspension of the privilege of the writ of habeas corpus. The question
therefore has become moot and academic.
This brings us to the crucial issue raised in this petition. May a superior
officer under the notion of respondent superior be answerable for damages,
jointly and severally with his subordinates, to the person whose constitutional
rights and liberties have been violated?
Respondents contend that the doctrine of respondent superior is applicable
to the case. We agree. The doctrine of respondent superior has been
generally limited in its application to principal and agent or to master and
servant (i.e. employer and employee) relationship. No such relationship
exists between superior officers of the military and their subordinates.
Be that as it may, however, the decisive factor in this case, in our view, is the
language of Article 32. The law speaks of an officer or employee or person
'directly' or "indirectly" responsible for the violation of the constitutional rights
and liberties of another. Thus, it is not the actor alone (i.e. the one directly
responsible) who must answer for damages under Article 32; the person
indirectly responsible has also to answer for the damages or injury caused to
the aggrieved party.
By this provision, the principle of accountability of public officials under the
Constitution 5 acquires added meaning and asgilrnes a larger dimension. No
longer may a superior official relax his vigilance or abdicate his duty to
supervise his subordinates, secure in the thought that he does not have to
answer for the transgressions committed by the latter against the
constitutionally protected rights and liberties of the citizen. Part of the factors
that propelled people power in February 1986 was the widely held perception
that the government was callous or indifferent to, if not actually responsible
for, the rampant violations of human rights. While it would certainly be go
naive to expect that violators of human rights would easily be deterred by the
prospect of facing damage suits, it should nonetheless be made clear in no
ones terms that Article 32 of the Civil Code makes the persons who are
directly, as well as indirectly, responsible for the transgression joint
tortfeasors.
In the case at bar, the trial court dropped defendants General Fabian Ver,
Col. Fidel Singson, Col. Rolando Abadilla, Col. Gerardo Lantoria, Jr., Col.
Galileo Kintanar, Col. Panfilo Lacson, Capt. Danilo Pizarro, lst Lt. Pedro
Tango, Lt. Romeo Ricardo and Lt. Ricardo Bacalso from the acts of their
subordinates. Only Major Rodolfo Aguinaldo and Master Sgt. Bienvenido
Balaba were kept as defendants on the ground that they alone 'have been
specifically mentioned and Identified to have allegedly caused injuries on the
persons of some of the plaintiff which acts of alleged physical violence
constitute a delict or wrong that gave rise to a cause of action. But such
finding is not supported by the record, nor is it in accord with law and
jurisprudence.
Firstly, it is wrong to at the plaintiffs' action for damages 5 Section 1, Article
19. to 'acts of alleged physical violence" which constituted delict or wrong.
Article 32 clearly specifies as actionable the act of violating or in any manner
impeding or impairing any of the constitutional rights and liberties
enumerated therein, among others —
1. Freedom from arbitrary arrest or illegal detention;
2. The right against deprivation of property without due process of law;
3. The right to be secure in one's person, house, papers and effects against
unreasonable searches and seizures;
4. The privacy of communication and correspondence;
5. Freedom from being compelled to be a witness against one's self, or from
being forced to confess guilt, or from being induced by a promise of immunity
or reward to make a confession, except when the person confessing
becomes a state witness.
The complaint in this litigation alleges facts showing with abundant clarity
and details, how plaintiffs' constitutional rights and liberties mentioned in
Article 32 of the Civil Code were violated and impaired by defendants. The
complaint speaks of, among others, searches made without search warrants
or based on irregularly issued or substantially defective warrants; seizures
and confiscation, without proper receipts, of cash and personal effects
belonging to plaintiffs and other items of property which were not subversive
and illegal nor covered by the search warrants; arrest and detention of
plaintiffs without warrant or under irregular, improper and illegal
circumstances; detention of plaintiffs at several undisclosed places of
'safehouses" where they were kept incommunicado and subjected to
physical and psychological torture and other inhuman, degrading and brutal
treatment for the purpose of extracting incriminatory statements. The
complaint contains a detailed recital of abuses perpetrated upon the plaintiffs
violative of their constitutional rights.
Secondly, neither can it be said that only those shown to have participated
"directly" should be held liable. Article 32 of the Civil Code encompasses
within the ambit of its provisions those directly, as well as indirectly,
responsible for its violation.
The responsibility of the defendants, whether direct or indirect, is amply set
forth in the complaint. It is well established in our law and jurisprudence that
a motion to dismiss on the ground that the complaint states no cause of
action must be based on what appears on the face of the complaint. 6 To
determine the sufficiency of the cause of action, only the facts alleged in the
complaint, and no others, should be considered. 7 For this purpose, the
motion to dismiss must hypothetically admit the truth of the facts alleged in
the complaint. 8
Applying this test, it is difficult to justify the trial court's ruling, dismissing for
lack of cause of action the complaint against all the defendants, except Major
Rodolfo Aguinaldo and Master Sgt. Bienvenido Balaba. The complaint
contained allegations against all the defendants which, if admitted
hypothetically, would be sufficient to establish a cause or causes of action
against all of them under Article 32 of the Civil Code.
This brings us to the last issue. Was the trial court correct in dismissing the
complaint with respect to plaintiffs Rogelio Aberca, Danilo de la Puente,
Marco Palo, Alan Jazminez, Alex Marcelino, Elizabeth Protacio-Marcelino,
Alfredo Mansos and Rolando Salutin, on the basis of the alleged failure of
said plaintiffs to file a motion for reconsideration of the court's resolution of
November 8, 1983, granting the respondent's motion to dismiss?
It is undisputed that a timely motion to set aside said order of November 8,
1983 was filed by 'plaintiffs, through counsel. True, the motion was signed
only by Atty. Joker P. Arroyo, counsel for Benjamin Sesgulido; Atty. Antonio
Rosales, counsel for Edwin Lopez and Manuel Martin Guzman; Atty. Pedro
B. Ella, Jr., counsel for Nestor Bodino and Carlos Palma; Atty. Arno V.
Sanidad, counsel for Arturo Tabara; Atty. Felicitas S. Aquino, counsel for
Joseph Olayer; and Atty. Alexander Padilla, counsel for Rodolfo Benosa.
But the body of the motion itself clearly indicated that the motion was filed on
behalf of all the plaintiffs. And this must have been also the understanding of
defendants' counsel himself for when he filed his comment on the motion, he
furnished copies thereof, not just to the lawyers who signed the motion, but
to all the lawyers of plaintiffs, to wit: Attys. Jose Diokno, Procopio Beltran,
Rene Sarmiento, Efren Mercado, Augusto Sanchez, Antonio Rosales, Pedro
Efla Jr., Arno Sanidad, Alexander Padilla, Joker Arroyo, Rene Saguisag,
Ramon Esguerra and Felicitas S. Aquino.
In filing the motion to set aside the resolution of November 8, 1983, the
signing attorneys did so on behalf of all the plaintiff. They needed no specific
authority to do that. The authority of an attorney to appear for and in behalf of
a party can be assumed, unless questioned or challenged by the adverse
party or the party concerned, which was never done in this case. Thus, it was
grave abuse on the part of respondent judge to take it upon himself to rule
that the motion to set aside the order of November 8, 1953 dismissing the
complaint was filed only by some of the plaintiffs, when by its very language
it was clearly intended to be filed by and for the benefit of all of them. It is
obvious that the respondent judge took umbrage under a contrived
technicality to declare that the dismissal of the complaint had already
become final with respect to some of the plaintiffs whose lawyers did not sign
the motion for reconsideration. Such action tainted with legal infirmity cannot
be sanctioned.
Accordingly, we grant the petition and annul and set aside the resolution of
the respondent court, dated November 8, 1983, its order dated May 11, 1984
and its resolution dated September 21, 1984. Let the case be remanded to
the respondent court for further proceedings. With costs against private
respondents.
SO ORDERED.
FREEDOM OF ASSEMBLY
IBP vs. Mayor Lito Atienza (G.R. No. 175241, February 24, 2010)
Petitioners Integrated Bar of the Philippines1 (IBP) and lawyers H. Harry L.
Roque and Joel R. Butuyan appeal the June 28, 2006 Decision2 and the
October 26, 2006 Resolution3 of the Court of Appeals that found no grave
abuse of discretion on the part of respondent Jose "Lito" Atienza, the then
mayor of Manila, in granting a permit to rally in a venue other than the one
applied for by the IBP.
On June 15, 2006, the IBP, through its then National President Jose
Anselmo Cadiz (Cadiz), filed with the Office of the City Mayor of Manila a
letter application4 for a permit to rally at the foot of Mendiola Bridge on June
22, 2006 from 2:30 p.m. to 5:30 p.m. to be participated in by IBP officers and
members, law students and multi-sectoral organizations.
Respondent issued a permit5 dated June 16, 2006 allowing the IBP to stage
a rally on given date but indicated therein Plaza Miranda as the venue,
instead of Mendiola Bridge, which permit the IBP received on June 19, 2006.
Aggrieved, petitioners filed on June 21, 2006 before the Court of Appeals a
petition for certiorari docketed as CA-G.R. SP No. 94949.6 The petition
having been unresolved within 24 hours from its filing, petitioners filed before
this Court on June 22, 2006 a petition for certiorari docketed as G.R. No.
172951 which assailed the appellate court’s inaction or refusal to resolve the
petition within the period provided under the Public Assembly Act of 1985.7
The Court, by Resolutions of July 26, 2006, August 30, 2006 and November
20, 2006, respectively, denied the petition for being moot and academic,
denied the relief that the petition be heard on the merits in view of the
pendency of CA-G.R. SP No. 94949, and denied the motion for
reconsideration.
The rally pushed through on June 22, 2006 at Mendiola Bridge, after Cadiz
discussed with P/Supt. Arturo Paglinawan whose contingent from the Manila
Police District (MPD) earlier barred petitioners from proceeding thereto.
Petitioners allege that the participants voluntarily dispersed after the peaceful
conduct of the program.
The MPD thereupon instituted on June 26, 2006 a criminal action,8 docketed
as I.S. No. 06I-12501, against Cadiz for violating the Public Assembly Act in
staging a rally at a venue not indicated in the permit, to which charge Cadiz
filed a Counter-Affidavit of August 3, 2006.
In the meantime, the appellate court ruled, in CA-G.R. SP No. 94949, by the
first assailed issuance, that the petition became moot and lacked merit. The
appellate court also denied petitioners’ motion for reconsideration by the
second assailed issuance.

Hence, the filing of the present petition for review on certiorari, to which
respondent filed his Comment of November 18, 2008 which merited
petitioners’ Reply of October 2, 2009.
The main issue is whether the appellate court erred in holding that the
modification of the venue in IBP’s rally permit does not constitute grave
abuse of discretion.
Petitioners assert that the partial grant of the application runs contrary to the
Pubic Assembly Act and violates their constitutional right to freedom of
expression and public assembly.
The Court shall first resolve the preliminary issue of mootness.
Undoubtedly, the petition filed with the appellate court on June 21, 2006
became moot upon the passing of the date of the rally on June 22, 2006.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value. Generally, courts decline jurisdiction
over such case or dismiss it on ground of mootness. However, even in cases
where supervening events had made the cases moot, this Court did not
hesitate to resolve the legal or constitutional issues raised to formulate
controlling principles to guide the bench, bar and public. Moreover, as an
exception to the rule on mootness, courts will decide a question otherwise
moot if it is capable of repetition, yet evading review.9
In the present case, the question of the legality of a modification of a permit
to rally will arise each time the terms of an intended rally are altered by the
concerned official, yet it evades review, owing to the limited time in
processing the application where the shortest allowable period is five days
prior to the assembly. The susceptibility of recurrence compels the Court to
definitively resolve the issue at hand.
Respecting petitioners’ argument that the issues presented in CA-G.R. SP
No. 94949 pose a prejudicial question to the criminal case against Cadiz, the
Court finds it improper to resolve the same in the present case.
Under the Rules,10 the existence of a prejudicial question is a ground in a
petition to suspend proceedings in a criminal action. Since suspension of the
proceedings in the criminal action may be made only upon petition and not at
the instance of the judge or the investigating prosecutor,11 the latter cannot
take cognizance of a claim of prejudicial question without a petition to
suspend being filed. Since a petition to suspend can be filed only in the
criminal action,12 the determination of the pendency of a prejudicial question
should be made at the first instance in the criminal action, and not before this
Court in an appeal from the civil action.
In proceeding to resolve the petition on the merits, the appellate court found
no grave abuse of discretion on the part of respondent because the Public
Assembly Act does not categorically require respondent to specify in writing
the imminent and grave danger of a substantive evil which warrants the
denial or modification of the permit and merely mandates that the action
taken shall be in writing and shall be served on respondent within 24 hours.
The appellate court went on to hold that respondent is authorized to regulate
the exercise of the freedom of expression and of public assembly which are
not absolute, and that the challenged permit is consistent with Plaza
Miranda’s designation as a freedom park where protest rallies are allowed
without permit.
The Court finds for petitioners.
Section 6 of the Public Assembly Act reads:
Section 6. Action to be taken on the application -
(a) It shall be the duty of the mayor or any official acting in his behalf to issue
or grant a permit unless there is clear and convincing evidence that the
public assembly will create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing
which, the permit shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the application for a permit,
said application shall be posted by the applicant on the premises of the office
of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the application
[sic] within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt of the same. No
appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall, be
immediately executory.
(g) All cases filed in court under this Section shall be decided within twenty-
four (24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next
in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
(underscoring supplied)
In Bayan, Karapatan, Kilusang Magbubukid ng Pilipinas (KMP) v. Ermita,13
the Court reiterated:
x x x Freedom of assembly connotes the right of the people to meet
peaceably for consultation and discussion of matters of public concern. It is
entitled to be accorded the utmost deference and respect. It is not to be
limited, much less denied, except on a showing, as is the case with freedom
of expression, of a clear and present danger of a substantive evil that the
state has a right to prevent. Even prior to the 1935 Constitution, Justice
Malcolm had occasion to stress that it is a necessary consequence of our
republican institutions and complements the right of free speech. To
paraphrase the opinion of Justice Rutledge, speaking for the majority of the
American Supreme Court in Thomas v. Collins, it was not by accident or
coincidence that the rights to freedom of speech and of the press were
coupled in a single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these
rights, while not identical, are inseparable. In every case, therefore, where
there is a limitation placed on the exercise of this right, the judiciary is called
upon to examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so fundamental
to the maintenance of democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public safety, public morals,
public health, or any other legitimate public interest.14 (emphasis supplied)
The Court in Bayan stated that the provisions of the Public Assembly Act of
1985 practically codified the 1983 ruling in Reyes v. Bagatsing.15 In
juxtaposing Sections 4 to 6 of the Public Assembly Act with the pertinent
portion of the Reyes case, the Court elucidated as follows:
x x x [The public official concerned shall] appraise whether there may be
valid objections to the grant of the permit or to its grant but at another public
place. It is an indispensable condition to such refusal or modification that the
clear and present danger test be the standard for the decision reached. If he
is of the view that there is such an imminent and grave danger of a
substantive evil, the applicants must be heard on the matter. Thereafter, his
decision, whether favorable or adverse, must be transmitted to them at the
earliest opportunity. Thus if so minded, they can have recourse to the proper
judicial authority.16 (italics and underscoring supplied)
In modifying the permit outright, respondent gravely abused his discretion
when he did not immediately inform the IBP who should have been heard
first on the matter of his perceived imminent and grave danger of a
substantive evil that may warrant the changing of the venue. The opportunity
to be heard precedes the action on the permit, since the applicant may
directly go to court after an unfavorable action on the permit.1avvphi1
Respondent failed to indicate how he had arrived at modifying the terms of
the permit against the standard of a clear and present danger test which, it
bears repeating, is an indispensable condition to such modification. Nothing
in the issued permit adverts to an imminent and grave danger of a
substantive evil, which "blank" denial or modification would, when granted
imprimatur as the appellate court would have it, render illusory any judicial
scrutiny thereof.
It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not,
however, unfettered discretion. While prudence requires that there be a
realistic appraisal not of what may possibly occur but of what may probably
occur, given all the relevant circumstances, still the assumption – especially
so where the assembly is scheduled for a specific public place – is that the
permit must be for the assembly being held there. The exercise of such a
right, in the language of Justice Roberts, speaking for the American Supreme
Court, is not to be "abridged on the plea that it may be exercised in some
other place."17 (emphasis and underscoring supplied)
Notably, respondent failed to indicate in his Comment any basis or
explanation for his action. It smacks of whim and caprice for respondent to
just impose a change of venue for an assembly that was slated for a specific
public place. It is thus reversible error for the appellate court not to have
found such grave abuse of discretion and, under specific statutory
provision, not to have modified the permit "in terms satisfactory to the
applicant."18
WHEREFORE, the assailed Decision and Resolution of the Court of Appeals
in CA-G.R. SP No. 94949 are REVERSED. The Court DECLARES that
respondent committed grave abuse of discretion in modifying the rally permit
issued on June 16, 2006 insofar as it altered the venue from Mendiola Bridge
to Plaza Miranda.
SO ORDERED.
Primicias vs. Fugoso [80 Phil. 71 (1948)]
This is an action of mandamus instituted by the petitoner, Cipriano Primicias,
a campaig manager of the Coalesced Minority Parties against Valeraino
Fugoso, as Mayor of the City of Manila, to compel the latter to issue a permit
for the holding of a public meeting at Plaza Miranda on Sunday afternoon,
November 16, 1947, for the purpose of petitioning the government for
redress to grievances on the groun that the respondent refused to grant such
permit. Due to urgency of the case, this Court, after mature deliberation,
issued a writ of mandamus, as prayed for in the petition of November 15,
1947, without prejudice to writing later an extended and reasoned decision.
The right of freedom of speech and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the
people recognized and guaranteed by the Constitutions of democratic
countries. But it a casettled principle growing out of the nature of well-
ordered civil societies that the exercise of those rights is not absolute for it
may be so regulated that it shall not be injurious to the equal enjoyment of
others having equal rights, not injurious to the rights of the community or
society. The power to regulate the exercise of such and other constitutional
rights is termed the sovereign "police power" which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police power is
exercised by the government through its legislative branch by the enactment
of laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities, and
cities authorizing their legislative bodies, called municipal and city councils to
enact ordinances for the purpose.
The Philippine legislature has delegated the exercise of the police power to
the Municipal Board of the City of Manila, which according to section 2439 of
the Administrative Code is the legislative body of the City. Section 2444 of
the same Code grants the Municipal Board, among others, the following
legislative power, to wit: "(p) to provide for the prohibition and suppression of
riots, affrays, disturbances, and disorderly assemblies, (u) to regulate the use
of streets, avenues ... parks, cemeteries and other public places" and "for the
abatement of nuances in the same," and "(ee) to enact all ordinances it may
deem necessary and proper for sanitation and safety, the furtherance of
prosperity and the promotion of morality, peace, good order, comfort,
convenience, and general welfare of the city and its inhabitants."
Under the above delegated power, the Municipal Board of the City of Manila,
enacted sections 844 and 1119. Section of the Revised Ordinances of 1927
prohibits as an offense against public peace, and section 1262 of the same
Revised Ordinance penalizes as a misdemeanor, "any act, in any public
place, meeting, or procession, tending to disturb the peace or excite a riot; or
collect with other persons in a body or crowd for any unlawful purpose; or
disturb or disquiet any congregation engaged in any lawful assembly." And
section 1119 provides the following:
"SEC. 1119 Free for use of public — The streets and public places of the city
shall be kept free and clear for the use of the public, and the sidewalks and
crossings for the pedestrians, and the same shall only be used or occupied
for other purposes as provided by ordinance or regulation: Provided, that the
holding of athletic games, sports, or exercise during the celebration of
national holidays in any streets or public places of the city and on the patron
saint day of any district in question, may be permitted by means of a permit
issued by the Mayor, who shall determine the streets or public places or
portions thereof, where such athletic games, sports, or exercises may be
held: And provided, further, That the holding of any parade or procession in
any streets or public places is prohibited unless a permit therefor is first
secured from the Mayor who shall, on every such ocassion, determine or
specify the streets or public places for the formation, route, and dismissal of
such parade or procession: And provided, finally, That all applications to hold
a parade or procession shall be submitted to the Mayor not less than twenty-
four hours prior to the holding of such parade or procession."
As there is no express and separate provision in the Revised Ordinance of
the City regulating the holding of public meeting or assembly at any street or
public places, the provisions of saif section 1119 regarding the holding of any
parade or procession in any street or public paces may be applied by
analogy to meeting and assembly in any street or public places.
Said provision is susceptible to two constructions: one is that the Mayor of
the City of Manila is vested with unregulated discretion to grant or refuse, to
grant permit for the holding of a lawful assembly or meeting, parade, or
procession in the streets and other public places of the City of Manila; and
the other is that the applicant has the right to a permit which shall be granted
by the Mayor, subject only to the latter's reasonable discretion to determine
or specify the streets or public places to be used for the purpose, with the
view to prevent confusion by overlapping, to secure convenient use of the
streets and public places by others, and to provide adequate and proper
policing to minimize the risk of disorder.
After a mature deliberation, we have arrived at the conclusion that we must
adopt the second construction, that is construe the provisions of the said
ordinance to mean that it does not confer upon the Mayor the power to
refuse to grant the permit, but only the discretion, in issuing the permit, to
determine or specify the streets or public places where the parade or
procession may pass or the meeting may be held.
Our conclusions find support in the decision in the case of Willis Cox vs.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P.L. Chap. 145, section 2, providing that "no parade or
procession upon any ground abutting thereon, shall be permitted unless a
special license therefor shall first be obtained from the select men of the town
or from licensing committee," was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board unfetted discretion to
refuse to grant the license, and held valid. And the Supreme Court of the
United States in its decision (1941) penned by Chief Justice Hughes firming
the judgement of the State Supreme Court, held that " a statute requiring
pewrsons using the public streets for a parade or procession to procure a
special license therefor from the local authorities is not an unconstitutional
abridgement of the rights of assembly or a freedom of speech and press,
where, as the statute is construed by the state courts, the licensing
authorities are strictly limited, in the issuance of licenses, to a consideration,
the time, place, and manner of the parade and procession, with a view to
conserving the public convenience and of affording an opportunity to provide
proper policing and are not invested with arbitrary discretion to issue or
refuse license, ... ."
We can not adopt the alternative construction or constru the ordinance under
consideration as conferring upon the Mayor power to grant or refuse to grant
the permit, which would be tantamount to authorizing him to prohibit the use
of the streets and other public places for holding of meetings, parades or
processions, because such a construction would make the ordinance invalid
and void or violative of the constitutional limitations. As the Municipal Boards
is empowered only to regulate the use of streets, parks, and the other public
places, and the word "regulate," as used in section 2444 of the Revised
Administrative Code, means and includes the power to control, to govern,
and to restrain, but can not be construed a synonimous with construed
"suppressed" or "prohibit" (Kwong Sing vs. City of Manila, 41 Phil., 103), the
Municipal Board can not grant the Mayor a power that it does not have.
Besides, the powers and duties of the Mayor as the Chief Executive of the
City are executive and one of them is "to comply with and enforce and give
the necessary orders for the faithful performance and execution of laws and
ordinances" (section 2434 [b] of the Revised Administrative Code), the
ligislative police power of the Municipal Board to enact ordinances regulating
reasonably the excercise of the fundamental personal rights of the citizens in
the streets and other public places, can not be delgated to the Mayor or any
other officer by conferring upon him unregulated discretion or without laying
down rules to guide and control his action by which its impartial execution
can be secured or partiality and oppression prevented.
In City of Chicago vs. Trotter, 136 Ill., 430, it was held by the Supreme Court
of Illinois that, under Rev. ST. Ill. c. 24, article 5 section 1, which empowers
city councils to regulate the use of public streets, the council has no power to
ordain that no processions shall be allowed upon the streets until a permit
shall be obtained from the superintendent of police, leaving the issuance of
such permits to his discretion, since the powers conferred on the council
cannot be delegated by them.
The Supreme COurt of Wisconsin in State ex rel. Garrabad vs. Dering, 84
Wis., 585; 54 N.W., 1104, held the following:
"The objections urged in the case of City of Baltimore vs. Radecke, 49 Md.,
217, were also, in substance, the same, for the ordinance in that case upon
its face committed to the unrestrained will of a single public officer the power
to determine the rights of parties under it, when there was nothing in the
ordinance to guide or cintrol his action, and it was held void because "it lays
down no rules by which its impartial execution can be secured, or partiality
and oppression prevented." and that "when we remember that action or
nonaction may proceed from enmity or prejudice, from partisan zeal or
animosity, from favoritism and other improper influences and motives easy of
concealment and difficult to be detected and exposed, it becomes
unnecessary to suggest or to comment upon the injustice capable of being
wrought under cover of such a power, for that becomes apparent to every
one who gives to the subject a moment's consideration. In fact, an ordinance
which clothes a single individual with such power hardly falls within the
domain of law, and we are constrained to pronounce it inoperative and
void." ... In the exercise of police power, the council may, in its discretion,
regulate the exercise of such rights in a reasonable manner, but can not
suppress them, directly or indirectly, by attempting to commit the power of
doing so to the mayor or any other officer. The discretion with which the
council is vested is a legal discretion, to be exercised within the limits of the
law, and not a discretion to transcend it or to confer upon any city officer and
arbitrary authority, making him in its exercise a petty tyrant."
In re Frazee, 63 Michigan 399, 30 N.W., 72, a city or ordinance providing that
"no person or persons, or associations or organizations shall march, parade,
ride or drive, in ou upon or through the public streets of the City of Grand
Rapids with musical instrument, banners, flags, ... without first having
obtained the consent of the mayor or common council of said city;" was held
by the Supreme Court of Michigan to be unreasonable and void. Said
Supreme Court in the course of the decision held:
". . . We must therefore construe this charter, and the powers it assumes to
grant, so far as it is not plainly unconstitutional, as only conferring such
power over the subjects referred to as will enable the city to keep order, and
suppress mischief, in accordance with the limitations and conditions required
by the rights of the people themselves, as secured by the principles of law,
which cannot be less careful of private rights under the constitution than
under the common law."
"It is quite possible that some things have a greater tendency to produce
danger and disorder in cities than in smaller towns or in rural places. This
may justify reasonable precautionary measures, but nothing further; and no
inference can extend beyond the fair scope of powers granted for such a
purpose, and no grant of absolute discretion to suppress lawful action
altogther can be granted at all. . . . ."
"It has been customary, from time immemorial, in all free countries, and in
most civilized countries, for people who are assembled for common purposes
to parade together, by day or reasonable hours at night, with banners and
other paraphernalia, and with music of various kinds. These processions for
political, religious, and social demonstrations are resorted to for the express
purpose of keeping unity of feeling and enthusiasm, and frequently to
produce some effect on the public mind by the spectacle of union and
numbers. They are a natural product and exponent of common aims, and
valuable factors in furthering them. ... When people assemble in riotous
mobs, and move for purposes opposed to private or public security, they
become unlawful, and their members and abettors become punishable. . . ."
"It is only when political, religious, social, or other demonstrations create
public disturbances, or operate as a nuisance, or create or manifestly
threaten some tangible public or private mischief, that the law interferes."
"This by-law is unreasonable, because it suppresses what is in general
perfectly lawful, and because it leaves the power of permitting or restraining
processions, and thier courses, to an unregulated official discretion, when the
whole matter, if regualted at all, must be permanent, legal provisions,
operating generally and impartially."
In Rich vs. Napervill, 42 Ill., App. 222, the question was raised as to the
validity of the city ordinance which made it unlawful for any person, society or
club, or association of any kind, to parade any of the streets, with flags,
banners, or transparencies, drums, horns, or other musical instruments,
without the permission of the city council first had and obtained. The
appellants were members of the Salvation Army, and were prosecuted for a
violation of the ordinance, and the court in holding the ordinance invalid said,
"Ordinances to be valid must be reasonable; they must not be oppressive;
they must be fair and impartial; they must not be so framed as to allow their
enforcement to rest on official discretion ... Ever since the landing of the
Pilgrims from the Mayflower the right to assemble and worship accordingto
the dictates of one's conscience, and the right to parade in a peaceable
manner and for a lawful purpose, have been fostered and regarded as
among the fundamental rights of a free people. The spirit of our free
institutions allows great latitude in public parades and emonstrations whether
religious or political ... If this ordinance is held valid, then may the city council
shut off the parades of those whose nations do not suit their views and tastes
in politics or religion, and permit like parades of those whose nations do.
When men in authority are permitted in their discretion to exercise power so
arbitrary, liberty is subverted, and the spirit of of our free institutions
violated. ... Where the granting of the permit is left to the unregulated
discretion of a small body of city eldermen, the ordinance cannot be other
than partial and discriminating in its practical operation. The law abhors
partiality and discrimination. ... (19 L.R.A., p. 861)
In the case of Trujillo vs. City of Walsenburg, 108 Col., 427; 118 P. [2d],
1081, the Supreme Court of Colorado, in construing the provision of section
1 of Ordinance No. 273 of the City of Walsenburg, which provides: "That it
shall be unlawful for any person or persons or association to use the street of
the City of Walsenburg, Colorado for any parade, procession or assemblage
without first obtaining a permit from the Chief of Police of the City of
Walsenburg so to do," held the following:
"[1] The power of municipalities, under our state law, to regulate the use of
public streets is conceded. "35 C.S.A., chapter 163, section 10,
subparagraph 7. "The privilege of a citizen of the United States to use the
streets ... may be regulated in the interest of all; it is not absolute, but
relative, and must be excercised in subordination to the general, be abridged
or denied." Hague, Mayor vs. Committee for Industrial Organization, 307
U.S., 496, 516; 59 S. Ct., 954, 964; 83 Law, ed., 1423.
[2, 3] An excellent statement of the power of a municipality to impose
regulations in the use of public streets is found in the recent case of Cox vs.
New Hampshire, 312 U.S., 569; 61 S. Ct., 762, 765; 85 Law, ed. 1049; 133
A.L.R., 1936, in which the following appears; "The authority of a municipality
to impose regulations in order to assure the safety and convenience of the
people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding
the good order upon which they ultimately depend. The control of travel on
the streets of cities is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that relation is designed
to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted excercise of some civil right which in other
circumstances would be entitled to protection. One would not be justified in
ignoring the familiar red traffic light because he thought it his religious duty to
disobey the municipal command or sought by that means to direct public
attention to an announcement of his opinions. As regulation of the use of the
streets for parades and processions is a traditional excercise of control by
local government, the question in a particular case is whether that control is
exerted so as not to deny or unwarrantedly abridge the right of assembly and
the opportunities for the communication of thought and the discussion of
public questions immemorially associated with resort to public places. Lovell
vs. Criffin, 303 U.S., 444, 451;58 S. Ct., 666, 668, 82 Law. ed., 949 [953];
Hague vs. Committee for Industrial Organization, 307 U. S., 496, 515, 516;
59 S. Ct., 954, 963, 964; 83 Law. ed., 1423 [1436, 1437]; Scheneider vs.
State of New Jersey [Town of Irvington]; 308 U.S., 147, 160; 60 S. Ct., 146,
150; 84 Law. ed., 155 [164]; Cantwell vs. Connecticut, 310 U. S., 296, 306,
307; 60 S. Ct., 900, 904; 84 Law. ed., 1213 [1219, 1220]; 128 A.L.R. 1352."
[4] Our concern here is the validity or nonvalidity of an ordinance which
leaves to the uncontrolled official discretion of the chief of police of the
municipal corporation to say who shall, who shall not, be accorded the
privilege of parading on its public streets. No standard of regulation is even
remotely suggested. Moreover, under the ordinance as drawn, the chief of
police may for any reason which he may entertain arbitrarily deny this
privelege to any group. in Cox vs. New Hampshire, 312 U. S., 569, 85 Law.
ed., 1049, 1054, said:
"In the instant case the uncontrolled official suppression of the privilege of
using the public streets in a lawful manner clearly is apparent from the face
of the ordinance before us, and we therefore hold it null and void."
The Supreme Court of the United States in Hague vs. Committee for
Industrial Organization, 307 U. S., 496, 515, 516; 83 Law. ed., 1423,
declared that a municipal ordinance requiring the obtaining of a permit for a
public assembly in or upon the public streets, highways, public parks, or
public buildings of the city and authorizing the director of public safety, for the
purpose of preventing riots, disturbances, or disorderly assemblage, to
refuse to issue a permit when after investigation of all the facts and
circumstances pertinent to the application he believes it to be proper to
refuse to issue a permit, is not a valid exercise of the police power. Said
Court in the course of its opinion in support of the conclusion said:
". . . Wherever the title of streets and parks may rest, they have immemorially
been held in trust for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions. Such use of the streets and public places
has, from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen of the United States to use the
streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but it must not, in the guise of
regulation, be abridged or denied.
"We think the court below was right in holding the ordinance quoted in Note 1
void upon its face. It does not make comfort or convenience in the use of
streets or parks the standard of official action. It enables the Director of
Safety to refuse a permit on his mere opinion that such refusal will prevent
'riots, disturbances or disorderly assemblage.' It can thus, as the record
discloses, be made the instrument of arbitrary suppression of free expression
of views on national affairs for the prohibition of all speaking will undoubtedly
'prevent' such eventualities. But uncontrolled official suppression of the
privilege cannot be made a substitute for the duty to maintain order in
connection with the exercise of the right."
Section 2434 of the Administrative Code, a part of the Charter of the City of
Manila, which provides that the Mayor shall have the power to grant and
refuse municipal licenses or permits of all classes, cannot be cited as an
authority for the Mayor to deny the application of the petitioner, for the simple
reason that said general power is predicated upon the ordinances enacted by
the Municipal Board requiring licenses or permits to be issued by the Mayor,
such as those found in Chapters 40 to 87 of the Revised Ordinances of the
City of Manila. It is not a specific or substantive power independent from the
corresponding municipal ordinances which the Mayor, as Chief Executive of
the City, is required to enforce under the same section 2434. Moreover "one
of the settled maxims in constitutional law is that the power conferred upon
the Legislature to make laws cannot be delegated by that department to any
other body or authority," except certain powers of local government, specially
of police regulation which are conferred upon the legislative body of a
municipal corporation. Taking this into consideration, and that the police
power to regulate the use of streets and other public places has been
delegated or rather conferred by the Legislature upon the Municipal Board of
the City (section 2444 [u] of the Administrative Code) it is to be presumed
that the Legislature has not, in the same breath, conferred upon the Mayor in
section 2434 (m) the same power, specially if we take into account that its
exercise may be in conflict with the exercise of the same power by the
Municipal Board.
Besides, assuming arguendo that the Legislature has the power to confer,
and in fact has conferred, upon the Mayor the power to grant or refuse
licenses and permits of all classes, independent from ordinances enacted by
the Municipal Board on the matter, and the provisions of section 2444 (u) of
the same Code and of section 1119 of the Revised Ordinances to the
contrary notwithstanding, such grant of unregulated and unlimited power to
grant or refuse a permit for the use of streets and other public places for
processions, parades, or meetings, would be null and void, for the same
reasons stated in the decisions in the cases above quoted, specially in Willis
Cox vs. New Hampshire, supra, wherein the question involved was also the
validity of a similar statute of New Hamsphire. Because the same
constitutional limitations applicable to ordinances apply to statutes, and the
same objections to a municipal ordinance which grants unrestrained
discretion upon a city officer are applicable to a law or statute that confers
unlimited power to any officer either of the municipal or state governments.
Under our democratic system of government no such unlimited power may
be validly granted to any officer of the government, except perhaps in cases
of national emergency. As stated in State ex rel. Garrabad vs. Dering, supra,
"The discretion with which the council is vested is a legal discretion to be
exercised within the limits of the law, and not a discretion to transcend it or to
confer upon any city officer an arbitrary authority making in its exercise a
petty tyrant."
It is true that Mr. Justice Ostrand cited said provision of article 2434 (m) of
the Administrative Code apparently in support of the decision in the case of
Evangelista vs. Earnshaw, 57 Phil., 255- 261, but evidently the quotation of
said provision was made by the writer of the decision under a mistaken
conception of its purview and is an obiter dictum, for it was not necessary for
the decision rendered. The popular meeting or assemblage intended to be
held therein by the Communist Party of the Philippines was clearly an
unlawful one, and therefore the Mayor of the City of Manila had no power to
grant the permit applied for. On the contrary, had the meeting been held, it
was his duty to have the promoters thereof prosecuted for violation of section
844, which is punishable as misdemeanor by section 1262 of the Revised
Ordinances of the City of Manila. For, according to the decision, "the doctrine
and principles advocated and urged in the Constitution and by-laws of the
said Communist Party of the Philippines, and the speeches uttered,
delivered, and made by its members in the public meetings or gatherings, as
above stated, are highly seditious, in that they suggest and incite rebelious
conspiracies and disturb and obstruct the lawful authorities in their duty."
The reason alleged by the respondent in his defense for refusing the permit
is, "that there is a reasonable ground to believe, basing upon previous
utterances and upon the fact that passions, specially on the part of the losing
groups, remains bitter and high, that similar speeches will be delivered
tending to undermine the faith and confidence of the people in their
government, and in the duly constituted authorities, which might threaten
breaches of the peace and a disruption of public order." As the request of the
petition was for a permit "to hold a peaceful public meeting," and there is no
denial of that fact or any doubt that it was to be a lawful assemblage, the
reason given for the refusal of the permit can not be given any consideration.
As stated in the portion of the decision in Hague vs. Committee on Industrial
Organization, supra, "It does not make comfort and convenience in the use of
streets or parks the standard of official action. It enables the Director of
Safety to refuse the permit on his mere opinion that such refusal will prevent
riots, disturbances or disorderly assemblage. It can thus, as the record
discloses, be made the instrument of arbitrary suppression of free expression
of views on national affairs, for the prohibition of all speaking will undoubtedly
'prevent' such eventualities." To this we may add the following, which we
make our own, said by Mr. Justice Brandeis in his concurring opinion in
Whitney vs. California, 71 U. S. (Law. ed.), 1105-1107:
"Fear of serious injury cannot alone justify suppression of free speech and
assembly. Men feared witches and burned women. It is the function of
speech to free men from the bondage of irrational fears. To justify
suppression of free speech there must be reasonable ground to fear that
serious evil will result if free speech is practiced. There must be reasonable
ground to believe that the danger apprehended is imminent. There must be
reasonable ground to believe that the evil to be prevented is a serious
one . . .
"Those who won our independence by revolution were not cowards. They did
not fear political change. They did not exalt order at the cost of liberty. . . .
"Moreover, even imminent danger cannot justify resort to prohibition of these
functions essential effective democracy, unless the evil apprehended is
relatively serious. Prohibition of free speech and assembly is a measure so
stringent that it would be inappropriate as the means for averting a relatively
trivial harm to a society. . . . The fact that speech is likely to result in some
violence or in destruction of property is not enough to justify its suppression.
There must be the probability of serious injury to the state. Among freemen,
the deterrents ordinarily to be applied to prevent crimes are education and
punishment for violations of the law, not abridgment of the rights of free
speech and assembly." Whitney vs. California, U. S. Sup. Ct. Rep., 71 Law.,
ed., pp. 1106-1107.)
In view of all the foregoing, the petition for mandamus is granted and, there
appearing no reasonable objection to the use of the Plaza Miranda, Quiapo,
for the meeting applied for, the respondent is ordered to issue the
corresponding permit, as requested. So ordered.
Navarro vs. Villegas [31 SCRA 730 (1970)]
Quoted hereunder, for your information, is a resolution of this Court of even
date:
"In Case G.R. No. L-31687 (Navarro vs. Villegas), the Court, after
considering the pleadings and arguments of the parties, issued the following
Resolution:
Without prejudice to a more extended opinion and taking into account the
following considerations:
That respondent Mayor has not denied nor absolutely refused the permit
sought by petitioner;
That as stated in Primicias v. Fugoso, 80 Phil. 75, respondent Mayor
possesses reasonable discretion to determine or specify the streets or public
places to be used for the assembly in order to secure convenient use thereof
by others and provide adequate and proper policing to minimize the risks of
disorder and maintain public safety and order;
That respondent Mayor has expressly stated his willingness to grant permits
for peaceful assemblies at Plaza Miranda during Saturdays, Sundays and
holidays when they would not cause unnecessarily great disruption of the
normal activities of the community and has further offered Sunken Gardens
as an alternative to Plaza Miranda as the site of the demonstration sought to
be held this afternoon;
That experiences in connection with present assemblies and demonstrations
do not warrant the Court's disbelieving respondent Mayor's appraisal that a
public rally at Plaza Miranda, as compared to one at the Sunken Gardens as
he suggested, poses a clearer and more imminent danger of public
disorders, breaches of the peace, criminal acts, and even bloodshed as an
aftermath of such assemblies, and petitioner has manifested that it has no
means of preventing such disorders;
That, consequently, every time that such assemblies are announced, the
community is placed in such a state of fear and tension that offices are
closed early and employees dismissed, storefronts boarded up, classes
suspended, and transportation disrupted, to the general detriment of the
public:
That civil rights and liberties can exist and be preserved only in an order
society;
The petitioner has failed to show a clear specific legal duty on the part of
respondent Mayor to grant their application for permit unconditionally;
The Court resolved to DENY the writ prayed for and to dismiss the petition.
Ignacio vs. Ela [99 Phil. 346 (1956)]
Petitioners, in their behalf and for the benefit of other Jehova’s Witnesses in
the province of Zambales, brought this action to compel respondent to grant
them a permit to hold a public meeting at the public plaza of Sta. Cruz,
Zambales, together with the kiosk, on such date and time as may be applied
for by them.
Respondent in his answer stated that he had not refused the request of
petitioners to hold a religious meeting at the public plaza as in fact he gave
them permission to use the northwestern part of the plaza on July 27, 1952,
but they declined to avail of it. He prayed that the action be dismissed.
(Source text unreadable) questions of fact raised in the pleadings being not
(Source text unreadable), and petitioners having submitted a motion (Source
text unreadable) judgment on the pleadings, which was concurred in by
respondent, the court rendered a decision dismissing the case without
pronouncement as to costs. Plaintiffs appealed from this decision.
It appears that petitioners are members of the Watch Tower Bible and Tract
Society, commonly known as Jehova’s Witnesses, whose tenets and
principles are derogatory to those professed by the Catholic organization. In
its publication "FACE THE FACTS", that society branded the latter as a
religious organization which is "a part of the monstrosity now appearing in
and claiming the right to rule the earth." Desiring to hold a meeting in
furtherance of its objectives, petitioners asked respondent to give them
permission to use the public plaza together with the kiosk, but, instead of
granting the permission, respondent allowed them to hold their meeting on
the northwestern part corner of the plaza. He adopted as a policy not to allow
the use of the kiosk for any meeting by any religious denomination as it is his
belief that said kiosk should only be used "for legal purposes." And when
their request for reconsideration was denied, petitioners instituted the present
action for mandamus.
It is now contended by petitioners that the action taken by respondent is
unconstitutional being an abridgment of the freedom of speech, assembly,
and worship guaranteed by our Constitution.
The issue raised involves a little digression on the extent to which the right to
peacefully assemble guaranteed by the Constitution may be invoked.
Fortunately, this issue has already been passed upon by this Court in
Primicias vs. Fugoso, 45 Official Gazette, 3280, wherein this Court said:
"The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the
people recognized and guaranteed by the constitutions of democratic
countries. But it is a settled principle growing out of the nature of well-ordered
civil societies that the exercise of those rights is not absolute for it may be so
regulated that it shall not be injurious to the equal enjoyment of others having
equal rights, nor injurious to the rights of the community or society. The
power to regulate the exercise of such and other constitutional rights is
termed the sovereign ‘police power’, which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police power is
exercised by the government through its legislative branch by the enactment
of laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities and cities
by authorizing their legislative bodies called municipal and city councils to
enact ordinances for the purpose."
It therefore appears that the right to freedom of speech and to peacefully
assemble, though guaranteed by our Constitution, is not absolute, for it may
be regulated in order that it may not be "injurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the community or
society", and this power may be exercised under the "police power" of the
state, which is the power to prescribe regulations to promote the health,
peace, education, good order or safety, and general welfare of the people. It
is true that there is no law nor ordinance which expressly confers upon
respondents the power to regulate the use of the public plaza, together with
its kiosk, for the purposes for which it was established, but such power may
be exercised under his broad powers as chief executive in connection with
his specific duty "to issue orders relating to the police or to public safety"
within the municipality (section 2194, paragraph c, Revised Administrative
Code). And it may even be said that the above regulation has been adopted
as an implementation of the constitutional provision which prohibits any
public property to be used, directly or indirectly, by any religious
denomination (paragraph 3, section 23, Article VI of the Constitution).
The power exercised by respondent cannot be considered as capricious or
arbitrary considering the peculiar circumstances of the case. It appears that
the public plaza, particularly the kiosk, is located at a short distance from the
Roman Catholic Church. The proximity of said church to the kiosk has
caused some concern on the part of the authorities that to avoid disturbance
of peace and order, or the happening of untoward incidents, they deemed it
necessary to prohibit the use of that kiosk by any religious denomination as a
place of meeting of its members. This was the policy adopted by respondent
for sometime previous to the request made by petitioners. Respondent never
denied such request but merely tried to enforce his policy by assigning them
the northwestern part of the public plaza. It cannot therefore be said that
petitioners were denied their constitutional right to assemble for, as was said,
such right is subject to regulation to maintain public order and public safety.
This is especially so considering that the tenets of petitioners’ congregation
are derogatory to those of the Roman Catholic Church, a factor which
respondent must have considered in denying their request.
It is true that the foregoing conclusion is predicated on facts which do not
appear in the pleadings nor are supported by any evidence because none
was presented for the reason that the case was submitted on a motion for
judgment on the pleadings, but those facts like the situation of the "kiosko"
and the occurrence of religious controversies which disturbed the peace and
order in the municipality of Sta. Cruz are matters which may be deemed to
come within the judicial knowledge of the court as in fact they were so
considered by the trial judge in his decision. This is what he said on this
point: "The presiding judge, through information, personal experience and
through the papers, has known of unfortunate events which caused the
disturbance of peace and order in the community. If the petitioners should be
allowed to use the ‘kiosko’ which is within the hearing distance of the catholic
church, this may give rise to disturbance of other religious ceremonies
performed in the church." (Italics supplied.) This action of the judge may be
justified under section5, Rule 123, of the Rules of Court, which is elaborated
by this Court in the following wise:
There are facts, indeed of which courts should take judicial cognizance.
These facts refer to a variety of subjects-legislative, political, historical,
geographical, commercial, scientific, and artificial-in addition to a wide range
of matters, arising in the ordinary course of nature or the general current of
human events. The matter of judicial notice is ever expanding and will surely
keep pace with the advance of the sciences and the arts. But, a matter to be
judicially cognizable must be well-established or authoritatively settled, or of
common or general knowledge. Obviously, courts should take notice of
whatever is or should be generally known because judges should not be
more ignorant than the rest of mankind.’ (The Municipal Board of the City of
Manila, et al. Vs. Segundo Agustin, 65 Phil., 144.) (Italics supplied.)
The contention that the northwestern part of the plaza cannot be considered
as part of said plaza but of the road in the northwestern portion beyond the
concrete fence is untenable, for it appears that that portion is part of the
plaza and has a space capable of accommodating hundreds of people. In
fact, during the past celebrations of the traditional town fiesta of the
municipality, said portion has been utilized by the authorities as a place for
staging dramas, zarzuelas, and cinematograph shows. Verily, the pretense of
petitioners cannot be attributed to the unsuitability of that portion as a
meeting place but rather to their obstinate desire to use the kiosk knowing it
to be contrary to the policy of the municipality.1
The decision appealed from is affirmed, with costs against petitioners.
J.B.I. Reyes vs. Bagatsing [125 SCRA 553 (1983)]

This Court, in this case of first impression, at least as to some aspects, is
called upon to delineate the boundaries of the protected area of the cognate
rights to free speech and peaceable assembly, 1 against an alleged intrusion
by respondent Mayor Ramon Bagatsing. Petitioner, retired Justice JB L.
Reyes, on behalf of the Anti-Bases Coalition sought a permit from the City of
Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to
5:00 in the afternoon, starting from the Luneta, a public park, to the gates of
the United States Embassy, hardly two blocks away. Once there, and in an
open space of public property, a short program would be held. 2 During the
course of the oral argument, 3 it was stated that after the delivery of two brief
speeches, a petition based on the resolution adopted on the last day by the
International Conference for General Disbarmament, World Peace and the
Removal of All Foreign Military Bases held in Manila, would be presented to
a representative of the Embassy or any of its personnel who may be there so
that it may be delivered to the United States Ambassador. The march would
be attended by the local and foreign participants of such conference. There
was likewise an assurance in the petition that in the exercise of the
constitutional rights to free speech and assembly, all the necessary steps
would be taken by it "to ensure a peaceful march and rally." 4
The filing of this suit for mandamus with alternative prayer for writ of
preliminary mandatory injunction on October 20, 1983 was due to the fact
that as of that date, petitioner had not been informed of any action taken on
his request on behalf of the organization to hold a rally. On October 25, 1983,
the answer of respondent Mayor was filed on his behalf by Assistant Solicitor
General Eduardo G. Montenegro. 5 It turned out that on October 19, such
permit was denied. Petitioner was unaware of such a fact as the denial was
sent by ordinary mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the advisability of issuing
such permit at this time and at the place applied for." 6 To be more specific,
reference was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or
congregations where a large number of people is expected to attend." 7
Respondent Mayor suggested, however, in accordance with the
recommendation of the police authorities, that "a permit may be issued for
the rally if it is to be held at the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the general public may
be ensured." 8
The oral argument was heard on October 25, 1983, the very same day the
answer was filed. The Court then deliberated on the matter. That same
afternoon, a minute resolution was issued by the Court granting the
mandatory injunction prayed for on the ground that there was no showing of
the existence of a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was unanimous, but
there was a dissent by Justice Aquino on the ground that the holding of a
rally in front of the US Embassy would be violative of Ordinance No. 7295 of
the City of Manila. The last sentence of such minute resolution reads: "This
resolution is without prejudice to a more extended opinion." 9 Hence this
detailed exposition of the Court's stand on the matter.
1. It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the denial
of a permit. The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of
grievances." 10 Free speech, like free press, may be Identified with the
liberty to discuss publicly and truthfully any matter of public concern without
censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 12
prosecution for sedition, 13 or action for damages, 14 or contempt
proceedings 15 unless there be a clear and present danger of a substantive
evil that [the State] has a right to prevent." 16 Freedom of assembly connotes
the right people to meet peaceably for consultation and discussion of matters
Of public concern.17 It is entitled to be accorded the utmost deference and
respect. It is hot to be limited, much less denied, except on a showing, as 's
the case with freedom of expression, of a clear and present danger of a
substantive evil that the state has a right to prevent. 18 Even prior to the
1935 Constitution, Justice Maicolm had occasion to stress that it is a
necessary consequence of our republican institutions and complements the
right of free speech. 19 To paraphrase opinion of Justice Rutledge speaking
for the majority of the American Supreme Court Thomas v. Collins, 20 it was
not by accident or coincidence that the right to freedom of speech and of the
press were toupled in a single guarantee with the and to petition the rights of
the people peaceably to assemble and to petition the government for redress
of grievances. All these rights, while not Identical, are inseparable. the every
case, therefo re there is a limitation placed on the exercise of this right, the
judiciary is called upon to examine the effects of the challenged
governmental actuation. The sole justification for a limitation on the exercise
of this right, so fundamental to the maintenance of democratic institutions, is
the danger, of a character both grave and imminent, of a serious evil to
public safety, public morals, public health, or any other legitimate public
interest. 21
2. Nowhere is the rationale that underlies the freedom of expression and
peaceable assembly better expressed than in this excerpt from an opinion of
Justice Frankfurter: "It must never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert force and
explosions due to restrictions upon rational modes of communication that the
guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." 22 What was rightfully stressed is the
abandonment of reason, the utterance, whether verbal or printed, being in a
context of violence. It must always be remembered that this right likewise
provides for a safety valve, allowing parties the opportunity to give vent to
their-views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for
the expression of dissent. It means more than just the right to be heard of the
person who feels aggrieved or who is dissatisfied with things as they are. Its
value may lie in the fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of Ideas. There are, of course,
well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under
the cloak of dissent. The Constitution frowns on disorder or tumult attending
a rally or assembly. resort to force is ruled out and outbreaks of violence to
be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v.
Apurado: 23 "It is rather to be expected that more or less disorder will mark
the public assembly of the people to protest against grievances whether real
or imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." 24 It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts
of vandalism must be avoided, To give free rein to one's destructive urges is
to call for condemnation. It is to make a mockery of the high estate occupied
by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and
present danger of a substantive evil, on the choice of Luneta as the place
where the peace rally would start. The Philippines is committed to the view
expressed in the plurality opinion, of 1939 vintage, of Justice Roberts in
Hague v. CIO: 25 Whenever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out of
mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges,
immunities, rights, and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on
national questions may be regulated in the interest of all; it is not absolute,
but relative, and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good order; but it must
not, in the guise of regulation, be abridged or denied. 26 The above excerpt
was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit
what was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision,
where this Court categorically affirmed that plazas or parks and streets are
outside the commerce of man and thus nullified a contract that leased Plaza
Soledad of plaintiff-municipality. Reference was made to such plaza "being a
promenade for public use," 29 which certainly is not the only purpose that it
could serve. To repeat, there can be no valid reason why a permit should not
be granted for the or oposed march and rally starting from a public dark that
is the Luneta.
4. Neither can there be any valid objection to the use of the streets, to the
gates of the US Embassy, hardly two block-away at the Roxas Boulevard.
Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding
that the then Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court categorically declared:
"Our conclusion finds support in the decision in the case of Willis Cox vs.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P. L. chap. 145, section 2, providing that 'no parade or procession
upon any ground abutting thereon, shall 'De permitted unless a special
license therefor shall first be explained from the selectmen of the town or
from licensing committee,' was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board unfettered discretion to
refuse to grant the license, and held valid. And the Supreme Court of the
United States, in its decision (1941) penned by Chief Justice Hughes
affirming the judgment of the State Supreme Court, held that 'a statute
requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of speech
and press, where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession,
with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary
discretion to issue or refuse license, ... " 30 Nor should the point made by
Chief Justice Hughes in a subsequent portion of the opinion be ignored, "Civil
liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would
be lost in the excesses of unrestricted abuses. The authority of a municipality
to impose regulations in order to assure the safety and convenience of the
people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding
the good order upon which they ultimately depend. The control of travel on
the streets of cities is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that relation is designed
to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection." 31
5. There is a novel aspect to this case, If the rally were confined to Luneta,
no question, as noted, would have arisen. So, too, if the march would end at
another park. As previously mentioned though, there would be a short
program upon reaching the public space between the two gates of the United
States Embassy at Roxas Boulevard. That would be followed by the handing
over of a petition based on the resolution adopted at the closing session of
the Anti-Bases Coalition. The Philippines is a signatory of the Vienna
Convention on Diplomatic Relations adopted in 1961. It was concurred in by
the then Philippine Senate on May 3, 1965 and the instrument of ratification
was signed by the President on October 11, 1965, and was thereafter
deposited with the Secretary General of the United Nations on November 15.
As of that date then, it was binding on the Philippines. The second paragraph
of the Article 22 reads: "2. The receiving State is under a special duty to take
appropriate steps to protect the premises of the mission against any intrusion
or damage and to prevent any disturbance of the peace of the mission or
impairment of its dignity. " 32 The Constitution "adopts the generally
accepted principles of international law as part of the law of the land. ..." 33
To the extent that the Vienna Convention is a restatement of the generally
accepted principles of international law, it should be a part of the law of the
land. 34 That being the case, if there were a clear and present danger of any
intrusion or damage, or disturbance of the peace of the mission, or
impairment of its dignity, there would be a justification for the denial of the
permit insofar as the terminal point would be the Embassy. Moreover,
respondent Mayor relied on Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius
of five hundred (500) feet from any foreign mission or chancery and for other
purposes. Unless the ordinance is nullified, or declared ultra vires, its
invocation as a defense is understandable but not decisive, in view of the
primacy accorded the constitutional rights of free speech and peaceable
assembly. Even if shown then to be applicable, that question the confronts
this Court.
6. There is merit to the observation that except as to the novel aspects of a
litigation, the judgment must be confined within the limits of previous
decisions. The law declared on past occasions is, on the whole, a safe guide,
So it has been here. Hence, as noted, on the afternoon of the hearing,
October 25, 1983, this Court issued the minute resolution granting the
mandatory injunction allowing the proposed march and rally scheduled for
the next day. That conclusion was inevitable ill the absence of a clear and
present danger of a substantive, evil to a legitimate public interest. There
was no justification then to deny the exercise of the constitutional rights of
tree speech and peaceable assembly. These rights are assured by our
Constitution and the Universal Declaration of Human Rights. 35 The
participants to such assembly, composed primarily of those in attendance at
the International Conference for General Disbarmament, World Peace and
the Removal of All Foreign Military Bases would start from the Luneta.
proceeding through Roxas Boulevard to the gates of the United States
Embassy located at the same street. To repeat, it is settled law that as to
public places, especially so as to parks and streets, there is freedom of
access. Nor is their use dependent on who is the applicant for the permit,
whether an individual or a group. If it were, then the freedom of access
becomes discriminatory access, giving rise to an equal protection question.
The principle under American doctrines was given utterance by Chief Justice
Hughes in these words: "The question, if the rights of free speech and
peaceable assembly are to be preserved, is not as to the auspices under
which the meeting is held but as to its purpose; not as to The relations of the
speakers, but whether their utterances transcend the bounds of the freedom
of speech which the Constitution protects." 36 There could be danger to
public peace and safety if such a gathering were marked by turbulence. That
would deprive it of its peaceful character. Even then, only the guilty parties
should be held accountable. It is true that the licensing official, here
respondent Mayor, is not devoid of discretion in determining whether or not a
permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly
occur but of what may probably occur, given all the relevant circumstances,
still the assumption — especially so where the assembly is scheduled for a
specific public — place is that the permit must be for the assembly being held
there. The exercise of such a right, in the language of Justice Roberts,
speaking for the American Supreme Court, is not to be "abridged on the plea
that it may be exercised in some other place." 37
7. In fairness to respondent Mayor, he acted on the belief that Navarro v.
Villegas 38 and Pagkakaisa ng Manggagawang Pilipino (PMP.) v. Bagatsing,
39 called for application. While the General rule is that a permit should
recognize the right of the applicants to hold their assembly at a public place
of their choice, another place may be designated by the licensing authority if
it be shown that there is a clear and present danger of a substantive evil if no
such change were made. In the Navarro and the Pagkakaisa decisions, this
Court was persuaded that the clear and present danger test was satisfied.
The present situation is quite different. Hence the decision reached by the
Court. The mere assertion that subversives may infiltrate the ranks of the
demonstrators does not suffice. Not that it should be overlooked. There was
in this case, however, the assurance of General Narciso Cabrera,
Superintendent, Western Police District, Metropolitan Police Force, that the
police force is in a position to cope with such emergency should it arise That
is to comply with its duty to extend protection to the participants of such
peaceable assembly. Also from him came the commendable admission that
there were the least five previous demonstrations at the Bayview hotel Area
and Plaza Ferguson in front of the United States Embassy where no
untoward event occurred. It was made clear by petitioner, through counsel,
that no act offensive to the dignity of the United States Mission in the
Philippines would take place and that, as mentioned at the outset of this
opinion, "all the necessary steps would be taken by it 'to ensure a peaceful
march and rally.' " 40 Assistant Solicitor General Montenegro expressed the
view that the presence of policemen may in itself be a provocation. It is a
sufficient answer that they should stay at a discreet distance, but ever ready
and alert to cope with any contingency. There is no need to repeat what was
pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the
city authorities to provide the proper police protection to those exercising
their right to peaceable assembly and freedom of expression.
8. By way of a summary The applicants for a permit to hold an assembly
should inform the licensing authority of the date, the public place where and
the time when it will take place. If it were a private place, only the consent of
the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of
the permit or to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present danger
test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must
be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so
minded, then, can have recourse to the proper judicial authority. Free speech
and peaceable assembly, along with the other intellectual freedoms, are
highly ranked in our scheme of constitutional values. It cannot be too strongly
stressed that on the judiciary, — even more so than on the other
departments — rests the grave and delicate responsibility of assuring respect
for and deference to such preferred rights. No verbal formula, no sanctifying
phrase can, of course, dispense with what has been so felicitiously termed by
Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of justice on the side
of such rights, enjoying as they do precedence and primacy. Clearly then, to
the extent that there may be inconsistencies between this resolution and that
of Navarro v. Villegas, that case is pro tanto modified. So it was made clear
in the original resolution of October 25, 1983.
9. Respondent Mayor posed the issue of the applicability of Ordinance No.
7295 of the City of Manila prohibiting the holding or staging of rallies or
demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. It is to be admitted that it finds
support In the previously quoted Article 22 of the Vienna Convention on
Diplomatic Relations. There was no showing, however, that the distance
between the chancery and the embassy gate is less than 500 feet. Even if it
could be shown that such a condition is satisfied. it does not follow that
respondent Mayor could legally act the way he did. The validity of his denial
of the permit sought could still be challenged. It could be argued that a case
of unconstitutional application of such ordinance to the exercise of the right of
peaceable assembly presents itself. As in this case there was no proof that
the distance is less than 500 feet, the need to pass on that issue was
obviated, Should it come, then the qualification and observation of Justices
Makasiar and Plana certainly cannot be summarily brushed aside. The high
estate accorded the rights to free speech and peaceable assembly demands
nothing less.
10. Ordinarily, the remedy in cases of this character is to set aside the denial
or the modification of the permit sought and order the respondent official, to
grant it. Nonetheless, as there was urgency in this case, the proposed march
and rally being scheduled for the next day after the hearing, this Court. in the
exercise of its conceded authority, granted the mandatory injunction in the
resolution of October 25, 1983. It may be noted that the peaceful character of
the peace march and rally on October 26 was not marred by any untoward
incident. So it has been in other assemblies held elsewhere. It is quite
reassuring such that both on the part of the national government and the
citizens, reason and moderation have prevailed. That is as it should be.
WHEREFORE, the mandatory injunction prayed for is granted. No costs.
Ruiz vs. Gordon [126 SCRA 233 (1983)]
The constitutional rights to free speech and free assembly are invoked in this
mandamus proceeding filed on November 25, 1983 against respondent
Richard Gordon , Mayor of Olongapo City. It was alleged: "On 21 November
1983, petitioner personally delivered to the respondent a letter application
dated 19 November 1983, the full text of which read as follows: ' November
19, 1983, The Honorable City Mayor, Olongapo City. Sir.: In behalf of the
Olongapo Citizen's Alliance for national Reconciliation , Justice for Aquino
Justice for All (JAJA), Concern (sic) Citizen for Justice and Peace (CCJP),
Damdamin Bayan na Nagkakaisa (DAMBANA), United Nationalist
Democratic Organization (UNIDO), we are respectfully requesting for a
permit to hold a prayer-rally at the Rizal Triangle, Olongapo City on
December 4,1983 from 1:00 P.M. until it will be finished in the early evening.
It is likewise requested the above named organizations to be allowed to hold
a parade/march from Gordon Avenue to the Rizal Triangle starting at 1:00
P.M. Your preferential attention on this request will be highly appreciated. [It
was signed by petitioner Hector S. Ruiz, Coordinator of Olongapo Citizen's
Alliance for National Reconciliation.]" 1 Reference was then made to the
minute resolution of this Court in Jose B.L. Reyes v. Bagatsing. 2 The prayer
was for "the immediate issuance of the writ of mandamus, without prejudice
to an extended decision; or that a writ of preliminary mandatory injunction be
issued immediately so as not to render moot and academic the purpose for
which the permit was applied for on 4 December 1983 from 1:00 to 6:00
(early evening) o'clock in the afternoon." 3
At the next session day, on November 29, 1983, the Court issued the
following resolution: "The Court , after considering the pleadings filed and
deliberating on the issues raised in the petition for mandamus with prayer for
a writ of preliminary mandatory injunction filed on November 25,1983,
Resolved to require the respondents to file an ANSWER, not a motion to
dismiss, within two(2) days from notice." 4
On the very afternoon of the same day, there was this manifestation from
respondent Mayor: "1. On November 22, 1983, the petitioner, allegedly the
coordinator of the, Olongapo Citizen's Alliance for National Reconciliation,
had their request for a prayer rally and parade/march received in the Office of
the Mayor. 2. That even before the request, the respondent had repeatedly
announced in his regular program on Sunday over the radio (DWGO) and at
the Monday morning flag ceremony before hundreds of government
employees that he would grant the request of any group that would like to
exercise their freedom of speech and assembly. 3. That respondent when
interviewed on the matter by the Editor-in Chief of the 'Guardian', a
newspaper of general circulation in Olongapo and Zambales, mentioned the
fact that he had granted the permit of the petitioner, which interview
appeared in the November 22-28, 1983 issue of the said newspaper. A copy
of the newspaper is hereto attached and made an integral part hereof as
Annex 'A'. 4. On November 23, 1983, the City Mayor approved the request of
the petitioner to hold a prayer rally and a parade/march on December 4,
1983. A copy of the permit is hereto attached and made an integral part
hereof as Annex 'B'. 5 " The prayer was for the dismissal of the petition. The
permit reads as follows: "23 November 1983, Dr. Hector S. Ruiz,
Coordinator, Olongapo Citizen's Alliance for National Reconciliation,
Olongapo City. Dear Dr. Ruiz: Your request for a PERMIT to hold a prayer
rally at the Rizal Triangle, Olongapo City and a parade/march from Gordon
Avenue at 1:00 p.m. of 4 December 1983 as stated in your letter dated 19
November 1983 received in this office on 22 November is hereby GRANTED
provided that: 1. The parade/march and rally will be peaceful and orderly; 2.
Your organization will be responsible for any loss or damage to government
property and for the cleanliness of the Rizal Triangle; 3. The parade/march
shall proceed from the corner of Gordon Ave., and Magsaysay Drive, to Rizal
Ave., thence to the Rizal Triangle. Please coordinate with the Integrated
National Police for appropriate traffic assistance. Very truly yours, (Sgd.)
Richard J. Gordon, City Mayor." 6
At its next session then of November 27, the Court, in the light of the above
manifestation, resolved to grant such plea for dismissal. From petitioner
came, on December 1, 1983, a motion dated November 29 to withdraw
petition. As therein stated: "Petitioner, by counsel, respectfully moves to
withdraw the above-entitled petition on the ground that the permit being
sought in the prayer-rally to be held on 4 December 1983 from 1:00 to 6:00
PM has been granted by the respondent." 7 Then the next day, December 2,
1983, the answer of respondent came reiterating what was set forth in his
manifestation. The reason for the delay of such pleading, the due date the
service had been served on petitioner being December 1, 1983, was
obviously the distance between Manila and Olongapo City. It was not served
until November 30. At any rate, no prejudice was caused either party as in
the meanwhile, the Court had acted on the very day the manifestation was
submitted. That was on December 1, 1983.
There is relevance to a recital of such facts. It appears that the guidelines set
forth in the extended opinion in the aforesaid J.B.L. Reyes decision as to the
role of the judiciary in petitions for permits to hold peaceable assembles may
have to be supplemented. This is how the J.B.L. Reyes opinion reads on this
point: "The applicants for a permit to hold an assembly should inform the
licensing authority of the date, the public place where and the time when it
will take place. If it were a private place, only the consent of the owner or the
one entitled to its legal possession is required. Such application should be
filed well ahead in time to enable the public official concerned to appraise
whether there may be valid objections to the grant of the permit or to its grant
but at another public place. It is an indispensable condition to such refusal or
modification that the clear and present danger test be the standard for the
decision reached. If he is of the view that there is such an imminent and
grave danger of a substantive evil, the applicants must be heard on the
matter. Thereafter, his decision, whether favorable or adverse, must be
transmmitted to them at the earliest opportunity. Thus if so minded, they can
have recourse to the proper judicial authority. Free speech and peaceable
assembly, along with the other intellectual freedoms, are highly ranked in our
scheme of constitutional values. It cannot be too strongly stressed that on the
judiciary, — even more so than on the other departments — rests the grave
and delicate responsibility of assuring respect for and deference to such
preferred rights. No verbal formula, no sanctifying phrase can, of course,
dispense with what has been so felicitously termed by Justice Holmes 'as the
sovereign prerogative of judgment.' Nonetheless, the presumption must be to
incline the weight of the scales of justice on the side of such rights, enjoying
as they do precedence and primacy. Clearly then, to the extent that there
may be inconsistencies between this resolution and that of Navarro v.
Villegas, that case is pro tanto modified. So it was made clear in the original
resolution of October 25, 1983. " 8
As shown both in the manifestation and the answer, this action for
mandamus could have been obviated if only petitioner took the trouble of
verifying on November 23 whether or not a permit had been issued. A party
desirous of exercising the right to peaceable assembly should be the one
most interested in ascertaining the action taken on a request for a permit.
Necessarily, after a reasonable time or, if the day and time was designated
for the decision on the request, such party or his representative should be at
the office of the public official concerned. If he fails to do so, a copy of the
decision reached, whether adverse or favorable, should be sent to the
address of petitioner. In that way, there need not be waste of time and effort
not only of the litigants but likewise of a court from which redress is sought in
case of a denial or modification of a request for a permit.
Lately, several petitions of this character have been filed with this court. It
could be due to the lack of knowledge of the guidelines set forth in the
extended opinion. Steps have been taken to send the Regional Trial judges
copies thereof. In the future, therefore, without precluding the filing of
petitions directly with this Court, the interest of justice and of public
convenience would be better served if litigation starts on the trial court level.
While, therefore, this petition should be dismissed, the Court deems it best to
set forth the above to specify in more detail, the steps necessary for the
judicial protection of constitutional rights with the least delay and
inconvenience to the parties and with the greater assurance that the factual
background on which is dependent the determination of whether or not the
clear and present danger standard has been satisfied. Lastly, a certiorari
petition to this Court is likewise available to the losing party.
WHEREFORE, as prayed for, this case is dismissed.
Malabanan vs. Ramento [129 SCRA 359 (1984)]
The failure to accord respect to the constitutional rights of freedom of
peaceable assembly and free speech is the grievance alleged by petitioners,
students of the Gregorio Araneta University Foundation, in this certiorari,
prohibition and mandamus proceeding. The principal respondents are
Anastacio D. Ramento, Director of the National Capital Region of the Ministry
of Education, Culture and Sports and the Gregorio Araneta University
Foundation. 1 The nullification of the decision of respondent Ramento
affirming the action taken by respondent Gregorio Araneta University
Foundation finding petitioners guilty of illegal assembly and suspending them
is sought in this petition.
The facts are not open to dispute. Petitioners were officers of the Supreme
Student Council of respondent University. They sought and were granted by
tile school authorities a permit to hold a meeting from 8:00 A.M. to 12:00
P.M, on August 27, 1982. Pursuant to such permit, along with other students,
they held a general assembly at the Veterinary Medicine and Animal Science
basketball court (VMAS), the place indicated in such permit, not in the
basketball court as therein stated but at the second floor lobby. At such
gathering they manifested in vehement and vigorous language their
opposition to the proposed merger of the Institute of Animal Science with the
Institute of Agriculture. At 10:30 A.M., the same day, they marched toward
the Life Science Building and continued their rally. It was outside the area
covered by their permit. They continued their demonstration, giving utterance
to language severely critical of the University authorities and using
megaphones in the process. There was, as a result, disturbance of the
classes being held. Also, the non-academic employees, within hearing
distance, stopped their work because of the noise created. They were asked
to explain on the same day why they should not be held liable for holding an
illegal assembly. Then on September 9, 1982, they were formed through a
memorandum that they were under preventive suspension for their failure to
explain the holding of an illegal assembly in front of the Life Science Building.
The validity thereof was challenged by petitioners both before the Court of
First Instance of Rizal in a petition for mandamus with damages against
private respondents 2 and before the Ministry of Education, Culture, and
Sports. On October 20, 1982, respondent Ramento, as Director of the
National Capital Region, found petitioners guilty of the charge of having
violated par. 146(c) of the Manual for Private Schools more specifically their
holding of an illegal assembly which was characterized by the violation of the
permit granted resulting in the disturbance of classes and oral defamation.
The penalty was suspension for one academic year. Hence this petition.
On November 16, 1982, this Court issued the following resolution: "Acting on
the urgent ex-parte motion for the immediate issuance of a temporary
mandatory order filed by counsel for petitioners, dated November 12, 1982,
the Court Resolved to ISSUE A TEMPORARY RESTRAINING ORDER
enjoining all respondents or any person or persons acting in their place or
stead from enforcing the order of the Ministry of' Education and Culture dated
October 20, 1982 finding the petitioners guilty of the charges against them
and suspending them for one (1) academic year with a stern warning that a
commission of the same or another offense will be dealt with utmost severity,
effective as of this date and continuing until otherwise ordered by this Court,
thus allowing them to enroll, if so minded. 3
Both public and private respondents submitted their comments. Private
respondents prayed for the dismissal of the petition "for lack of factual and
legal basis and likewise [prayed] for the lifting of the temporary restraining
order dated November 16, 1982." 4 Public respondent Ramento, on the other
hand, through the Office of the Solicitor General, prayed for the dismissal of
the petition based on the following conclusion: "Consequently, it is
respectfully submitted that respondent Director of the MECS did not commit
any error, much less abused his discretion, when he affirmed the decision of
respondent University finding petitioners guilty of violations of the provisions
of the Manual of Regulations for Private Schools and the Revised Student's
Code of Discipline .and ordering their suspension for one (1) academic
school year. However, since said suspension has not been enforced except
only briefly, thereby enabling petitioners Leonero, Jr., Lucas and Malabanan
to finish their courses, and allowing petitioners Lee and Jalos to continue
their schooling, if they so desire, this proceeding is now moot and academic.
5 3. The situation here is different. The assembly was to be held not in a public
With the submission of such comments considered as the answers of public
and private respondents, the case was ready for decision.
This petition may be considered moot and academic if viewed solely from the
fact that by virtue of the temporary restraining order issued by this Court
petitioners were allowed to enroll in the ensuing semester, with three of them
doing so and with the other two equally entitled to do so. Moreover, there is
the added circumstance of more than a year having passed since October
20, 1982 when respondent Ramento issued the challenged decision
suspending them for one year. Nonetheless, with its validity having been put
in issue, for being violative of the constitutional rights of freedom of
peaceable assembly and free speech, there is need to pass squarely on the
question raised.
This Court accordingly rules that respect for the constitutional rights of
peaceable assembly and free speech calls for the setting aside of the
decision of respondent Ramento, the penalty imposed being unduly severe.
It is true that petitioners held the rally at a place other than that specified in
the permit and continued it longer than the time allowed. Undeniably too,
they did disturb the classes and caused the work of the non-academic
personnel to be left undone. Such undesirable consequence could have
been avoided by their holding the assembly in the basketball court as
indicated in the permit. Nonetheless, suspending them for one year is out of
proportion to their misdeed. The petition must be granted and the decision of
respondent Ramento nullified, a much lesser penalty being appropriate.
1. As is quite clear from the opinion in Reyes v. Bagatsing, 6 the invocation
of the right to freedom of peaceable assembly carries with it the implication
that the right to free speech has likewise been disregarded. Both are
embraced in the concept of freedom of expression which is Identified with the
liberty to discuss publicly and truthfully, any matter of public interest without
censorship or punishment and which "is not to be limited, much less denied,
except on a showing ... of a clear and present danger of a substantive evil
that the state has a right to prevent." 7
2. In the above case, a permit was sought to hold a peaceful march and rally
from the Luneta public park to the gates of the united States Embassy, hardly
two blocks away, where in an open space of public property, a short program
would be held. Necessarily then, the question of the use of a public park and
of the streets leading to the United States Embassy was before this Court.
We held that streets and parks have immemorially been held in trust for the
use of the public and have been used for purposes of assembly to
communicate thoughts between citizens and to discuss public issues. 8
place but in private premises, property of respondent University. There is in
the Reyes opinion as part of the summary this relevant excerpt: "The
applicants for a permit to hold an assembly should inform the licensing
authority of the date, the public place where and the time when it will take
place. If it were a private place, only the consent of the owner or the one
entitled to its legal possession is required." 9 Petitioners did seek such
consent. It was granted. According to the petition: "On August 27, 1982, by
virtue of a permit granted to them by the school administration, the Supreme
Student Council where your petitioners are among the officers, held a
General Assembly at the VMAS basketball court of the respondent
university." 10 There was an express admission in the Comment of private
respondent University as to a permit having been granted for petitioners to
hold a student assembly. 11 The specific question to be resolved then is
whether on the facts as disclosed resulting in the disciplinary action and the
penalty imposed, there was an infringement of the right to peaceable
assembly and its cognate right of free speech.
4. Petitioners invoke their rights to peaceable assembly and free speech.
They are entitled to do so. They enjoy like the rest of the citizens the freedom
to express their views and communicate their thoughts to those disposed to
listen in gatherings such as was held in this case. They do not, to borrow
from the opinion of Justice Fortas in Tinker v. Des Moines Community School
District, 12 "shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate." 13 While, therefore, the authority of
educational institutions over the conduct of students must be recognized, it
cannot go so far as to be violative of constitutional safeguards. On a more
specific level there is persuasive force to this formulation in the Fortas
opinion: "The principal use to which the schools are dedicated is to
accommodate students during prescribed hours for the purpose of certain
types of activities. Among those activities is personal intercommunication
among the students. This is not only an inevitable part of the process of
attending school; it is also an important part of the educational process. A
student's rights, therefore, do not embrace merely the classroom hours.
When he is in the cafeteria, or on the playing field, or on the campus during
the authorized hours, he may express his opinions, even on controversial
subjects like the conflict in Vietnam, if he does so without 'materially and
substantially interfer[ing] with the requirements of appropriate discipline in the
operation of the school' and without colliding with the rights of others. ... But
conduct by the student, in class or out of it, which for any reason — whether
it stems from time, place, or type of behavior — materially disrupts classwork
or involves substantial disorder or invasion of the rights of others is, of
course, not immunized by the constitutional guarantee of freedom of
speech." 14
5. As tested by such a standard, what is the verdict on the complaint of
petitioners that there was a disregard of their constitutional rights to
peaceable assembly and free speech. It must be in their favor, but subject to
qualification in view of their continuing their demonstration in a place other
than that specified in the permit for a longer period and their making use of
megaphones therein, resulting in the disruption of classes and the stoppage
of work by the non-academic personnel in the vicinity of such assembly.
6. Objection is made by private respondents to the tenor of the speeches by
the student leaders. That there would be a vigorous presentation of views
opposed to the proposed merger of the Institute of Animal Science with the
Institute of Agriculture was to be expected. There was no concealment of the
fact that they were against such a move as it confronted them with a serious
problem (iisang malaking suliranin.") 15 They believed that such a merger
would result in the increase in tuition fees, an additional headache for their
parents ("isa na naman sakit sa ulo ng ating mga magulang."). 16 If in the
course of such demonstration, with an enthusiastic audience goading them
on, utterances, extremely critical, at times even vitriolic, were let loose, that is
quite understandable. Student leaders are hardly the timid, diffident types.
They are likely to be assertive and dogmatic. They would be ineffective if
during a rally they speak in the guarded and judicious language of the
academe. At any rate, even a sympathetic audience is not disposed to
accord full credence to their fiery exhortations. They take into account the
excitement of the occasion, the propensity of speakers to exaggerate, the
exuberance of youth, They may give the speakers the benefit of their
applause, but with the activity taking place in the school premises and during
the daytime, no clear and present danger of public disorder is discernible.
This is without prejudice to the taking of disciplinary action for conduct,
which, to borrow from Tinker, "materially disrupts classwork or involves
substantial disorder or invasion of the rights of others."
7. Nor is this a novel approach to the issue raised by petitioners that they
were denied the right to peaceable assembly. In a 1907 decision, United
States v. Apurado, 17 the facts disclosed that shortly before the municipal
council of San Carlos, Occidental Negros, started its session, some five
hundred residents of the municipality assembled near the municipal building,
and, upon the opening of the session, a substantial number of such persons
barged into the council chamber, demanding that the municipal treasurer, the
municipal secretary, and the chief of police be dismissed, submitting at the
same time the proposed substitutes. The municipal council gave its
conformity. Such individuals were wholly unarmed except that a few carried
canes; the crowd was fairly orderly and well-behaved except in so far as their
pressing into the council chamber during a session of that body could be
called disorder and misbehavior. It turned out that the movement had its
origin in religious differences. The defendant Filomeno Apurado and many
other participants were indicted and convicted of sedition in that they
allegedly prevented the municipal government from freely exercising its
duties. On appeal, the Supreme Court reversed. Justice Carson, who penned
the opinion, correctly pointed out that "if the prosecution be permitted to seize
upon every instance of such disorderly conduct by individual members of a
crowd as an excuse to characterize the assembly as a seditious and
tumultuous rising against the authorities, then the right to assemble and to
petition for redress of grievances would become a delusion and a snare and
the attempt to exercise it on the most righteous occasion and in the most
peaceable manner would expose all those who took part therein to the
severest form of punishment, if the purposes which they sought to attain did
not happen to be pleasing to the prosecuting authorities." 18 The principle to
be followed is enunciated thus: "If instances of disorderly conduct occur on
such occasions, the guilty individuals should be sought out and punished
therefor, but the utmost discretion must be exercised in drawing the line
between disorderly and seditious conduct and between an essentially
peaceable assembly and a tumultuous uprising." 19 A careful reading of this
decision is in order before private respondents attach, as they did in their
comments, a subversive character to the rally held by the students under the
leadership of petitioners.
8. It does not follow, however, that petitioners can be totally absolved for the
events that transpired. Admittedly, there was a violation of the terms of the
permit. The rally was held at a place other than that specified, in the second
floor lobby, rather than the basketball court, of the VMAS building of the
University. Moreover, it was continued longer than the period allowed.
According to the decision of respondent Ramento, the "concerted activity
[referring to such assembly] went on until 5:30 p. m. 20 Private respondents
could thus, take disciplinary action. On those facts, however, an admonition,
even a censure-certainly not a suspension-could be the appropriate penalty.
Private respondents could and did take umbrage at the fact that in view of
such infraction considering the places where and the time when the
demonstration took place-there was a disruption of the classes and stoppage
of work of the non-academic personnel. They would not be unjustified then if
they did take a much more serious view of the matter. Even then a one-year
period of suspension is much too severe. While the discretion of both
respondent University and respondent Ramento is recognized, the rule of
reason, the dictate of fairness calls for a much lesser penalty. If the concept
of proportionality between the offense connoted and the sanction imposed is
not followed, an element of arbitrariness intrudes. That would give rise to a
due process question. To avoid this constitutional objection, it is the holding
of this Court that a one-week suspension would be punishment enough.
9. One last matter. The objection was raised that petitioners failed to exhaust
administrative remedies. That is true, but hardly decisive. Here, a purely legal
question is presented. Such being the case, especially so where a decision
on a question of law is imperatively called for, and time being of the essence,
this Court has invariably viewed the issue as ripe for adjudication. What
cannot be too sufficiently stressed is that the constitutional rights to
peaceable assembly and free speech are invoked by petitioners. Moreover,
there was, and very likely there will continue to be in the future, militancy and
assertiveness of students on issues that they consider of great importance,
whether concerning their welfare or the general public. That they have a right
to do as citizens entitled to all the protection in the Bill of Rights.
10. It would be most appropriate then, as was done in the case of Reyes v.
Bagatsing, 21 for this Court to lay down the principles for the guidance of
school authorities and students alike. The rights to peaceable assembly and
free speech are guaranteed students of educational institutions. Necessarily,
their exercise to discuss matters affecting their welfare or involving public
interest is not to be subjected to previous restraint or subsequent punishment
unless there be a showing of a clear and present danger to a substantive evil
that the state, has a right to present. As a corollary, the utmost leeway and
scope is accorded the content of the placards displayed or utterances made.
The peaceable character of an assembly could be lost, however, by an
advocacy of disorder under the name of dissent, whatever grievances that
may be aired being susceptible to correction through the ways of the law. If
the assembly is to be held in school premises, permit must be sought from its
school authorities, who are devoid of the power to deny such request
arbitrarily or unreasonably. In granting such permit, there may be conditions
as to the time and place of the assembly to avoid disruption of classes or
stoppage of work of the non-academic personnel. Even if, however, there be
violations of its terms, the penalty incurred should not be disproportionate to
the offense.
WHEREFORE, the petition is granted. The decision dated October 20, 1982
of respondent Ramento imposing a one-year suspension is nullified and set
aside. The temporary restraining order issued by this Court in the resolution
of November 18, 1982 is made permanent. As of that date, petitioners had
been suspended for more than a week. In that sense, the one-week penalty
had been served. No costs.
Arreza vs. GAUF [137 SCRA 94 (1985)]
Student militancy manifested through rallies and demonstrations
characterized by condemnatory language in speeches and leaflets led
respondent Gregorio Araneta University 1 to refuse enrollment to petitioners.
Hence, this mandamus proceeding filed by Carmelo Arreza, Lonesto G.
Oidem, Jacob F. Meimban, and Eduardo S. Fernando, officers and members
of the Supreme Student Council of said university. There was a plea by
petitioners for a preliminary mandatory injunction to allow them to enroll. This
Court issued a temporary mandatory restraining order against the
enforcement of such ban imposed by respondent University. The fact that
they were seniors strengthened their plea.
As the principal issue involved, the respect to be accorded the cognate rights
of free speech and peaceable assembly, is likewise that raised in Malabanan
v. Ramento, 2 not to mention the fact that the respondent is likewise the
same University, the Second Division of this Court transferred it to the Court
en banc. There is this difference. The principal respondent in Malabanan was
Director Anastacio Ramento of the Ministry of Education, Culture and Sports,
who affirmed the action taken by respondent Araneta Foundation University
finding petitioners guilty of illegal assembly and suspending them for one
academic year. Here the action is directed only against respondent
University. Nonetheless, insofar as the issue involved relates to the right of
students to free speech and peaceable assembly, such distinction is of no
significance. As we ruled in Malabanan, so we rule now. Petitioners, as all
other students, may freely exercise such rights, "They enjoy like the rest of
the citizens the freedom to express their views and communicate their
thoughts to those disposed to listen" 3 in rallies and demonstrations.
According to the version of petitioners, they were either leaders or
participants in what respondent University referred to as a
rally/demonstration held on September 28, 1982, in front of the Life Science
Building of the respondent University, but which for them, could be more
accurately described as "a continuation of the General Assembly of the
student body held the day before one authorized by the School
Administration." 4 Its purpose was to register the opposition of the students
to the abolition of the school's Institute of Animal Science, as those taking
courses therein would not be able to graduate. 5 Such exercise of their right
to peaceable assembly was visited by respondent University with a refusal to
let them enroll after what for petitioners was a sham investigation of their
alleged violation of school rules and regulations. 6
Respondent University denied granting the authorization to hold such general
assembly, or student rally on September 28, 1982, alleging that the students
on said date through the use of battery-operated megaphones criticized and
lambasted the school administration, specifically the decision of the Board of
Trustees of respondent University to merge its Institute of Animal Science
with its Institute of Agriculture, ignoring the fact that the aforementioned
merger of the above-named Institutes - intended as a cost-saving measure -
would not deprive the students enrolled in the former Institute of Animal
Science from earning their degrees. 7 Moreover, there were other rallies,
according to respondent, held on September 8, 27 and 29, 1982, for the
purpose of sympathizing with the suspension of five (5) student leaders who
conducted an illegal assembly on August 27, 1982, causing additional
disturbance on the campus, not only by the disorderly conduct observed but
also by the resulting boycott of classes. 8
There is, therefore, relevance to this excerpt from the decision in the
companion case of Malabanan v. Ramento: 9 "Objection is made by private
respondents to the tenor of the speeches by the student leaders. That there
would be a vigorous presentation of views opposed to the proposed merger
of the Institute of Animal Science with the Institute of Agriculture was to be
expected. There was no concealment of the fact that they were against such
a move as it confronted them with a serious problem ("isang malaking
suliranin"). They believed that such a merger would result in the increase in
tuition fees, an additional headache for their parents ("isa na naman sakit sa
ulo ng ating mga magulang"). If in the course of such demonstration, with an
enthusiastic audience goading them on, utterances, extremely critical, at
times even vitriolic, were let loose, that is quite understandable. Student
leaders are hardly the timid diffident types. They are likely to be assertive
and dogmatic. They would be ineffective if during a rally they speak in the
guarded and judicious language of the academe At any rate, even a
sympathetic audience is not disposed to accord full credence to their fiery
exhortations. They take into account the excitement of the occasion, the
propensity of speakers to exaggerate, the exuberance of youth. They may
give the speakers the benefit of their applause, but with the activity taking
place in the school premises and during the daytime, no clear and present
danger of public disorder is discernible. This is without prejudice to the taking
of disciplinary action for conduct, which, to borrow from Tinker I materially
disrupts classwork or involves substantial disorder or invasion of the rights of
others. 10
There is no need, therefore, to inquire into the allegations of respondent
University as to the non-peaceable character of the rally or demonstration.
As made clear from the above excerpt, infractions of University rules or
regulations by petitioner-students justify the filing of appropriate charges.
What cannot be justified is the infliction of the highly-disproportionate penalty
of denial of enrollment and the consequent failure of senior students to
graduate, if in the exercise of the cognate rights of free speech and
peaceable assembly, improper conduct could be attributed to them.
One last word. In the even more recent case of Villar v. Technological
Institute of the Philippines, 11 reference was made to Article 26 of the
Universal Declaration of Human Rights: "Everyone has the right to education.
Education shall be free, at 'least in the elementary and fundamental stages.
Elementary education shall be compulsory; Technical and professional
education shall be made generally accessible to all on the basis of merit,"12
Then came this relevant paragraph: "It is quite clear that while the right to
college education is included in the social, economic, and cultural rights, it is
equally manifest that the obligation imposed on the State is not categorical,
the phrase used being 'generally available' and higher education, while being
equally accessible to all should be on the basis of merit.' To that extent,
therefore, there is justification for excluding three of the aforementioned
petitioners because of their marked academic deficiency." 13 It is quite clear
then that an educational institution may drop a student with failing grades,
under standards set by it and made to apply to all similarly situated.
WHEREFORE, the petition for mandamus is granted The restraining order
issued by this Court in the resolution of November 15, 1982 is made
permanent. No costs,
German vs. Barangan [135 SCRA 514 (1985)]
Invoking their constitutional freedom to religious worship and locomotion,
petitioners seek the issuance of [1] a writ of mandamus to compel
respondents to allow them to enter and pray inside St. Jude Chapel located
at J.P. Laurel Street, Manila; and [2] a writ of injunction to enjoin respondents
from preventing them from getting into and praying in said church.
The facts to be considered are the following:
At about 5:00 in the afternoon of October 2, 1984, petitioners, composed of
about 50 businessmen, students and office employees converged at J.P.
Laurel Street, Manila, for the ostensible purpose of hearing Mass at the St.
Jude Chapel which adjoins the Malacañang grounds located in the same
street. Wearing the now familiar inscribed yellow T-shirts, they started to
march down said street with raised clenched fists 1 and shouts of anti-
government invectives. Along the way, however, they were barred by
respondent Major lsabelo Lariosa, upon orders of his superior and co-
respondent Gen. Santiago Barangan, from proceeding any further, on the
ground that St. Jude Chapel was located within the Malacañang security
area. When petitioners' protestations and pleas to allow them to get inside
the church proved unavailing, they decided to leave. However, because of
the alleged warning given them by respondent Major Lariosa that any similar
attempt by petitioners to enter the church in the future would likewise be
prevented, petitioners took this present recourse.
Petitioners' alleged purpose in converging at J.P. Laurel Street was to pray
and hear mass at St. Jude church. At the hearing of this petition,
respondents assured petitioners and the Court that they have never
restricted, and will never restrict, any person or persons from entering and
worshipping at said church. They maintain, however, that petitioners'
intention was not really to perform an act of religious worship, but to conduct
an anti-government demonstration at a place close to the very residence and
offices of the President of the Republic. Respondents further lament
petitioners' attempt to disguise their true motive with a ritual as sacred and
solemn as the Holy Sacrifice of the Mass. Undoubtedly, the yellow T-shirts
worn by some of the marchers, their raised clenched fists, and chants of anti-
government slogans strongly tend to substantiate respondents allegation.
Thus, J.P. Fenix, commenting on the motive of petitioners' mass action of
October 2, 1984, wrote the following in his article entitled "Mission
Impossible", published in the October 12-18, 1984 issue of the "Mr. & Mrs."
magazine:
They couldn't go through Mendiola Bridge, and so they dared to get even
closer to the heart of the matter. But as in Mendiola , the barbed wire
barricades and the array of sheet metal shields got in the way of the
members of the August Twenty-One Movement (ATOM) as they tried last
October 2 to get to the pearly gates of power via the St. Jude Chapel on
Laurel St. St. Jude happens to be a neighbor of President Marcos, his (sic)
chapel being adjacent to Malacañang. ...
The foregoing cannot but cast serious doubts on the sincerity and good faith
of petitioners in invoking the constitutional guarantee of freedom of religious
worship and of locomotion. While it is beyond debate that every citizen has
the undeniable and inviolable right to religious freedom, the exercise thereof,
and of all fundamental rights for that matter, must be done in good faith. As
Article 19 of the Civil Code admonishes: "Every person must in the exercise
of his rights and in the performance of his duties ... observe honesty and
good faith."
Even assuming that petitioners' claim to the free exercise of religion is
genuine and valid, still respondents reaction to the October 2, 1984 mass
action may not be characterized as violative of the freedom of religious
worship. Since 1972, when mobs of demonstrators crashed through the
Malacañang gates and scaled its perimeter fence, the use by the public of
J.P. Laurel Street and the streets approaching it have been restricted. While
travel to and from the affected thoroughfares has not been absolutely
prohibited, passers-by have been subjected to courteous, unobtrusive
security checks. The reasonableness of this restriction is readily perceived
and appreciated if it is considered that the same is designed to protect the
lives of the President and his family, as well as other government officials,
diplomats and foreign guests transacting business with Malacañang. The
need to secure the safety of heads of state and other government officials
cannot be overemphasized. The threat to their lives and safety is constant,
real and felt throughout the world. Vivid illustrations of this grave and serious
problem are the gruesome assassinations, kidnappings and other acts of
violence and terrorism that have been perpetrated against heads of state and
other public officers of foreign nations.
Said restriction is moreover intended to secure the several executive offices
within the Malacañang grounds from possible external attacks and
disturbances. These offices include communications facilities that link the
central government to all places in the land. Unquestionably, the restriction
imposed is necessary to maintain the smooth functioning of the executive
branch of the government, which petitioners' mass action would certainly
disrupt.
Freedom of religious worship is guaranteed under Section 8, Article IV of the
1973 Constitution, thus:
No law shall be made respecting an establishment of 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.
Elucidating on the meaning and scope of freedom of religion, the U.S.
Supreme Court in Cantwell v. Connecticut 2 said:
The constitutional inhibition on legislation on the subject of religion has a
double aspect. On the one hand, it forestalls compulsion by law of the
acceptance of any creed or the practice of any form of worship. Freedom of
conscience and freedom to adhere to such religious organization or form of
worship as the individual may choose cannot be restricted by law. On the
other hand, it safeguards the free exercise of the chosen form of religion.
Thus the amendment embraces two concepts-freedom to believe and
freedom to act. The first is absolute, but in the nature of things, the second
cannot be.
In the case at bar, petitioners are not denied or restrained of their freedom of
belief or choice of their religion, but only in the manner by which they had
attempted to translate the same into action. This curtailment is in accord with
the pronouncement of this Court in Gerona v. Secretary of Education, 3 thus:
The realm of belief and creed is infinite and limitless bounded only by one's
imagination and thought. So is the freedom of belief, including religious
belief, limitless and without bounds. One may believe in most anything,
however strange, bizarre and unreasonable the same may appear to others,
even heretical when weighed in the scales of orthodoxy or doctrinal
standards. But between the freedom of belief and the exercise of said belief,
there is quite a stretch of road to travel. If the exercise of said religious belief
clashes with the established institutions of society and with the law, then the
former must yield and give way to the latter. The government steps in and
either restrains said exercise or even prosecutes the one exercising it.
(Emphasis supplied)
Petitioners likewise invoke their freedom of locomotion under Section 5,
Article IV of the Constitution, which provides:
The liberty of abode and of travel shall not be impaired except upon lawful
order of the court, or when necessary in the interest of national security,
public safety, or public health.
Suffice it to say that the restriction imposed on the use of J.P. Laurel Street,
the wisdom and reasonableness of which have already been discussed, is
allowed under the fundamental law, the same having been established in the
interest of national security.
WHEREFORE, the instant petition is hereby dismissed. No costs.
Acosta vs. CA and CSC (G.R. No. 132088 Jun 28, 2000)
Before us is a petition for review on certiorari which seeks to set aside the
Decision 1 dated August 29, 1997 and Resolution2 dated January 7, 1998 of
the Court of Appeals in CA-G.R. SP No. 39878, affirming the Resolutions3 of
respondent Civil Service Commission (CSC) finding petitioners guilty of
conduct prejudicial to the service and imposing a penalty of six-(6) months
suspension without pay.
Petitioners are teachers from different public schools in Metro Manila. On
various dates in September and October 1990, petitioners did not report for
work and instead, participated in mass actions by public school teachers at
the Liwasang Bonifacio for the purpose of petitioning the government for
redress of their grievances.
On the basis of reports submitted by their respective school principals that
petitioners participated in said mass actions and refused to comply with the
return-to-work order issued September 17, 1990 by then Secretary Isidro D.
Cariño of the Department of Education, Culture and Sports (DECS),
petitioners were administratively charged with such offenses as grave
misconduct, gross neglect of duty, gross violation of civil service law, rules
and regulations and reasonable office regulations, refusal to perform official
duty, gross insubordination, conduct prejudicial to the best interest of the
service and absence without official leave. Petitioners failed to answer these
charges. Following the investigations conducted by the DECS Investigating
Committees, Secretary Cariño found petitioners guilty as charged and
ordered their immediate dismissal from the service.4
Petitioners appealed the orders of Secretary Cariño to the Merit Systems
Protection Board (MSPB) and later to the CSC. In 1995, the CSC modified
the said orders of Secretary Cariño as follows:
WHEREFORE, the Commission hereby finds Everdina Acosta guilty of
Conduct Prejudicial to the Best Interest of the Service. She is hereby meted
out the penalty of six (6) months suspension without pay. Considering the
period of time she was out of service, she is automatically reinstated to her
former position (sic).5
Following the denial of their motion for reconsideration, petitioners
questioned the matter before the Court of Appeals. The appellate court
denied their petition for certiorari and subsequent motion for reconsideration.
Hence, this petition.
Petitioners submit the following issues for our consideration:
RESPONDENT COURT OF APPEALS GRIEVOUSLY ERRED WHEN IT
AFFIRMED THE ASSAILED RESOLUTIONS OF THE CIVIL SERVICE
COMMISSION THAT WRONGLY PENALIZED PETITIONERS WHOSE
ONLY "OFFENSE" WAS TO EXERCISE THEIR CONSITUTIONAL RIGHT
TO PEACEABLY ASSEMBLE AND PETITION THE GOVERNMENT FOR
REDRESS OF GRIEVANCES.
RESPONDENT COURT OF APPEALS GRIEVOUSLY ERRED WHEN IT
AFFIRMED THE ASSAILED RESOLUTIONS OF THE CIVIL SERVICE
COMMISSION THAT WRONGLY DENIED PETITIONERS THEIR RIGHT
TO BACKWAGES.
This petition is not impressed with merit.
Petitioners do not deny their absence from work nor the fact that said
absences were due to their participation in the mass actions at the Liwasang
Bonifacio. However, they contend that their participation in the mass actions
was an exercise of their constitutional rights to peaceably assemble and
petition the government for redress of grievances. Petitioner likewise
maintain that they never went on strike because they never sought to secure
changes or modification of the terms and conditions of their employment.
Petitioners' contentions are without merit. The character and legality of the
mass actions which they participated in have been passed upon by this Court
as early as 1990 in Manila Public School Teachers' Association (MPSTA) v.
Laguio, Jr.6 wherein we ruled that "these 'mass actions' were to all intents
and purposes a strike; they constituted a concerted and unauthorized
stoppage of, or absence from, work which it was the teachers' sworn duty to
perform, undertaken for essentially economic reasons."7 In Bangalisan v.
Court of Appeals, 8 we added that:
It is an undisputed fact that there was a work stoppage and that petitioners'
purpose was to realize their demands by withholding their services. The fact
that the conventional term "strike" was not used by the striking employees to
describe their common course of action is inconsequential, since the
substance of the situation, and not its appearance, will be deemed to be
controlling.
The ability to strike is not essential to the right of association. In the absence
of statute, public employees for not have the right to engaged in concerted
work stoppages for any purpose.
Further, herein petitioners, except Mariano, are being penalized not because
they exercised their right of peaceable assembly and petition for redress of
grievances but because of their successive unauthorized and unilateral
absences which produced adverse effects upon their students for whose
education they are responsible. The actuations of petitioners definitely
constituted conduct prejudicial to the best interest of the service, punishable
under the Civil Service law, rules and regulations.1âwphi1.nêt
As aptly stated by the Solicitor General, "It is not the exercise by the
petitioners of their constitutional right to peaceable assemble that was
punished, but the manner in which they exercised such right which resulted
in the temporary stoppage or disruption of public service and classes in
various public schools in Metro Manila. For, indeed, there are efficient and
non-disruptive avenues, other than the mass actions in question, whereby
petitioners could petition the government for redress of grievances.
It bears stressing that suspension of public services, however temporary, will
inevitably derail services to the public, which is one of the reasons why the
right to strike is denied government employees. It may be conceded that the
petitioners had valid grievances and noble intentions in staging the "mass
action," but that will not justify their absences to the prejudice of innocent
school children. Their righteous indignation does not legalize an illegal work
stoppage.9
In Jacinto v. Court of Appeals, 10 De La Cruz v. Court of Appeals, 11 and
Alipat v. Court of Appeals, 12 we upheld our rulings in MPSTA and
Bangalisan. Considering the factual circumstances of this case and the
doctrine of stare decisis to which we consistently adhere, we find no
compelling reason to deviate from our earlier rulings in these related cases.
Anent the second issue, petitioners invoke our statement in Bangalisan that
payment of salaries corresponding to the period when an employee is not
allowed to work may be decreed if he is found innocent of the charges which
caused his suspension and if his suspension is unjustified. Petitioners cite
CSC Resolution No. 93-162 and contend that the determination of the CSC
therein that not an iota of evidence was given to substantiate the conclusion
that they participated in a "teacher's strike" amounted to a finding that they
were innocent of the charges filed against them.
As a general proposition, a public official is not entitled to any compensation
if he has not rendered any service. 1 While there recognized instances when
backwages may be awarded to a suspended or dismissed public official who
is later ordered reinstated, as pointed by petitioners in citing Bangalisan, the
factual circumstances of the case at bar impel us to rule otherwise.
Petitioners' reliance on CSC Resolution No. 93-162 is misplaced. Said CSC
resolution disposed of the appeals of Fely Ilarina, Adelaida Dela Cruz, Alicia
Galvo, Nenita Albios and Nerissa Abellanda. Petitioners were never parties
to their appeals and, therefore, cannot cite CSC Resolution No. 93-162 in
support of their contention. Petitioner also overlook the fact that although no
evidence was presented to prove that Ilarina, et al. participated in the mass
actions, the CSC explained that the deficiency was cured by their admissions
during the hearings before the MSPB. 14 More importantly, however, herein
petitioners' claim of exoneration is belied by the determination of the CSC
that their participation in the mass actions constituted conduct prejudicial to
the service. Being found liable for a lesser offense is not equivalent to
exoneration. 15
Petitioners also point out that from the issuance of the orders of dismissal by
Secretary Cariño to the modification thereof by the CSC, almost five (5)
years elapsed. Petitioners argue that the period in excess of their preventive
suspension and penalty of six (6) months suspension amounted to unjustified
suspension for which an award of backwages was proper pursuant to our
rulings Bautista v. Peralta 16 and Abellera v. City of Baguio. 17
We disagree. It will be recalled that in Jacinto, we upheld the legality of the
immediate execution of the dismissal orders issued by Secretary Cariño on
the ground that under Section 47(2), 18 Subtitle A, Title I, Book V of
Executive Order No. 292, otherwise known as the Administrative Code of
1987, the decision of a department secretary confirming the dismissal of an
employee under his jurisdiction is executory even pending appeal thereof. 19
Since dismissal orders remain valid and effective until modified or set aside,
the intervening period during which an employee is not permitted to work
cannot be argued as amounting to unjustified suspension. In Gloria v. Court
of Appeals, 20 we further explained that:
Preventive suspension pending investigation, as already discussed, is not a
penalty but only a means of enabling the disciplining authority to conduct an
unhampered investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect subsequently
considered illegal if respondent is exonerated and the administrative with full
pay for the period of the suspension. Thus, §47(4) state that respondent
"shall be considered as under preventive suspension during the pendency of
the appeal in the event he wins." On the other hand, if his conviction is
affirmed, i.e. if he is not exonerated, the period of his suspension becomes
part of the final penalty of suspension or dismissal. 21
Petitioners' reliance on Fabella v. Court of Appeals 22 is likewise unavailing.
In that case, the petitioners therein immediately went to court to seek
injunctive relief against the DECS administrative proceedings on the ground
that they were deprived of due process. The trial court declared the
administrative proceedings void and ordered the payment of backwages to
the petitioners therein. The Court of Appeals then upheld the order of the trial
court. In affirming both the trial and the Court, we stated therein that:
. . . Because the administrative proceedings involved in this case are void, no
delinquency or misconduct may be imputed to private respondents.
Moreover, the suspension or dismissal meted on them is baseless. Private
respondents should, as a consequence, be reinstated and awarded all
monetary benefits that may have accrued to them during the period of their
unjustified suspension or dismissal. . . . 2
On the other hand, in the case at bar, petitioners initially assailed the alleged
non-observance of due process by the DECS Investigating Committees only
upon appeal to the MSPB. Significantly, however, it had been our consistent
ruling that an appeal is curative of any supposed denial of due process. 24
Thus, after full ventilation of their case before the MSPB and CSC, and later
on before the Court of Appeals, petitioner cannot now allege denial of due
process to justify their claim for backwages.
WHEREFORE, the instant petition is DENIED.
SO ORDERED.
Bayan vs. Ermita (G.R. No. 169848, April 25, 2006)
Petitioners come in three groups.
The first petitioners, Bayan, et al., in G.R. No. 169838,1 allege that they are
citizens and taxpayers of the Philippines and that their rights as organizations
and individuals were violated when the rally they participated in on October
6, 2005 was violently dispersed by policemen implementing Batas Pambansa
(B.P.) No. 880.
The second group consists of 26 individual petitioners, Jess del Prado, et al.,
in G.R. No. 169848,2 who allege that they were injured, arrested and
detained when a peaceful mass action they held on September 26, 2005 was
preempted and violently dispersed by the police. They further assert that on
October 5, 2005, a group they participated in marched to Malacañang to
protest issuances of the Palace which, they claim, put the country under an
"undeclared" martial rule, and the protest was likewise dispersed violently
and many among them were arrested and suffered injuries.
The third group, Kilusang Mayo Uno (KMU), et al., petitioners in G.R. No.
169881,3 allege that they conduct peaceful mass actions and that their rights
as organizations and those of their individual members as citizens,
specifically the right to peaceful assembly, are affected by Batas Pambansa
No. 880 and the policy of "Calibrated Preemptive Response" (CPR) being
followed to implement it.
KMU, et al., claim that on October 4, 2005, a rally KMU co-sponsored was to
be conducted at the Mendiola bridge but police blocked them along C.M.
Recto and Lepanto Streets and forcibly dispersed them, causing injuries to
several of their members. They further allege that on October 6, 2005, a
multi-sectoral rally which KMU also co-sponsored was scheduled to proceed
along España Avenue in front of the University of Santo Tomas and going
towards Mendiola bridge. Police officers blocked them along Morayta Street
and prevented them from proceeding further. They were then forcibly
dispersed, causing injuries on one of them.4 Three other rallyists were
arrested.
All petitioners assail Batas Pambansa No. 880, some of them in toto and
others only Sections 4, 5, 6, 12, 13(a), and 14(a), as well as the policy of
CPR. They seek to stop violent dispersals of rallies under the "no permit, no
rally" policy and the CPR policy recently announced.
B.P. No. 880, "The Public Assembly Act of 1985," provides:
Batas Pambansa Blg. 880
An Act Ensuring The Free Exercise By The People Of Their Right Peaceably
To Assemble And Petition The Government [And] For Other Purposes
Be it enacted by the Batasang Pambansa in session assembled:
Section 1. Title. – This Act shall be known as "The Public Assembly Act of
1985."
Sec. 2. Declaration of policy. – The constitutional right of the people
peaceably to assemble and petition the government for redress of grievances
is essential and vital to the strength and stability of the State. To this end, the
State shall ensure the free exercise of such right without prejudice to the
rights of others to life, liberty and equal protection of the law.

Sec. 3. Definition of terms. – For purposes of this Act:
(a) "Public assembly" means any rally, demonstration, march, parade,
procession or any other form of mass or concerted action held in a public
place for the purpose of presenting a lawful cause; or expressing an opinion
to the general public on any particular issue; or protesting or influencing any
state of affairs whether political, economic or social; or petitioning the
government for redress of grievances.
The processions, rallies, parades, demonstrations, public meetings and
assemblages for religious purposes shall be governed by local ordinances;
Provided, however, That the declaration of policy as provided in Section 2 of
this Act shall be faithfully observed.
The definition herein contained shall not include picketing and other
concerted action in strike areas by workers and employees resulting from a
labor dispute as defined by the Labor Code, its implementing rules and
regulations, and by the Batas Pambansa Bilang 227.
(b) "Public place" shall include any highway, boulevard, avenue, road, street,
bridge or other thoroughfare, park, plaza, square, and/or any open space of
public ownership where the people are allowed access.
(c) "Maximum tolerance" means the highest degree of restraint that the
military, police and other peace keeping authorities shall observe during a
public assembly or in the dispersal of the same.
(d) "Modification of a permit" shall include the change of the place and time
of the public assembly, rerouting of the parade or street march, the volume of
loud-speakers or sound system and similar changes.
Sec. 4. Permit when required and when not required. – A written permit shall
be required for any person or persons to organize and hold a public
assembly in a public place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly established by law or
ordinance or in private property, in which case only the consent of the owner
or the one entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall be
subject to the rules and regulations of said educational institution. Political
meetings or rallies held during any election campaign period as provided for
by law are not covered by this Act.
Sec. 5. Application requirements. – All applications for a permit shall comply
with the following guidelines:
(a) The applications shall be in writing and shall include the names of the
leaders or organizers; the purpose of such public assembly; the date, time
and duration thereof, and place or streets to be used for the intended activity;
and the probable number of persons participating, the transport and the
public address systems to be used.
(b) The application shall incorporate the duty and responsibility of the
applicant under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least
five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in
writing, the office of the city or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in the city or municipal
building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue
or grant a permit unless there is clear and convincing evidence that the
public assembly will create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing
which, the permit shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the application for a permit,
said application shall be posted by the applicant on the premises of the office
of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt]
within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt of the same. No
appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-
four (24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next
in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
Sec. 7. Use of Public throroughfare. – Should the proposed public assembly
involve the use, for an appreciable length of time, of any public highway,
boulevard, avenue, road or street, the mayor or any official acting in his
behalf may, to prevent grave public inconvenience, designate the route
thereof which is convenient to the participants or reroute the vehicular traffic
to another direction so that there will be no serious or undue interference with
the free flow of commerce and trade.
Sec. 8. Responsibility of applicant. – It shall be the duty and responsibility of
the leaders and organizers of a public assembly to take all reasonable
measures and steps to the end that the intended public assembly shall be
conducted peacefully in accordance with the terms of the permit. These shall
include but not be limited to the following:
(a) To inform the participants of their responsibility under the permit;|
avvphi|.net
(b) To police the ranks of the demonstrators in order to prevent non-
demonstrators from disrupting the lawful activities of the public assembly;
(c) To confer with local government officials concerned and law enforcers to
the end that the public assembly may be held peacefully;
(d) To see to it that the public assembly undertaken shall not go beyond the
time stated in the permit; and
(e) To take positive steps that demonstrators do not molest any person or do
any act unduly interfering with the rights of other persons not participating in
the public assembly.
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement
agencies shall not interfere with the holding of a public assembly. However,
to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of activity ready
to maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to
assemble and the freedom of expression is primordial. Towards this end, law
enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and units
to which they belong displayed prominently on the front and dorsal parts of
their uniform and must observe the policy of "maximum tolerance" as herein
defined;
(b) The members of the law enforcement contingent shall not carry any kind
of firearms but may be equipped with baton or riot sticks, shields, crash
helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence
or serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with
a permit shall be dispersed. However, when an assembly becomes violent,
the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects
from the participants are thrown at the police or at the non-participants, or at
any property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the
disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of
the public assembly, and after allowing a reasonable period of time to lapse,
shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during
the public assembly unless he violates during the assembly a law, statute,
ordinance or any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;
(e) Isolated acts or incidents of disorder or breach of the peace during the
public assembly shall not constitute a ground for dispersal.
Sec. 12. Dispersal of public assembly without permit. – When the public
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(a) The holding of any public assembly as defined in this Act by any leader or
organizer without having first secured that written permit where a permit is
required from the office concerned, or the use of such permit for such
purposes in any place other than those set out in said permit: Provided,
however, That no person can be punished or held criminally liable for
participating in or attending an otherwise peaceful assembly;
(b) Arbitrary and unjustified denial or modification of a permit in violation of
the provisions of this Act by the mayor or any other official acting in his
behalf;
(c) The unjustified and arbitrary refusal to accept or acknowledge receipt of
the application for a permit by the mayor or any official acting in his behalf;
(d) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
(e) The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(f) Acts in violation of Section 10 hereof;
(g) Acts described hereunder if committed within one hundred (100) meters
from the area of activity of the public assembly or on the occasion thereof:
1. the carrying of a deadly or offensive weapon or device such as firearm,
pillbox, bomb, and the like;
2. the carrying of a bladed weapon and the like;
3. the malicious burning of any object in the streets or thoroughfares;
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public
assembly by the use of a motor vehicle, its horns and loud sound systems.
Sec. 14. Penalties. – Any person found guilty and convicted of any of the
prohibited acts defined in the immediately preceding section shall be
punished as follows:
(a) violation of subparagraph (a) shall be punished by imprisonment of one
month and one day to six months;
(b) violations of subparagraphs (b), (c), (d), (e), (f), and item 4, subparagraph
(g) shall be punished by imprisonment of six months and one day to six
years;
(c) violation of item 1, subparagraph (g) shall be punished by imprisonment
of six months and one day to six years without prejudice to prosecution under
Presidential Decree No. 1866;
(d) violations of item 2, item 3, or item 5 of subparagraph (g) shall be
punished by imprisonment of one day to thirty days.
Sec. 15. Freedom parks. – Every city and municipality in the country shall
within six months after the effectivity of this Act establish or designate at least
one suitable "freedom park" or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of
any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors
shall establish the freedom parks within the period of six months from the
effectivity this Act.
Sec. 16. Constitutionality. – Should any provision of this Act be declared
invalid or unconstitutional, the validity or constitutionality of the other
provisions shall not be affected thereby.
Sec. 17. Repealing clause. – All laws, decrees, letters of instructions,
resolutions, orders, ordinances or parts thereof which are inconsistent with
the provisions of this Act are hereby repealed, amended, or modified
accordingly.
Sec. 18. Effectivity. – This Act shall take effect upon its approval.
Approved, October 22, 1985.

CPR, on the other hand, is a policy set forth in a press release by
Malacañang dated September 21, 2005, shown in Annex "A" to the Petition
in G.R. No. 169848, thus:
Malacañang Official
Manila, Philippines NEWS
Release No. 2 September 21, 2005
STATEMENT OF EXECUTIVE SECRETARY EDUARDO ERMITA
On Unlawful Mass Actions
In view of intelligence reports pointing to credible plans of anti-government
groups to inflame the political situation, sow disorder and incite people
against the duly constituted authorities, we have instructed the PNP as well
as the local government units to strictly enforce a "no permit, no rally" policy,
disperse groups that run afoul of this standard and arrest all persons violating
the laws of the land as well as ordinances on the proper conduct of mass
actions and demonstrations.
The rule of calibrated preemptive response is now in force, in lieu of
maximum tolerance. The authorities will not stand aside while those with ill
intent are herding a witting or unwitting mass of people and inciting them into
actions that are inimical to public order, and the peace of mind of the national
community.
Unlawful mass actions will be dispersed. The majority of law-abiding citizens
have the right to be protected by a vigilant and proactive government.
We appeal to the detractors of the government to engage in lawful and
peaceful conduct befitting of a democratic society.
The President’s call for unity and reconciliation stands, based on the rule of
law.
Petitioners Bayan, et al., contend that Batas Pambansa No. 880 is clearly a
violation of the Constitution and the International Covenant on Civil and
Political Rights and other human rights treaties of which the Philippines is a
signatory.5
They argue that B.P. No. 880 requires a permit before one can stage a public
assembly regardless of the presence or absence of a clear and present
danger. It also curtails the choice of venue and is thus repugnant to the
freedom of expression clause as the time and place of a public assembly
form part of the message for which the expression is sought. Furthermore, it
is not content-neutral as it does not apply to mass actions in support of the
government. The words "lawful cause," "opinion," "protesting or influencing"
suggest the exposition of some cause not espoused by the government.
Also, the phrase "maximum tolerance" shows that the law applies to
assemblies against the government because they are being tolerated. As a
content-based legislation, it cannot pass the strict scrutiny test.
Petitioners Jess del Prado, et al., in turn, argue that B.P. No. 880 is
unconstitutional as it is a curtailment of the right to peacefully assemble and
petition for redress of grievances because it puts a condition for the valid
exercise of that right. It also characterizes public assemblies without a permit
as illegal and penalizes them and allows their dispersal. Thus, its provisions
are not mere regulations but are actually prohibitions.
Furthermore, the law delegates powers to the Mayor without providing clear
standards. The two standards stated in the laws (clear and present danger
and imminent and grave danger) are inconsistent.
Regarding the CPR policy, it is void for being an ultra vires act that alters the
standard of maximum tolerance set forth in B.P. No. 880, aside from being
void for being vague and for lack of publication.
Finally, petitioners KMU, et al., argue that the Constitution sets no limits on
the right to assembly and therefore B.P. No. 880 cannot put the prior
requirement of securing a permit. And even assuming that the legislature can
set limits to this right, the limits provided are unreasonable: First, allowing the
Mayor to deny the permit on clear and convincing evidence of a clear and
present danger is too comprehensive. Second, the five-day requirement to
apply for a permit is too long as certain events require instant public
assembly, otherwise interest on the issue would possibly wane.
As to the CPR policy, they argue that it is preemptive, that the government
takes action even before the rallyists can perform their act, and that no law,
ordinance or executive order supports the policy. Furthermore, it contravenes
the maximum tolerance policy of B.P. No. 880 and violates the Constitution
as it causes a chilling effect on the exercise by the people of the right to
peaceably assemble.
Respondents in G.R. No. 169838 are Eduardo Ermita, as Executive
Secretary, Manila City Mayor Lito Atienza, Chief, of the Philippine National
Police (PNP) Gen. Arturo Lomibao, National Capital Region Police Office
(NCRPO) Chief, PNP Maj. Gen. Vidal Querol, and Manila Police District
(MPD) Chief Gen. Pedro Bulaong.
Respondents in G.R. No. 169848 are Eduardo Ermita as Executive Secretary
and in his personal capacity; Angelo Reyes, as Secretary of the Interior and
Local Governments; Arturo Lomibao, as Chief Vidal Querol, as Chief,
NCRPO; Pedro Bulaong, as Chief, MPD, and all other public officers and
private individuals acting under their control, supervision and instruction.
Respondents in G.R. No. 169881 are the Honorable Executive Secretary,
PNP Director General Arturo Lomibao, the Honorable Mayor Joselito
Atienza, and PNP MPD Chief Pedro Bulaong.
Respondents argue that:
1. Petitioners have no standing because they have not presented evidence
that they had been "injured, arrested or detained because of the CPR," and
that "those arrested stand to be charged with violating Batas Pambansa [No.]
880 and other offenses."
2. Neither B.P. No. 880 nor CPR is void on its face. Petitioners cannot
honestly claim that the time, place and manner regulation embodied in B.P.
No. 880 violates the three-pronged test for such a measure, to wit: (a) B.P.
No. 880 is content-neutral, i.e., it has no reference to content of regulated
speech; (b) B.P. No. 880 is narrowly tailored to serve a significant
governmental interest, i.e., the interest cannot be equally well served by a
means that is less intrusive of free speech interests; and (c) B.P. No. 880
leaves open alternative channels for communication of the information.6
3. B.P. No. 880 is content-neutral as seen from the text of the law. Section 5
requires the statement of the public assembly’s time, place and manner of
conduct. It entails traffic re-routing to prevent grave public inconvenience and
serious or undue interference in the free flow of commerce and trade.
Furthermore, nothing in B.P. No. 880 authorizes the denial of a permit on the
basis of a rally’s program content or the statements of the speakers therein,
except under the constitutional precept of the "clear and present danger
test." The status of B.P. No. 880 as a content-neutral regulation has been
recognized in Osmeña v. Comelec.7
4. Adiong v. Comelec8 held that B.P. No. 880 is a content-neutral regulation
of the time, place and manner of holding public assemblies and the law
passes the test for such regulation, namely, these regulations need only a
substantial governmental interest to support them.
5. Sangalang v. Intermediate Appellate Court9 held that a local chief
executive has the authority to exercise police power to meet "the demands of
the common good in terms of traffic decongestion and public convenience."
Furthermore, the discretion given to the mayor is narrowly circumscribed by
Sections 5 (d), and 6 (a), (b), (c), (d), (e), 13 and 15 of the law.
6. The standards set forth in the law are not inconsistent. "Clear and
convincing evidence that the public assembly will create a clear and present
danger to public order, public safety, public convenience, public morals or
public health" and "imminent and grave danger of a substantive evil" both
express the meaning of the "clear and present danger test."10
7. CPR is simply the responsible and judicious use of means allowed by
existing laws and ordinances to protect public interest and restore public
order. Thus, it is not accurate to call it a new rule but rather it is a more pro-
active and dynamic enforcement of existing laws, regulations and ordinances
to prevent chaos in the streets. It does not replace the rule of maximum
tolerance in B.P. No. 880.
Respondent Mayor Joselito Atienza, for his part, submitted in his Comment
that the petition in G.R. No. 169838 should be dismissed on the ground that
Republic Act No. 7160 gives the Mayor power to deny a permit
independently of B.P. No. 880; that his denials of permits were under the
"clear and present danger" rule as there was a clamor to stop rallies that
disrupt the economy and to protect the lives of other people; that J. B. L.
Reyes v. Bagatsing,11 Primicias v. Fugoso,12 and Jacinto v. CA,13 have
affirmed the constitutionality of requiring a permit; that the permit is for the
use of a public place and not for the exercise of rights; and that B.P. No. 880
is not a content-based regulation because it covers all rallies.
The petitions were ordered consolidated on February 14, 2006. After the
submission of all the Comments, the Court set the cases for oral arguments
on April 4, 2006,14 stating the principal issues, as follows:
1. On the constitutionality of Batas Pambansa No. 880, specifically Sections
4, 5, 6, 12 13(a) and 14(a) thereof, and Republic Act No. 7160:
(a) Are these content-neutral or content-based regulations?
(b) Are they void on grounds of overbreadth or vagueness?
(c) Do they constitute prior restraint?
(d) Are they undue delegations of powers to Mayors?
(e) Do they violate international human rights treaties and the Universal
Declaration of Human Rights?
2. On the constitutionality and legality of the policy of Calibrated Preemptive
Response (CPR):
(a) Is the policy void on its face or due to vagueness?
(b) Is it void for lack of publication?
(c) Is the policy of CPR void as applied to the rallies of September 26 and
October 4, 5 and 6, 2005?
During the course of the oral arguments, the following developments took
place and were approved and/or noted by the Court:
1. Petitioners, in the interest of a speedy resolution of the petitions, withdrew
the portions of their petitions raising factual issues, particularly those raising
the issue of whether B.P. No. 880 and/or CPR is void as applied to the rallies
of September 20, October 4, 5 and 6, 2005.
2. The Solicitor General agreed with the observation of the Chief Justice that
CPR should no longer be used as a legal term inasmuch as, according to
respondents, it was merely a "catchword" intended to clarify what was
thought to be a misunderstanding of the maximum tolerance policy set forth
in B.P. No. 880 and that, as stated in the affidavit executed by Executive
Secretary Eduardo Ermita and submitted to the Ombudsman, it does not
replace B.P. No. 880 and the maximum tolerance policy embodied in that
law.
The Court will now proceed to address the principal issues, taking into
account the foregoing developments.
Petitioners’ standing cannot be seriously challenged. Their right as citizens to
engage in peaceful assembly and exercise the right of petition, as
guaranteed by the Constitution, is directly affected by B.P. No. 880 which
requires a permit for all who would publicly assemble in the nation’s streets
and parks. They have, in fact, purposely engaged in public assemblies
without the required permits to press their claim that no such permit can be
validly required without violating the Constitutional guarantee. Respondents,
on the other hand, have challenged such action as contrary to law and
dispersed the public assemblies held without the permit.
Section 4 of Article III of the Constitution provides:
Sec. 4. 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.
The first point to mark is that the right to peaceably assemble and petition for
redress of grievances is, together with freedom of speech, of expression, and
of the press, a right that enjoys primacy in the realm of constitutional
protection. For these rights constitute the very basis of a functional
democratic polity, without which all the other rights would be meaningless
and unprotected. As stated in Jacinto v. CA,15 the Court, as early as the
onset of this century, in U.S. v. Apurado,16 already upheld the right to
assembly and petition, as follows:
There is no question as to the petitioners’ rights to peaceful assembly to
petition the government for a redress of grievances and, for that matter, to
organize or form associations for purposes not contrary to law, as well as to
engage in peaceful concerted activities. These rights are guaranteed by no
less than the Constitution, particularly Sections 4 and 8 of the Bill of Rights,
Section 2(5) of Article IX, and Section 3 of Article XIII. Jurisprudence
abounds with hallowed pronouncements defending and promoting the
people’s exercise of these rights. As early as the onset of this century, this
Court in U.S. vs. Apurado, already upheld the right to assembly and petition
and even went as far as to acknowledge:
"It is rather to be expected that more or less disorder will mark the public
assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater, the grievance and the more intense the
feeling, the less perfect, as a rule will be the disciplinary control of the
leaders over their irresponsible followers. But if the prosecution be permitted
to seize upon every instance of such disorderly conduct by individual
members of a crowd as an excuse to characterize the assembly as a
seditious and tumultuous rising against the authorities, then the right to
assemble and to petition for redress of grievances would become a delusion
and a snare and the attempt to exercise it on the most righteous occasion
and in the most peaceable manner would expose all those who took part
therein to the severest and most unmerited punishment, if the purposes
which they sought to attain did not happen to be pleasing to the prosecuting
authorities. If instances of disorderly conduct occur on such occasions, the
guilty individuals should be sought out and punished therefor, but the utmost
discretion must be exercised in drawing the line between disorderly and
seditious conduct and between an essentially peaceable assembly and a
tumultuous uprising."
Again, in Primicias v. Fugoso,17 the Court likewise sustained the primacy of
freedom of speech and to assembly and petition over comfort and
convenience in the use of streets and parks.
Next, however, it must be remembered that the right, while sacrosanct, is not
absolute. In Primicias, this Court said:
The right to freedom of speech, and to peacefully assemble and petition the
government for redress of grievances, are fundamental personal rights of the
people recognized and guaranteed by the constitutions of democratic
countries. But it is a settled principle growing out of the nature of well-ordered
civil societies that the exercise of those rights is not absolute for it may be so
regulated that it shall not be injurious to the equal enjoyment of others having
equal rights, nor injurious to the rights of the community or society. The
power to regulate the exercise of such and other constitutional rights is
termed the sovereign "police power," which is the power to prescribe
regulations, to promote the health, morals, peace, education, good order or
safety, and general welfare of the people. This sovereign police power is
exercised by the government through its legislative branch by the enactment
of laws regulating those and other constitutional and civil rights, and it may
be delegated to political subdivisions, such as towns, municipalities and cities
by authorizing their legislative bodies called municipal and city councils to
enact ordinances for the purpose.18
Reyes v. Bagatsing19 further expounded on the right and its limits, as
follows:
1. It is thus clear that the Court is called upon to protect the exercise of the
cognate rights to free speech and peaceful assembly, arising from the denial
of a permit. The Constitution is quite explicit: "No law shall be passed
abridging the freedom of speech, or of the press, or the right of the people
peaceably to assemble and petition the Government for redress of
grievances." Free speech, like free press, may be identified with the liberty to
discuss publicly and truthfully any matter of public concern without
censorship or punishment. There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings
unless there be a "clear and present danger of a substantive evil that [the
State] has a right to prevent." Freedom of assembly connotes the right of the
people to meet peaceably for consultation and discussion of matters of public
concern. It is entitled to be accorded the utmost deference and respect. It is
not to be limited, much less denied, except on a showing, as is the case with
freedom of expression, of a clear and present danger of a substantive evil
that the state has a right to prevent. Even prior to the 1935 Constitution,
Justice Malcolm had occasion to stress that it is a necessary consequence of
our republican institutions and complements the right of free speech. To
paraphrase the opinion of Justice Rutledge, speaking for the majority of the
American Supreme Court in Thomas v. Collins, it was not by accident or
coincidence that the rights to freedom of speech and of the press were
coupled in a single guarantee with the rights of the people peaceably to
assemble and to petition the government for redress of grievances. All these
rights, while not identical, are inseparable. In every case, therefore, where
there is a limitation placed on the exercise of this right, the judiciary is called
upon to examine the effects of the challenged governmental actuation. The
sole justification for a limitation on the exercise of this right, so fundamental
to the maintenance of democratic institutions, is the danger, of a character
both grave and imminent, of a serious evil to public safety, public morals,
public health, or any other legitimate public interest.
2. Nowhere is the rationale that underlies the freedom of expression and
peaceable assembly better expressed than in this excerpt from an opinion of
Justice Frankfurter: "It must never be forgotten, however, that the Bill of
Rights was the child of the Enlightenment. Back of the guaranty of free
speech lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert force and
explosions due to restrictions upon rational modes of communication that the
guaranty of free speech was given a generous scope. But utterance in a
context of violence can lose its significance as an appeal to reason and
become part of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." What was rightfully stressed is the
abandonment of reason, the utterance, whether verbal or printed, being in a
context of violence. It must always be remembered that this right likewise
provides for a safety valve, allowing parties the opportunity to give vent to
their views, even if contrary to the prevailing climate of opinion. For if the
peaceful means of communication cannot be availed of, resort to non-
peaceful means may be the only alternative. Nor is this the sole reason for
the expression of dissent. It means more than just the right to be heard of the
person who feels aggrieved or who is dissatisfied with things as they are. Its
value may lie in the fact that there may be something worth hearing from the
dissenter. That is to ensure a true ferment of ideas. There are, of course,
well-defined limits. What is guaranteed is peaceable assembly. One may not
advocate disorder in the name of protest, much less preach rebellion under
the cloak of dissent. The Constitution frowns on disorder or tumult attending
a rally or assembly. Resort to force is ruled out and outbreaks of violence to
be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v.
Apurado: "It is rather to be expected that more or less disorder will mark the
public assembly of the people to protest against grievances whether real or
imaginary, because on such occasions feeling is always wrought to a high
pitch of excitement, and the greater the grievance and the more intense the
feeling, the less perfect, as a rule, will be the disciplinary control of the
leaders over their irresponsible followers." It bears repeating that for the
constitutional right to be invoked, riotous conduct, injury to property, and acts
of vandalism must be avoided. To give free rein to one’s destructive urges is
to call for condemnation. It is to make a mockery of the high estate occupied
by intellectual liberty in our scheme of values.
There can be no legal objection, absent the existence of a clear and present
danger of a substantive evil, on the choice of Luneta as the place where the
peace rally would start. The Philippines is committed to the view expressed
in the plurality opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO:
"Whenever the title of streets and parks may rest, they have immemorially
been held in trust for the use of the public and, time out of mind, have been
used for purposes of assembly, communicating thoughts between citizens,
and discussing public questions. Such use of the streets and public places
has, from ancient times, been a part of the privileges, immunities, rights and
liberties of citizens. The privilege of a citizen of the United States to use the
streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be
exercised in subordination to the general comfort and convenience, and in
consonance with peace and good order; but must not, in the guise of
regulation, be abridged or denied." The above excerpt was quoted with
approval in Primicias v. Fugoso. Primicias made explicit what was implicit in
Municipality of Cavite v. Rojas, a 1915 decision, where this Court
categorically affirmed that plazas or parks and streets are outside the
commerce of man and thus nullified a contract that leased Plaza Soledad of
plaintiff-municipality. Reference was made to such plaza "being a promenade
for public use," which certainly is not the only purpose that it could serve. To
repeat, there can be no valid reason why a permit should not be granted for
the proposed march and rally starting from a public park that is the Luneta.
4. Neither can there be any valid objection to the use of the streets to the
gates of the US embassy, hardly two blocks away at the Roxas Boulevard.
Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding
that the then Mayor Fugoso of the City of Manila should grant a permit for a
public meeting at Plaza Miranda in Quiapo, this Court categorically declared:
"Our conclusion finds support in the decision in the case of Willis Cox v.
State of New Hampshire, 312 U.S., 569. In that case, the statute of New
Hampshire P.L. chap. 145, section 2, providing that no parade or procession
upon any ground abutting thereon, shall be permitted unless a special
license therefor shall first be obtained from the selectmen of the town or from
licensing committee,’ was construed by the Supreme Court of New
Hampshire as not conferring upon the licensing board unfettered discretion to
refuse to grant the license, and held valid. And the Supreme Court of the
United States, in its decision (1941) penned by Chief Justice Hughes
affirming the judgment of the State Supreme Court, held that ‘a statute
requiring persons using the public streets for a parade or procession to
procure a special license therefor from the local authorities is not an
unconstitutional abridgment of the rights of assembly or of freedom of speech
and press, where, as the statute is construed by the state courts, the
licensing authorities are strictly limited, in the issuance of licenses, to a
consideration of the time, place, and manner of the parade or procession,
with a view to conserving the public convenience and of affording an
opportunity to provide proper policing, and are not invested with arbitrary
discretion to issue or refuse license, * * *. "Nor should the point made by
Chief Justice Hughes in a subsequent portion of the opinion be ignored: "Civil
liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would
be lost in the excesses of unrestricted abuses. The authority of a municipality
to impose regulations in order to assure the safety and convenience of the
people in the use of public highways has never been regarded as
inconsistent with civil liberties but rather as one of the means of safeguarding
the good order upon which they ultimately depend. The control of travel on
the streets of cities is the most familiar illustration of this recognition of social
need. Where a restriction of the use of highways in that relation is designed
to promote the public convenience in the interest of all, it cannot be
disregarded by the attempted exercise of some civil right which in other
circumstances would be entitled to protection."
xxx
6. x x x The principle under American doctrines was given utterance by Chief
Justice Hughes in these words: "The question, if the rights of free speech
and peaceable assembly are to be preserved, is not as to the auspices under
which the meeting is held but as to its purpose; not as to the relations of the
speakers, but whether their utterances transcend the bounds of the freedom
of speech which the Constitution protects." There could be danger to public
peace and safety if such a gathering were marked by turbulence. That would
deprive it of its peaceful character. Even then, only the guilty parties should
be held accountable. It is true that the licensing official, here respondent
Mayor, is not devoid of discretion in determining whether or not a permit
would be granted. It is not, however, unfettered discretion. While prudence
requires that there be a realistic appraisal not of what may possibly occur but
of what may probably occur, given all the relevant circumstances, still the
assumption – especially so where the assembly is scheduled for a specific
public place – is that the permit must be for the assembly being held there.
The exercise of such a right, in the language of Justice Roberts, speaking for
the American Supreme Court, is not to be "abridged on the plea that it may
be exercised in some other place."
xxx
8. By way of a summary. The applicants for a permit to hold an assembly
should inform the licensing authority of the date, the public place where and
the time when it will take place. If it were a private place, only the consent of
the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of
the permit or to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present danger
test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must
be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper judicial authority. Free speech
and peaceable assembly, along with the other intellectual freedoms, are
highly ranked in our scheme of constitutional values. It cannot be too strongly
stressed that on the judiciary, -- even more so than on the other departments
– rests the grave and delicate responsibility of assuring respect for and
deference to such preferred rights. No verbal formula, no sanctifying phrase
can, of course, dispense with what has been so felicitiously termed by
Justice Holmes "as the sovereign prerogative of judgment." Nonetheless, the
presumption must be to incline the weight of the scales of justice on the side
of such rights, enjoying as they do precedence and primacy. x x x.
B.P. No. 880 was enacted after this Court rendered its decision in Reyes.
The provisions of B.P. No. 880 practically codify the ruling in Reyes:
Reyes v. Bagatsing
(G.R. No. L-65366, November 9, 1983,
125 SCRA 553, 569)
8. By way of a summary. The applicants for a permit to hold an assembly
should inform the licensing authority of the date, the public place where and
the time when it will take place. If it were a private place, only the consent of
the owner or the one entitled to its legal possession is required. Such
application should be filed well ahead in time to enable the public official
concerned to appraise whether there may be valid objections to the grant of
the permit or to its grant but at another public place. It is an indispensable
condition to such refusal or modification that the clear and present danger
test be the standard for the decision reached. If he is of the view that there is
such an imminent and grave danger of a substantive evil, the applicants must
be heard on the matter. Thereafter, his decision, whether favorable or
adverse, must be transmitted to them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper judicial authority.
B.P. No. 880
Sec. 4. Permit when required and when not required.-- A written permit shall
be required for any person or persons to organize and hold a public
assembly in a public place. However, no permit shall be required if the public
assembly shall be done or made in a freedom park duly established by law or
ordinance or in private property, in which case only the consent of the owner
or the one entitled to its legal possession is required, or in the campus of a
government-owned and operated educational institution which shall be
subject to the rules and regulations of said educational institution. Political
meetings or rallies held during any election campaign period as provided for
by law are not covered by this Act.
Sec. 5. Application requirements.-- All applications for a permit shall comply
with the following guidelines:
(a) The applications shall be in writing and shall include the names of the
leaders or organizers; the purpose of such public assembly; the date, time
and duration thereof, and place or streets to be used for the intended activity;
and the probable number of persons participating, the transport and the
public address systems to be used.
(b) The application shall incorporate the duty and responsibility of applicant
under Section 8 hereof.
(c) The application shall be filed with the office of the mayor of the city or
municipality in whose jurisdiction the intended activity is to be held, at least
five (5) working days before the scheduled public assembly.
(d) Upon receipt of the application, which must be duly acknowledged in
writing, the office of the city or municipal mayor shall cause the same to
immediately be posted at a conspicuous place in the city or municipal
building.
Sec. 6. Action to be taken on the application. –
(a) It shall be the duty of the mayor or any official acting in his behalf to issue
or grant a permit unless there is clear and convincing evidence that the
public assembly will create a clear and present danger to public order, public
safety, public convenience, public morals or public health.
(b) The mayor or any official acting in his behalf shall act on the application
within two (2) working days from the date the application was filed, failing
which, the permit shall be deemed granted. Should for any reason the mayor
or any official acting in his behalf refuse to accept the application for a permit,
said application shall be posted by the applicant on the premises of the office
of the mayor and shall be deemed to have been filed.
(c) If the mayor is of the view that there is imminent and grave danger of a
substantive evil warranting the denial or modification of the permit, he shall
immediately inform the applicant who must be heard on the matter.
(d) The action on the permit shall be in writing and served on the applica[nt]
within twenty-four hours.
(e) If the mayor or any official acting in his behalf denies the application or
modifies the terms thereof in his permit, the applicant may contest the
decision in an appropriate court of law.
(f) In case suit is brought before the Metropolitan Trial Court, the Municipal
Trial Court, the Municipal Circuit Trial Court, the Regional Trial Court, or the
Intermediate Appellate Court, its decisions may be appealed to the
appropriate court within forty-eight (48) hours after receipt of the same. No
appeal bond and record on appeal shall be required. A decision granting
such permit or modifying it in terms satisfactory to the applicant shall be
immediately executory.
(g) All cases filed in court under this section shall be decided within twenty-
four (24) hours from date of filing. Cases filed hereunder shall be immediately
endorsed to the executive judge for disposition or, in his absence, to the next
in rank.
(h) In all cases, any decision may be appealed to the Supreme Court.
(i) Telegraphic appeals to be followed by formal appeals are hereby allowed.
It is very clear, therefore, that B.P. No. 880 is not an absolute ban of public
assemblies but a restriction that simply regulates the time, place and manner
of the assemblies. This was adverted to in Osmeña v. Comelec,20 where the
Court referred to it as a "content-neutral" regulation of the time, place, and
manner of holding public assemblies.21
A fair and impartial reading of B.P. No. 880 thus readily shows that it refers to
all kinds of public assemblies22 that would use public places. The reference
to "lawful cause" does not make it content-based because assemblies really
have to be for lawful causes, otherwise they would not be "peaceable" and
entitled to protection. Neither are the words "opinion," "protesting" and
"influencing" in the definition of public assembly content based, since they
can refer to any subject. The words "petitioning the government for redress of
grievances" come from the wording of the Constitution, so its use cannot be
avoided. Finally, maximum tolerance is for the protection and benefit of all
rallyists and is independent of the content of the expressions in the rally.
Furthermore, the permit can only be denied on the ground of clear and
present danger to public order, public safety, public convenience, public
morals or public health. This is a recognized exception to the exercise of the
right even under the Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights, thus:
Universal Declaration of Human Rights
Article 20
1. Everyone has the right to freedom of peaceful assembly and association.
xxx
Article 29
1. Everyone has duties to the community in which alone the free and full
development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only
to such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the general
welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the
purposes and principles of the United Nations.
The International Covenant on Civil and Political Rights
Article 19.
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries
with it special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and
are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or
of public health or morals.
Contrary to petitioner’s claim, the law is very clear and is nowhere vague in
its provisions. "Public" does not have to be defined. Its ordinary meaning is
well-known. Webster’s Dictionary defines it, thus:23
public, n, x x x 2a: an organized body of people x x x 3: a group of people
distinguished by common interests or characteristics x x x.
Not every expression of opinion is a public assembly. The law refers to "rally,
demonstration, march, parade, procession or any other form of mass or
concerted action held in a public place." So it does not cover any and all
kinds of gatherings.
Neither is the law overbroad. It regulates the exercise of the right to peaceful
assembly and petition only to the extent needed to avoid a clear and present
danger of the substantive evils Congress has the right to prevent.
There is, likewise, no prior restraint, since the content of the speech is not
relevant to the regulation.
As to the delegation of powers to the mayor, the law provides a precise and
sufficient standard – the clear and present danger test stated in Sec. 6(a).
The reference to "imminent and grave danger of a substantive evil" in Sec.
6(c) substantially means the same thing and is not an inconsistent standard.
As to whether respondent Mayor has the same power independently under
Republic Act No. 716024 is thus not necessary to resolve in these
proceedings, and was not pursued by the parties in their arguments.
Finally, for those who cannot wait, Section 15 of the law provides for an
alternative forum through the creation of freedom parks where no prior permit
is needed for peaceful assembly and petition at any time:
Sec. 15. Freedom parks. – Every city and municipality in the country shall
within six months after the effectivity of this Act establish or designate at least
one suitable "freedom park" or mall in their respective jurisdictions which, as
far as practicable, shall be centrally located within the poblacion where
demonstrations and meetings may be held at any time without the need of
any prior permit.
In the cities and municipalities of Metropolitan Manila, the respective mayors
shall establish the freedom parks within the period of six months from the
effectivity this Act.
This brings up the point, however, of compliance with this provision.
The Solicitor General stated during the oral arguments that, to his
knowledge, only Cebu City has declared a freedom park – Fuente Osmeña.
That of Manila, the Sunken Gardens, has since been converted into a golf
course, he added.
If this is so, the degree of observance of B.P. No. 880’s mandate that every
city and municipality set aside a freedom park within six months from its
effectivity in 1985, or 20 years ago, would be pathetic and regrettable. The
matter appears to have been taken for granted amidst the swell of freedom
that rose from the peaceful revolution of 1986.
Considering that the existence of such freedom parks is an essential part of
the law’s system of regulation of the people’s exercise of their right to
peacefully assemble and petition, the Court is constrained to rule that after
thirty (30) days from the finality of this Decision, no prior permit may be
required for the exercise of such right in any public park or plaza of a city or
municipality until that city or municipality shall have complied with Section 15
of the law. For without such alternative forum, to deny the permit would in
effect be to deny the right. Advance notices should, however, be given to the
authorities to ensure proper coordination and orderly proceedings.
The Court now comes to the matter of the CPR. As stated earlier, the
Solicitor General has conceded that the use of the term should now be
discontinued, since it does not mean anything other than the maximum
tolerance policy set forth in B.P. No. 880. This is stated in the Affidavit of
respondent Executive Secretary Eduardo Ermita, submitted by the Solicitor
General, thus:
14. The truth of the matter is the policy of "calibrated preemptive response" is
in consonance with the legal definition of "maximum tolerance" under Section
3 (c) of B.P. Blg. 880, which is the "highest degree of restraint that the
military, police and other peacekeeping authorities shall observe during a
public assembly or in the dispersal of the same." Unfortunately, however, the
phrase "maximum tolerance" has acquired a different meaning over the
years. Many have taken it to mean inaction on the part of law enforcers even
in the face of mayhem and serious threats to public order. More so, other felt
that they need not bother secure a permit when holding rallies thinking this
would be "tolerated." Clearly, the popular connotation of "maximum
tolerance" has departed from its real essence under B.P. Blg. 880.
15. It should be emphasized that the policy of maximum tolerance is provided
under the same law which requires all pubic assemblies to have a permit,
which allows the dispersal of rallies without a permit, and which recognizes
certain instances when water cannons may be used. This could only mean
that "maximum tolerance" is not in conflict with a "no permit, no rally policy"
or with the dispersal and use of water cannons under certain circumstances
for indeed, the maximum amount of tolerance required is dependent on how
peaceful or unruly a mass action is. Our law enforcers should calibrate their
response based on the circumstances on the ground with the view to
preempting the outbreak of violence.
16. Thus, when I stated that calibrated preemptive response is being
enforced in lieu of maximum tolerance I clearly was not referring to its legal
definition but to the distorted and much abused definition that it has now
acquired. I only wanted to disabuse the minds of the public from the notion
that law enforcers would shirk their responsibility of keeping the peace even
when confronted with dangerously threatening behavior. I wanted to send a
message that we would no longer be lax in enforcing the law but would
henceforth follow it to the letter. Thus I said, "we have instructed the PNP as
well as the local government units to strictly enforce a no permit, no rally
policy . . . arrest all persons violating the laws of the land . . . unlawful mass
actions will be dispersed." None of these is at loggerheads with the letter and
spirit of Batas Pambansa Blg. 880. It is thus absurd for complainants to even
claim that I ordered my co-respondents to violate any law.25
At any rate, the Court rules that in view of the maximum tolerance mandated
by B.P. No. 880, CPR serves no valid purpose if it means the same thing as
maximum tolerance and is illegal if it means something else. Accordingly,
what is to be followed is and should be that mandated by the law itself,
namely, maximum tolerance, which specifically means the following:
Sec. 3. Definition of terms. – For purposes of this Act:
xxx
(c) "Maximum tolerance" means the highest degree of restraint that the
military, police and other peace keeping authorities shall observe during a
public assembly or in the dispersal of the same.
xxx
Sec. 9. Non-interference by law enforcement authorities. – Law enforcement
agencies shall not interfere with the holding of a public assembly. However,
to adequately ensure public safety, a law enforcement contingent under the
command of a responsible police officer may be detailed and stationed in a
place at least one hundred (100) meters away from the area of activity ready
to maintain peace and order at all times.
Sec. 10. Police assistance when requested. – It shall be imperative for law
enforcement agencies, when their assistance is requested by the leaders or
organizers, to perform their duties always mindful that their responsibility to
provide proper protection to those exercising their right peaceably to
assemble and the freedom of expression is primordial.1avvphil.net Towards
this end, law enforcement agencies shall observe the following guidelines:
(a) Members of the law enforcement contingent who deal with the
demonstrators shall be in complete uniform with their nameplates and units
to which they belong displayed prominently on the front and dorsal parts of
their uniform and must observe the policy of "maximum tolerance" as herein
defined;
(b) The members of the law enforcement contingent shall not carry any kind
of firearms but may be equipped with baton or riot sticks, shields, crash
helmets with visor, gas masks, boots or ankle high shoes with shin guards;
(c) Tear gas, smoke grenades, water cannons, or any similar anti-riot device
shall not be used unless the public assembly is attended by actual violence
or serious threats of violence, or deliberate destruction of property.
Sec. 11. Dispersal of public assembly with permit. – No public assembly with
a permit shall be dispersed. However, when an assembly becomes violent,
the police may disperse such public assembly as follows:
(a) At the first sign of impending violence, the ranking officer of the law
enforcement contingent shall call the attention of the leaders of the public
assembly and ask the latter to prevent any possible disturbance;
(b) If actual violence starts to a point where rocks or other harmful objects
from the participants are thrown at the police or at the non-participants, or at
any property causing damage to such property, the ranking officer of the law
enforcement contingent shall audibly warn the participants that if the
disturbance persists, the public assembly will be dispersed;
(c) If the violence or disturbance prevailing as stated in the preceding
subparagraph should not stop or abate, the ranking officer of the law
enforcement contingent shall audibly issue a warning to the participants of
the public assembly, and after allowing a reasonable period of time to lapse,
shall immediately order it to forthwith disperse;
(d) No arrest of any leader, organizer or participant shall also be made during
the public assembly unless he violates during the assembly a law, statute,
ordinance or any provision of this Act. Such arrest shall be governed by
Article 125 of the Revised Penal Code, as amended;
(d) Isolated acts or incidents of disorder or breach of the peace during the
public assembly shall not constitute a ground for dispersal.
xxx
Sec. 12. Dispersal of public assembly without permit. – When the public
assembly is held without a permit where a permit is required, the said public
assembly may be peacefully dispersed.
Sec. 13. Prohibited acts. – The following shall constitute violations of the Act:
(e) Obstructing, impeding, disrupting or otherwise denying the exercise of the
right to peaceful assembly;
(f) The unnecessary firing of firearms by a member of any law enforcement
agency or any person to disperse the public assembly;
(g) Acts described hereunder if committed within one hundred (100) meters
from the area of activity of the public assembly or on the occasion thereof:
xxx
4. the carrying of firearms by members of the law enforcement unit;
5. the interfering with or intentionally disturbing the holding of a public
assembly by the use of a motor vehicle, its horns and loud sound systems.
Furthermore, there is need to address the situation adverted to by petitioners
where mayors do not act on applications for a permit and when the police
demand a permit and the rallyists could not produce one, the rally is
immediately dispersed. In such a situation, as a necessary consequence and
part of maximum tolerance, rallyists who can show the police an application
duly filed on a given date can, after two days from said date, rally in
accordance with their application without the need to show a permit, the
grant of the permit being then presumed under the law, and it will be the
burden of the authorities to show that there has been a denial of the
application, in which case the rally may be peacefully dispersed following the
procedure of maximum tolerance prescribed by the law.
In sum, this Court reiterates its basic policy of upholding the fundamental
rights of our people, especially freedom of expression and freedom of
assembly. In several policy addresses, Chief Justice Artemio V. Panganiban
has repeatedly vowed to uphold the liberty of our people and to nurture their
prosperity. He said that "in cases involving liberty, the scales of justice should
weigh heavily against the government and in favor of the poor, the
oppressed, the marginalized, the dispossessed and the weak. Indeed, laws
and actions that restrict fundamental rights come to the courts with a heavy
presumption against their validity. These laws and actions are subjected to
heightened scrutiny."26
For this reason, the so-called calibrated preemptive response policy has no
place in our legal firmament and must be struck down as a darkness that
shrouds freedom. It merely confuses our people and is used by some police
agents to justify abuses. On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or unduly restrict
freedoms; it merely regulates the use of public places as to the time, place
and manner of assemblies. Far from being insidious, "maximum tolerance" is
for the benefit of rallyists, not the government. The delegation to the mayors
of the power to issue rally "permits" is valid because it is subject to the
constitutionally-sound "clear and present danger" standard.
In this Decision, the Court goes even one step further in safeguarding liberty
by giving local governments a deadline of 30 days within which to designate
specific freedom parks as provided under B.P. No. 880. If, after that period,
no such parks are so identified in accordance with Section 15 of the law, all
public parks and plazas of the municipality or city concerned shall in effect be
deemed freedom parks; no prior permit of whatever kind shall be required to
hold an assembly therein. The only requirement will be written notices to the
police and the mayor’s office to allow proper coordination and orderly
activities.
WHEREFORE, the petitions are GRANTED in part, and respondents, more
particularly the Secretary of the Interior and Local Governments, are
DIRECTED to take all necessary steps for the immediate compliance with
Section 15 of Batas Pambansa No. 880 through the establishment or
designation of at least one suitable freedom park or plaza in every city and
municipality of the country. After thirty (30) days from the finality of this
Decision, subject to the giving of advance notices, no prior permit shall be
required to exercise the right to peaceably assemble and petition in the
public parks or plazas of a city or municipality that has not yet complied with
Section 15 of the law. Furthermore, Calibrated Preemptive Response (CPR),
insofar as it would purport to differ from or be in lieu of maximum tolerance, is
NULL and VOID and respondents are ENJOINED to REFRAIN from using it
and to STRICTLY OBSERVE the requirements of maximum tolerance. The
petitions are DISMISSED in all other respects, and the constitutionality of
Batas Pambansa No. 880 is SUSTAINED.
No costs.
SO ORDERED.
FREEDOM OF INFORMATION
Antolin vs. Domondon (G.R. No. 165036 & 17505, July 5, 2010)
Examinations have a two-fold purpose. First, they are summative;
examinations are intended to assess and record what and how much the
students have learned. Second, and perhaps more importantly, they are
formative; examinations are intended to be part and parcel of the learning
process. In a perfect system, they are tools for learning. In view of the
pedagogical aspect of national examinations, the need for all parties to fully
ventilate their respective positions, and the view that government
transactions can only be improved by public scrutiny, we remand these
cases to the trial court for further proceedings.
Factual Antecedents
Petitioner took the accountancy licensure examinations (the Certified Public
Accountant [CPA] Board Exams) conducted by the Board of Accountancy
(the Board) in October 1997.1 The examination results were released on
October 29, 1997; out of 6,481 examinees, only 1,171 passed. Unfortunately,
petitioner did not make it. When the results were released, she received
failing grades in four out of the seven subjects.2
Subject Petitioner’s Grade
Theory of Accounts 65 %
Business Law 66 %
Management Services 69 %
Auditing Theory82 %
Auditing Problems 70 %
Practical Accounting I 68 %
Practical Accounting II 77 %
Convinced that she deserved to pass the examinations, she wrote to
respondent Abelardo T. Domondon (Domondon), Acting Chairman of the
Board of Accountancy, and requested that her answer sheets be re-
corrected.3 On November 3, 1997, petitioner was shown her answer sheets,
but these consisted merely of shaded marks, so she was unable to
determine why she failed the exam.4 Thus, on November 10, 1997, she
again wrote to the Board to request for copies of (a) the questionnaire in
each of the seven subjects (b) her answer sheets; (c) the answer keys to the
questionnaires, and (d) an explanation of the grading system used in each
subject (collectively, the Examination Papers).5
Acting Chairman Domondon denied petitioner’s request on two grounds: first,
that Section 36, Article III of the Rules and Regulations Governing the
Regulation and Practice of Professionals, as amended by Professional
Regulation Commission (PRC) Resolution No. 332, series of 1994, only
permitted access to the petitioner’s answer sheet (which she had been
shown previously), and that reconsideration of her examination result was
only proper under the grounds stated therein:
Sec. 36 An examinee shall be allowed to have access or to go over his/her
test papers or answer sheets on a date not later than thirty (30) days from
the official release of the results of the examination. Within ten (10) days
from such date, he/she may file his/her request for reconsideration of ratings.
Reconsideration of rating shall be effected only on grounds of mechanical
error in the grading of his/her testpapers or answer sheets, or
malfeasance.6lawph!l
Second, Acting Chairman Domondon clarified that the Board was precluded
from releasing the Examination Papers (other than petitioner’s answer sheet)
by Section 20, Article IV of PRC Resolution No. 338, series of 1994, which
provides:
Sec. 20. Illegal, Immoral, Dishonorable, Unprofessional Acts – The
hereunder acts shall constitute prejudicial, illegal, grossly immoral,
dishonorable, or unprofessional conduct:
A. Providing, getting, receiving, holding, using or reproducing questions
xxxx
3. that have been given in the examination except if the test bank for the
subject has on deposit at least two thousand (2,000) questions.7
After a further exchange of correspondence,8 the Board informed petitioner
that an investigation was conducted into her exam and there was no
mechanical error found in the grading of her test papers.9
Proceedings before the Regional Trial Court
Undeterred, on January 12, 1998, petitioner filed a Petition for Mandamus
with Damages against the Board of Accountancy and its members10 before
the Regional Trial Court (RTC) of Manila. The case was raffled to Branch 33,
and docketed as Civil Case No. 98-86881. The Petition included a prayer for
the issuance of a preliminary mandatory injunction ordering the Board of
Accountancy and its members (the respondents) to furnish petitioner with
copies of the Examination Papers. Petitioner also prayed that final judgment
be issued ordering respondents to furnish petitioner with all documents and
other materials as would enable her to determine whether respondents fairly
administered the examinations and correctly graded petitioner’s performance
therein, and, if warranted, to issue to her a certificate of registration as a
CPA.11
On February 5, 1998, respondents filed their Opposition to the Application for
a Writ of Preliminary Mandatory Injunction, and argued, inter alia, that
petitioner was not entitled to the relief sought, that the respondents did not
have the duty to furnish petitioner with copies of the Examination Papers,
and that petitioner had other plain, speedy, adequate remedy in the ordinary
course of law, namely, recourse to the PRC.12 Respondents also filed their
Answer with Compulsory Counterclaim in the main case, which asked that
the Petition for Mandamus with Damages be dismissed for lack of merit on
the following grounds: (1) petitioner failed to exhaust administrative
remedies; (2) the petition stated no cause of action because there was no
ministerial duty to release the information demanded; and (3) the
constitutional right to information on matters of public concern is subject to
limitations provided by law, including Section 20, Article IV, of PRC
Resolution No. 338, series of 1994.13
On March 3, 1998, petitioner filed an Amended Petition (which was admitted
by the RTC), where she included the following allegation in the body of her
petition:
The allegations in this amended petition are meant only to plead a cause of
action for access to the documents requested, not for re-correction which
petitioner shall assert in the proper forum depending on, among others,
whether she finds sufficient error in the documents to warrant such or any
other relief. None of the allegations in this amended petition, including those
in the following paragraphs, is made to assert a cause of action for re-
correction.14
If only to underscore the fact that she was not asking for a re-checking of her
exam, the following prayer for relief was deleted from the Amended Petition:
"and, if warranted, to issue to her a certificate of registration as a CPA."
On June 23, 1998, respondents filed a Manifestation and Motion to Dismiss
Application for Writ of Preliminary Mandatory Injunction, on the ground that
petitioner had taken and passed the May 1998 CPA Licensure Examination
and had taken her oath as a CPA.15 Petitioner filed her Opposition on July 8,
1998.16 Subsequently, on October 29, 1998, respondents filed their Answer
with Counterclaim to the amended petition. They reiterated their original
allegations and further alleged that there was no cause of action because at
the time the Amended Petition was admitted, they had ceased to be
members of the Board of Accountancy and they were not in possession of
the documents sought by the petitioner.17
Ruling of the Regional Trial Court
In an Order dated October 16, 1998, the trial court granted respondent’s
Motion to Dismiss Petitioner’s Application for a Writ of Preliminary Mandatory
Injunction (not the main case), ruling that the matter had become moot since
petitioner passed the May CPA Licensure 1998 Examination and had already
taken her oath as a CPA.18
Undaunted, petitioner sought and obtained leave to file a Second Amended
Petition for Mandamus with Damages19 where she finally impleaded the
PRC as respondent and included the following plea in her prayer:
WHEREFORE, petitioner respectfully prays that:
xxxx
2. Judgment be issued –
(a) commanding respondents to give petitioner all documents and other
materials as would enable her to determine whether respondents fairly
administered the same examinations and correctly graded petitioner’s
performance therein and, if warranted, to make the appropriate revisions on
the results of her examination. (Emphasis ours)
On June 21, 2002, the trial court dismissed the petition on the ground that
the petition had already become moot, since petitioner managed to pass the
1998 CPA Board examinations.20 Petitioner sought reconsideration21 which
was granted by the trial court in its Omnibus Order22 dated November 11,
2002. The Omnibus Order provides in part:
On the motion for reconsideration filed by the petitioner, the Court is inclined
to reconsider its Order dismissing the petition. The Court agrees with the
petitioner that the passing of the petitioner in the subsequent CPA
examination did not render the petition moot and academic because the relief
"and if warranted, to issue to her a certificate of registration as Certified
Public Accountant" was deleted from the original petition. As regard the issue
of whether the petitioner has the constitutional right to have access to the
questioned documents, the Court would want first the parties to adduce
evidence before it can resolve the issue so that it can make a complete
determination of the rights of the parties.
The Court would also want the Professional Regulation Commission to give
its side of the case the moment it is impleaded as a respondent in the
Second Amended Petition for Mandamus filed by the petitioner which this
Court is inclined to grant.
As to the Motion for Conservatory Measures filed by the petitioner, the Court
denies the same. It is clear that the PRC has in custody the documents being
requested by the petitioner. It has also an adequate facility to preserve and
safeguard the documents. To be sure that the questioned documents are
preserved and safeguarded, the Court will order the PRC to preserve and
safeguard the documents and make them available anytime the Court or
petitioner needs them.
WHEREFORE, the Order of this Court dated June 20, 2002 is reconsidered
and set aside. The Professional Regulation Commission is ordered to
preserve and safeguard the following documents:
a) Questionnaire in each of the seven subjects comprising the Accountancy
Examination of October, 1997;
b) Petitioner’s Answer Sheets; and
c) Answer keys to the questionnaires.
SO ORDERED.23
Respondents filed a motion for reconsideration which was denied.24
Proceedings before the Court of Appeals
The RTC Decisions led to the filing of three separate petitions for certiorari
before the Court of Appeals (CA):
(a) CA-GR SP No. 76498, a petition filed by respondents Domondon,
Gangan, and Josef on April 11, 2003;
(b) CA-GR SP No. 76546, a petition filed by respondent Ibe on April 30,
2003; and
(c) CA-GR SP No. 76545, a petition filed by the Board of Accountancy and
PRC.
It is the first two proceedings that are pending before us. In both cases, the
CA set aside the RTC Decisions and ordered the dismissal of Civil Case No.
98-8681.
Ruling of the Court of Appeals
In its December 11, 2006 Decision25 in CA-GR SP No. 76546, the CA ruled
that the petition has become moot in view of petitioner’s eventual passing of
the 1998 CPA Board Exam. In CA-GR SP No. 76498, the CA found, in a
Decision dated February 16, 2004,26 that (i) Section 20, Article IV of PRC
Resolution No. 338 constituted a valid limitation on petitioner’s right to
information and access to government documents; (ii) the Examination
Documents were not of public concern, because petitioner merely sought
review of her failing marks; (iii) it was not the ministerial or mandatory
function of the respondents to review and reassess the answers to
examination questions of a failing examinee; (iv) the case has become moot,
since petitioner already passed the May 1998 CPA Board Examinations and
took her oath as a CPA; and (v) petitioner failed to exhaust administrative
remedies, because, having failed to secure the desired outcome from the
respondents, she did not elevate the matter to the PRC before seeking
judicial intervention.27
CA-GR SP No. 76498 and CA-GR SP No. 76546 were brought before us by
the petitioner and docketed as G.R. Nos. 165036 and 175705, respectively.
The cases were then consolidated, in view of the similarity of the factual
antecedents and issues, and to avoid the possibility of conflicting decisions
by different divisions of this Court.28
Issues
Before us, petitioner argues that she has a right to obtain copies of the
examination papers so she can determine for herself why and how she failed
and to ensure that the Board properly performed its duties. She argues that
the Constitution29 as well as the Code of Conduct and Ethical Standards for
Public Officials and Employees30 support her right to demand access to the
Examination Papers. Furthermore, she claims that there was no need to
exhaust administrative remedies, since no recourse to the PRC was
available, and only a pure question of law is involved in this case. Finally, she
claims that her demand for access to documents was not rendered moot by
her passing of the 1998 CPA Board Exams.
Our Ruling
Propriety of Writ of Mandamus
At the very outset let us be clear of our ruling. Any claim for re-correction or
revision of her 1997 examination cannot be compelled by mandamus. This
much was made evident by our ruling in Agustin-Ramos v. Sandoval,31
where we stated:
After deliberating on the petition in relation to the other pleadings filed in the
proceedings at bar, the Court resolved to DENY said petition for lack of merit.
The petition at bar prays for the setting aside of the Order of respondent
Judge dismissing petitioners’ mandamus action to compel the other
respondents (Medical Board of Examiners and the Professional Regulation
Commission) "to reconsider, recorrect and/or rectify the board ratings of the
petitioners from their present failing grades to higher or passing marks." The
function of reviewing and re-assessing the petitioners’ answers to the
examination questions, in the light of the facts and arguments presented by
them x x x is a discretionary function of the Medical Board, not a ministerial
and mandatory one, hence, not within the scope of the writ of mandamus.
The obvious remedy of the petitioners from the adverse judgment by the
Medical Board of Examiners was an appeal to the Professional Regulation
Commission itself, and thence to the Court of Appeals; and since they did not
apply for relief to the Commission prior to their institution of the special civil
action of mandamus in the Regional Trial Court, the omission was fatal to the
action under the familiar doctrine requiring exhaustion of administrative
remedies. Apart from the obvious undesirability of a procedure which would
allow Courts to substitute their judgment for that of Government boards in the
determination of successful examinees in any administered examination – an
area in which courts have no expertise – and the circumstance that the law
declares the Court of Appeals to be the appropriate review Court, the
Regional Trial Court was quite correct in refusing to take cognizance of an
action seeking reversal of the quasi-judicial action taken by the Medical
Board of Examiners.32 (Emphasis ours)
For a writ of mandamus to issue, the applicant must have a well-defined,
clear, and certain legal right to the thing demanded. The corresponding duty
of the respondent to perform the required act must be equally clear.33 No
such clarity exists here; neither does petitioner’s right to demand a revision of
her examination results. And despite petitioner’s assertions that she has not
made any demand for re-correction, the most cursory perusal of her Second
Amended Petition and her prayer that the respondents "make the appropriate
revisions on the results of her examination" belies this claim.
Like the claimants in Agustin, the remedy of petitioner from the refusal of the
Board to release the Examination Papers should have been through an
appeal to the PRC. Undoubtedly, petitioner had an adequate remedy from
the Board’s refusal to provide her with copies of the Examination Papers.
Under Section 5(a) of Presidential Decree No. 223,34 the PRC has the
power to promulgate rules and regulations to implement policies for the
regulation of the accounting profession.35 In fact, it is one such regulation
(PRC Resolution No. 338) that is at issue in this case. In addition, under
Section 5(c), the PRC has the power to
review, coordinate, integrate and approve the policies, resolutions, rules and
regulations, orders or decisions promulgated by the various Boards with
respect to the profession or occupation under their jurisdictions including the
results of their licensure examinations but their decisions on administrative
cases shall be final and executory unless appealed to the Commission within
thirty (30) days from the date of promulgation thereof.
Petitioner posits that no remedy was available because the PRC’s power to
"review" and "approve" in Section 5(c) only refers to appeals in decisions
concerning administrative investigations36 and not to instances where
documents are being requested. Not only is this position myopic and self-
serving, it is bereft of either statutory or jurisprudential basis. The PRC’s
quasi-legislative and enforcement powers, encompassing its authority to
review and approve "policies, resolutions, rules and regulations, orders, or
decisions" cover more than administrative investigations conducted pursuant
to its quasi-judicial powers.37 More significantly, since the PRC itself issued
the resolution questioned by the petitioner here, it was in the best position to
resolve questions addressed to its area of expertise. Indeed, petitioner could
have saved herself a great deal of time and effort had she given the PRC the
opportunity to rectify any purported errors committed by the Board.
One of the reasons for exhaustion of administrative remedies is our well-
entrenched doctrine on separation of powers, which enjoins upon the
Judiciary a becoming policy of non-interference with matters falling primarily
(albeit not exclusively) within the competence of other departments.38
Courts, for reasons of law, comity and convenience, should not entertain
suits unless the available administrative remedies have first been resorted to
and the proper authorities have been given an appropriate opportunity to act
and correct their alleged errors, if any, committed in the administrative forum.
39
However, the principle of exhaustion of administrative remedies is subject to
exceptions, among which is when only a question of law is involved.40 This
is because issues of law – such as whether petitioner has a constitutional
right to demand access to the Examination Papers - cannot be resolved with
finality by the administrative officer.41
Issues of Mootness
We now turn to the question of whether the petition has become moot in view
of petitioner’s having passed the 1998 CPA examination. An issue becomes
moot and academic when it ceases to present a justiciable controversy, so
that a declaration on the issue would be of no practical use or value.42
In this jurisdiction, any citizen may challenge any attempt to obstruct the
exercise of his or her right to information and may seek its enforcement by
mandamus.43 And since every citizen possesses the inherent right to be
informed by the mere fact of citizenship,44 we find that petitioner’s belated
passing of the CPA Board Exams does not automatically mean that her
interest in the Examination Papers has become mere superfluity.
Undoubtedly, the constitutional question presented, in view of the likelihood
that the issues in this case will be repeated, warrants review.45
The crux of this case is whether petitioner may compel access to the
Examination Documents through mandamus. As always, our inquiry must
begin with the Constitution. Section 7, Article III provides:
Sec.7. 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 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.
Together with the guarantee of the right to information, Section 28, Article II
promotes full disclosure and transparency in government, viz:
Sec. 28. Subject to reasonable conditions prescribed by law, the State
adopts and implements a policy of full public disclosure of all its transactions
involving public interest.
Like all the constitutional guarantees, the right to information is not absolute.
The people's right to information is limited to "matters of public concern," and
is further "subject to such limitations as may be provided by law." Similarly,
the State's policy of full disclosure is limited to "transactions involving public
interest," and is "subject to reasonable conditions prescribed by law". The
Court has always grappled with the meanings of the terms "public interest"
and "public concern." As observed in Legaspi v. Civil Service Commission:46
In determining whether x x x a particular information is of public concern
there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the
courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
We have also recognized the need to preserve a measure of confidentiality
on some matters, such as national security, trade secrets and banking
transactions, criminal matters, and other confidential matters.47
We are prepared to concede that national board examinations such as the
CPA Board Exams are matters of public concern. The populace in general,
and the examinees in particular, would understandably be interested in the
fair and competent administration of these exams in order to ensure that only
those qualified are admitted into the accounting profession. And as with all
matters pedagogical, these examinations could be not merely quantitative
means of assessment, but also means to further improve the teaching and
learning of the art and science of accounting.
On the other hand, we do realize that there may be valid reasons to limit
access to the Examination Papers in order to properly administer the exam.
More than the mere convenience of the examiner, it may well be that there
exist inherent difficulties in the preparation, generation, encoding,
administration, and checking of these multiple choice exams that require that
the questions and answers remain confidential for a limited duration.
However, the PRC is not a party to these proceedings. They have not been
given an opportunity to explain the reasons behind their regulations or
articulate the justification for keeping the Examination Documents
confidential. In view of the far-reaching implications of this case, which may
impact on every board examination administered by the PRC, and in order
that all relevant issues may be ventilated, we deem it best to remand these
cases to the RTC for further proceedings.
IN VIEW OF THE FOREGOING, the petitions are GRANTED. The December
11, 2006 and February 16, 2004 Decisions of the Court of Appeals in CA-GR
SP No. 76546 and CA-GR SP No. 76498, respectively, are hereby SET
ASIDE. The November 11, 2002 and January 30, 2003 Orders of the
Regional Trial Court of Manila, Branch 33, in Civil Case No. 98-86881 are
AFFIRMED. The case is remanded to the Regional Trial Court for further
proceedings.
SO ORDERED.
Baldoza vs. Dimaano [71 SCRA 14 (1976)]
In a verified letter-complaint dated September 9, 1975, the Municipal
Secretary of Taal, Batangas, charges Municipal Judge Rodolfo B. Dimaano,
of the same municipality, with abuse of authority in refusing to allow
employees of the Municipal Mayor to examine the criminal docket records of
the Municipal Court to secure data in connection with their contemplated
report on the peace and order conditions of the said municipality.
Respondent, in answer to the complaint, stated that there has never been an
intention to refuse access to official court records; that although court records
are among public documents open to inspection not only by the parties
directly involved but also by other persons who have legitimate interest to
such inspection, yet the same is always subject to reasonable regulation as
to who, when, where and how they may be inspected. He further asserted
that a court has unquestionably the power to prevent an improper use or
inspection of its records and the furnishing of copies therefrom may be
refused where the person requesting is not motivated by a serious and
legitimate interest but acts out of whim or fancy or mere curiosity or to gratify
private spite or to promote public scandal.
In his answer, the respondent significantly observed:
Restrictions are imposed by the Court for fear of an abuse in the exercise of
the right. For fear that the dirty hands of partisan politics might again be at
play, Some of the cases filed and decided by the Court after the declaration
of Martial Law and years after the election still bore the stigma of partisan
politics as shown in the affidavits and testimonies of witnesses.
Without casting aspersion on any particular individual, it is worth mentioning,
that the padlocks of the door of the Court has recently been tampered by
inserting papers and matchsticks.
Under the circumstances, to allow an indiscriminate and unlimited exercise of
the right to free access, might do more harm than good to the citizenry of
Taal. Disorder and chaos might result defeating the very essence of their
request. The undersigned is just as interested as Mr. Baldoza in the welfare
of the community and the preservation of our democratic principles.
Be that as it may, a request of this magnitude cannot be immediately granted
without adequate deliberation and upon advisement, especially so in this
case where the undersigned doubts the propriety of such request. Hence, it
is believed that authority should first be secured from the Supreme Court,
through the Executive Judge, for the formulation of guidelines and policies on
this matter.
The case was thereupon referred to Judge Francisco Mat. Riodique for
investigation and report. At the preliminary hearing on October 16, 1975,
Taal Mayor Corazon A. Caniza filed a motion to dismiss the complaint to
preserve harmony and (cooperation among officers in the same municipality.
This motion was denied by the Investigating Judge, but after formal
investigation, he recommended the exoneration of respondent. Pertinent
portion of his report reads as follows:
* * * When this case was heard, complainant Dominador Baldoza informed
the Court that he is aware of the motion to dismiss filed by Mayor Corazon A.
Caniza and that he is in conformity with the dismissal of the administrative
charge against Judge Rodolfo Dimaano. The Court asked him if he could
prove his case and he said he can. So, the Court denied his oral motion to
dismiss and required him to present his evidence. Complainant only
manifested to the Court that he has no oral evidence. The only evidence he
has are the exchanged communication which were all in writing and attached
to the record between him and the respondent. The Court asked the
respondent what he has to say on the documentary evidence of the
complainant. He manifested that all his answers to the complaint are all
embodied in his answers filed with the Court.
A careful perusal, scrutiny, and study of the communications between the
complainant and the respondent, together with the answers filed by the latter,
reveal that there is no showing of abuse of authority on the part of the
respondent. The respondent allowed the complainant to open and view the
docket books of the respondent under certain conditions and under his
control and supervision. Complainant admitted that he was aware of the rules
and conditions imposed by the respondent when he went to his office to view
his docket books for the purpose mentioned in his communication. He also
agreed that he is amenable to such rules and conditions which the
respondent may impose. Under these conditions, therefore, the Court finds
that the respondent has not committed any abuse of authority.
The complainant was warned to be more cautious in filing any administrative
charge against any public official especially, members of the judiciary,
considering that an administrative charge against a member of the judiciary
may expose the latter to public ridicule and scandal thereby minimizing if not
eradicating public trust and
After a careful evaluation of the recommendation, We find that the
respondent did not act arbitrarily in the premises. As found by the
Investigating Judge, the respondent allowed the complainant to open and
view the docket books of respondent certain conditions and under his control
and supervision. it has not been shown that the rules and conditions imposed
by the respondent were unreasonable. The access to public records
predicated on the right of the people to acquire information on matters of
public concern. Undoubtedly in a democracy, the public has a legitimate
interest in matters of social and political significance. In an earlier case, 1 this
Court held that mandamus would lie to compel the Secretary of Justice and
the Register of Deeds to examine the records of the latter office. Predicating
the right to examine the records on statutory provisions, and to a certain
degree by general principles of democratic institutions, this Court stated that
while the Register of Deeds has discretion to exercise as to the manner in
which persons desiring to inspect, examine or copy the records in his office
may exercise their rights, such power does not carry with it authority to
prohibit. Citing with approval People ex rel. Title Guarantee & T. Co. vs.
Railly, 2 this Court said:
The subject is necessarily committed, to a great degree, 'to his (register of
deeds') discretion as to how much of the conveniences of the office are
required to be preserved for the accomodation of these persons. It is not his
duty to permit the office to be thronged needlessly with persons examining its
books of papers, but it is his duty to regulate, govern, and control his office in
such a manner as to permit the statutory advantages to be enjoyed by other
persons not employed by him as largely and extensibly as that consistently
can be done * * *. What the law expects and requires from him is the
exercise of an unbiased and impartial judgment, by which all persons
resorting to the office, under legal authority, and conducting themselves in an
orderly manner, shall be secured their lawful rights and privileges, and that a
corporation formed in the manner in which the relator has been, shall be
permitted to obtain all the information either by searches, abstracts, or
copies, that the law has entitled it to obtain.
Except, perhaps, when it is clear that the purpose of the examination is
unlawful, or sheer, Idle curiosity, we do not believe it is the duty under the
law of registration officers to concern themselves with the motives, reasons,
and objects of the person seeking access to the records. It is not their
prerogative to see that the information which the records contain is not
flaunted before public gaze, or that scandal is not made of it. If it be wrong to
publish the contents of the records, it is the legislature and not the officials
having custody thereof which is called upon to devise a remedy. As to the
moral or material injury which the publication might inflict on other parties,
that is the publisher's responsibility and lookout. The publication is made
subject to the consequences of the law.
The concurring opinion of Justice Briones predicated such right not on
statutory grounds merely but on the constitutional right of the press to have
access to information as the essence of press freedom. 3
The New Constitution now expressly recognizes that the people are entitled
to information on matters of public concern and thus are expressly granted
access to official records, as well as documents of official acts, or
transactions, or decisions, subject to such limitations imposed by law. 4 The
incorporation of this right in the Constitution is a recognition of the
fundamental role of free exchange of information in a democracy. There can
be no realistic perception by the public of the nation's problems, nor a
meaningful democratic decision making if they are denied access to
information of general interest. Information is needed to enable the members
of society to cope with the exigencies of the times. As has been aptly
observed: "Maintaining the flow of such information depends on protection for
both its acquisition and its dissemination since, if either process is
interrupted, the flow inevitably ceases. " 5 However, restrictions on access to
certain records may be imposed by law. Thus, access restrictions imposed to
control civil insurrection have been permitted upon a showing of immediate
and impending danger that renders ordinary means of control inadequate to
maintain order. 6
WHEREFORE, the case against respondent is hereby dismissed.
Tanada vs. Tuvera (G.R. No. L-63915, April 24, 1985; G.R. No. L-63915
December 29, 1986)
Invoking the people's right to be informed on matters of public concern, a
right recognized in Section 6, Article IV of the 1973 Philippine Constitution, 1
as well as the principle that laws to be valid and enforceable must be
published in the Official Gazette or otherwise effectively promulgated,
petitioners seek a writ of mandamus to compel respondent public officials to
publish, and/or cause the publication in the Official Gazette of various
presidential decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197,
200, 234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360,
361, 368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521,
528, 551, 566, 573, 574, 594, 599, 644, 658, 661, 718, 731, 733, 793, 800,
802, 835, 836, 923, 935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143,
1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644, 1772, 1808, 1810,
1813-1817, 1819-1826, 1829-1840, 1842-1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141,
150, 153, 155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209,
211-213, 215-224, 226-228, 231-239, 241-245, 248, 251, 253-261, 263-269,
271-273, 275-283, 285-289, 291, 293, 297-299, 301-303, 309, 312-315, 325,
327, 343, 346, 349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397, 405,
438-440, 444- 445, 473, 486, 488, 498, 501, 399, 527, 561, 576, 587, 594,
599, 600, 602, 609, 610, 611, 612, 615, 641, 642, 665, 702, 712-713, 726,
837-839, 878-879, 881, 882, 939-940, 964,997,1149-1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-
1526, 1529, 1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-
1595, 1594-1600, 1606-1609, 1612-1628, 1630-1649, 1694-1695, 1697-
1701, 1705-1723, 1731-1734, 1737-1742, 1744, 1746-1751, 1752, 1754,
1762, 1764-1787, 1789-1795, 1797, 1800, 1802-1804, 1806-1807, 1812-
1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840, 1843-
1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870, 1876-1889,
1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984, 1986-
2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492,
494-507, 509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553,
560, 563, 567-568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677,
679-703, 705-707, 712-786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59,
76, 80-81, 92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-
439.
The respondents, through the Solicitor General, would have this case
dismissed outright on the ground that petitioners have no legal personality or
standing to bring the instant petition. The view is submitted that in the
absence of any showing that petitioners are personally and directly affected
or prejudiced by the alleged non-publication of the presidential issuances in
question 2 said petitioners are without the requisite legal personality to
institute this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court, which we
quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board or
person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use a rd enjoyment of a right or office to
which such other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the facts with certainty
and praying that judgment be rendered commanding the defendant,
immediately or at some other specified time, to do the act required to be
done to Protect the rights of the petitioner, and to pay the damages sustained
by the petitioner by reason of the wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the subject of the
petition concerns a public right and its object is to compel the performance of
a public duty, they need not show any specific interest for their petition to be
given due course.
The issue posed is not one of first impression. As early as the 1910 case of
Severino vs. Governor General, 3 this Court held that while the general rule
is that "a writ of mandamus would be granted to a private individual only in
those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that
which he holds with the public at large," and "it is for the public officers
exclusively to apply for the writ when public rights are to be subserved
[Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is
one of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real party in
interest and the relator at whose instigation the proceedings are instituted
need not show that he has any legal or special interest in the result, it being
sufficient to show that he is a citizen and as such interested in the execution
of the laws [High, Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private
individual, as a proper party to the mandamus proceedings brought to
compel the Governor General to call a special election for the position of
municipal president in the town of Silay, Negros Occidental. Speaking for this
Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the
proposition that the relator is a proper party to proceedings of this character
when a public right is sought to be enforced. If the general rule in America
were otherwise, we think that it would not be applicable to the case at bar for
the reason 'that it is always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule, because, if under the
particular circumstances the reason for the rule does not exist, the rule itself
is not applicable and reliance upon the rule may well lead to error'
No reason exists in the case at bar for applying the general rule insisted
upon by counsel for the respondent. The circumstances which surround this
case are different from those in the United States, inasmuch as if the relator
is not a proper party to these proceedings no other person could be, as we
have seen that it is not the duty of the law officer of the Government to
appear and represent the people in cases of this character.
The reasons given by the Court in recognizing a private citizen's legal
personality in the aforementioned case apply squarely to the present petition.
Clearly, the right sought to be enforced by petitioners herein is a public right
recognized by no less than the fundamental law of the land. If petitioners
were not allowed to institute this proceeding, it would indeed be difficult to
conceive of any other person to initiate the same, considering that the
Solicitor General, the government officer generally empowered to represent
the people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official Gazette is not a
sine qua non requirement for the effectivity of laws where the laws
themselves provide for their own effectivity dates. It is thus submitted that
since the presidential issuances in question contain special provisions as to
the date they are to take effect, publication in the Official Gazette is not
indispensable for their effectivity. The point stressed is anchored on Article 2
of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of
their publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's
construction of said article. In a long line of decisions,4 this Court has ruled
that publication in the Official Gazette is necessary in those cases where the
legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the
fifteenth day following its publication-but not when the law itself provides for
the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it
equates the effectivity of laws with the fact of publication. Considered in the
light of other statutes applicable to the issue at hand, the conclusion is easily
reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its
effectivity. Thus, Section 1 of Commonwealth Act 638 provides as follows:

Section 1. There shall be published in the Official Gazette [1] all important
legisiative acts and resolutions of a public nature of the, Congress of the
Philippines; [2] all executive and administrative orders and proclamations,
except such as have no general applicability; [3] decisions or abstracts of
decisions of the Supreme Court and the Court of Appeals as may be deemed
by said courts of sufficient importance to be so published; [4] such
documents or classes of documents as may be required so to be published
by law; and [5] such documents or classes of documents as the President of
the Philippines shall determine from time to time to have general applicability
and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public
adequate notice of the various laws which are to regulate their actions and
conduct as citizens. Without such notice and publication, there would be no
basis for the application of the maxim "ignorantia legis non excusat." It would
be the height of injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not even a
constructive one.
Perhaps at no time since the establishment of the Philippine Republic has
the publication of laws taken so vital significance that at this time when the
people have bestowed upon the President a power heretofore enjoyed solely
by the legislature. While the people are kept abreast by the mass media of
the debates and deliberations in the Batasan Pambansa—and for the diligent
ones, ready access to the legislative records—no such publicity
accompanies the law-making process of the President. Thus, without
publication, the people have no means of knowing what presidential decrees
have actually been promulgated, much less a definite way of informing
themselves of the specific contents and texts of such decrees. As the
Supreme Court of Spain ruled: "Bajo la denominacion generica de leyes, se
comprenden tambien los reglamentos, Reales decretos, Instrucciones,
Circulares y Reales ordines dictadas de conformidad con las mismas por el
Gobierno en uso de su potestad.5
The very first clause of Section I of Commonwealth Act 638 reads: "There
shall be published in the Official Gazette ... ." The word "shall" used therein
imposes upon respondent officials an imperative duty. That duty must be
enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a
list of what should be published in the Official Gazette. Such listing, to our
mind, leaves respondents with no discretion whatsoever as to what must be
included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general
applicability" is mandated by law. Obviously, presidential decrees that
provide for fines, forfeitures or penalties for their violation or otherwise
impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to
particular persons or class of persons such as administrative and executive
orders need not be published on the assumption that they have been
circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public
nature" or "of general applicability" is a requirement of due process. It is a
rule of law that before a person may be bound by law, he must first be
officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of instructions which all
form part of the law of the land, the requirement of due process and the Rule
of Law demand that the Official Gazette as the official government repository
promulgate and publish the texts of all such decrees, orders and instructions
so that the people may know where to obtain their official and specific
contents.
The Court therefore declares that presidential issuances of general
application, which have not been published, shall have no force and effect.
Some members of the Court, quite apprehensive about the possible
unsettling effect this decision might have on acts done in reliance of the
validity of those presidential decrees which were published only during the
pendency of this petition, have put the question as to whether the Court's
declaration of invalidity apply to P.D.s which had been enforced or
implemented prior to their publication. The answer is all too familiar. In similar
situations in the past this Court had taken the pragmatic and realistic course
set forth in Chicot County Drainage District vs. Baxter Bank 8 to wit:
The courts below have proceeded on the theory that the Act of Congress,
having been found to be unconstitutional, was not a law; that it was
inoperative, conferring no rights and imposing no duties, and hence affording
no basis for the challenged decree. Norton v. Shelby County, 118 U.S. 425,
442; Chicago, 1. & L. Ry. Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a determination of
unconstitutionality must be taken with qualifications. The actual existence of
a statute, prior to such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be
erased by a new judicial declaration. The effect of the subsequent ruling as
to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have
become vested, of status, of prior determinations deemed to have finality and
acted upon accordingly, of public policy in the light of the nature both of the
statute and of its previous application, demand examination. These questions
are among the most difficult of those which have engaged the attention of
courts, state and federal and it is manifest from numerous decisions that an
all-inclusive statement of a principle of absolute retroactive invalidity cannot
be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban 9
sustained the right of a party under the Moratorium Law, albeit said right had
accrued in his favor before said law was declared unconstitutional by this
Court.
Similarly, the implementation/enforcement of presidential decrees prior to
their publication in the Official Gazette is "an operative fact which may have
consequences which cannot be justly ignored. The past cannot always be
erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that
of the presidential decrees sought by petitioners to be published in the
Official Gazette, only Presidential Decrees Nos. 1019 to 1030, inclusive,
1278, and 1937 to 1939, inclusive, have not been so published. 10 Neither
the subject matters nor the texts of these PDs can be ascertained since no
copies thereof are available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever been implemented
or enforced by the government. In Pesigan vs. Angeles, 11 the Court,
through Justice Ramon Aquino, ruled that "publication is necessary to
apprise the public of the contents of [penal] regulations and make the said
penalties binding on the persons affected thereby. " The cogency of this
holding is apparently recognized by respondent officials considering the
manifestation in their comment that "the government, as a matter of policy,
refrains from prosecuting violations of criminal laws until the same shall have
been published in the Official Gazette or in some other publication, even
though some criminal laws provide that they shall take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official
Gazette all unpublished presidential issuances which are of general
application, and unless so published, they shall have no binding force and
effect.
SO ORDERED.
Valmonte vs. Belmonte [170 SCRA 256 (1989)]
Petitioners in this special civil action for mandamus with preliminary
injunction invoke their right to information and pray that respondent be
directed:
(a) to furnish petitioners the list of the names of the Batasang Pambansa
members belonging to the UNIDO and PDP-Laban who were able to secure
clean loans immediately before the February 7 election thru the intercession/
marginal note of the then First Lady Imelda Marcos; and/or
(b) to furnish petitioners with certified true copies of the documents
evidencing their respective loans; and/or
(c) to allow petitioners access to the public records for the subject
information. (Petition, pp. 4-5; paragraphing supplied.]
The controversy arose when petitioner Valmonte wrote respondent Belmonte
the following letter:
June 4, 1986
Hon. Feliciano Belmonte
GSIS General Manager
Arroceros, Manila
Sir:
As a lawyer, member of the media and plain citizen of our Republic, I am
requesting that I be furnished with the list of names of the opposition
members of (the) Batasang Pambansa who were able to secure a clean loan
of P2 million each on guarranty (sic) of Mrs. Imelda Marcos. We understand
that OIC Mel Lopez of Manila was one of those aforesaid MPs. Likewise,
may we be furnished with the certified true copies of the documents
evidencing their loan. Expenses in connection herewith shall be borne by us.
If we could not secure the above documents could we have access to them?
We are premising the above request on the following provision of the
Freedom Constitution of the present regime.
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, shall be afforded the
citizen subject to such limitation as may be provided by law. (Art. IV, Sec. 6).
We trust that within five (5) days from receipt hereof we will receive your
favorable response on the matter.
Very truly yours,
(Sgd.) RICARDO C. VALMONTE
[Rollo, p. 7.]
To the aforesaid letter, the Deputy General Counsel of the GSIS replied:
June 17, 1986
Atty. Ricardo C. Valmonte
108 E. Benin Street
Caloocan City
Dear Compañero:
Possibly because he must have thought that it contained serious legal
implications, President & General Manager Feliciano Belmonte, Jr. referred
to me for study and reply your letter to him of June 4, 1986 requesting a list
of the opposition members of Batasang Pambansa who were able to secure
a clean loan of P2 million each on guaranty of Mrs. Imelda Marcos.
My opinion in this regard is that a confidential relationship exists between the
GSIS and all those who borrow from it, whoever they may be; that the GSIS
has a duty to its customers to preserve this confidentiality; and that it would
not be proper for the GSIS to breach this confidentiality unless so ordered by
the courts.
As a violation of this confidentiality may mar the image of the GSIS as a
reputable financial institution, I regret very much that at this time we cannot
respond positively to your request.
Very truly yours,
(Sgd.) MEYNARDO A. TIRO
Deputy General Counsel
[Rollo, p. 40.]
On June 20, 1986, apparently not having yet received the reply of the
Government Service and Insurance System (GSIS) Deputy General Counsel,
petitioner Valmonte wrote respondent another letter, saying that for failure to
receive a reply, "(W)e are now considering ourselves free to do whatever
action necessary within the premises to pursue our desired objective in
pursuance of public interest." [Rollo, p. 8.]
On June 26, 1986, Valmonte, joined by the other petitioners, filed the instant
suit.
On July 19, 1986, the Daily Express carried a news item reporting that 137
former members of the defunct interim and regular Batasang Pambansa,
including ten (10) opposition members, were granted housing loans by the
GSIS [Rollo, p. 41.]
Separate comments were filed by respondent Belmonte and the Solicitor
General. After petitioners filed a consolidated reply, the petition was given
due course and the parties were required to file their memoranda. The
parties having complied, the case was deemed submitted for decision.
In his comment respondent raises procedural objections to the issuance of a
writ of mandamus, among which is that petitioners have failed to exhaust
administrative remedies.
Respondent claims that actions of the GSIS General Manager are reviewable
by the Board of Trustees of the GSIS. Petitioners, however, did not seek
relief from the GSIS Board of Trustees. It is therefore asserted that since
administrative remedies were not exhausted, then petitioners have no cause
of action.
To this objection, petitioners claim that they have raised a purely legal issue,
viz., whether or not they are entitled to the documents sought, by virtue of
their constitutional right to information. Hence, it is argued that this case falls
under one of the exceptions to the principle of exhaustion of administrative
remedies.
Among the settled principles in administrative law is that before a party can
be allowed to resort to the courts, he is expected to have exhausted all
means of administrative redress available under the law. The courts for
reasons of law, comity and convenience will not entertain a case unless the
available administrative remedies have been resorted to and the appropriate
authorities have been given opportunity to act and correct the errors
committed in the administrative forum. However, the principle of exhaustion
of administrative remedies is subject to settled exceptions, among which is
when only a question of law is involved [Pascual v. Provincial Board, 106
Phil. 466 (1959); Aguilar v. Valencia, et al., G.R. No. L-30396, July 30, 1971,
40 SCRA 210; Malabanan v. Ramento, G.R. No. L-2270, May 21, 1984, 129
SCRA 359.] The issue raised by petitioners, which requires the interpretation
of the scope of the constitutional right to information, is one which can be
passed upon by the regular courts more competently than the GSIS or its
Board of Trustees, involving as it does a purely legal question. Thus, the
exception of this case from the application of the general rule on exhaustion
of administrative remedies is warranted. Having disposed of this procedural
issue, We now address ourselves to the issue of whether or not mandamus
hes to compel respondent to perform the acts sought by petitioners to be
done, in pursuance of their right to information.

We shall deal first with the second and third alternative acts sought to be
done, both of which involve the issue of whether or not petitioners are
entitled to access to the documents evidencing loans granted by the GSIS.
This is not the first time that the Court is confronted with a controversy
directly involving the constitutional right to information. In Tañada v. Tuvera,
G.R. No. 63915, April 24,1985, 136 SCRA 27 and in the recent case of
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29, 1987,150
SCRA 530, the Court upheld the people's constitutional right to be informed
of matters of public interest and ordered the government agencies concerned
to act as prayed for by the petitioners.
The pertinent provision under the 1987 Constitution is Art. 111, Sec. 7 which
states:
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.
The right of access to information was also recognized in the 1973
Constitution, Art. IV Sec. 6 of which provided:
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, shall be afforded the
citizen subject to such limitations as may be provided by law.
An informed citizenry with access to the diverse currents in political, moral
and artistic thought and data relative to them, and the free exchange of ideas
and discussion of issues thereon, is vital to the democratic government
envisioned under our Constitution. The cornerstone of this republican system
of government is delegation of power by the people to the State. In this
system, governmental agencies and institutions operate within the limits of
the authority conferred by the people. Denied access to information on the
inner workings of government, the citizenry can become prey to the whims
and caprices of those to whom the power had been delegated. The postulate
of public office as a public trust, institutionalized in the Constitution (in Art. XI,
Sec. 1) to protect the people from abuse of governmental power, would
certainly be were empty words if access to such information of public
concern is denied, except under limitations prescribed by implementing
legislation adopted pursuant to the Constitution.
Petitioners are practitioners in media. As such, they have both the right to
gather and the obligation to check the accuracy of information the
disseminate. For them, the freedom of the press and of speech is not only
critical, but vital to the exercise of their professions. The right of access to
information ensures that these freedoms are not rendered nugatory by the
government's monopolizing pertinent information. For an essential element of
these freedoms is to keep open a continuing dialogue or process of
communication between the government and the people. It is in the interest
of the State that the channels for free political discussion be maintained to
the end that the government may perceive and be responsive to the people's
will. Yet, this open dialogue can be effective only to the extent that the
citizenry is informed and thus able to formulate its will intelligently. Only when
the participants in the discussion are aware of the issues and have access to
information relating thereto can such bear fruit.
The right to information is an essential premise of a meaningful right to
speech and expression. But this is not to say that the right to information is
merely an adjunct of and therefore restricted in application by the exercise of
the freedoms of speech and of the press. Far from it. The right to information
goes hand-in-hand with the constitutional policies of full public disclosure *
and honesty in the public service. ** It is meant to enhance the widening role
of the citizenry in governmental decision-making as well as in checking
abuse in government.
Yet, like all the constitutional guarantees, the right to information is not
absolute. As stated in Legaspi, the people's right to information is limited to
"matters of public concern," and is further "subject to such limitations as may
be provided by law." Similarly, the State's policy of full disclosure is limited to
"transactions involving public interest," and is "subject to reasonable
conditions prescribed by law."
Hence, before mandamus may issue, it must be clear that the information
sought is of "public interest" or "public concern," and is not exempted by law
from the operation of the constitutional guarantee [Legazpi v. Civil Service
Commission, supra, at p. 542.]
The Court has always grappled with the meanings of the terms "public
interest" and "public concern". As observed in Legazpi:
In determining whether or not a particular information is of public concern
there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citezen. In the final analysis, it is for the
courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public. [Ibid. at p. 541]
In the Tañada case the public concern deemed covered by the constitutional
right to information was the need for adequate notice to the public of the
various laws which are to regulate the actions and conduct of citezens. In
Legaspi, it was the "legitimate concern of citezensof ensure that government
positions requiring civil service eligibility are occupied only by persons who
are eligibles" [Supra at p. 539.]
The information sought by petitioners in this case is the truth of reports that
certain Members of the Batasang Pambansa belonging to the opposition
were able to secure "clean" loans from the GSIS immediately before the
February 7, 1986 election through the intercession of th eformer First Lady,
Mrs. Imelda Marcos.
The GSIS is a trustee of contributions from the government and its
employees and the administrator of various insurance programs for the
benefit of the latter. Undeniably, its funds assume a public character. More
particularly, Secs. 5(b) and 46 of P.D. 1146, as amended (the Revised
Government Service Insurance Act of 1977), provide for annual
appropriations to pay the contributions, premiums, interest and other
amounts payable to GSIS by the government, as employer, as well as the
obligations which the Republic of the Philippines assumes or guarantees to
pay. Considering the nature of its funds, the GSIS is expected to manage its
resources with utmost prudence and in strict compliance with the pertinent
laws or rules and regulations. Thus, one of the reasons that prompted the
revision of the old GSIS law (C.A. No. 186, as amended) was the necessity
"to preserve at all times the actuarial solvency of the funds administered by
the System" [Second Whereas Clause, P.D. No. 1146.] Consequently, as
respondent himself admits, the GSIS "is not supposed to grant 'clean loans.'"
[Comment, p. 8.] It is therefore the legitimate concern of the public to ensure
that these funds are managed properly with the end in view of maximizing
the benefits that accrue to the insured government employees. Moreover, the
supposed borrowers were Members of the defunct Batasang Pambansa who
themselves appropriated funds for the GSIS and were therefore expected to
be the first to see to it that the GSIS performed its tasks with the greatest
degree of fidelity and that an its transactions were above board.
In sum, the public nature of the loanable funds of the GSIS and the public
office held by the alleged borrowers make the information sought clearly a
matter of public interest and concern.
A second requisite must be met before the right to information may be
enforced through mandamus proceedings, viz., that the information sought
must not be among those excluded by law.
Respondent maintains that a confidential relationship exists between the
GSIS and its borrowers. It is argued that a policy of confidentiality restricts
the indiscriminate dissemination of information.
Yet, respondent has failed to cite any law granting the GSIS the privilege of
confidentiality as regards the documents subject of this petition. His position
is apparently based merely on considerations of policy. The judiciary does
not settle policy issues. The Court can only declare what the law is, and not
what the law should be. Under our system of government, policy issues are
within the domain of the political branches of the government, and of the
people themselves as the repository of all State power.
Respondent however contends that in view of the right to privacy which is
equally protected by the Constitution and by existing laws, the documents
evidencing loan transactions of the GSIS must be deemed outside the ambit
of the right to information.
There can be no doubt that right to privacy is constitutionally protected. In the
landmark case of Morfe v. Mutuc [130 Phil. 415 (1968), 22 SCRA 424], this
Court, speaking through then Mr. Justice Fernando, stated:
... The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional
protection. The language of Prof. Emerson is particularly apt: "The concept of
limited government has always included the idea that governmental powers
stop short of certain intrusions into the personal life of the citizen. This is
indeed one of the basic distinctions between absolute and limited
government. UItimate and pervasive control of the individual, in all aspects of
his life, is the hallmark of the absolute. state, In contrast, a system of limited
government safeguards a private sector, which belongs to the individual,
firmly distinguishing it from the public sector, which the state can control.
Protection of this private sector — protection, in other words, of the dignity
and integrity of the individual — has become increasingly important as
modem society has developed. All the forces of technological age —
industrialization, urbanization, and organization — operate to narrow the area
of privacy and facilitate intrusion into it. In modern terms, the capacity to
maintain and support this enclave of private life marks the difference
between a democratic and a totalitarian society." [at pp. 444-445.]
When the information requested from the government intrudes into the
privacy of a citizen, a potential conflict between the rights to information and
to privacy may arise. However, the competing interests of these rights need
not be resolved in this case. Apparent from the above-quoted statement of
the Court in Morfe is that the right to privacy belongs to the individual in his
private capacity, and not to public and governmental agencies like the GSIS.
Moreover, the right cannot be invoked by juridical entities like the GSIS. As
held in the case of Vassar College v. Loose Wills Biscuit Co. [197 F. 982
(1912)], a corporation has no right of privacy in its name since the entire
basis of the right to privacy is an injury to the feelings and sensibilities of the
party and a corporation would have no such ground for relief.
Neither can the GSIS through its General Manager, the respondent, invoke
the right to privacy of its borrowers. The right is purely personal in nature [Cf.
Atkinson v. John Doherty & Co., 121 Mich 372, 80 N.W. 285, 46 L.RA. 219
(1899); Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22, 31 L.R.A. 286 (1895)),
and hence may be invoked only by the person whose privacy is claimed to
be violated.
It may be observed, however, that in the instant case, the concerned
borrowers themselves may not succeed if they choose to invoke their right to
privacy, considering the public offices they were holding at the time the loans
were alleged to have been granted. It cannot be denied that because of the
interest they generate and their newsworthiness, public figures, most
especially those holding responsible positions in government, enjoy a more
limited right to privacy as compared to ordinary individuals, their actions
being subject to closer public scrutiny [Cf. Ayer Productions Pty. Ltd. v.
Capulong, G.R. Nos. 82380 and 82398, April 29, 1988; See also Cohen v.
Marx, 211 P. 2d 321 (1949).]
Respondent next asserts that the documents evidencing the loan
transactions of the GSIS are private in nature and hence, are not covered by
the Constitutional right to information on matters of public concern which
guarantees "(a)ccess to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions" only.
It is argued that the records of the GSIS, a government corporation
performing proprietary functions, are outside the coverage of the people's
right of access to official records.
It is further contended that since the loan function of the GSIS is merely
incidental to its insurance function, then its loan transactions are not covered
by the constitutional policy of full public disclosure and the right to information
which is applicable only to "official" transactions.
First of all, the "constituent — ministrant" dichotomy characterizing
government function has long been repudiated. In ACCFA v. Confederation
of Unions and Government Corporations and Offices (G.R. Nos. L-21484 and
L-23605, November 29, 1969, 30 SCRA 6441, the Court said that the
government, whether carrying out its sovereign attributes or running some
business, discharges the same function of service to the people.
Consequently, that the GSIS, in granting the loans, was exercising a
proprietary function would not justify the exclusion of the transactions from
the coverage and scope of the right to information.
Moreover, the intent of the members of the Constitutional Commission of
1986, to include government-owned and controlled corporations and
transactions entered into by them within the coverage of the State policy of
fun public disclosure is manifest from the records of the proceedings:
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Colayco).
Commissioner Suarez is recognized.
MR. SUAREZ. Thank you. May I ask the Gentleman a few question?
MR. OPLE. Very gladly.
MR. SUAREZ. Thank you.
When we declare a "policy of full public disclosure of all its transactions" —
referring to the transactions of the State — and when we say the "State"
which I suppose would include all of the various agencies, departments,
ministries and instrumentalities of the government....
MR. OPLE. Yes, and individual public officers, Mr. Presiding Officer.
MR. SUAREZ. Including government-owned and controlled corporations.
MR. OPLE. That is correct, Mr. Presiding Officer.
MR. SUAREZ. And when we say "transactions" which should be
distinguished from contracts, agreements, or treaties or whatever, does the
Gentleman refer to the steps leading to the consummation of the contract, or
does he refer to the contract itself?
MR. OPLE. The "transactions" used here I suppose is generic and, therefore,
it can cover both steps leading to a contract, and already a consummated
contract, Mr. Presiding Officer.
MR. SUAREZ. This contemplates inclusion of negotiations leading to the
consummation of the transaction.
MR. OPLE. Yes, subject only to reasonable safeguards on the national
interest.

MR. SUAREZ. Thank you. [V Record of the Constitutional Commission 24-
25.] (Emphasis supplied.)
Considering the intent of the framers of the Constitution which, though not
binding upon the Court, are nevertheless persuasive, and considering further
that government-owned and controlled corporations, whether performing
proprietary or governmental functions are accountable to the people, the
Court is convinced that transactions entered into by the GSIS, a government-
controlled corporation created by special legislation are within the ambit of
the people's right to be informed pursuant to the constitutional policy of
transparency in government dealings.
In fine, petitioners are entitled to access to the documents evidencing loans
granted by the GSIS, subject to reasonable regulations that the latter may
promulgate relating to the manner and hours of examination, to the end that
damage to or loss of the records may be avoided, that undue interference
with the duties of the custodian of the records may be prevented and that the
right of other persons entitled to inspect the records may be insured [Legaspi
v. Civil Service Commission, supra at p. 538, quoting Subido v. Ozaeta, 80
Phil. 383, 387.] The petition, as to the second and third alternative acts
sought to be done by petitioners, is meritorious.
However, the same cannot be said with regard to the first act sought by
petitioners, i.e., "to furnish petitioners the list of the names of the Batasang
Pambansa members belonging to the UNIDO and PDP-Laban who were
able to secure clean loans immediately before the February 7 election thru
the intercession/marginal note of the then First Lady Imelda Marcos."
Although citizens are afforded the right to information and, pursuant thereto,
are entitled to "access to official records," the Constitution does not accord
them a right to compel custodians of official records to prepare lists,
abstracts, summaries and the like in their desire to acquire information on
matters of public concern.
It must be stressed that it is essential for a writ of mandamus to issue that the
applicant has a well-defined, clear and certain legal right to the thing
demanded and that it is the imperative duty of defendant to perform the act
required. The corresponding duty of the respondent to perform the required
act must be clear and specific [Lemi v. Valencia, G.R. No. L-20768,
November 29,1968,126 SCRA 203; Ocampo v. Subido, G.R. No. L-28344,
August 27, 1976, 72 SCRA 443.] The request of the petitioners fails to meet
this standard, there being no duty on the part of respondent to prepare the
list requested.
WHEREFORE, the instant petition is hereby granted and respondent
General Manager of the Government Service Insurance System is
ORDERED to allow petitioners access to documents and records evidencing
loans granted to Members of the former Batasang Pambansa, as petitioners
may specify, subject to reasonable regulations as to the time and manner of
inspection, not incompatible with this decision, as the GSIS may deem
necessary.
SO ORDERED.
Legaspi vs. CSC [150 SCRA 530 (1987)]
The fundamental right of the people to information on matters of public
concern is invoked in this special civil action for mandamus instituted by
petitioner Valentin L. Legaspi against the Civil Service Commission. The
respondent had earlier denied Legaspi's request for information on the civil
service eligibilities of certain persons employed as sanitarians in the Health
Department of Cebu City. These government employees, Julian
Sibonghanoy and Mariano Agas, had allegedly represented themselves as
civil service eligibles who passed the civil service examinations for
sanitarians.
Claiming that his right to be informed of the eligibilities of Julian Sibonghanoy
and Mariano Agas, is guaranteed by the Constitution, and that he has no
other plain, speedy and adequate remedy to acquire the information,
petitioner prays for the issuance of the extraordinary writ of mandamus to
compel the respondent Commission to disclose said information.
This is not the first tune that the writ of mandamus is sought to enforce the
fundamental right to information. The same remedy was resorted to in the
case of Tanada et. al. vs. Tuvera et. al., (G.R. No. L-63915, April
24,1985,136 SCRA 27) wherein the people's right to be informed under the
1973 Constitution (Article IV, Section 6) was invoked in order to compel the
publication in the Official Gazette of various presidential decrees, letters of
instructions and other presidential issuances. Prior to the recognition of the
right in said Constitution the statutory right to information provided for in the
Land Registration Act (Section 56, Act 496, as amended) was claimed by a
newspaper editor in another mandamus proceeding, this time to demand
access to the records of the Register of Deeds for the purpose of gathering
data on real estate transactions involving aliens (Subido vs. Ozaeta, 80 Phil.
383 [1948]).
The constitutional right to information on matters of public concern first
gained recognition in the Bill of Rights, Article IV, of the 1973 Constitution,
which states:
Sec. 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, shall be afforded the
citizen subject to such limitations as may be provided by law.
The foregoing provision has been retained and the right therein provided
amplified in Article III, Sec. 7 of the 1987 Constitution with the addition of the
phrase, "as well as to government research data used as basis for policy
development." The new provision reads:
The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers
pertaining to official acts, transactions, or decisions, as well as to government
research data used as basis. for policy development, shall be afforded the
citizen, subject to such stations as may be provided by law.
These constitutional provisions are self-executing. They supply the rules by
means of which the right to information may be enjoyed (Cooley, A Treatise
on the Constitutional Limitations 167 [1927]) by guaranteeing the right and
mandating the duty to afford access to sources of information. Hence, the
fundamental right therein recognized may be asserted by the people upon
the ratification of the constitution without need for any ancillary act of the
Legislature. (Id. at, p. 165) What may be provided for by the Legislature are
reasonable conditions and limitations upon the access to be afforded which
must, of necessity, be consistent with the declared State policy of full public
disclosure of all transactions involving public interest (Constitution, Art. 11,
Sec. 28). However, it cannot be overemphasized that whatever limitation
may be prescribed by the Legislature, the right and the duty under Art. III
Sec. 7 have become operative and enforceable by virtue of the adoption of
the New Charter. Therefore, the right may be properly invoked in a
mandamus proceeding such as this one.
The Solicitor General interposes procedural objections to Our giving due
course to this Petition. He challenges the petitioner's standing to sue upon
the ground that the latter does not possess any clear legal right to be
informed of the civil service eligibilities of the government employees
concerned. He calls attention to the alleged failure of the petitioner to show
his actual interest in securing this particular information. He further argues
that there is no ministerial duty on the part of the Commission to furnish the
petitioner with the information he seeks.
1. To be given due course, a Petition for mandamus must have been
instituted by a party aggrieved by the alleged inaction of any tribunal,
corporation, board or person which unlawfully excludes said party from the
enjoyment of a legal right. (Ant;-Chinese League of the Philippines vs. Felix,
77 Phil. 1012 [1947]). The petitioner in every case must therefore be an
"aggrieved party" in the sense that he possesses a clear legal right to be
enforced and a direct interest in the duty or act to be performed.
In the case before Us, the respondent takes issue on the personality of the
petitioner to bring this suit. It is asserted that, the instant Petition is bereft of
any allegation of Legaspi's actual interest in the civil service eligibilities of
Julian Sibonghanoy and Mariano Agas, At most there is a vague reference to
an unnamed client in whose behalf he had allegedly acted when he made
inquiries on the subject (Petition, Rollo, p. 3).
But what is clear upon the face of the Petition is that the petitioner has firmly
anchored his case upon the right of the people to information on matters of
public concern, which, by its very nature, is a public right. It has been held
that:
* * * when the question is one of public right and the object of the mandamus
is to procure the enforcement of a public duty, the people are regarded as
the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the
result, it being sufficient to show that he is a citizen and as such interested in
the execution of the laws * * * (Tanada et. al. vs. Tuvera, et. al., G.R. No. L-
63915, April 24, 1985, 136 SCRA 27, 36).
From the foregoing, it becomes apparent that when a mandamus proceeding
involves the assertion of a public right, the requirement of personal interest is
satisfied by the mere fact that the petitioner is a citizen, and therefore, part of
the general "public" which possesses the right.
The Court had opportunity to define the word "public" in the Subido case,
supra, when it held that even those who have no direct or tangible interest in
any real estate transaction are part of the "public" to whom "(a)ll records
relating to registered lands in the Office of the Register of Deeds shall be
open * * *" (Sec. 56, Act No. 496, as amended). In the words of the Court:
* * * "Public" is a comprehensive, all-inclusive term. Properly construed, it
embraces every person. To say that only those who have a present and
existing interest of a pecuniary character in the particular information sought
are given the right of inspection is to make an unwarranted distinction. ***
(Subido vs. Ozaeta, supra at p. 387).
The petitioner, being a citizen who, as such is clothed with personality to
seek redress for the alleged obstruction of the exercise of the public right.
We find no cogent reason to deny his standing to bring the present suit.
2. For every right of the people recognized as fundamental, there lies a
corresponding duty on the part of those who govern, to respect and protect
that right. That is the very essence of the Bill of Rights in a constitutional
regime. Only governments operating under fundamental rules defining the
limits of their power so as to shield individual rights against its arbitrary
exercise can properly claim to be constitutional (Cooley, supra, at p. 5).
Without a government's acceptance of the limitations imposed upon it by the
Constitution in order to uphold individual liberties, without an
acknowledgment on its part of those duties exacted by the rights pertaining
to the citizens, the Bill of Rights becomes a sophistry, and liberty, the
ultimate illusion.
In recognizing the people's right to be informed, both the 1973 Constitution
and the New Charter expressly mandate the duty of the State and its agents
to afford access to official records, documents, papers and in addition,
government research data used as basis for policy development, subject to
such limitations as may be provided by law. The guarantee has been further
enhanced in the New Constitution with the adoption of a policy of full public
disclosure, this time "subject to reasonable conditions prescribed by law," in
Article 11, Section 28 thereof, to wit:
Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving
public interest. (Art. 11, Sec. 28).
In the Tanada case, supra, the constitutional guarantee was bolstered by
what this Court declared as an imperative duty of the government officials
concerned to publish all important legislative acts and resolutions of a public
nature as well as all executive orders and proclamations of general
applicability. We granted mandamus in said case, and in the process, We
found occasion to expound briefly on the nature of said duty:
* * * That duty must be enforced if the Constitutional right of the people to be
informed on matters of public concern is to be given substance and reality.
The law itself makes a list of what should be published in the Official Gazette.
Such listing, to our mind, leaves respondents with no discretion whatsoever
as to what must be in included or excluded from such publication. (Tanada v.
Tuvera, supra, at 39). (Emphasis supplied).
The absence of discretion on the part of government agencia es in allowing
the examination of public records, specifically, the records in the Office of the
Register of Deeds, is emphasized in Subido vs. Ozaeta, supra:
Except, perhaps when it is clear that the purpose of the examination is
unlawful, or sheer, idle curiosity, we do not believe it is the duty under the law
of registration officers to concern themselves with the motives, reasons, and
objects of the person seeking access to the records. It is not their prerogative
to see that the information which the records contain is not flaunted before
public gaze, or that scandal is not made of it. If it be wrong to publish the
contents of the records, it is the legislature and not the officials having
custody thereof which is called upon to devise a remedy. *** (Subido v.
Ozaeta, supra at 388). (Emphasis supplied).
It is clear from the foregoing pronouncements of this Court that government
agencies are without discretion in refusing disclosure of, or access to,
information of public concern. This is not to lose sight of the reasonable
regulations which may be imposed by said agencies in custody of public
records on the manner in which the right to information may be exercised by
the public. In the Subido case, We recognized the authority of the Register of
Deeds to regulate the manner in which persons desiring to do so, may
inspect, examine or copy records relating to registered lands. However, the
regulations which the Register of Deeds may promulgate are confined to:
* * * prescribing the manner and hours of examination to the end that
damage to or loss of, the records may be avoided, that undue interference
with the duties of the custodian of the books and documents and other
employees may be prevented, that the right of other persons entitled to make
inspection may be insured * * * (Subido vs. Ozaeta, 80 Phil. 383, 387)
Applying the Subido ruling by analogy, We recognized a similar authority in a
municipal judge, to regulate the manner of inspection by the public of criminal
docket records in the case of Baldoza vs. Dimaano (Adm. Matter No. 1120-
MJ, May 5, 1976, 71 SCRA 14). Said administrative case was filed against
the respondent judge for his alleged refusal to allow examination of the
criminal docket records in his sala. Upon a finding by the Investigating Judge
that the respondent had allowed the complainant to open and view the
subject records, We absolved the respondent. In effect, We have also held
that the rules and conditions imposed by him upon the manner of examining
the public records were reasonable.
In both the Subido and the Baldoza cases, We were emphatic in Our
statement that the authority to regulate the manner of examining public
records does not carry with it the power to prohibit. A distinction has to be
made between the discretion to refuse outright the disclosure of or access to
a particular information and the authority to regulate the manner in which the
access is to be afforded. The first is a limitation upon the availability of
access to the information sought, which only the Legislature may impose
(Art. III, Sec. 6, 1987 Constitution). The second pertains to the government
agency charged with the custody of public records. Its authority to regulate
access is to be exercised solely to the end that damage to, or loss of, public
records may be avoided, undue interference with the duties of said agencies
may be prevented, and more importantly, that the exercise of the same
constitutional right by other persons shall be assured (Subido vs. Ozaetal
supra).

Thus, while the manner of examining public records may be subject to
reasonable regulation by the government agency in custody thereof, the duty
to disclose the information of public concern, and to afford access to public
records cannot be discretionary on the part of said agencies. Certainly, its
performance cannot be made contingent upon the discretion of such
agencies. Otherwise, the enjoyment of the constitutional right may be
rendered nugatory by any whimsical exercise of agency discretion. The
constitutional duty, not being discretionary, its performance may be
compelled by a writ of mandamus in a proper case.
But what is a proper case for Mandamus to issue? In the case before Us, the
public right to be enforced and the concomitant duty of the State are
unequivocably set forth in the Constitution. The decisive question on the
propriety of the issuance of the writ of mandamus in this case is, whether the
information sought by the petitioner is within the ambit of the constitutional
guarantee.
3. The incorporation in the Constitution of a guarantee of access to
information of public concern is a recognition of the essentiality of the free
flow of ideas and information in a democracy (Baldoza v. Dimaano, Adm.
Matter No. 1120-MJ, May 5, 1976, 17 SCRA 14). In the same way that free
discussion enables members of society to cope with the exigencies of their
time (Thornhill vs. Alabama, 310 U.S. 88,102 [1939]), access to information
of general interest aids the people in democratic decision-making (87
Harvard Law Review 1505 [1974]) by giving them a better perspective of the
vital issues confronting the nation.
But the constitutional guarantee to information on matters of public concern
is not absolute. It does not open every door to any and all information. Under
the Constitution, access to official records, papers, etc., are "subject to
limitations as may be provided by law" (Art. III, Sec. 7, second sentence).
The law may therefore exempt certain types of information from public
scrutiny, such as those affecting national security (Journal No. 90,
September 23, 1986, p. 10; and Journal No. 91, September 24, 1986, p. 32,
1986 Constitutional Commission). It follows that, in every case, the
availability of access to a particular public record must be circumscribed by
the nature of the information sought, i.e., (a) being of public concern or one
that involves public interest, and, (b) not being exempted by law from the
operation of the constitutional guarantee. The threshold question is,
therefore, whether or not the information sought is of public interest or public
concern.
a. This question is first addressed to the government agency having custody
of the desired information. However, as already discussed, this does not give
the agency concerned any discretion to grant or deny access. In case of
denial of access, the government agency has the burden of showing that the
information requested is not of public concern, or, if it is of public concern,
that the same has been exempted by law from the operation of the
guarantee. To hold otherwise will serve to dilute the constitutional right. As
aptly observed, ". . . the government is in an advantageous position to
marshall and interpret arguments against release . . ." (87 Harvard Law
Review 1511 [1974]). To safeguard the constitutional right, every denial of
access by the government agency concerned is subject to review by the
courts, and in the proper case, access may be compelled by a writ of
Mandamus.
In determining whether or not a particular information is of public concern
there is no rigid test which can be applied. "Public concern" like "public
interest" is a term that eludes exact definition. Both terms embrace a broad
spectrum of subjects which the public may want to know, either because
these directly affect their lives, or simply because such matters naturally
arouse the interest of an ordinary citizen. In the final analysis, it is for the
courts to determine in a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.
The public concern invoked in the case of Tanada v. Tuvera, supra, was the
need for adequate notice to the public of the various laws which are to
regulate the actions and conduct of citizens. In Subido vs. Ozaeta, supra, the
public concern deemed covered by the statutory right was the knowledge of
those real estate transactions which some believed to have been registered
in violation of the Constitution.
The information sought by the petitioner in this case is the truth of the claim
of certain government employees that they are civil service eligibles for the
positions to which they were appointed. The Constitution expressly declares
as a State policy that:
Appointments in the civil service shall be made only according to merit and
fitness to be determined, as far as practicable, and except as to positions
which are policy determining, primarily confidential or highly technical, by
competitive examination. (Art. IX, B, Sec. 2.[2]).
Public office being a public trust, [Const. Art. XI, Sec. 1] it is the legitimate
concern of citizens to ensure that government positions requiring civil service
eligibility are occupied only by persons who are eligibles. Public officers are
at all times accountable to the people even as to their eligibilities for their
respective positions.
b. But then, it is not enough that the information sought is of public interest.
For mandamus to lie in a given case, the information must not be among the
species exempted by law from the operation of the constitutional guarantee.

In the instant, case while refusing to confirm or deny the claims of eligibility,
the respondent has failed to cite any provision in the Civil Service Law which
would limit the petitioner's right to know who are, and who are not, civil
service eligibles. We take judicial notice of the fact that the names of those
who pass the civil service examinations, as in bar examinations and
licensure examinations for various professions, are released to the public.
Hence, there is nothing secret about one's civil service eligibility, if actually
possessed. Petitioner's request is, therefore, neither unusual nor
unreasonable. And when, as in this case, the government employees
concerned claim to be civil service eligibles, the public, through any citizen,
has a right to verify their professed eligibilities from the Civil Service
Commission.
The civil service eligibility of a sanitarian being of public concern, and in the
absence of express limitations under the law upon access to the register of
civil service eligibles for said position, the duty of the respondent
Commission to confirm or deny the civil service eligibility of any person
occupying the position becomes imperative. Mandamus, therefore lies.
WHEREFORE, the Civil Service Commission is ordered to open its register
of eligibles for the position of sanitarian, and to confirm or deny, the civil
service eligibility of Julian Sibonghanoy and Mariano Agas, for said position
in the Health Department of Cebu City, as requested by the petitioner
Valentin L. Legaspi.
Garcia vs. BOI [177 SCRA 374 (1989)]
This is a petition to annul and set aside the decision of the Board of
Investments (BOI)/Department of Trade and Industry (DTI) approving the
transfer of the site of the proposed petrochemical plant from Bataan to
Batangas and the shift of feedstock for that plant from naphtha only to
naphtha and/or liquefied petroleum gas (LPG).
This petition is a sequel to the petition in G.R. No. 88637 entitled
"Congressman Enrique T. Garcia v. the Board of Investments", September 7,
1989, where this Court issued a decision, ordering the BOI as follows:
WHEREFORE, the petition for certiorari is granted. The Board of
Investments is ordered: (1) to publish the amended application for
registration of the Bataan Petrochemical Corporation, (2) to allow the
petitioner to have access to its records on the original and amended
applications for registration, as a petrochemical manufacturer, of the
respondent Bataan Petrochemical Corporation, excluding, however,
privileged papers containing its trade secrets and other business and
financial information, and (3) to set for hearing the petitioner's opposition to
the amended application in order that he may present at such hearing all the
evidence in his possession in support of his opposition to the transfer of the
site of the BPC petrochemical plant to Batangas province. The hearing shall
not exceed a period of ten (10) days from the date fixed by the BOI, notice of
which should be served by personal service to the petitioner through counsel,
at least three (3) days in advance. The hearings may be held from day to day
for a period of ten (10) days without postponements. The petition for a writ of
prohibition or preliminary injunction is denied. No costs. (Rollo, pages 450-
451)
However, acting on the petitioner's motion for partial reconsideration asking
that we rule on the import of P.D. Nos. 949 and 1803 and on the foreign
investor's claim of right of final choice of plant site, in the light of the
provisions of the Constitution and the Omnibus Investments Code of 1987,
this Court on October 24, 1989, made the observation that P.D. Nos. 949
and 1803 "do not provide that the Limay site should be the only
petrochemical zone in the country, nor prohibit the establishment of a
petrochemical plant elsewhere in the country, that the establishment of a
petrochemical plant in Batangas does not violate P.D. No. 949 and P.D. No.
1803.
Our resolution skirted the issue of whether the investor given the initial
inducements and other circumstances surrounding its first choice of plant site
may change it simply because it has the final choice on the matter. The Court
merely ruled that the petitioner appears to have lost interest in the case by
his failure to appear at the hearing that was set by the BOI after receipt of the
decision, so he may be deemed to have waived the fruit of the judgment. On
this ground, the motion for partial reconsideration was denied.
A motion for reconsideration of said resolution was filed by the petitioner
asking that we resolve the basic issue of whether or not the foreign investor
has the right of final choice of plant site; that the non-attendance of the
petitioner at the hearing was because the decision was not yet final and
executory; and that the petitioner had not therefor waived the right to a
hearing before the BOI.
In the Court's resolution dated January 17, 1990, we stated:
Does the investor have a "right of final choice" of plant site? Neither under
the 1987 Constitution nor in the Omnibus Investments Code is there such a
'right of final choice.' In the first place, the investor's choice is subject to
processing and approval or disapproval by the BOI (Art. 7, Chapter II,
Omnibus Investments Code). By submitting its application and amended
application to the BOI for approval, the investor recognizes the sovereign
prerogative of our Government, through the BOI, to approve or disapprove
the same after determining whether its proposed project will be feasible,
desirable and beneficial to our country. By asking that his opposition to the
LPC's amended application be heard by the BOI, the petitioner likewise
acknowledges that the BOI, not the investor, has the last word or the "final
choice" on the matter.
Secondly, as this case has shown, even a choice that had been approved by
the BOI may not be 'final', for supervening circumstances and changes in the
conditions of a place may dictate a corresponding change in the choice of
plant site in order that the project will not fail. After all, our country will benefit
only when a project succeeds, not when it fails. (Rollo, pp. 538-539)
Nevertheless, the motion for reconsideration of the petitioner was denied.
A minority composed of Justices Melencio-Herrera, Gancayco, Sarmiento
and this ponente voted to grant the motion for reconsideration stating that the
hearing set by the BOI was premature as the decision of the Court was not
yet final and executory; that as contended by the petitioner the Court must
first rule on whether or not the investor has the right of final choice of plant
site for if the ruling is in the affirmative, the hearing would be a useless
exercise; that in the October 19, 1989 resolution, the Court while upholding
validity of the transfer of the plant site did not rule on the issue of who has
the final choice; that they agree with the observation of the majority that "the
investor has no final choice either under the 1987 Constitution or in the
Omnibus Investments Code and that it is the BOI who decides for the
government" and that the plea of the petitioner should be granted to give him
the chance to show the justness of his claim and to enable the BOI to give a
second hard look at the matter.
Thus, the herein petition which relies on the ruling of the Court in the
resolution of January 17, 1990 in G.R. No. 88637 that the investor has no
right of final choice under the 1987 Constitution and the Omnibus
Investments Code.
Under P.D. No. 1803 dated January 16, 1981, 576 hectares of the public
domain located in Lamao, Limay, Bataan were reserved for the
Petrochemical Industrial Zone under the administration, management, and
ownership of the Philippine National Oil Company (PNOC).
The Bataan Refining Corporation (BRC) is a wholly government owned
corporation, located at Bataan. It produces 60% of the national output of
naphtha.
Taiwanese investors in a petrochemical project formed the Bataan
Petrochemical Corporation (BPC) and applied with BOI for registration as a
new domestic producer of petrochemicals. Its application specified Bataan as
the plant site. One of the terms and conditions for registration of the project
was the use of "naphtha cracker" and "naphtha" as feedstock or fuel for its
petrochemical plant. The petrochemical plant was to be a joint venture with
PNOC. BPC was issued a certificate of registration on February 24, 1988 by
BOI.
BPC was given pioneer status and accorded fiscal and other incentives by
BOI, like: (1) exemption from taxes on raw materials, (2) repatriation of the
entire proceeds of liquidation investments in currency originally made and at
the exchange rate obtaining at the time of repatriation; and (3) remittance of
earnings on investments. As additional incentive, the House of
Representatives approved a bill introduced by the petitioner eliminating the
48% ad valorem tax on naphtha if and when it is used as raw materials in the
petrochemical plant. (G.R. No. 88637, September 7, 1989, pp. 2-3. Rollo, pp.
441-442)
However, in February, 1989, A.T. Chong, chairman of USI Far East
Corporation, the major investor in BPC, personally delivered to Trade
Secretary Jose Concepcion a letter dated January 25, 1989 advising him of
BPC's desire to amend the original registration certification of its project by
changing the job site from Limay, Bataan, to Batangas. The reason adduced
for the transfer was the insurgency and unstable labor situation, and the
presence in Batangas of a huge liquefied petroleum gas (LPG) depot owned
by the Philippine Shell Corporation.
The petitioner vigorously opposed the proposal and no less than President
Aquino expressed her preference that the plant be established in Bataan in a
conference with the Taiwanese investors, the Secretary of National Defense
and The Chief of Staff of the Armed Forces.
Despite speeches in the Senate and House opposing the Transfer of the
project to Batangas, BPC filed on April 11, 1989 its request for approval of
the amendments. Its application is as follows: "(l) increasing the investment
amount from US $220 million to US $320 million; (2) increasing the
production capacity of its naphtha cracker, polythylene plant and
polypropylene plant; (3) changing the feedstock from naphtha only to
"naphtha and/or liquefied petroleum gas;" and (4) transferring the job site
from Limay, Bataan, to Batangas. (Annex B to Petition; Rollo, p. 25)
Notwithstanding opposition from any quarters and the request of the
petitioner addressed to Secretary Concepcion to be furnished a copy of the
proposed amendment with its attachments which was denied by the BOI on
May 25, 1989, BOI approved the revision of the registration of BPC's
petrochemical project. (Petition, Annex F; Rollo, p. 32; See pp. 4 to 6,
Decision in G.R. No. 88637; supra.)
BOI Vice-Chairman Tomas I. Alcantara testifying before the Committee on
Ways and Means of the Senate asserted that:
The BOI has taken a public position preferring Bataan over Batangas as the
site of the petrochemical complex, as this would provide a better distribution
of industries around the Metro Manila area. ... In advocating the choice of
Bataan as the project site for the petrochemical complex, the BOI, however,
made it clear, and I would like to repeat this that the BOI made it clear in its
view that the BOI or the government for that matter could only recomend as
to where the project should be located. The BOI recognizes and respect the
principle that the final chouce is still with the proponent who would in the final
analysis provide the funding or risk capital for the project. (Petition, P. 13;
Annex D to the petition)
This position has not been denied by BOI in its pleadings in G.R. No. 88637
and in the present petition.
Section 1, Article VIII of the 1987 Constitution provides:
SECTION 1. The judicial power shall be vested in one Supreme Court and in
such lower courts as may be established by law.
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.
There is before us an actual controversy whether the petrochemical plant
should remain in Bataan or should be transferred to Batangas, and whether
its feedstock originally of naphtha only should be changed to naphtha and/or
liquefied petroleum gas as the approved amended application of the BPC,
now Luzon Petrochemical Corporation (LPC), shows. And in the light of the
categorical admission of the BOI that it is the investor who has the final
choice of the site and the decision on the feedstock, whether or not it
constitutes a grave abuse of discretion for the BOI to yield to the wishes of
the investor, national interest notwithstanding.
We rule that the Court has a constitutional duty to step into this controversy
and determine the paramount issue. We grant the petition.
First, Bataan was the original choice as the plant site of the BOI to which the
BPC agreed. That is why it organized itself into a corporation bearing the
name Bataan. There is available 576 hectares of public land precisely
reserved as the petrochemical zone in Limay, Bataan under P.D. No. 1803.
There is no need to buy expensive real estate for the site unlike in the
proposed transfer to Batangas. The site is the result of careful study long
before any covetous interests intruded into the choice. The site is ideal. It is
not unduly constricted and allows for expansion. The respondents have not
shown nor reiterated that the alleged peace and order situation in Bataan or
unstable labor situation warrant a transfer of the plant site to Batangas.
Certainly, these were taken into account when the firm named itself Bataan
Petrochemical Corporation. Moreover, the evidence proves the contrary.
Second, the BRC, a government owned Filipino corporation, located in
Bataan produces 60% of the national output of naphtha which can be used
as feedstock for the plant in Bataan. It can provide the feedstock requirement
of the plant. On the other hand, the country is short of LPG and there is need
to import the same for use of the plant in Batangas. The local production
thereof by Shell can hardly supply the needs of the consumers for cooking
purposes. Scarce dollars will be diverted, unnecessarily, from vitally essential
projects in order to feed the furnaces of the transferred petrochemical plant.
Third, naphtha as feedstock has been exempted by law from the ad valorem
tax by the approval of Republic Act No. 6767 by President Aquino but
excluding LPG from exemption from ad valorem tax. The law was enacted
specifically for the petrochemical industry. The policy determination by both
Congress and the President is clear. Neither BOI nor a foreign investor
should disregard or contravene expressed policy by shifting the feedstock
from naphtha to LPG.
Fourth, under Section 10, Article XII of the 1987 Constitution, it is the duty of
the State to "regulate and exercise authority over foreign investments within
its national jurisdiction and in accordance with its national goals and
priorities." The development of a self-reliant and independent national
economy effectively controlled by Filipinos is mandated in Section 19, Article
II of the Constitution.
In Article 2 of the Omnibus Investments Code of 1987 "the sound
development of the national economy in consonance with the principles and
objectives of economic nationalism" is the set goal of government.
Fifth, with the admitted fact that the investor is raising the greater portion of
the capital for the project from local sources by way of loan which led to the
so-called "petroscam scandal", the capital requirements would be greatly
minimized if LPC does not have to buy the land for the project and its
feedstock shall be limited to naphtha which is certainly more economical,
more readily available than LPG, and does not have to be imported.
Sixth, if the plant site is maintained in Bataan, the PNOC shall be a partner in
the venture to the great benefit and advantage of the government which shall
have a participation in the management of the project instead of a firm which
is a huge multinational corporation.
In the light of all the clear advantages manifest in the plant's remaining in
Bataan, practically nothing is shown to justify the transfer to Batangas except
a near-absolute discretion given by BOI to investors not only to freely choose
the site but to transfer it from their own first choice for reasons which remain
murky to say the least.
And this brings us to a prime consideration which the Court cannot rightly
ignore.
Section 1, Article XII of the Constitution provides that:
xxx xxx xxx
The State shall promote industrialization and full employment based on
sound agricultural development and agrarian reform, through industries that
make full and efficient use of human and natural resources, and which are
competitive in both domestic and foreign markets. However, the State shall
protect Filipino enterprises against unfair foreign competition and trade
practices.
xxx xxx xxx
Every provision of the Constitution on the national economy and patrimony is
infused with the spirit of national interest. The non-alienation of natural
resources, the State's full control over the development and utilization of our
scarce resources, agreements with foreigners being based on real
contributions to the economic growth and general welfare of the country and
the regulation of foreign investments in accordance with national goals and
priorities are too explicit not to be noticed and understood.
A petrochemical industry is not an ordinary investment opportunity. It should
not be treated like a garment or embroidery firm, a shoe-making venture, or
even an assembler of cars or manufacturer of computer chips, where the BOI
reasoning may be accorded fuller faith and credit. The petrochemical industry
is essential to the national interest. In other ASEAN countries like Indonesia
and Malaysia, the government superintends the industry by controlling the
upstream or cracker facility.
In this particular BPC venture, not only has the Government given
unprecedented favors, among them:
(1) For an initial authorized capital of only P20 million, the Central Bank gave
an eligible relending credit or relending facility worth US $50 million and a
debt to swap arrangement for US $30 million or a total accommodation of US
$80 million which at current exchange rates is around P2080 million.
(2) A major part of the company's capitalization shall not come from foreign
sources but from loans, initially a Pl Billion syndicated loan, to be given by
both government banks and a consortium of Philippine private banks or in
common parlance, a case of 'guiniguisa sa sariling manteca.'
(3) Tax exemptions and privileges were given as part of its 'preferred pioneer
status.'
(4) Loan applications of other Philippine firms will be crowded out of the
Asian Development Bank portfolio because of the petrochemical firm's
massive loan request. (Taken from the proceedings before the Senate Blue
Ribbon Committee).
but through its regulatory agency, the BOI, it surrenders even the power to
make a company abide by its initial choice, a choice free from any suspicion
of unscrupulous machinations and a choice which is undoubtedly in the best
interests of the Filipino people.
The Court, therefore, holds and finds that the BOI committed a grave abuse
of discretion in approving the transfer of the petrochemical plant from Bataan
to Batangas and authorizing the change of feedstock from naphtha only to
naphtha and/or LPG for the main reason that the final say is in the investor
all other circumstances to the contrary notwithstanding. No cogent advantage
to the government has been shown by this transfer. This is a repudiation of
the independent policy of the government expressed in numerous laws and
the Constitution to run its own affairs the way it deems best for the national
interest.
One can but remember the words of a great Filipino leader who in part said
he would not mind having a government run like hell by Filipinos than one
subservient to foreign dictation. In this case, it is not even a foreign
government but an ordinary investor whom the BOI allows to dictate what we
shall do with our heritage.
WHEREFORE, the petition is hereby granted. The decision of the
respondent Board of Investments approving the amendment of the certificate
of registration of the Luzon Petrochemical Corporation on May 23, 1989
under its Resolution No. 193, Series of 1989, (Annex F to the Petition) is SET
ASIDE as NULL and VOID. The original certificate of registration of BPC'
(now LPC) of February 24, 1988 with Bataan as the plant site and naphtha
as the feedstock is, therefore, ordered maintained.
SO ORDERED.

FREEDOM OF ASSOCIATION
Occena vs. COMELEC, 127 SCRA 404 (1985)
This petition for prohibition seeks the declaration as unconstitutional of
Sections 4 and 22 of Batas Pambansa Blg. 222, otherwise known as the
Barangay Election Act of 1982, insofar as it prohibits any candidate in the
Barangay election of May 17, 1982 "from representing or allowing himself to
be represented as a candidate of any political party ... or prohibits a political
party, political group, political committee ... from intervening in the nomination
of a candidate in the barangay election or in the filing of his certificate of
candidacy, or giving aid or support directly or indirectly, material or otherwise,
favorable to or against his campaign for election." On this basis, it is prayed
that —
... judgment be rendered declaring the 1982 Barangay elections NULL AND
VOID ab initio, for being UNCONSTITUTIONAL, and directing the holding of
new barangay elections without any ban on the involvement of political
parties, political committees, political organizations and other political group.
1 I
The constitutionality of the prohibition vis-a-vis non-political groups is not
challenged.
This Court has considered the Comments of the Solicitor General as an
Answer and deemed the case submitted for decision after the oral arguments
on May 5, 1982. 2
The legal provisions in question read as follows:
SEC. 4. Conduct of elections. — The barangay election shall be, non-
partisan and shall be conducted in an expeditious and inexpensive manner.
No person who filed a certificate of candidacy shall represent or allow himself
to be represented as a candidate of any political party or any other
organization; and no political party, political group, political committee, civic
religious, professional or other organization or organized group of whatever
nature shall intervene in his nomination or in the filing of his certificate of
candidacy or give aid or support directly or indirectly, material or otherwise,
favorable to or against his campaign for election: Provided, That this
provision shall not apply to the members of the family of a candidate within
the fourth civil degree of consanguinity or affinity prior to the personal
campaign staff of the candidate which shall not be more than one for every
one hundred registered voters in his barangay: Provided, further, That
without prejudice to any liability that may be incurred, no permit to hold a
public meeting shall be denied on the ground that the provisions of this
paragraph may or will be violated.
Nothing in this section, however, shall be construed as in any manner
affecting or constituting an impairment of the freedom of individuals to
support or oppose any candidate for any barangay office.
SEC. 22, Penalties. — Violations of this Act shall constitute prohibited acts
under Sec. 178 of the 1978 Election Code and shag be prosecuted and
penalized in accordance with the provisions of said code.
The petitioner contends —
(a) That the ban on the intervention of political parties in the election of
barangay officials is violative of the constitutional guarantee of the right to
form associations arid societies for purposes not contrary to law.
(b) That the ban is incompatible with a democracy and a parliamentary
system of government.
The right to form associations or societies for purposes not contrary to law is
neither absolute nor illimitable; it is always subject to the pervasive and
dominant police power of the state and may constitutionally be regulated or
curtailed to serve appropriate and important public interests. (Gonzales vs.
Comelec, 27 SCRA 835: Imbong vs. Comelec, 35 SCRA 28). Whether a
restriction imposed is constitutionally permissible or not depends upon the
circumstances of each case.
Examining Section 4 of the Barangay Election Act of 1982, be it noted that
thereunder, the right to organize is intact. Political parties may freely be
formed although there is a restriction on their activities, i.e., their intervention
in the election of barangay officials on May 17, 1982 is prescribed. But the
ban is narrow, not total. It operates only on concerted or group action of
political parties. Members of political and kindred organizations, acting
individually, may intervene in the barangay election. As the law says:
"Nothing (therein) ... shall be construed as in any manner affecting or
constituting an impairment of the freedom of individuals to support or oppose
any candidate for any barangay office." Moreover, members of the family of a
candidate within the fourth civil degree of consanguinity or affinity as well as
the personal campaign staff of a candidate (not more than 1 for every 100
registered voters in Ms barangay) can engage in individual or group action to
promote the election of their candidate.
Aside from the narrow character of the restriction thus impose, the limitation
is essential to meet the felt need of the hour. Explaining the reason for the
non-partisan character of the barangay election when he sponsored
Parliamentary Bill 2125 which later became BP Blg. 222, Minister of State for
Political Affairs Leonardo B. Perez said
Mr. Speaker, we must not lose sight of the fact that the barangay is the basic
unit not only of our social structure but also of our political structure. As much
as possible, we believe that it would be a more prudent policy to insulate the
barangays from the influence of partisan politics.
Mr. Speaker, we have seen the salutary results of the non-partisan election
of the members of the Constitutional Convention of 1971. We all recall, Mr.
Speaker, that the election of Concon delegates was non-partisan and,
therefore, when history will judge that Constitutional Convention, it can be
safely stated that Constitutional Convention did not belong to any political
party because it was chosen under a non-partisan method; that it was a
constitutional convention that was really of the people, for the people and by
the people. So we should not be concerned and our attention should not be
focused on the process but on the after effects of the process. We would like
to say later on, Mr. Speaker, that the barangays, although it is true they are
already considered regular units of our government, are non-partisan; they
constitute the base of the pyramid of our social and political structure, and I
think that in order that base will not be subject to instability because of the
influence of political forces, it is better that we elect the officials thereof
through a non-partisan system.
There are other reasons for insulating the barangay from the divisive and
debilitating effects of a partisan political campaign. The Barangay Captain
and the Barangay Council, apart from their legislative and consultative
powers, also act as an agency for neutral community action such as the
distribution of basic foodstuff and as an instrument in conducting plebiscites
and referenda. The Barangay Captain, together with the members of the
Lupon Tagapayapa appointed by him, exercises administrative supervision
over the barangay conciliation panels in the latter's work of settling local
disputes. The Barangay Captain himself settles or helps settle local
controversies within the barangay either through mediation or arbitration. It
would definitely enhance the objective and impartial discharge of their duties
for barangay officials to be shielded form political party loyalty. In fine, the
ban against the participation of political parties in the barangay election is an
appropriate legislative response to the unwholesome effects of partisan bias
in the impartial discharge of the duties imposed on the barangay and its
officials as the basic unit of our political and social structure.
This is not the first time that a restriction as that prescribed in Section 4 of
Batas Pambansa Blg. 222 has been judicially challenged. In Imbong vs.
Comelec, supra, the first paragraph of Section 8(a) of Republic Act No. 6132
was assailed as unconstitutional for allegedly being violative of the
constitutional guarantees of due process, equal protection of the law,
freedom of expression, freedom of assembly and freedom of association.
Like Section 4 of BP Blg. 222, Section 8(a) of RA 6132 prohibited:
1. any candidate for delegate to the (Constitutional) Convention
(a) from representing, or.
(b) allowing himself to be represented as being a candidate of any political
party or any other organization; and
2. any political party, political group, political committee, civil, religious,
professional or other organization or organized group of whatever nature
from
(a) intervening in the nomination of any such candidate or in the filing of his
certificate, or
(b) from giving aid or support directly or indirectly, material or otherwise,
favorable to or against his campaign for election.
In refusing to declare the assailed legal provisions as unconstitutional, this
Court, speaking thru Mr. Justice Makasiar, said:
The ban against all political parties or organized groups of whatever nature
contained in par. 1 of Sec. 8(a), is confined to party or organization support
or assistance, whether material, moral, emotional or otherwise. The very
Sec. 8(a) in its proviso permits the candidate to utilize in his campaign the
help of the members of his family within the fourth degree of consanguinity or
affinity, and a campaign staff composed of not more than one for every ten
precincts in his district. ... The right of a member of any political party or
association to support him or oppose his opponent is preserved as long as
such member acts individually. ...
It is therefore patent that the restriction contained in Sec. 8(a) is so narrow
that the basic constitutional rights themselves remain substantially intact and
inviolate. And it is therefore a valid infringement of the aforesaid
constitutional guarantees invoked by petitioners. ...
In the said Gonzales vs. Comelec case, this Court gave 'due recognition to
the legislative concern to cleanse, and if possible, render spotless, the
electoral process impressed as it was by the explanation made by the author
of R.A. No. 4880, Sen. Lorenzo Tanada, who appeared as amicus curiae,
'that such provisions were deemed by the legislative body to be part and
parcel of the necessary and appropriate response not merely to a clear and
present danger but to the actual existence of a grave and substantive evil of
excessive partisanship, dishonesty and corruption as well as of violence that
of late has marred election campaigns and partisan political activities in this
country. lie did invite our attention likewise to the well settled doctrine that in
the choice of remedies for an admitted malady requiring governmental
action, on the legislature primarily rests the responsibility. Nor should the
cure prescribed by it, unless clearly repugnant to fundamental rights, be
ignored or disregarded.
But aside from the clear and imminent danger of the debasement of the
electoral process, as conceded by Senator Pelaez, the basic motivation,
according to Senate Majority Floor Leader Senator Arturo Tolentino, the
sponsor of the Puyat-Tolentino amendment embodied in par. 1 of Sec. 8(a)
of R.A. No. 6132, is to assure the candidates equal protection of the laws by
according them equality of chances. The primary purpose of the prohibition
then is also to avert the clear and present danger of another substantive evil,
the denial of the equal protection of the laws. The candidates must depend
on their individual merits and not on the support of political parties or
organizations. Senator Tolentino and Senator Salonga emphasized that
under this provision, the poor candidate has an even chance as against the
rich candidate. We are not prepared to disagree with them, because such a
conclusion, predicated as it is on empirical logic, finds support in our recent
political history and experience. Both senators stressed that the independent
candidate who wins in the election against a candidate of the major political
parties, is a rare phenomenon in this country and the victory of an
independent candidate mainly rests on his ability to match the resources,
financial and otherwise, of the political parties or organization supporting his
opponent. This position is further strengthened by the principle that the
guarantee of social justice under Sec. 5, Art. 11 of the Constitution, includes
the guarantee of equal opportunity, equality of political rights, and equality
before the law enunciated by Mr. Justice Tuason in the case Guido vs. Rural
Progress Administration.
While it may be true that a party's support of a candidate is not wrong per se,
it is equally true that Congress in the exercise of its broad law-making
authority can declare certain acts as mala prohibita when justified by the
exigencies of the times, One such act is the party or organization support
proscribed in Sec. 8(a), which ban is a valid limitation on The freedom of
association as well as expression, for the reasons aforestated.
Senator Tolentino emphasized that equality of chances may be better
attained by banning all organization support.
xxx xxx xxx
The political parties and the other organized groups have built-in advantages
because of their machinery and other facilities, which, the individual
candidate who is without any organization support, does no have.
The freedom of association also implies the liberty not to associate or join
with others or join any existing organization. A person may run independently
on his own merits without need of catering to a political party or any other
association for support. And he, as much as the candidate whose candidacy
does not evoke sympathy from any political party or organized group, must
be afforded equal chances. As emphasized by Senators Tolentino and
Salonga, this ban is to assure equal chances to a candidate with talent and
imbued with patriotism as well as nobility of purpose, so that the country can
utilize their services if elected.
Since Section 4 of the Barangay Election Act is almost a verbatim copy of the
first paragraph of Section 8(a) of Republic Act No. 6132, the quoted
arguments in support of the constitutionality of the latter apply as well in
support of the former.
II
The petitioner argues that in a democracy, all elections necessarily must be
partisan. This is not so. For in a representative democracy such as ours,
there is merely a guarantee of participation by the people in the affairs of
government thru their chosen representatives, without assurance that in
every instance concerted partisan activity in the selection of those
representatives shall be allowed, unless otherwise mandated expressly or
impliedly by the Constitution. The case of Imbong vs. Comelec has precisely
rejected the petitioner's posture.
Nor does a parliamentary system of government carry the guarantee that
elections in all levels of government shall be partisan. Under the Constitution,
there is an implicit guarantee of political party participation in the elections for
President and members of the Batasang Pambansa. For the outcome of the
elections for President determines the subsequent accreditation of political
parties.
The political parties whose respective candidates for President have
obtained the first and second highest number of votes in the last preceding
election for President under this Constitution shall be entitled to accreditation
if each has obtained at least ten percent (10%) of the total number of votes
cast in such election. If the candidates for President obtaining the two highest
number of votes do not each obtain at least ten percent (10%) of the total
number of votes cast, or in case no election for President shall as yet have
been held, the Commission on Elections shall grant accreditation to political
parties as may be provided by law. (Art. XII-C Sec. 8.)

On the other hand, the presence and participation of majority and minority
parties are essential to the proper working of the Batasang Pambansa, the
operation of which assumes that there is a ruling political party that
determines the program of government and a fiscalizing political party or
parties to curb possible abuses of the dominant group.
Outside of the cases where the Constitution clearly requires that the
selection of particular officials shall be thru the ballot and with the
participation of political parties, the lawmaking body, in the exercise of its
power to enact laws regulating the conduct of elections, may in our view ban
or restrict partisan elections. We are not aware of any constitutional provision
expressly or impliedly requiring that barangay officials shall be elected thru
partisan electoral process. Indeed, it would be within the competence of the
National Assembly to prescribe that the barangay captain and councilmen,
rather than elected, shall be appointed by designated officials such as the
City or Municipal Mayors or Provincial Governors. If barangay officials could
thus be made appointive, we do not think it would be constitutionally
obnoxious to prescribe that they shall be elective, but without political party
or partisan involvement in the process in order to promote objectivity and
lack of partisan bias in the performance of their duties that are better
discharged in the absence of political attachment.
WHEREFORE, the petition is denied for lack of merit. No costs.
SO ORDERED.
In re: Edillon, 84 SCRA (1979)
The respondent Marcial A. Edillon is a duly licensed practicing attorney in the
Philippines.
On November 29, 1975, the Integrated Bar of the Philippines (IBP for short)
Board of Governors unanimously adopted Resolution No. 75-65 in
Administrative Case No. MDD-1 (In the Matter of the Membership Dues
Delinquency of Atty. Marcial A. Edillon) recommending to the Court the
removal of the name of the respondent from its Roll of Attorneys for
"stubborn refusal to pay his membership dues" to the IBP since the latter's
constitution notwithstanding due notice.
On January 21, 1976, the IBP, through its then President Liliano B. Neri,
submitted the said resolution to the Court for consideration and approval,
pursuant to paragraph 2, Section 24, Article III of the By-Laws of the IBP,
which reads:
.... Should the delinquency further continue until the following June 29, the
Board shall promptly inquire into the cause or causes of the continued
delinquency and take whatever action it shall deem appropriate, including a
recommendation to the Supreme Court for the removal of the delinquent
member's name from the Roll of Attorneys. Notice of the action taken shall
be sent by registered mail to the member and to the Secretary of the Chapter
concerned.
On January 27, 1976, the Court required the respondent to comment on the
resolution and letter adverted to above; he submitted his comment on
February 23, 1976, reiterating his refusal to pay the membership fees due
from him.
On March 2, 1976, the Court required the IBP President and the IBP Board
of Governors to reply to Edillon's comment: on March 24, 1976, they
submitted a joint reply.
Thereafter, the case was set for hearing on June 3, 1976. After the hearing,
the parties were required to submit memoranda in amplification of their oral
arguments. The matter was thenceforth submitted for resolution.
At the threshold, a painstaking scrutiny of the respondent's pleadings would
show that the propriety and necessity of the integration of the Bar of the
Philippines are in essence conceded. The respondent, however, objects to
particular features of Rule of Court 139-A (hereinafter referred to as the
Court Rule) 1 — in accordance with which the Bar of the Philippines was
integrated — and to the provisions of par. 2, Section 24, Article III, of the IBP
By-Laws (hereinabove cited).
The authority of the IBP Board of Governors to recommend to the Supreme
Court the removal of a delinquent member's name from the Roll of Attorneys
is found in par. 2 Section 24, Article Ill of the IBP By-Laws (supra), whereas
the authority of the Court to issue the order applied for is found in Section 10
of the Court Rule, which reads:
SEC. 10. Effect of non-payment of dues. — Subject to the provisions of
Section 12 of this Rule, default in the payment of annual dues for six months
shall warrant suspension of membership in the Integrated Bar, and default in
such payment for one year shall be a ground for the removal of the name of
the delinquent member from the Roll of Attorneys.
The all-encompassing, all-inclusive scope of membership in the IBP is stated
in these words of the Court Rule:
SECTION 1. Organization. — There is hereby organized an official national
body to be known as the 'Integrated Bar of the Philippines,' composed of all
persons whose names now appear or may hereafter be included in the Roll
of Attorneys of the Supreme Court.
The obligation to pay membership dues is couched in the following words of
the Court Rule:
SEC. 9. Membership dues. Every member of the Integrated Bar shall pay
such annual dues as the Board of Governors shall determine with the
approval of the Supreme Court. ...
The core of the respondent's arguments is that the above provisions
constitute an invasion of his constitutional rights in the sense that he is being
compelled, as a pre-condition to maintaining his status as a lawyer in good
standing, to be a member of the IBP and to pay the corresponding dues, and
that as a consequence of this compelled financial support of the said
organization to which he is admittedly personally antagonistic, he is being
deprived of the rights to liberty and property guaranteed to him by the
Constitution. Hence, the respondent concludes, the above provisions of the
Court Rule and of the IBP By-Laws are void and of no legal force and effect.
The respondent similarly questions the jurisdiction of the Court to strike his
name from the Roll of Attorneys, contending that the said matter is not
among the justiciable cases triable by the Court but is rather of an
"administrative nature pertaining to an administrative body."
The case at bar is not the first one that has reached the Court relating to
constitutional issues that inevitably and inextricably come up to the surface
whenever attempts are made to regulate the practice of law, define the
conditions of such practice, or revoke the license granted for the exercise of
the legal profession.
The matters here complained of are the very same issues raised in a
previous case before the Court, entitled "Administrative Case No. 526, In the
Matter of the Petition for the Integration of the Bar of the Philippines, Roman
Ozaeta, et al., Petitioners." The Court exhaustively considered all these
matters in that case in its Resolution ordaining the integration of the Bar of
the Philippines, promulgated on January 9, 1973. The Court there made the
unanimous pronouncement that it was
... fully convinced, after a thoroughgoing conscientious study of all the
arguments adduced in Adm. Case No. 526 and the authoritative materials
and the mass of factual data contained in the exhaustive Report of the
Commission on Bar Integration, that the integration of the Philippine Bar is
'perfectly constitutional and legally unobjectionable'. ...
Be that as it may, we now restate briefly the posture of the Court.
An "Integrated Bar" is a State-organized Bar, to which every lawyer must
belong, as distinguished from bar associations organized by individual
lawyers themselves, membership in which is voluntary. Integration of the Bar
is essentially a process by which every member of the Bar is afforded an
opportunity to do his share in carrying out the objectives of the Bar as well as
obliged to bear his portion of its responsibilities. Organized by or under the
direction of the State, an integrated Bar is an official national body of which
all lawyers are required to be members. They are, therefore, subject to all the
rules prescribed for the governance of the Bar, including the requirement of
payment of a reasonable annual fee for the effective discharge of the
purposes of the Bar, and adherence to a code of professional ethics or
professional responsibility breach of which constitutes sufficient reason for
investigation by the Bar and, upon proper cause appearing, a
recommendation for discipline or disbarment of the offending member. 2
The integration of the Philippine Bar was obviously dictated by overriding
considerations of public interest and public welfare to such an extent as more
than constitutionally and legally justifies the restrictions that integration
imposes upon the personal interests and personal convenience of individual
lawyers. 3
Apropos to the above, it must be stressed that all legislation directing the
integration of the Bar have been uniformly and universally sustained as a
valid exercise of the police power over an important profession. The practice
of law is not a vested right but a privilege, a privilege moreover clothed with
public interest because a lawyer owes substantial duties not only to his client,
but also to his brethren in the profession, to the courts, and to the nation, and
takes part in one of the most important functions of the State — the
administration of justice — as an officer of the court. 4 The practice of law
being clothed with public interest, the holder of this privilege must submit to a
degree of control for the common good, to the extent of the interest he has
created. As the U. S. Supreme Court through Mr. Justice Roberts explained,
the expression "affected with a public interest" is the equivalent of "subject to
the exercise of the police power" (Nebbia vs. New York, 291 U.S. 502).
When, therefore, Congress enacted Republic Act No. 6397 5 authorizing the
Supreme Court to "adopt rules of court to effect the integration of the
Philippine Bar under such conditions as it shall see fit," it did so in the
exercise of the paramount police power of the State. The Act's avowal is to
"raise the standards of the legal profession, improve the administration of
justice, and enable the Bar to discharge its public responsibility more
effectively." Hence, the Congress in enacting such Act, the Court in ordaining
the integration of the Bar through its Resolution promulgated on January 9,
1973, and the President of the Philippines in decreeing the constitution of the
IBP into a body corporate through Presidential Decree No. 181 dated May 4,
1973, were prompted by fundamental considerations of public welfare and
motivated by a desire to meet the demands of pressing public necessity.
The State, in order to promote the general welfare, may interfere with and
regulate personal liberty, property and occupations. Persons and property
may be subjected to restraints and burdens in order to secure the general
prosperity and welfare of the State (U.S. vs. Gomez Jesus, 31 Phil 218), for,
as the Latin maxim goes, "Salus populi est supreme lex." The public welfare
is the supreme law. To this fundamental principle of government the rights of
individuals are subordinated. Liberty is a blessing without which life is a
misery, but liberty should not be made to prevail over authority because then
society win fall into anarchy (Calalang vs. Williams, 70 Phil. 726). It is an
undoubted power of the State to restrain some individuals from all freedom,
and all individuals from some freedom.
But the most compelling argument sustaining the constitutionality and validity
of Bar integration in the Philippines is the explicit unequivocal grant of
precise power to the Supreme Court by Section 5 (5) of Article X of the 1973
Constitution of the Philippines, which reads:
Sec. 5. The Supreme Court shall have the following powers:
xxx xxx xxx
(5) Promulgate rules concerning pleading, practice, and pro. procedure in all
courts, and the admission to the practice of law and the integration of the Bar
...,
and Section 1 of Republic Act No. 6397, which reads:
SECTION 1. Within two years from the approval of this Act, the Supreme
Court may adopt rules of Court to effect the integration of the Philippine Bar
under such conditions as it shall see fit in order to raise the standards of the
legal profession, improve the administration of justice, and enable the Bar to
discharge its public responsibility more effectively.
Quite apart from the above, let it be stated that even without the enabling Act
(Republic Act No. 6397), and looking solely to the language of the provision
of the Constitution granting the Supreme Court the power "to promulgate
rules concerning pleading, practice and procedure in all courts, and the
admission to the practice of law," it at once becomes indubitable that this
constitutional declaration vests the Supreme Court with plenary power in all
cases regarding the admission to and supervision of the practice of law.
Thus, when the respondent Edillon entered upon the legal profession, his
practice of law and his exercise of the said profession, which affect the
society at large, were (and are) subject to the power of the body politic to
require him to conform to such regulations as might be established by the
proper authorities for the common good, even to the extent of interfering with
some of his liberties. If he did not wish to submit himself to such reasonable
interference and regulation, he should not have clothed the public with an
interest in his concerns.
On this score alone, the case for the respondent must already fall.
The issues being of constitutional dimension, however, we now concisely
deal with them seriatim.
1. The first objection posed by the respondent is that the Court is without
power to compel him to become a member of the Integrated Bar of the
Philippines, hence, Section 1 of the Court Rule is unconstitutional for it
impinges on his constitutional right of freedom to associate (and not to
associate). Our answer is: To compel a lawyer to be a member of the
Integrated Bar is not violative of his constitutional freedom to associate. 6
Integration does not make a lawyer a member of any group of which he is not
already a member. He became a member of the Bar when he passed the Bar
examinations. 7 All that integration actually does is to provide an official
national organization for the well-defined but unorganized and incohesive
group of which every lawyer is a ready a member. 8
Bar integration does not compel the lawyer to associate with anyone. He is
free to attend or not attend the meetings of his Integrated Bar Chapter or
vote or refuse to vote in its elections as he chooses. The only compulsion to
which he is subjected is the payment of annual dues. The Supreme Court, in
order to further the State's legitimate interest in elevating the quality of
professional legal services, may require that the cost of improving the
profession in this fashion be shared by the subjects and beneficiaries of the
regulatory program — the lawyers.9
Assuming that the questioned provision does in a sense compel a lawyer to
be a member of the Integrated Bar, such compulsion is justified as an
exercise of the police power of the State. 10
2. The second issue posed by the respondent is that the provision of the
Court Rule requiring payment of a membership fee is void. We see nothing in
the Constitution that prohibits the Court, under its constitutional power and
duty to promulgate rules concerning the admission to the practice of law and
the integration of the Philippine Bar (Article X, Section 5 of the 1973
Constitution) — which power the respondent acknowledges — from requiring
members of a privileged class, such as lawyers are, to pay a reasonable fee
toward defraying the expenses of regulation of the profession to which they
belong. It is quite apparent that the fee is indeed imposed as a regulatory
measure, designed to raise funds for carrying out the objectives and
purposes of integration. 11
3. The respondent further argues that the enforcement of the penalty
provisions would amount to a deprivation of property without due process
and hence infringes on one of his constitutional rights. Whether the practice
of law is a property right, in the sense of its being one that entitles the holder
of a license to practice a profession, we do not here pause to consider at
length, as it clear that under the police power of the State, and under the
necessary powers granted to the Court to perpetuate its existence, the
respondent's right to practise law before the courts of this country should be
and is a matter subject to regulation and inquiry. And, if the power to impose
the fee as a regulatory measure is recognize, then a penalty designed to
enforce its payment, which penalty may be avoided altogether by payment, is
not void as unreasonable or arbitrary. 12
But we must here emphasize that the practice of law is not a property right
but a mere privilege, 13 and as such must bow to the inherent regulatory
power of the Court to exact compliance with the lawyer's public
responsibilities.
4. Relative to the issue of the power and/or jurisdiction of the Supreme Court
to strike the name of a lawyer from its Roll of Attorneys, it is sufficient to state
that the matters of admission, suspension, disbarment and reinstatement of
lawyers and their regulation and supervision have been and are indisputably
recognized as inherent judicial functions and responsibilities, and the
authorities holding such are legion. 14
In In Re Sparks (267 Ky. 93, 101 S.W. (2d) 194), in which the report of the
Board of Bar Commissioners in a disbarment proceeding was confirmed and
disbarment ordered, the court, sustaining the Bar Integration Act of Kentucky,
said: "The power to regulate the conduct and qualifications of its officers
does not depend upon constitutional or statutory grounds. It is a power which
is inherent in this court as a court — appropriate, indeed necessary, to the
proper administration of justice ... the argument that this is an arbitrary power
which the court is arrogating to itself or accepting from the legislative likewise
misconceives the nature of the duty. It has limitations no less real because
they are inherent. It is an unpleasant task to sit in judgment upon a brother
member of the Bar, particularly where, as here, the facts are disputed. It is a
grave responsibility, to be assumed only with a determination to uphold the
Ideals and traditions of an honorable profession and to protect the public
from overreaching and fraud. The very burden of the duty is itself a guaranty
that the power will not be misused or prostituted. ..."
The Court's jurisdiction was greatly reinforced by our 1973 Constitution when
it explicitly granted to the Court the power to "Promulgate rules concerning
pleading, practice ... and the admission to the practice of law and the
integration of the Bar ... (Article X, Sec. 5(5) the power to pass upon the
fitness of the respondent to remain a member of the legal profession is
indeed undoubtedly vested in the Court.
We thus reach the conclusion that the provisions of Rule of Court 139-A and
of the By-Laws of the Integrated Bar of the Philippines complained of are
neither unconstitutional nor illegal.
WHEREFORE, premises considered, it is the unanimous sense of the Court
that the respondent Marcial A. Edillon should be as he is hereby disbarred,
and his name is hereby ordered stricken from the Roll of Attorneys of the
Court.
Rotary Int’l vs. Rotary Club, 481 U.S. 537 (1987)
Facts of the case
When the Duarte chapter of Rotary International violated club policy by
admitting three women into its active membership its charter was revoked
and it was expelled. The California Court of Appeals, however, in reversing a
lower court decision, found that Rotary International's action violated a
California civil rights act prohibiting sexual discrimination.
Question
Did a law which required California Rotary Clubs to admit women members
violate Rotary International's First Amendment rights of association?
No. Considering the size, purpose, selectivity, and exclusivity of Rotary's
membership, the Court found that the relationship among the club's members
was not of the intimate or private variety which warrants First Amendment
protection. Writing for the unanimous Court, Justice Powell argued that
because many of Rotary's activities (including their meetings) are conducted
in the presence of strangers, and because women members would not
prevent the club from carrying out its purposes, there was no violation of
associational rights. Furthermore, even if there were a slight encroachment
on the rights of Rotarians to associate, that minimal infringement would be
justified since it "serves the State's compelling interest" in ending sexual
discrimination.
FREEDOM OF EXPRESSION
United States vs. Bustos [37 Phil. 731 (1918)]

This appeal presents the specific question of whether or not the defendants
and appellants are guilty of a libel of Roman Punsalan, justice of the peace of
Macabebe and Masantol, Province of Pampanga. The appeal also submits
the larger question of the attitude which the judiciary should take interpreting
and enforcing the Libel Law in connection with the basic prerogatives of
freedom of speech and press, and of assembly and petition. For a better
understanding, the facts in the present appeal are the first narrated in the
order of their occurrence, then certain suggestive aspects relative to the
rights of freedom of speech and press and of assembly and petition are
interpolated, then the facts are tested by these principles, and, finally,
judgment is rendered.
First, the facts. In the latter part of 1915, numerous citizens of the Province of
Pampanga assembled, and prepared and signed a petition to the Executive
Secretary through the law office of Crossfield and O'Brien, and five
individuals signed affidavits, charging Roman Punsalan, justice of the peace
of Macabebe and Masantol, Pampanga, with malfeasance in office and
asking for his removal. Crossfield and O'Brien submitted this petition and
these affidavits with a complaint to the Executive Secretary. The petition
transmitted by these attorneys was signed by thirty-four citizens apparently of
considerable standing, including councilors and property owners (now the
defendants), and contained the statements set out in the information as
libelous. Briefly stated the specific charges against the justice of the peace
were.
1. That Francisca Polintan, desiring to make complaint against Mariano de
los Reyes, visited the justice of the peace, who first told her that he would
draw up complaint for P5; afterwards he said he would take P3 which she
paid; also kept her in the house for four days as a servant and took from her
two chickens and twelve "gandus;"
2. That Valentin Sunga being interested in a case regarding land which was
on trial before the justice of the peace, went to see the justice of the peace to
ascertain the result of the trial, and was told by the justice of the peace that if
he wished to win he must give him P50. Not having this amount, Sunga gave
the justice nothing, and a few days later was informed that he had lost the
case. Returning again to the office of the justice of the peace in order to
appeal, the justice told him that he could still win if he would pay P50;
3. That Leoncio Quiambao, having filed a complaint for assault against four
persons, on the day of the trial the justice called him over to his house, where
he secretly gave him (Quiambao) P30; and the complaint was thereupon
shelved.
The Executive Secretary referred the papers to the judge of first instance for
the Seventh Judicial District requesting investigation, proper action, and
report. The justice of the peace was notified and denied the charges. The
judge of first instance found the first count not proved and counts 2 and 3
established. In view of this result, the judge, the Honorable Percy M. Moir,
was of the opinion "that it must be, and it is hereby, recommended to the
Governor-General that the respondent be removed from his position as
justice of the peace of Macabebe and Masantol, Province of Pampanga, and
it is ordered that the proceedings had in this case be transmitted to the
Executive Secretary."
Later the justice of the peace filled a motion for a new trial; the judge of first
instance granted the motion and reopened the hearing; documents were
introduced, including a letter sent by the municipal president and six
councilors of Masantol, Pampanga, asserting that the justice of the peace
was the victim of prosecution, and that one Agustin Jaime, the auxiliary
justice of the peace, had instituted the charges for personal reasons; and the
judge of first instance ordered a suppression of the charges against
Punsalan and acquitted him the same. Attorneys for complainants thereupon
appealed to the Governor-General, but whether the papers were forwarded
to the Governor-General as requested the record does not disclose.
Criminal action against the petitioners, now become the defendants, was
instituted on October 12, 1916, by virtue of the following information:
That on or about the month of December, 1915, in the municipality of
Macabebe, Pampanga, P. I., the said accused, voluntarily, illegally, and
criminally and with malicious intent to prejudice and defame Mr. Roman
Punsalan Serrano who was at said time and place justice of the peace of
Macabebe and Masantol of this province, wrote, signed, and published a
writing which was false, scandalous, malicious, defamatory, and libelous
against the justice of the peace Mr. Roman Punsalan Serrano, in which
writing appear among other things the following:
That the justice of the peace, Mr. Roman Punsalan Serrano, of this town of
Macabebe, on account of the conduct observed by him heretofore, a conduct
highly improper of the office which he holds, is found to be a public
functionary who is absolutely unfair, eminently immoral and dangerous to the
community, and consequently unworthy of the office.
That this assertion of the undersigned is evidenced in a clear and positive
manner by facts so certain, so serious, and so denigrating which appear in
the affidavits attached hereto, and by other facts no less serious, but which
the undersigned refrain from citing herein for the sake of brevity and in order
not to bother too much the attention of your Honor and due to lack of
sufficient proof to substantiate them.

That should the higher authorities allow the said justice of the peace of this
town to continue in his office, the protection of the rights and interests of its
inhabitants will be illusory and utopic; rights and interest solemnly
guaranteed by the Philippine Bill of Rights, and justice in this town will not be
administered in accordance with law.
That on account of the wrongful discharge of his office and of his bad
conducts as such justice of the peace, previous to this time, some
respectable citizens of this town of Macabebe were compelled to present an
administrative case against the said Roman Punsalan Serrano before the
judge of first instance of Pampanga, in which case there were made against
him various charges which were true and certain and of different characters.
That after the said administrative case was over, the said justice of the
peace, far from charging his bad and despicable conduct, which has roused
the indignation of this town of Macabebe, subsequently performed the acts
abovementioned, as stated in the affidavits herewith attached, as if intending
to mock at the people and to show his mistaken valor and heroism.'
All of this has been written and published by the accused with deliberate
purpose of attacking the virtue, honor, and reputation of the justice of the
peace, Mr. Roman Punsalan Serrano, and thus exposing him to public hatred
contempt, and ridicule. All contrary to law.
It should be noted that the information omits paragraphs of the petition
mentioning the investigation before the judge of first instance, the affidavits
upon which based and concluding words, "To the Executive Secretary,
through the office of Crossfield and O'Brien."
The Honorable Percy M. Moir found all the defendants, with the exception of
Felix Fernandez, Juan S. Alfonso, Restituto Garcia, and Manuel Mallari,
guilty and sentenced each of them to pay a fine of P10 and one thirty-second
part of the costs, or to suffer subsidiary imprisonment in case of insolvency.
New attorneys for the defense, coming into the case, after the handing down
of the decision, file on December 16, 1916, a motion for a new trial, the
principal purpose of which was to retire the objection interposed by the then
counsel for the defendants to the admission of Exhibit A consisting of the
entire administrative proceedings. The trial court denied the motion. All the
defendants, except Melecio S. Sabado and Fortunato Macalino appealed
making the following assignments of error:
1. The court erred in overruling the motion of the convicted defendants for a
new trial.
2. The court erred in refusing to permit the defendants to retire the objection
in advertently interposed by their counsel to the admission in evidence of the
expediente administrativo out of which the accusation in this case arose.
3. The court erred in sustaining the objection of the prosecution to the
introduction in evidence by the accused of the affidavits upon which the
petition forming the basis of the libelous charge was based.
4. The court erred in not holding that the alleged libelous statement was
unqualifiedly privileged.
5. The court erred in assuming and impliedly holding that the burden was on
the defendants to show that the alleged libelous statements were true and
free from malice.
6. The court erred in not acquitting the defendants.
7. The evidence adduced fails to show the guilt of the defendants beyond a
reasonable doubt. This is especially true of all the defendants, except Felipe
Bustos, Dionisio Mallari, and Jose T. Reyes.
We have thus far taken it for granted that all the proceedings, administrative
and judicial, were properly before this court. As a matter of fact counsel for
defendants in the lower court made an improvident objection to the
admission of the administrative proceedings on the ground that the
signatures were not identified and that the same was immaterial, which
objection was partially sustained by the trial court. Notwithstanding this
curious situation by reason of which the attorney for the defense attempted to
destroy through his objection the very foundation for the justification of his
clients, we shall continue to consider all the proceedings as before us. Not
indicating specifically the reason for this action, let the following be stated:
The administrative proceedings were repeatedly mentioned during the trial.
These proceedings were the basis of the accusation, the information, the
evidence, and the judgment rendered. The prosecution cannot be
understood without knowledge of anterior action. Nothing more unjust could
be imagined than to pick out certain words which standing by themselves
and unexplained are libelous and then by shutting off all knowledge of facts
which would justify these words, to convict the accused. The records in
question are attached to the rollo, and either on the ground that the attorneys
for the defense retired the objection to the introduction of the administrative
proceedings by the prosecution, or that a new trial should have been had
because under section 42 of the Code of Criminal Procedure "a case may be
reopened on account of errors at law committed at the trial," or because of
the right of this court to call in such records as are sufficiently incorporated
into the complaint and are essential to a determination of the case, or finally,
because of our conceded right to take judicial notice of official action in
administrative cases and of judicial proceedings supplemental to the basis
action, we examine the record as before us, containing not alone the trial for
libel, but the proceedings previous to that trial giving rise to it. To this action,
the Government can not explain for it was the prosecution which tried to
incorporate Exhibit A into the record.
With these facts pleading justification, before testing them by certain
principles which make up the law of libel and slander, we feel warranted in
seizing the opportunity to intrude an introductory and general discussion of
freedom of speech and press and assembly and petition in the Philippine
Islands. We conceive that the time is ripe thus to clear up certain
misapprehensions on the subject and to place these basic rights in their
proper light.
Turning to the pages of history, we state nothing new when we set down that
freedom of speech as cherished in democratic countries was unknown in the
Philippine Islands before 1900. A prime cause for revolt was consequently
ready made. Jose Rizal in "Filipinas Despues de Cien Años" (The Philippines
a Century Hence, pages 62 et seq.) describing "the reforms sine quibus
non," which the Filipinos insist upon, said: "
The minister, . . . who wants his reforms to be reforms, must begin by
declaring the press in the Philippines free and by instituting Filipinos
delegates.
The Filipino patriots in Spain, through the columns of "La Solidaridad" and by
other means invariably in exposing the wants of the Filipino people
demanded "liberty of the press, of cults, and associations." (See Mabini, La
Revolucion Filipina.) The Malolos Constitution, the work of the Revolutionary
Congress, in its Bill of Rights, zealously guarded freedom of speech and
press and assembly and petition.
Mention is made of the foregoing data only to deduce the proposition that a
reform so sacred to the people of these Islands and won at so dear a cost,
should now be protected and carried forward as one would protect and
preserve the covenant of liberty itself.
Next comes the period of American-Filipino cooperative effort. The
Constitution of the United States and the State constitutions guarantee to the
right of freedom of speech and press and the right of assembly and petition.
We are therefore, not surprised to find President McKinley in that Magna
Charta of Philippine Liberty, the Instructions to the Second Philippine
Commission, of April 7, 1900, laying down the inviolable rule "That no law
shall be passed abridging the freedom of speech or of the press or of the
rights of the people to peaceably assemble and petition the Government for a
redress of grievances."
The Philippine Bill, the Act of Congress of July 1, 1902, and the Jones Law,
the Act of Congress of August 29, 1916, in the nature of organic acts for the
Philippines, continued this guaranty. The words quoted are not unfamiliar to
students of Constitutional Law, for they are the counterpart of the first
amendment to the Constitution of the United States, which the American
people demanded before giving their approval to the Constitution.
We mention the foregoing facts only to deduce the position never to be
forgotten for an instant that the guaranties mentioned are part and parcel of
the Organic Law — of the Constitution — of the Philippine Islands.
These paragraphs found in the Philippine Bill of Rights are not threadbare
verbiage. The language carries with all the applicable jurisprudence of great
English and American Constitutional cases. (Kepner vs. U. S. [1904], 195 U.
S., 100; Serra vs. Mortiga [1907], 204 U. S., 470.) And what are these
principles? Volumes would inadequately answer. But included are the
following:
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Completely liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the
intelligence and the dignity of the individual be exalted. Of course, criticism
does not authorize defamation. Nevertheless, as the individual is less than
the State, so must expected criticism be born for the common good. Rising
superior to any official or set of officials, to the Chief of Executive, to the
Legislature, to the Judiciary — to any or all the agencies of Government —
public opinion should be the constant source of liberty and democracy. (See
the well considered cases of Wason vs. Walter, 4 L. R. 4 Q. B., 73; Seymour
vs. Butterworth, 3F. and F., 372; The Queen vs. Sir R. Carden, 5 Q. B. D., 1)
The guaranties of a free speech and a free press include the right to criticize
judicial conduct. The administration of the law is a matter of vital public
concern. Whether the law is wisely or badly enforced is, therefore, a fit
subject for proper comment. If the people cannot criticize a justice of the
peace or a judge the same as any other public officer, public opinion will be
effectively muzzled. Attempted terrorization of public opinion on the part of
the judiciary would be tyranny of the basest sort. The sword of Damocles in
the hands of a judge does not hang suspended over the individual who dares
to assert his prerogative as a citizen and to stand up bravely before any
official. On the contrary, it is a duty which every one owes to society or to the
State to assist in the investigation of any alleged misconduct. It is further the
duty of all who know of any official dereliction on the part of a magistrate or
the wrongful act of any public officer to bring the facts to the notice of those
whose duty it is to inquire into and punish them. In the words of Mr. Justice
Gayner, who contributed so largely to the law of libel. "The people are not
obliged to speak of the conduct of their officials in whispers or with bated
breath in a free government, but only in a despotism." (Howarth vs. Barlow
[1906], 113 App. Div., N. Y., 510.)
The right to assemble and petition is the necessary consequence of
republican institutions and the complement of the part of free speech.
Assembly means a right on the part of citizens to meet peaceably for
consultation in respect to public affairs. Petition means that any person or
group of persons can apply, without fear of penalty, to the appropriate branch
or office of the government for a redress of grievances. The persons
assembling and petitioning must, of course, assume responsibility for the
charges made.
Public policy, the welfare of society, and the orderly administration of
government have demanded protection for public opinion. The inevitable and
incontestable result has been the development and adoption of the doctrine
of privilege.
The doctrine of privileged communications rests upon public policy, 'which
looks to the free and unfettered administration of justice, though, as an
incidental result, it may in some instances afford an immunity to the evil-
disposed and malignant slanderer.' (Abbott vs. National Bank of Commerce,
Tacoma [1899], 175 U. S., 409, 411.)
Privilege is classified as either absolute or qualified. With the first, we are not
concerned. As to qualified privilege, it is as the words suggest a prima facie
privilege which may be lost by proof of malice. The rule is thus stated by Lord
Campbell, C. J.
A communication made bona fide upon any subject-matter in which the party
communicating has an interest, or in reference to which has a duty, is
privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be
slanderous and actionable. (Harrison vs. Bush, 5 E. and B., 344; 1 Jur.[N.
S.], 846; 25 L. J. Q. B., 25; 3 W. R., 474; 85 E. C. L., 344.)
A pertinent illustration of the application of qualified privilege is a complaint
made in good faith and without malice in regard to the character or conduct
of a public official when addressed to an officer or a board having some
interest or duty in the matter. Even when the statements are found to be
false, if there is probable cause for belief in their truthfulness and the charge
is made in good faith, the mantle of privilege may still cover the mistake of
the individual. But the statements must be made under an honest sense of
duty; a self-seeking motive is destructive. Personal injury is not necessary.
All persons have an interest in the pure and efficient administration of justice
and of public affairs. The duty under which a party is privileged is sufficient if
it is social or moral in its nature and this person in good faith believes he is
acting in pursuance thereof although in fact he is mistaken. The privilege is
not defeated by the mere fact that the communication is made in intemperate
terms. A further element of the law of privilege concerns the person to whom
the complaint should be made. The rule is that if a party applies to the wrong
person through some natural and honest mistake as to the respective
functions of various officials such unintentional error will not take the case out
of the privilege.
In the usual case malice can be presumed from defamatory words. Privilege
destroy that presumption. The onus of proving malice then lies on the
plaintiff. The plaintiff must bring home to the defendant the existence of
malice as the true motive of his conduct. Falsehood and the absence of
probable cause will amount to proof of malice. (See White vs. Nicholls
[1845], 3 How., 266.)
A privileged communication should not be subjected to microscopic
examination to discover grounds of malice or falsity. Such excessive scrutiny
would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides. (See White vs.
Nicholls [1845], 3 How., 266; Bradley vs. Heath [1831], 12 Pick. [Mass.], 163;
Kent vs. Bongartz [1885], 15 R. I., 72; Street Foundations of Legal Liability,
vol. 1, pp. 308, 309; Newell, Slander and Libel, various citations; 25 Cyc.
pages 385 et seq.)
Having ascertained the attitude which should be assumed relative to the
basic rights of freedom of speech and press and of assembly and petition,
having emphasized the point that our Libel Law as a statute must be
construed with reference to the guaranties of our Organic Law, and having
sketched the doctrine of privilege, we are in a position to test the facts of this
case with these principles.
It is true that the particular words set out in the information, if said of a private
person, might well be considered libelous per se. The charges might also
under certain conceivable conditions convict one of a libel of a government
official. As a general rule words imputing to a judge or a justice of the peace
dishonesty or corruption or incapacity or misconduct touching him in his
office are actionable. But as suggested in the beginning we do not have
present a simple case of direct and vicious accusations published in the
press, but of charges predicated on affidavits made to the proper official and
thus qualifiedly privileged. Express malice has not been proved by the
prosecution. Further, although the charges are probably not true as to the
justice of the peace, they were believed to be true by the petitioners. Good
faith surrounded their action. Probable cause for them to think that
malfeasance or misfeasance in office existed is apparent. The ends and the
motives of these citizens— to secure the removal from office of a person
thought to be venal — were justifiable. In no way did they abuse the
privilege. These respectable citizens did not eagerly seize on a frivolous
matter but on instances which not only seemed to them of a grave character,
but which were sufficient in an investigation by a judge of first instance to
convince him of their seriousness. No undue publicity was given to the
petition. The manner of commenting on the conduct of the justice of the
peace was proper. And finally the charges and the petition were submitted
through reputable attorneys to the proper functionary, the Executive
Secretary. In this connection it is sufficient to note that justices of the peace
are appointed by the Governor-General, that they may be removed by the
Governor-General upon the recommendation of a Judge of First Instance, or
on the Governor-General's own motion, and that at the time this action took
place the Executive Bureau was the office through which the Governor-
General acted in such matter. (See Administrative Code of 1917, secs. 203
and 229, in connection with the cases of U. S. vs. Galesa [1915], 31 Phil.,
365, and of Harrison vs. Bush, 5 E. and B., 344, holding that where
defendant was subject to removal by the sovereign, a communication to the
Secretary of State was privileged.)
The present facts are further essentially different from those established in
other cases in which private individuals have been convicted of libels of
public officials. Malice, traduction, falsehood, calumny, against the man and
not the officer, have been the causes of the verdict of guilty. (See U. S. vs.
Senado [1909], 14 Phil., 338, 339; U. S. vs. Contreras [1912], 23 Phil., 513;
U. S. vs. Montalvo [1915], 29 Phil., 595.)
The Attorney-General bases his recommendation for confirmation on the
case of the United States vs. Julio Bustos ([1909], 13 Phil., 690). The Julio
Bustos case, the Attorney-General says, is identical with the Felipe Bustos
case, with the exception that there has been more publicity in the present
instance and that the person to whom the charge was made had less
jurisdiction than had the Secretary of Justice in the Julio Bustos case.
Publicity is immaterial if the charge against Punsalan is in fact a privileged
communication. Moreover, in the Julio Bustos case we find wild statements,
with no basis in fact, made against reputable members of the judiciary, "to
persons who could not furnish protection." Malicious and untrue
communications are not privileged. A later case and one more directly in
point to which we invite especial attention is United States vs. Galeza
([1915], 31 Phil., 365). (Note also Yancey vs. Commonwealth [1909], 122 So.
W., 123.)
We find the defendants and appellants entitled to the protection of the rules
concerning qualified privilege, growing out of constitutional guaranties in our
bill of rights. Instead of punishing citizens for an honest endeavor to improve
the public service, we should rather commend them for their good
citizenship. The defendants and appellants are acquitted with the costs de
officio. So ordered.
Burgos vs. Chief of Staff [133 SCRA 800 (1984)]
Assailed in this petition for certiorari prohibition and mandamus with
preliminary mandatory and prohibitory injunction is the validity of two [2]
search warrants issued on December 7, 1982 by respondent Judge Ernani
Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project
6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue,
Quezon City, business addresses of the "Metropolitan Mail" and "We Forum"
newspapers, respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as
numerous papers, documents, books and other written literature alleged to
be in the possession and control of petitioner Jose Burgos, Jr. publisher-
editor of the "We Forum" newspaper, were seized.
Petitioners further pray that a writ of preliminary mandatory and prohibitory
injunction be issued for the return of the seized articles, and that
respondents, "particularly the Chief Legal Officer, Presidential Security
Command, the Judge Advocate General, AFP, the City Fiscal of Quezon
City, their representatives, assistants, subalterns, subordinates, substitute or
successors" be enjoined from using the articles thus seized as evidence
against petitioner Jose Burgos, Jr. and the other accused in Criminal Case
No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v.
Jose Burgos, Jr. et al. 1
In our Resolution dated June 21, 1983, respondents were required to answer
the petition. The plea for preliminary mandatory and prohibitory injunction
was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion
of the Solicitor General in behalf of respondents.
At the hearing on July 7, 1983, the Solicitor General, while opposing
petitioners' prayer for a writ of preliminary mandatory injunction, manifested
that respondents "will not use the aforementioned articles as evidence in the
aforementioned case until final resolution of the legality of the seizure of the
aforementioned articles. ..." 2 With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic.
Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the
quashal of the search warrants before respondent judge. Indeed, petitioners,
before impugning the validity of the warrants before this Court, should have
filed a motion to quash said warrants in the court that issued them. 3 But this
procedural flaw notwithstanding, we take cognizance of this petition in view
of the seriousness and urgency of the constitutional issues raised not to
mention the public interest generated by the search of the "We Forum"
offices, which was televised in Channel 7 and widely publicized in all
metropolitan dailies. The existence of this special circumstance justifies this
Court to exercise its inherent power to suspend its rules. In the words of the
revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza v.
Raymundo, 4 "it is always in the power of the court [Supreme Court] to
suspend its rules or to except a particular case from its operation, whenever
the purposes of justice require it...".
Respondents likewise urge dismissal of the petition on ground of laches.
Considerable stress is laid on the fact that while said search warrants were
issued on December 7, 1982, the instant petition impugning the same was
filed only on June 16, 1983 or after the lapse of a period of more than six [6]
months.
Laches is failure or negligence for an unreasonable and unexplained length
of time to do that which, by exercising due diligence, could or should have
been done earlier. It is negligence or omission to assert a right within a
reasonable time, warranting a presumption that the party entitled to assert it
either has abandoned it or declined to assert it. 5
Petitioners, in their Consolidated Reply, explained the reason for the delay in
the filing of the petition thus:
Respondents should not find fault, as they now do [p. 1, Answer, p. 3,
Manifestation] with the fact that the Petition was filed on June 16, 1983, more
than half a year after the petitioners' premises had been raided.
The climate of the times has given petitioners no other choice. If they had
waited this long to bring their case to court, it was because they tried at first
to exhaust other remedies. The events of the past eleven fill years had taught
them that everything in this country, from release of public funds to release of
detained persons from custody, has become a matter of executive
benevolence or largesse
Hence, as soon as they could, petitioners, upon suggestion of persons close
to the President, like Fiscal Flaminiano, sent a letter to President Marcos,
through counsel Antonio Coronet asking the return at least of the printing
equipment and vehicles. And after such a letter had been sent, through Col.
Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential
Security Command, they were further encouraged to hope that the latter
would yield the desired results.
After waiting in vain for five [5] months, petitioners finally decided to come to
Court. [pp. 123-124, Rollo]
Although the reason given by petitioners may not be flattering to our judicial
system, We find no ground to punish or chastise them for an error in
judgment. On the contrary, the extrajudicial efforts exerted by petitioners
quite evidently negate the presumption that they had abandoned their right to
the possession of the seized property, thereby refuting the charge of laches
against them.
Respondents also submit the theory that since petitioner Jose Burgos, Jr.
had used and marked as evidence some of the seized documents in Criminal
Case No. Q- 022872, he is now estopped from challenging the validity of the
search warrants. We do not follow the logic of respondents. These
documents lawfully belong to petitioner Jose Burgos, Jr. and he can do
whatever he pleases with them, within legal bounds. The fact that he has
used them as evidence does not and cannot in any way affect the validity or
invalidity of the search warrants assailed in this petition.
Several and diverse reasons have been advanced by petitioners to nullify the
search warrants in question.
1. Petitioners fault respondent judge for his alleged failure to conduct an
examination under oath or affirmation of the applicant and his witnesses, as
mandated by the above-quoted constitutional provision as wen as Sec. 4,
Rule 126 of the Rules of Court .6 This objection, however, may properly be
considered moot and academic, as petitioners themselves conceded during
the hearing on August 9, 1983, that an examination had indeed been
conducted by respondent judge of Col. Abadilla and his witnesses.
2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two
distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D,
RMS Building, Quezon Avenue, Quezon City, respectively. Objection is
interposed to the execution of Search Warrant No. 20-82[b] at the latter
address on the ground that the two search warrants pinpointed only one
place where petitioner Jose Burgos, Jr. was allegedly keeping and
concealing the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon
City. This assertion is based on that portion of Search Warrant No. 20- 82[b]
which states:
Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended
and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon
City.
The defect pointed out is obviously a typographical error. Precisely, two
search warrants were applied for and issued because the purpose and intent
were to search two distinct premises. It would be quite absurd and illogical
for respondent judge to have issued two warrants intended for one and the
same place. Besides, the addresses of the places sought to be searched
were specifically set forth in the application, and since it was Col. Abadilla
himself who headed the team which executed the search warrants, the
ambiguity that might have arisen by reason of the typographical error is more
apparent than real. The fact is that the place for which Search Warrant No.
20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon
Avenue, Quezon City, which address appeared in the opening paragraph of
the said warrant. 7 Obviously this is the same place that respondent judge
had in mind when he issued Warrant No. 20-82 [b].
In the determination of whether a search warrant describes the premises to
be searched with sufficient particularity, it has been held "that the executing
officer's prior knowledge as to the place intended in the warrant is relevant.
This would seem to be especially true where the executing officer is the
affiant on whose affidavit the warrant had issued, and when he knows that
the judge who issued the warrant intended the building described in the
affidavit, And it has also been said that the executing officer may look to the
affidavit in the official court file to resolve an ambiguity in the warrant as to
the place to be searched." 8
3. Another ground relied upon to annul the search warrants is the fact that
although the warrants were directed against Jose Burgos, Jr. alone, articles b
belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J.
Burgos Media Services, Inc. were seized.
Section 2, Rule 126 of the Rules of Court, enumerates the personal
properties that may be seized under a search warrant, to wit:
Sec. 2. Personal Property to be seized. — A search warrant may be issued
for the search and seizure of the following personal property:
[a] Property subject of the offense;
[b] Property stolen or embezzled and other proceeds or fruits of the offense;
and
[c] Property used or intended to be used as the means of committing an
offense.
The above rule does not require that the property to be seized should be
owned by the person against whom the search warrant is directed. It may or
may not be owned by him. In fact, under subsection [b] of the above-quoted
Section 2, one of the properties that may be seized is stolen property.
Necessarily, stolen property must be owned by one other than the person in
whose possession it may be at the time of the search and seizure.
Ownership, therefore, is of no consequence, and it is sufficient that the
person against whom the warrant is directed has control or possession of the
property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to
have in relation to the articles and property seized under the warrants.
4. Neither is there merit in petitioners' assertion that real properties were
seized under the disputed warrants. Under Article 415[5] of the Civil Code of
the Philippines, "machinery, receptables, instruments or implements intended
by the owner of the tenement for an industry or works which may be carried
on in a building or on a piece of land and which tend directly to meet the
needs of the said industry or works" are considered immovable property. In
Davao Sawmill Co. v. Castillo9 where this legal provision was invoked, this
Court ruled that machinery which is movable by nature becomes immobilized
when placed by the owner of the tenement, property or plant, but not so
when placed by a tenant, usufructuary, or any other person having only a
temporary right, unless such person acted as the agent of the owner.
In the case at bar, petitioners do not claim to be the owners of the land
and/or building on which the machineries were placed. This being the case,
the machineries in question, while in fact bolted to the ground remain
movable property susceptible to seizure under a search warrant.
5. The questioned search warrants were issued by respondent judge upon
application of Col. Rolando N. Abadilla Intelligence Officer of the P.C.
Metrocom.10 The application was accompanied by the Joint Affidavit of
Alejandro M. Gutierrez and Pedro U. Tango, 11 members of the Metrocom
Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the search
warrants on December 7, 1982.
It is contended by petitioners, however, that the abovementioned documents
could not have provided sufficient basis for the finding of a probable cause
upon which a warrant may validly issue in accordance with Section 3, Article
IV of the 1973 Constitution which provides:
SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, after examination under oath or
affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to
be seized.
We find petitioners' thesis impressed with merit. Probable cause for a search
is defined as such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed and
that the objects sought in connection with the offense are in the place sought
to be searched. And when the search warrant applied for is directed against
a newspaper publisher or editor in connection with the publication of
subversive materials, as in the case at bar, the application and/or its
supporting affidavits must contain a specification, stating with particularity the
alleged subversive material he has published or is intending to publish. Mere
generalization will not suffice. Thus, the broad statement in Col. Abadilla's
application that petitioner "is in possession or has in his control printing
equipment and other paraphernalia, news publications and other documents
which were used and are all continuously being used as a means of
committing the offense of subversion punishable under Presidential Decree
885, as amended ..." 12 is a mere conclusion of law and does not satisfy the
requirements of probable cause. Bereft of such particulars as would justify a
finding of the existence of probable cause, said allegation cannot serve as
basis for the issuance of a search warrant and it was a grave error for
respondent judge to have done so.
Equally insufficient as basis for the determination of probable cause is the
statement contained in the joint affidavit of Alejandro M. Gutierrez and Pedro
U. Tango, "that the evidence gathered and collated by our unit clearly shows
that the premises above- mentioned and the articles and things above-
described were used and are continuously being used for subversive
activities in conspiracy with, and to promote the objective of, illegal
organizations such as the Light-a-Fire Movement, Movement for Free
Philippines, and April 6 Movement." 13
In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, ... after examination under oath or affirmation of the
complainant and the witnesses he may produce; 14 the Constitution requires
no less than personal knowledge by the complainant or his witnesses of the
facts upon which the issuance of a search warrant may be justified. In
Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required
must refer to the truth of the facts within the personal knowledge of the
petitioner or his witnesses, because the purpose thereof is to convince the
committing magistrate, not the individual making the affidavit and seeking the
issuance of the warrant, of the existence of probable cause." As couched, the
quoted averment in said joint affidavit filed before respondent judge hardly
meets the test of sufficiency established by this Court in Alvarez case.
Another factor which makes the search warrants under consideration
constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized in
this wise:
1] All printing equipment, paraphernalia, paper, ink, photo (equipment,
typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of
the "WE FORUM" newspaper and any and all documents communication,
letters and facsimile of prints related to the "WE FORUM" newspaper.
2] Subversive documents, pamphlets, leaflets, books, and other publication
to promote the objectives and piurposes of the subversive organization
known as Movement for Free Philippines, Light-a-Fire Movement and April 6
Movement; and,
3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and
other subversive materials and propaganda, more particularly,
1] Toyota-Corolla, colored yellow with Plate No. NKA 892;
2] DATSUN pick-up colored white with Plate No. NKV 969
3] A delivery truck with Plate No. NBS 524;
4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and,
5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking
"Bagong Silang."
In Stanford v. State of Texas 16 the search warrant which authorized the
search for "books, records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments concerning the Communist
Party in Texas," was declared void by the U.S. Supreme Court for being too
general. In like manner, directions to "seize any evidence in connectionwith
the violation of SDC 13-3703 or otherwise" have been held too general, and
that portion of a search warrant which authorized the seizure of any
"paraphernalia which could be used to violate Sec. 54-197 of the Connecticut
General Statutes [the statute dealing with the crime of conspiracy]" was held
to be a general warrant, and therefore invalid. 17 The description of the
articles sought to be seized under the search warrants in question cannot be
characterized differently.
In the Stanford case, the U.S. Supreme Courts calls to mind a notable
chapter in English history: the era of disaccord between the Tudor
Government and the English Press, when "Officers of the Crown were given
roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan Reference herein
to such historical episode would not be relevant for it is not the policy of our
government to suppress any newspaper or publication that speaks with "the
voice of non-conformity" but poses no clear and imminent danger to state
security.
As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to
the freedom of the press guaranteed under the fundamental law, 18 and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry.
Respondents would justify the continued sealing of the printing machines on
the ground that they have been sequestered under Section 8 of Presidential
Decree No. 885, as amended, which authorizes "the sequestration of the
property of any person, natural or artificial, engaged in subversive activities
against the government and its duly constituted authorities ... in accordance
with implementing rules and regulations as may be issued by the Secretary
of National Defense." It is doubtful however, if sequestration could validly be
effected in view of the absence of any implementing rules and regulations
promulgated by the Minister of National Defense.
Besides, in the December 10, 1982 issue of the Daily Express, it was
reported that no less than President Marcos himself denied the request of the
military authorities to sequester the property seized from petitioners on
December 7, 1982. Thus:
The President denied a request flied by government prosecutors for
sequestration of the WE FORUM newspaper and its printing presses,
according to Information Minister Gregorio S. Cendana.
On the basis of court orders, government agents went to the We Forum
offices in Quezon City and took a detailed inventory of the equipment and all
materials in the premises.
Cendaña said that because of the denial the newspaper and its equipment
remain at the disposal of the owners, subject to the discretion of the court. 19
That the property seized on December 7, 1982 had not been sequestered is
further confirmed by the reply of then Foreign Minister Carlos P. Romulo to
the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall
addressed to President Marcos, expressing alarm over the "WE FORUM "
case. 20 In this reply dated February 11, 1983, Minister Romulo stated:
2. Contrary to reports, President Marcos turned down the recommendation of
our authorities to close the paper's printing facilities and confiscate the
equipment and materials it uses. 21
IN VIEW OF THE FOREGOING, Search Warrants Nos. 20-82[a] and 20-
82[b] issued by respondent judge on December 7, 1982 are hereby declared
null and void and are accordingly set aside. The prayer for a writ of
mandatory injunction for the return of the seized articles is hereby granted
and all articles seized thereunder are hereby ordered released to petitioners.
No costs.
SO ORDERED.
New York Times vs. Sulliven [380 U.S. 51 (1964)]
Facts of the case
During the Civil Rights movement of the 1960s, the New York Times
published an ad for contributing donations to defend Martin Luther King, Jr.,
on perjury charges. The ad contained several minor factual inaccuracies. The
city Public Safety Commissioner, L.B. Sullivan, felt that the criticism of his
subordinates reflected on him, even though he was not mentioned in the ad.
Sullivan sent a written request to the Times to publicly retract the information,
as required for a public figure to seek punitive damages in a libel action
under Alabama law.
When the Times refused and claimed that they were puzzled by the request,
Sullivan filed a libel action against the Times and a group of African
American ministers mentioned in the ad. A jury in state court awarded him
$500,000 in damages. The state supreme court affirmed and the Times
appealed.
Question
Did Alabama's libel law unconstitutionally infringe on the First Amendment's
freedom of speech and freedom of press protections?
To sustain a claim of defamation or libel, the First Amendment requires that
the plaintiff show that the defendant knew that a statement was false or was
reckless in deciding to publish the information without investigating whether it
was accurate.
In a unanimous opinion authored by Justice Brennan, the Court ruled for the
Times. When a statement concerns a public figure, the Court held, it is not
enough to show that it is false for the press to be liable for libel. Instead, the
target of the statement must show that it was made with knowledge of or
reckless disregard for its falsity. Brennan used the term "actual malice" to
summarize this standard, although he did not intend the usual meaning of a
malicious purpose. In libel law, “malice” had meant knowledge or gross
recklessness rather than intent, since courts found it difficult to imagine that
someone would knowingly disseminate false information without a bad intent.
Gonzales vs. COMELEC [27 SCRA 835 (1969)]
A statute designed to maintain the purity and integrity of the electoral process
by Congress calling a halt to the undesirable practice of prolonged political
campaign bringing in their wake serious evils not the least of which is the
ever increasing cost of seeking public office, is challenged on constitutional
grounds. More precisely, the basic liberties of free speech and free press,
freedom of assembly and freedom of association are invoked to nullify the
act. Thus the question confronting this Court is one of transcendental
significance.
It is faced with the reconciliation of two values esteemed highly and
cherished dearly in a constitutional democracy. One is the freedom of belief
and of expression availed of by an individual whether by himself alone or in
association with others of similar persuasion, a goal that occupies a place
and to none in the legal hierarchy. The other is the safeguarding of the
equally vital right of suffrage by a prohibition of the early nomination of
candidates and the limitation of the period of election campaign or partisan
political activity, with the hope that the time-consuming efforts, entailing huge
expenditures of funds and involving the risk of bitter rivalries that may end in
violence, to paraphrase the explanatory note of the challenged legislation,
could be devoted to more fruitful endeavors.
The task is not easy, but it is unavoidable. That is of the very essence of
judicial duty. To paraphrase a landmark opinion, 1 when we act in these
matters we do so not on the assumption that to us is granted the requisite
knowledge to set matters right, but by virtue of the responsibility we cannot
escape under the Constitution, one that history authenticates, to pass upon
every assertion of an alleged infringement of liberty, when our competence is
appropriately invoked.
This then is the crucial question: Is there an infringement of liberty?
Petitioners so alleged in his action, which they entitled Declaratory Relief with
Preliminary Injunction, filed on July 22, 1967, a proceeding that should have
been started in the of Court of First Instance but treated by this Court as one
of prohibition in view of the seriousness and the urgency of the constitutional
issue raised. Petitioners challenged the validity of two new sections now
included in the Revised Election Code, under Republic Act No. 4880, which
was approved and took effect on June 17, 1967, prohibiting the too early
nomination of candidates 2 and limiting the period of election campaign or
partisan political activity. 3
The terms "candidate" and "election campaign" or "partisan political activity"
are likewise defined. The former according to Act No. 4880 "refers to any
person aspiring for or seeking an elective public office regarded of whether or
not said person has already filed his certificate of candidacy or has been
nominated by any political party as its candidate." "Election campaign" or
"partisan political activity" refers to acts designed to have a candidate elected
or not or promote the candidacy of a person or persons to a public office."
Then the acts were specified. There is a proviso that simple expression of
opinion and thoughts concerning the election shall not be considered as part
of an election campaign. There is the further proviso that nothing stated in
the Act "shall be understood to prevent any person from expressing his views
on current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." 4
Petitioner Cabigao was, at the time of the filing 6f the petition, an incumbent
councilor in the 4th District of Manila and the Nacionalista Party official
candidate for Vice-Mayor of Manila to which he was subsequently elected on
November 11, 1967; petitioner Gonzales, on the other hand, is a private
individual, a registered voter in the City of Manila and a political leader of his
co-petitioner. It is their claim that "the enforcement of said Republic Act No.
4880 in question [would] prejudice [their] basic rights..., such as their
freedom of speech, their freedom of assembly and their right to form
associations or societies for purpose not contrary to law, guaranteed under
the Philippine Constitution," and that therefore said act is unconstitutional.
After invoking anew the fundamental rights to free speech, free press,
freedom of association and freedom of assembly with a citation of two
American Supreme Court decisions, 5 they asserted that "there is nothing in
the spirit or intention of the law that would legally justify its passage and
[enforcement] whether for reasons of public policy, public order or morality,
and that therefore the enactment of Republic Act [No.] 4880 under, the guise
of regulation is but a clear and simple abridgment of the constitutional rights
of freedom of speech, freedom of assembly and the right to form
associations and societies for purposes not contrary to law, ..." There was
the further allegation that the nomination of a candidate and the fixing of
period of election campaign are matters of political expediency and
convenience which only political parties can regulate or curtail by and among
themselves through self-restraint or mutual understanding or agreement and
that the regulation and limitation of these political matters invoking the police
power, in the absence of clear and present danger to the state, would render
the constitutional rights of petitioners meaningless and without effect.
To the plea of petitioners that after hearing, Republic Act No. 4880 be
declared unconstitutional, null and void, respondent Commission on
Elections, in its answer filed on August 1, 1967, after denying the allegations
as to the validity of the act "for being mere conclusions of law, erroneous at
that," and setting forth special affirmative defenses, procedural and
substantive character, would have this Court dismiss the petition.
Thereafter the case was set for hearing on August 3, 1967. On the same
date a resolution was passed by us to the following effect: "At the hearing of
case L-27833 (Arsenio Gonzales, et al. vs. Commission on Elections), Atty.
F. Reyes Cabigao appeared for the petitioners and Atty. Ramon Barrios
appeared for the respondent and they were given a period of four days from
today within which to submit, simultaneously,, their respective memorandum
in lieu of oral argument."
On August 9, 1967, another resolution, self-explanatory in character, came
from this Court. Thus: "In ease G.R. No. L-27833 (Arsenio Gonzales, et al.
vs. Commission on Elections), the Court, with eight (8) Justice present,
having deliberated on the issue of the constitutionality of Republic Act No.
4880; and a divergence of views having developed among the Justices as to
the constitutionality of section 50-B, pars. (c), (d) and (e) of the Revised
Election Code: considering the Constitutional provision that "no treaty or law
may be declared unconstitutional without the concurrence of two-thirds of all
the members of the (Supreme) Court' (sec. 10, Art, VII), the Court [resolved]
to defer final voting on the issue until after the return of the Justices now on
official leave."
The case was then reset for oral argument. At such hearing, one of the co-
petitioners, now Vice-Mayor Felicisimo Cabigao of the City of Manila acting
as counsel, assailed the validity of the challenged legislation relying primarily
on American Supreme Court opinion that warn against curtailment in
whatever guise or form of the cherished freedoms of expression, of assemble
and of association, all embraced in the First Amendment of the United States
Constitution. Respondent Commission on Elections was duly represented by
Atty. Ramon Barrios.
Senator Lorenzo M. Tañada was asked to appear as amicus curiae. That he
did, arguing most impressively with a persuasive exposition of the existence
of undeniable conditions that imperatively called for regulation of the electoral
process and with full recognition that Act No. 4880 could indeed be looked
upon as a limitation on the preferred rights of speech and press, of assembly
and of association. He did justify its enactment however under the clear and
present danger doctrine, there being the substantive evil of elections,
whether for national or local officials, being debased and degraded by
unrestricted campaigning, excess of partisanship and undue concentration in
politics with the loss not only of efficiency in government but of lives as well.
The matter was then discussed in conference, but no final action was taken.
The divergence of views with reference to the paragraphs above mentioned
having continued, on Oct. 10, 1968, this Court, by resolution, invited certain
entities to submit memoranda as amici curiae on the question of the validity
of R.A. Act No. 4880. The Philippine Bar Association, the Civil Liberties
Union, the U.P. Law Center and the U.P. Women Lawyers' Circle were
included, among them. They did file their respective memoranda with this
Court and aided it in the consideration of the constitutional issues involved.
1. In the course of the deliberations, a serious procedural objection was
raised by five members of the Court. 6 It is their view that respondent
Commission on Elections not being sought to be restrained from performing
any specific act, this suit cannot be characterized as other than a mere
request for an advisory opinion. Such a view, from the remedial law
standpoint, has much to recommend it. Nonetheless, a majority would affirm,
the original stand that under the circumstances it could still rightfully be
treated as a petition for prohibition.
The language of Justice Laurel fits the case "All await the decision of this
Court on the constitutional question. Considering, therefore, the importance
which the instant case has assumed and to prevent multiplicity of suits,
strong reasons of public policy demand that [its] constitutionality ... be now
resolved." 7 It may likewise be added that the exceptional character of the
situation that confronts us, the paramount public interest, and the undeniable
necessity for a ruling, the national elections being, barely six months away,
reinforce our stand.
It would appear undeniable, therefore, that before us is an appropriate
invocation of our jurisdiction to prevent the enforcement of an alleged
unconstitutional statute. We are left with no choice then; we must act on the
matter.
There is another procedural obstacle raised by respondent to be hurdled. It is
not insuperable. It is true that ordinarily, a party who impugns the validity of a
statute or ordinance must have a substantial interest in the case such that he
has sustained, or will sustain, direct injury as a result of its enforcement. 8
Respondent cannot see such interest as being possessed by petitioners. It
may indicate the clarity of vision being dimmed, considering that one of the
petitioners was a candidate for an elective position. Even if such were the
case, however, the objection is not necessarily fatal. In this jurisdiction, the
rule has been sufficiently relaxed to allow a taxpayer to bring an action to
restrain the expenditure of public funds through the enforcement of an invalid
or unconstitutional legislative measure. 9
2. In the answer of the respondent as well as its memorandum, stress was
laid on Republic Act No. 4880 as an exercise of the police power of the state,
designed to insure a free, orderly and honest election by regulating "conduct
which Congress has determined harmful if unstrained and carried for a long
period before elections it necessarily entails huge expenditures of funds on
the part of the candidates, precipitates violence and even deaths, results in
the corruption of the electorate, and inflicts direful consequences upon public
interest as the vital affairs of the country are sacrificed to purely partisan
pursuits." Evidently for respondent that would suffice to meet the
constitutional questions raised as to the alleged infringement of free speech,
free press, freedom of assembly and 'freedom' of association. Would it were
as simple as that?
An eloquent excerpt from a leading American decision 10 admonishes
though against such a cavalier approach. "The case confronts us again with
the duty our system places on this Court to say where the individual's,
freedom ends the State's power begins. Choice on that border, now as
always delicate, is perhaps more so where the usual. presumption supporting
legislation is balanced by the preferred place given in our scheme to the
great, the indispensable democratic freedoms secured by the First
Amendment.... That priority gives these liberties a sanctity and a sanction not
permitting dubious intrusions. And it is the character of the right, not of the
limitation, which determines what standard governs the choice..."
Even a leading American State court decision on a regulatory measure
dealing with elections, cited in the answer of respondent, militates against a
stand minimizing the importance and significance of the alleged violation of
individual rights: "As so construed by us, it has not been made to appear that
section 8189, Comp. Gen. Laws, section 5925, Rev. Gen. St., is on its face
violative of any provision of either the state or Federal Constitution on the
subject of free speech or liberty of the press, nor that its operation is in any
wise subversive of any one's constitutional liberty." 11 Another leading State
decision is much more emphatic: "Broad as the power of the legislature is
with respect to regulation of elections, that power is not wholly without
limitation. Under the guise of regulating elections, the legislature may not
deprive a citizen of the right of trial by jury. A person charged with its violation
may not be compelled to give evidence against himself. If it destroys the right
of free speech, it is to that extent void." 12
The question then of the alleged violation of Constitutional rights must be
squarely met.lawphi1.nêt
3. Now as to the merits. A brief resume of the basic rights on which
petitioners premise their stand that the act is unconstitutional may prove
illuminating. The primacy, the high estate accorded freedom of expression is
of course a fundamental postulate of our constitutional system. No law shall
be passed abridging the freedom of speech or of the press .... 13 What does
it embrace? At the very least, free speech and free press may be identified
with the liberty to discuss publicly and truthfully any matter of public interest
without censorship or punishment. 14 There is to be then no previous
restraint on the communication of views or subsequent liability whether in
libel suits, 15 prosecution for sedition, 16 or action for damages, 17 or
contempt proceedings 18 unless there be a clear and present danger of
substantive evil that Congress has a right to prevent.
The vital need in a constitutional democracy for freedom of expression is
undeniable whether as a means of assuring individual self-fulfillment, of
attaining the truth, of assuring participation by the people in social including
political decision-making, and of maintaining the balance between stability
and change. 19 The trend as reflected in Philippine and American decisions
is to recognize the broadcast scope and assure the widest latitude to this
constitutional guaranty. It represents a profound commitment to the principle
that debate of public issue should be uninhibited, robust, and wide-open. 20
It is not going too far, according to another American decision, to view the
function of free speech as inviting dispute. "It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger." 21 Freedom of speech
and of the press thus means something more than the right to approve
existing political beliefs or economic arrangements, to lend support to official
measures, to take refuge in the existing climate of opinion on any matter of
public consequence. So atrophied, the right becomes meaningless. The right
belongs as well, if not more, for those who question, who do not conform,
who differ. To paraphrase Justice Holmes, it is freedom for the thought that
we hate, no less than for the thought that agrees with us. 22
So with Emerson one may conclude that "the theory of freedom of
expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of
society, a faith and a whole way of life. The theory grew out of an age that
was awakened and invigorated by the idea of new society in which man's
mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited.
It is put forward as a prescription for attaining a creative, progressive,
exciting and intellectually robust community. It contemplates a mode of life
that, through encouraging toleration, skepticism, reason and initiative, will
allow man to realize his full potentialities. It spurns the alternative of a society
that is tyrannical, conformist, irrational and stagnant." 23
From the language of the specified constitutional provision, it would appear
that the right is not susceptible of any limitation. No law may be passed
abridging the freedom of speech and of the press. The realities of life in a
complex society preclude however a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times
and under all circumstances it should remain unfettered and unrestrained.
There are other societal values that press for recognition. How is it to be
limited then?
This Court spoke, in Cabansag v. Fernandez; 24 of two tests that may supply
an acceptable criterion for permissible restriction. Thus: "These are the 'clear
and present danger' rule and the 'dangerous tendency' rule. The first, as
interpreted in a number of cases, means that the evil consequence of the
comment or utterance must be extremely serious and the degree of
imminence extremely high' before the utterance can be punished. The
danger to be guarded against is the 'substantive evil' sought to be
prevented." It has the advantage of establishing according to the above
decision "a definite rule in constitutional law. It provides the criterion as to
what words may be public established."
The Cabansag case likewise referred to the other test, the "dangerous
tendency" rule and explained it thus: "If the words uttered create a dangerous
tendency which the state has a right to prevent, then such words are
punishable. It is not necessary that some definite or immediate acts of force,
violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence, or
unlawfulness. It is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the legislative body
seeks to prevent.
We posed the issue thus: "Has the letter of Cabansag created a sufficient
danger to a fair administration of justice? Did its remittance to the PCAC
create a danger sufficiently imminent to come under the two rules mentioned
above?" The choice of this Court was manifest and indisputable. It adopted
the clear and present danger test. As a matter of fact, in an earlier decision,
Primicias v. Fugoso, 25 there was likewise an implicit acceptance of the clear
and present danger doctrine.
Why repression is permissible only when the danger of substantive evil is
present is explained by Justice Branders thus: ... the evil apprehended is so
imminent that it may befall before there is opportunity for full discussion. If
there be time to expose through discussion the falsehood and fallacies, to
avert the evil by the processes of education, the remedy to be applied is
more speech, not enforced silence." 26 For him the apprehended evil must
be "relatively serious." For "[prohibition] of free speech and assembly is a
measure so stringent that it would be inappropriate as the means for averting
a relatively trivial harm to society." Justice Black would go further. He would
require that the substantive evil be "extremely serious." 27 Only thus may
there be a realization of the ideal envisioned by Cardozo: "There shall be no
compromise of the freedom to think one's thoughts and speak them, except
at those extreme borders where thought merges into action." 28 It received
its original formulation from Holmes. Thus: "The question in every case is
whether the words used in such circumstances and of such a nature as to
create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent. It is a question of proximity and
degree." 29
This test then as a limitation on freedom of expression is justified by the
danger or evil a substantive character that the state has a right to prevent.
Unlike the dangerous tendency doctrine, the danger must not only be clear
but also present. The term clear seems to point to a causal connection with
the danger of the substantially evil arising from the utterance questioned.
Present refers to the time element. It used to be identified with imminent and
immediate danger. The danger must not only be probable but very likely
inevitable.
4. How about freedom of assembly? The Bill of Rights as thus noted prohibits
abridgment by law of freedom of speech or of the press. It likewise extends
the same protection to the right of the people peaceably to assemble. As was
pointed out by Justice Malcolm in the case of United States v. Bustos, 30 this
right is a necessary consequence of our republican institution and
complements the right of free speech. Assembly means a right on the part of
citizens to meet peaceably for consultation in respect to public affairs. From
the same Bustos opinion: "Public policy, the welfare of society and orderly
administration of government have demanded protection for public opinion."
To paraphrase the opinion of Justice Rutledge speaking for the majority in
Thomas v. Collins,31 it was not by accident or coincidence that the rights to
freedom of speech and of the press were coupled in a single guaranty with
the rights of the people peaceably to assemble and to petition the
government for redress of grievances. All these rights while not identical are
inseparable. They are cognate rights and the assurance afforded by the
clause of this section of the Bill of Rights wherein they are contained, applies
to all. As emphatically put in the leading case of United States v. Cruikshank,
32 "the very idea of a government, republican in form, implies a right on the
part of its citizens to meet peaceably for consultation in respect to public
affairs and to petition for redress of grievances." As in the case of freedom of
expression, this right is not to be limited, much less denied, except on a
showing of a clear and present danger of a substantive evil that Congress
has a right to prevent.
5. Our Constitution likewise recognizes the freedom to form association for
purposes not contrary to law. 33 With or without a constitutional provision of
this character, it may be assumed that the freedom to organize or to be a
member of any group or society exists. With this explicit provision, whatever
doubts there may be on the matter are dispelled. Unlike the cases of other
guarantee which are mostly American in origin, this particular freedom has
an indigenous cast. It can trace its origin to the Malolos Constitution.
In the United States, in the absence of an explicit provision of such character,
it is the view of Justice Douglas that it is primarily the first amendment of her
Constitution, which safeguards freedom of speech and of the press, of
assembly and of petition "that provides [associations] with the protection they
need if they are to remain viable and continue to contribute to our Free
Society." 34 He adopted the view of De Tocqueville on the importance and
the significance of the freedom to associate. Thus: "The most natural
privilege of man, next to the right of acting for himself, is that of combining his
exertions with those of his fellow creatures and of acting in common with
them. The right of association therefore appears to me almost inalienable in
its nature as the right of personal liberty. No legislator can attack it without
impairing the foundation of society." 35
There can be no dispute as to the soundness of the above observation of De
Tocqueville. Since man lives in social it would be a barren existence if he
could not freely associate with others of kindred persuasion or of congenial
frame of mind. As a matter of fact, the more common form of associations
may be likely to be fraternal, cultural, social or religious. Thereby, for almost
everybody, save for those exceptional few who glory in aloofness and
isolation life is enriched and becomes more meaningful.
In a sense, however, the stress on this freedom of association should be on
its political significance. If such a right were non-existent then the likelihood
of a one-party government is more than a possibility. Authoritarianism may
become unavoidable. Political opposition will simply cease to exist; minority
groups may be outlawed, constitutional democracy as intended by the
Constitution may well become a thing of the past.
Political parties which, as is originally the case, assume the role alternately of
being in the majority or in the minority as the will of the electorate dictates,
will lose their constitutional protection. It is undeniable therefore, that the
utmost scope should be afforded this freedom of association.
It is indispensable not only for its enhancing the respect that should be
accorded a human personality but equally so for its assurance that the
wishes of any group to oppose whatever for the moment is the party in power
and with the help of the electorate to set up its own program of government
would not be nullified or frustrated. To quote from Douglas anew: "Justice
Frankfurter thought that political and academic affiliations have a preferred
position under the due process version of the First Amendment. But the
associational rights protected by the First Amendment are in my view much
broader and cover the entire spectrum in political ideology as well as in art, in
journalism, in teaching, and in religion. In my view, government can neither
legislate with respect to nor probe the intimacies of political, spiritual, or
intellectual relationships in the myriad of lawful societies and groups, whether
popular or unpopular, that exist in this country." 36
Nonetheless, the Constitution limits this particular freedom in the sense that
there could be an abridgment of the right to form associations or societies
when their purposes are "contrary to law". How should the limitation "for
purposes not contrary to law" be interpreted? It is submitted that it is another
way of expressing the clear and present danger rule for unless an
association or society could be shown to create an imminent danger to public
safety, there is no justification for abridging the right to form association
societies.37 As was so aptly stated: "There is no other course consistent with
the Free Society envisioned by the First Amendment. For the views a citizen
entertains, the beliefs he harbors, the utterances he makes, the ideology he
embraces, and the people he associates with are no concern to government
— until and unless he moves into action. That article of faith marks indeed
the main difference between the Free Society which we espouse and the
dictatorships both on the Left and on the Right." 38 With the above principles
in mind, we now consider the validity of the prohibition in Republic Act No.
4880 of the too early nomination of candidates and the limitation found
therein on the period of election campaign or partisan political activity alleged
by petitioners to offend against the rights of free speech, free press, freedom
of assembly and freedom of association. In effect what are asked to do is to
declare the act void on its face evidence having been introduced as to its
actual operation. There is respectable authority for the court having the
power to so act. Such fundamental liberties are accorded so high a place in
our constitutional scheme that any alleged infringement manifest in the
wording of statute cannot be allowed to pass unnoticed. 39
In considering whether it is violative of any of the above rights, we cannot
ignore of course the legislative declaration that its enactment was in
response to a serious substantive evil affecting the electoral process, not
merely in danger of happening, but actually in existence, and likely to
continue unless curbed or remedied. To assert otherwise would be to close
one's eyes to the realities of the situation. Nor can we ignore the express
legislative purpose apparent in the proviso "that simple expressions of
opinion and thoughts concerning the election shall not be considered as part
of an election campaign," and in the other proviso "that nothing herein stated
shall be understood to prevent any person from expressing his views on
current political problems or issues, or from mentioning the names of the
candidates for public office whom he supports." Such limitations qualify the
entire provision restricting the period of an election campaign or partisan
political activity.
The prohibition of too early nomination of candidates presents a question that
is not too formidable in character. According to the act: "It shall be unlawful
for any political party political committee, or political group to nominate
candidates for any elective public officio voted for at large earlier than one
hundred and fifty days immediately preceding an election, and for any other
elective public, office earlier than ninety days immediately preceding an
election." 40
The right of association is affected. Political parties have less freedom as to
the time during which they may nominate candidates; the curtailment is not
such, however, as to render meaningless such a basic right. Their scope of
legitimate activities, save this one, is not unduly narrowed. Neither is there
infringement of their freedom to assemble. They can do so, but not for such a
purpose. We sustain in validity. We do so unanimously.
The limitation on the period of "election campaign" or "partisan political
activity" calls for a more intensive scrutiny. According to Republic Act No.
4880: "It is unlawful for any person whether or not a voter or candidate, or for
any group or association of persons whether or not a political party or
political committee, to engage in an election campaign or partisan political
activity except during the period of one hundred twenty days immediately
preceding an election involving a public office voted for at large and ninety
days immediately preceding an election for any other elective public office.
The term 'candidate' refers to any person aspiring for or seeking an elective
public office, regardless of whether or not said person has already filed his
certificate of candidacy or has been nominated by any political party as its
candidate. The term 'election campaign' or 'partisan political activity' refers to
acts designed to have a candidate elected or not or promote the candidacy of
a person or persons to a public office ..."
If that is all there is to that provision, it suffers from the fatal constitutional
infirmity of vagueness and may be stricken down. What other conclusion can
there be extending as it does to so wide and all-encompassing a front that
what is valid, being a legitimate exercise of press freedom as well as
freedom of assembly, becomes prohibited? That cannot be done; such an
undesirable eventuality, this Court cannot allow to pass.
It is a well-settled principle that stricter standard of permissible statutory
vagueness may be applied to a statute having inhibiting effect on speech; a
man may the less be required to act at his peril here, because the free
dissemination of ideas may be the loser.41 Where the statutory provision
then operates to inhibit the exercise of individual freedom affirmatively
protected by the Constitution, the imputation of vagueness sufficient to
invalidate the statute is inescapable. 42 The language of Justice Douglas,
both appropriate and vigorous, comes to mind: "Words which are vague and
fluid ... may be as much of a trap for the innocent as the ancient laws of
Caligula." 43 Nor is the reason difficult to discern: ."These freedoms are
delicate and vulnerable, as well as supremely precious in our society. The
threat of sanctions may deter their exercise almost as potently as the actual
application of sanctions." 44
7. The constitutional objections are thus formidable. It cannot be denied that
the limitations thus imposed on the constitutional rights of free speech and
press, of assembly, and of association cut deeply, into their substance. This
on the one hand.
On the other, it cannot be denied either that evils substantial in character
taint the purity of the electoral process. There can be under the
circumstances then no outright condemnation of the statute. It could not be
said to be unwarranted, much less arbitrary. There is need for refraining from
the outright assumption that the constitutional infirmity is apparent from a
mere reading thereof.
For under circumstances that manifest abuses of the gravest character,
remedies much more drastic than what ordinarily would suffice would indeed
be called for. The justification alleged by the proponents of the measures
weighs heavily with the members of the Court, though in varying degrees, in
the appraisal of the aforesaid restrictions to which such precious freedoms
are subjected. They are not unaware of the clear and present danger that
calls for measures that may bear heavily on the exercise of the cherished
rights of expression, of assembly, and of association.
This is not to say, that once such a situation is found to exist there is no limit
to the allowable limitations on such constitutional rights. The clear and
present danger doctrine rightly viewed requires that not only should there be
an occasion for the imposition of such restrictions but also that they be
limited in scope.
There are still constitutional questions of a serious character then to be
faced. The practices which the act identifies with "election campaign" or
"partisan political activity" must be such that they are free from the taint of
being violative of free speech, free press, freedom of assembly, and freedom
of association. What removes the sting from constitutional objection of
vagueness is the enumeration of the acts deemed included in the terms
"election campaign" or "partisan political activity."
They are: "(a) Forming organizations, associations, clubs, committees or
other groups of persons for the purpose of soliciting votes and/or undertaking
any campaign or propaganda for or against a party or candidate; (b) holding
political conventions, caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate or party;
(c) making speeches, announcements or commentaries or holding interviews
for or against the election or any party or candidate for public office; (d)
publishing or distributing campaign literature or materials; (e) directly or
indirectly soliciting votes and/or undertaking any campaign or propaganda for
or against any party; (f) giving, soliciting, or receiving contributions for
election campaign purposes, either directly or indirectly." 45 As thus limited
the objection that may be raised as to vagueness has been minimized, if not
totally set at rest. 46
8. This Court, with the aforementioned five Justices unable to agree, is of the
view that no unconstitutional infringement exists insofar as the formation of
organization, associations, clubs, committees, or other groups of persons for
the purpose of soliciting votes or undertaking any campaign or propaganda
or both for or against a candidate or party is restricted 47 and that the
prohibition against giving, soliciting, or receiving contribution for election
purposes, either directly or indirectly, is equally free from constitutional
infirmity. 48
The restriction on freedom of assembly as confined to holding political
conventions, caucuses, conferences, meetings, rallies, parades or other
similar assemblies for the purpose of soliciting votes or undertaking any
campaign or propaganda or both for or against a candidate or party, 49
leaving untouched all other legitimate exercise of such poses a more difficult
question. Nevertheless, after a thorough consideration, and with the same
Justices entertaining the opposite conviction, we reject the contention that it
should be annulled. Candor compels the admission that the writer of this
opinion suffers from the gravest doubts. For him, such statutory prescription
could very well be within the outermost limits of validity, beyond which lies
the abyss of unconstitutionality.
The other acts, likewise deemed included in "election campaign" or "partisan
political activity" tax to the utmost the judicial predisposition to view with
sympathy legislative efforts to regulate election practices deemed inimical,
because of their collision with the preferred right of freedom of expression.
From the outset, such provisions did occasion divergence of views among
the members of the Court. Originally only a minority was for their being
adjudged as invalid. It is not so. any more. 50 This is merely to emphasize
that the scope of the curtailment to which freedom of expression may be
subjected is not foreclosed by the recognition of the existence of a clear and
present danger of a substantive evil, the debasement of the electoral
process.
The majority of the Court is thus of the belief that the solicitation or
undertaking of any campaign or propaganda whether directly or indirectly, by
an individual, 51 the making of speeches, announcements or commentaries
or holding interview for or against the election for any party or candidate for
public office, 52 or the publication or distribution of campaign literature or
materials, 53 suffer from the corrosion of invalidity. It lacks however one
more affirmative vote to call for a declaration of unconstitutionality.
This is not to deny that Congress was indeed called upon to seek remedial
measures for the far-from-satisfactory condition arising from the too-early
nomination of candidates and the necessarily prolonged, political campaigns.
The direful consequences and the harmful effects on the public interest with
the vital affairs of the country sacrificed many a time to purely partisan
pursuits were known to all. Moreover, it is no exaggeration to state that
violence and even death did frequently occur because of the heat
engendered by such political activities. Then, too, the opportunity for
dishonesty and corruption, with the right to suffrage being bartered, was
further magnified.
Under the police power then, with its concern for the general welfare and with
the commendable aim of safe-guarding the right of suffrage, the legislative
body must have felt impelled to impose the foregoing restrictions. It is
understandable for Congress to believe that without the limitations thus set
forth in the challenged legislation, the laudable purpose of Republic Act No.
4880 would be frustrated and nullified. Whatever persuasive force such
approach may command failed to elicit the assent of a majority of the Court.
This is not to say that the conclusion reached by the minority that the above
poisons of the statute now assailed has passed the constitutional test is
devoid of merit.
It only indicates that for the majority, the prohibition of any speeches,
announcements or commentaries, or the holding of interviews for or against
the election of any party or candidate for public office and the prohibition of
the publication or distribution of campaign literature or materials, against the
solicitation of votes whether directly or indirectly, or the undertaking of any
campaign literature or propaganda for or against any candidate or party is
repugnant to a constitutional command. To that extent, the challenged
statute prohibits what under the Constitution cannot by any law be abridged.
More specifically, in terms of the permissible scope of legislation that
otherwise could be justified under the clear and present danger doctrine, it is
the consideration opinion of the majority, though lacking the necessary vote
for an adjudication of invalidity, that the challenged statute could have been
more narrowly drawn and the practices prohibited more precisely delineated
to satisfy the constitutional requirements as to a valid limitation under the
clear and present danger doctrine.

In a 1968 opinion, the American Supreme Court made clear that the absence
of such reasonable and definite standards in a legislation of its character is
fatal. 54 Where, as in the case of the above paragraphs, the majority of the
Court could discern "an over breadth that makes possible oppressive or
capricious application" 55 of the statutory provisions, the line dividing the
valid from the constitutionally infirm has been crossed. Such provisions
offend the constitutional principle that "a governmental purpose
constitutionally subject to control or prevent activities state regulation may
not be achieved by means which sweep unnecessarily broadly and thereby
invade the area of protected freedoms. 56
It is undeniable, therefore, that even though the governmental purposes be
legitimate and substantial, they cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more narrowly
achieved. 57 For precision of regulation is the touchstone in an area so
closely related to our most precious freedoms. 58
Under the circumstances then, a majority of the Court feels compelled to
view the statutory provisions in question as unconstitutional on their face
inasmuch as they appear to range too widely and indiscriminately across the
fundamental liberties associated with freedom of the mind. 59
Such a conclusion does not find favor with the other members of the Court.
For this minority group, no judgment of nullity insofar as the challenged
sections are concerned is called for. It cannot accept the conclusion that the
limitations thus imposed on freedom of expression vitiated by their
latitudinarian scope, for Congress was not at all insensible to the problem
that an all-encompassing coverage of the practices sought to be restrained
would seriously pose.
Such an approach finds support in the exposition made by the author of the
measure, Senator Lorenzo M. Tañada, appearing before us as amicus
curiae. He did clearly explain that such provisions were deemed by the
legislative body to be part and parcel of the necessary and appropriate
response not merely to a clear and present danger but to the actual
existence of a grave and substantive evil of excessive partisanship,
dishonesty and corruption as well as violence that of late has invariably
marred election campaigns and partisan political activities in this country. He
did invite our attention likewise to the well-settled doctrine that in the choice
of remedies for an admitted malady requiring governmental action, on the
legislature primarily rests the responsibility. Nor should the cure prescribed
by it, unless clearly repugnant to fundamental rights, be ignored or
disregarded.
More than that, he would stress the two provisos already mentioned,
precisely placed in the state as a manifestation of the undeniable legislative
determination not to transgress the preferred freedom of speech, of press, of
assembly and of association. It is thus provided: "That simple expressions or
opinion and thoughts concerning the election shall not be considered as part
of an election campaign [and that nothing in the Act] shall be understood to
prevent any person from expressing his views on current political problems
or issues, or from mentioning the names of the candidates for public office
whom he supports. 60 If properly implemented then, as it ought to, the barrier
to free, expression becomes minimal and far from unwarranted.
For the minority of the Court, all of the above arguments possess sufficient
persuasive force to blunt whatever cutting edge may be ascribed to the fears
entertained that Congress failed to abide by what the Constitution commands
as far as freedom of the mind and of association are concerned. It is its
opinion that it would be premature to say the least, for a judgment of nullity of
any provision found in Republic Act No. 4880. The need for adjudication
arises only if in the implementation of the Act, there is in fact an
unconstitutional application of its provisions. Nor are we called upon, under
this approach, to anticipate each and every problem that may arise. It is time
enough to consider it when there is in fact an actual, concrete case that
requires an exercise of judicial power.
9. To recapitulate, we give due recognition to the legislative concern to
cleanse, and, if possible, render spotless, the electoral process. There is full
acceptance by the Court of the power of Congress, under narrowly drawn
legislation to impose the necessary restrictions to what otherwise would be
liberties traditionally accorded the widest scope and the utmost deference,
freedom of speech and of the press, of assembly, and of association. We
cannot, however, be recreant to the trust reposed on us; we are called upon
to safeguard individual rights. In the language of Justice Laurel: "This Court
is perhaps the last bulwark of constitutional government. It shall not obstruct
the popular will as manifested through proper organs... But, in the same way
that it cannot renounce the life breathed into it by the Constitution, so may it
not forego its obligation, in proper cases, to apply the necessary,..." 61
We recognize the wide discretion accorded Congress to protect vital
interests. Considering the responsibility incumbent on the judiciary, it is not
always possible, even with the utmost sympathy shown for the legislative
choice of means to cure an admitted evil, that the legislative judgment arrived
at, with its possible curtailment of the preferred freedoms, be accepted
uncritically. There may be times, and this is one of them, with the majority,
with all due reject to a coordinate branch, unable to extend their approval to
the aforesaid specific provisions of one of the sections of the challenged
statute. The necessary two-third vote, however, not being obtained, there is
no occasion for the power to annul statutes to come into play.
Such being the case, it is the judgment of this Court that Republic Act No.
4880 cannot be declared unconstitutional.
WHEREFORE, the petition is dismissed and the writ of prayed for denied.
Without costs.
Social Weather Station vs. COMELEC (G.R. No.147571, May 5, 2001)
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-
profit social research institution conducting surveys in various fields,
including economics, politics, demography, and social development, and
thereafter processing, analyzing, and publicly reporting the results thereof.
On the other hand, petitioner Kamahalan Publishing Corporation publishes
the Manila Standard, a newspaper of general circulation, which features
news- worthy items of information including election surveys. 1âwphi1.nêt
Petitioners brought this action for prohibition to enjoin the Commission on
Elections from enforcing §5.4 of RA. No.9006 (Fair Election Act), which
provides:
Surveys affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be
published seven (7) days be- fore an election.
The term "election surveys" is defined in §5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the
voters as regards a candidate's popularity, qualifications, platforms or a
matter of public discussion in relation to the election, including voters
preference for candidates or publicly discussed issues during the campaign
period (hereafter referred to as "Survey").
The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the
COMELEC enjoins –
Surveys affecting national candidates shall not be published fifteen (15) days
before an election and surveys affecting local candidates shall not be
published seven (7) days be- fore an election.
Petitioner SWS states that it wishes to conduct an election survey throughout
the period of the elections both at the national and local levels and release to
the media the results of such survey as well as publish them directly.
Petitioner Kamahalan Publishing Corporation, on the other hand, states that
it intends to publish election survey results up to the last day of the elections
on May 14,2001.
Petitioners argue that the restriction on the publication of election survey
results constitutes a prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such restraint. They claim that
SWS and other pollsters conducted and published the results of surveys prior
to the 1992, 1995, and 1998 elections up to as close as two days before the
election day without causing confusion among the voters and that there is
neither empirical nor historical evidence to support the conclusion that there
is an immediate and inevitable danger to tile voting process posed by
election surveys. They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast
media from writing and publishing articles concerning political issues up to
the day of the election. Consequently, they contend that there is no reason
for ordinary voters to be denied access to the results of election surveys,
which are relatively objective. 1âwphi1.nêt
Respondent Commission on Elections justifies the restrictions in §5.4 of R.A.
No. 9006 as necessary to prevent the manipulation and corruption of the
electoral process by unscrupulous and erroneous surveys just before the
election. It contends that (1) the prohibition on the publication of election
survey results during the period proscribed by law bears a rational
connection to the objective of the law, i.e., the prevention of the debasement
of the electoral process resulting from manipulated surveys, bandwagon
effect, and absence of reply; (2) it is narrowly tailored to meet the "evils"
sought to be prevented; and (3) the impairment of freedom of expression is
minimal, the restriction being limited both in duration, i.e., the last 15 days
before the national election and the last 7 days before a local election, and in
scope as it does not prohibit election survey results but only require
timeliness. Respondent claims that in National Press Club v. COMELEC,1 a
total ban on political advertisements, with candidates being merely allocated
broadcast time during the so-called COMELEC space or COMELEC hour,
was upheld by this Court. In contrast, according to respondent, it states that
the prohibition in §5.4 of RA. No. 9006 is much more limited.
For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes
an unconstitutional abridgment of freedom of speech, expression, and the
press.
To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and
the press prohibiting the publication of election survey results affecting
candidates within the prescribed periods of fifteen (15) days immediately
preceding a national election seven (7) days before a local election. Because
of tile preferred status of tile constitutional rights of speech, expression, and
he press, such a measure is vitiated by a weighty presumption of invalidity.2
Indeed, any system of prior restraints of expression comes to this Court
bearing a heavy Presumption against its constitutional validity. ...The
Government thus carries a heavy burden of showing justification for in
enforcement of such restraint. "'3 There, thus a reversal of the normal
presumption of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which
gives the COMELEC supervisory power to regulate the enjoyment or
utilization of franchise for the operation of media of communication, no
presumption of invalidity attaches to a measure like §5.4. For as we have
pointed out in sustaining tile ban on media political advertisements, the grant
of power to the COMELEC under Art. IX-C, §4 is limited to ensuring "equal
opportunity, time, space, and the right to reply" as well as uniform and
reasonable rates of charges for the use of such media facilities "public
information campaigns and forums among candidates."4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be
that no presumption of invalidity arises in respect of exercises of supervisory
or regulatory authority on the part of the Comelec for the Purpose of securing
equal opportunity among candidates for political office, although such
supervision or regulation may result in some limitation of the rights of free
speech and free press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of
clear and present danger for determining the validity of §5.4. Indeed, as has
been pointed out in Osmeña v. COMELEC,6 this test was originally
formulated for the criminal law and only later appropriated for free speech
cases. Hence, while it may be useful for determining the validity of laws
dealing with inciting to sedition or incendiary speech, it may not be adequate
for such regulations as the one in question. For such a test is concerned with
questions of the gravity and imminence of the danger as basis for curtailing
free speech, which is not the case of §5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing
by "weighing and balancing the circumstances to determine whether public
interest [in free, orderly, honest, peaceful and credible elections] is served by
the regulation of the free enjoyment of the rights" (page 7). After canvassing
the reasons for the prohibition, i.e., to prevent last-minute pressure on voters,
the creation of bandwagon effect to favor candidates, misinformation, the
junking" of weak and "losing" candidates by their parties, and the form of
election cheating called "dagdag-bawas" and invoking the State's power to
supervise media of information during the election period (pages 11-16), the
dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4,
It may be seen that its limiting impact on the rights of free speech and of the
press is not unduly repressive or unreasonable. In Indeed, it is a mere
restriction, not an absolute prohibition, on the publication of election surveys.
It is limited in duration; it applies only during the period when the voters are
presumably contemplating whom they should elect and when they are most
susceptible to such unwarranted persuasion. These surveys may be
published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations
should outweigh the value of freedom of expression. Instead, reliance is
placed on Art. IX-C, §4. As already stated, the purpose of Art. IX-C, §4 is to
"ensure equal opportunity, time, and space and the right of reply, including
reasonable, equal rates therefor for public information campaigns and forums
among candidates. " Hence the validity of the ban on media advertising. It is
noteworthy that R.A. No. 9006, § 14 has lifted the ban and now allows
candidates to advertise their candidacies in print and broadcast media.
Indeed, to sustain the ban on the publication of survey results would sanction
the censorship of all speaking by candidates in an election on the ground that
the usual bombasts and hyperbolic claims made during the campaigns can
confuse voters and thus debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form
of ad hoc balancing predictably results in sustaining the challenged
legislation and leaves freedom of speech, expression, and the press with
little protection. For anyone who can bring a plausible justification forward
can easily show a rational connection between the statute and a legitimate
governmental purpose. In contrast, the balancing of interest undertaken by
then Justice Castro in Gonzales v. COMELEC,7 from which the dissent in
this case takes its cue, was a strong one resulting in his conclusion that ,
§50-B of R.A. No. 4880, which limited the period of election campaign and
partisan political activity, was an unconstitutional abridgment of freedom of
expression.
Nor can the ban on election surveys be justified on the ground that there are
other countries - 78, according to the Solicitor General, while the dissent
cites 28 - which similarly impose restrictions on the publication of election
surveys. At best this survey is inconclusive. It is note worthy that in the
United States no restriction on the publication of election survey results
exists. It cannot be argued that this is because the United States is a mature
democracy. Neither are there laws imposing an embargo on survey results,
even for a limited period, in other countries. As pointed out by petitioners, the
United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and
Ukraine, some of which are no older nor more mature than the Philippines in
political development, do not restrict the publication of election survey
results.
What test should then be employed to determine the constitutional validity of
§5.4? The United States Supreme Court, through Chief Justice Warren, held
in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the
constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated
to the suppression of free expression; and [4] if the incidental restriction on
alleged First Amendment freedoms [of speech, expression and press] is no
greater than is essential to the furtherance of that interest.8
This is so far the most influential test for distinguishing content-based from
content neutral regulations and is said to have "become canonical in the
review of such laws."9 is noteworthy that the O 'Brien test has been applied
by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial
governmental interest, it should be invalidated if such governmental interest
is "not unrelated to the Expression of free expression." Moreover, even if the
purpose is unrelated to the suppression of free speech, the law should
nevertheless be invalidated if the restriction on freedom of expression is
greater than is necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied
to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the
causal connection of expression to the asserted governmental interest
makes such interest "not related to the suppression of free expression." By
prohibiting the publication of election survey results because of the possibility
that such publication might undermine the integrity of the election, §5.4
actually suppresses a whole class of expression, while allowing the
expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other
opinion takers. In effect, §5.4 shows a bias for a particular subject matter, if
not viewpoint, by referring personal opinion to statistical results. The
constitutional guarantee of freedom of expression means that "the
government has no power to restrict expression because of its message, its
ideas, its subject matter, or its content."11 The inhibition of speech should be
upheld only if the expression falls within one of the few unprotected
categories dealt with in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include the lewd and obscene, the profane,
the libelous, and the insulting or 'fighting' words - those which by their very
utterance inflict injury or tend to incite an immediate breach of the peace.
[S]uch utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may be derived
from them is clearly outweighed by the social interest in order and morality
Nor is there justification for the prior restraint which §5.4Iays on protected
speech. Near v. Minnesota,13 it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But
the limitation has been recognized only in exceptional cases…. No one
would question but that a government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates transports or the
number and location of troops. On similar grounds, the primary requirements
of decency may be enforced against obscene publications. The security of
the community life may be protected against incitements to acts of violence
and overthrow by force of orderly government…
Thus, contrary to the claim of the Solicitor General, the prohibition imposed
by §5.4 cannot be justified on the ground that it is only for a limited period
and is only incidental. The prohibition may be for a limited time, but the
curtailment of the right of expression is direct, absolute, and substantial. It
constitutes a total suppression of a category of speech and is not made less
so because it is only for a period of fifteen (15) days immediately before a
national election and seven (7) days immediately before a local election. ..
This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this
Court found to be valid in National Press Club v. COMELEC,14 and Osmeña
v. COMELEC.15 For the ban imposed by R.A. No. 6646, §11(b) is not only
authorized by a specific constitutional provision,16 but it also provided an
alternative so that, as this Court pointed out in Osmeña, there was actually
no ban but only a substitution of media advertisements by the COMELEC
space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is
unrelated to the suppression of speech and the resulting restriction of free
expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of
the O 'Brien test, namely, that the restriction be not greater than is necessary
to further the governmental interest. As already stated, §5.4 aims at the
prevention of last-minute pressure on voters, the creation of bandwagon
effect, "junking" of weak or "losing" candidates, and resort to the form of
election cheating called "dagdag-bawas." Praiseworthy as these aims of the
regulation might be, they cannot be attained at the sacrifice of the
fundamental right of expression, when such aim can be more narrowly
pursued by punishing unlawful acts, rather than speech because of
apprehension that such speech creates the danger of such evils. Thus, under
the Administrative Code of 1987,17 the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful,
libelous, misleading or false election propaganda, after due notice and
hearing.
This is surely a less restrictive means than the prohibition contained in §5.4.
Pursuant to this power of the COMELEC, it can confiscate bogus survey
results calculated to mislead voters. Candidates can have their own surveys
conducted. No right of reply can be invoked by others. No principle of
equality is involved. It is a free market to which each candidate brings his
ideas. As for the purpose of the law to prevent bandwagon effects, it is
doubtful whether the Government can deal with this natural-enough tendency
of some voters. Some voters want to be identified with the "winners." Some
are susceptible to the herd mentality. Can these be legitimately prohibited by
suppressing the publication of survey results, which are a form of
expression? It has been held that "[mere] legislative preferences or beliefs
respecting matters of public convenience may well support regulation
directed at other personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of democratic
institutions."18
To summarize then, we hold that §5.4 is invalid because (1) it imposes a
prior restraint on the freedom of expression, (2) it is a direct and total
suppression of a category of expression even though such suppression is
only for a limited period, and (3) the governmental interest sought to be
promoted can be achieved by means other than suppression of freedom of
expression.
On the other hand, the COMELEC contends that under Art. IX-A, §7 of the
Constitution, its decisions, orders, or resolution may be reviewed by this
Court only certiorari. The flaws in this argument is that it assumes that its
Resolution 3636, March 1, 2001 is a "decision, order, or resolution" within the
meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintain that
Resolution 3636 was "rendered" by the Commission. However, the
Resolution does not purport to adjudicate the right of any party. It is not an
exercise by the COMELEC of its adjudicatory power to settle the claims of
parties. To the contrary, Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence, there is no basis for
COMELEC's claim that this petition for prohibition is inappropriate.
Prohibition has been fund appropriate for testing the constitutionality of
various election laws, rules, and regulations.19
WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No.
9006 §24(h) of COMELEC Resolution 3636, March 1, 2001, are declared
unconstitutional. 1âwphi1.nêt
SO ORDERED.1âwphi1.nêt
Zaldivar vs. Sandiganbayan [170 SCRA 1 (1989)]
We have examined carefully the lengthy and vigorously written Motion for
Reconsideration dated October 18, 1988 filed by counsel for respondent
Raul M. Gonzalez, relating to the per curiam Resolution of the Court dated
October 7, 1988. We have reviewed once more the Court's extended per
curiam Resolution, in the light of the argument adduced in the Motion for
Reconsideration, but must conclude that we find no sufficient basis for
modifying the conclusions and rulings embodied in that Resolution. The
Motion for Reconsideration sets forth copious quotations and references to
foreign texts which, however, whatever else they may depict, do not reflect
the law in this jurisdiction.
Nonetheless, it might be useful to develop further, in some measure, some of
the conclusions reached in the per curiam Resolution, addressing in the
process some of the "Ten (10) Legal Points for Reconsideration," made in
the Motion for Reconsideration.
1. In respondent's point A, it is claimed that it was error for this Court "to
charge respondent [with] indirect contempt and convict him of direct
contempt."
In the per curiam Resolution (page 50), the Court concluded that "respondent
Gonzalez is guilty both of contempt of court in facie curiae and of gross
misconduct as an officer of the court and member of the bar." The Court did
not use the phrase "in facie curiae" as a technical equivalent of "direct
contempt," though we are aware that courts in the United States have
sometimes used that phrase in speaking of "direct contempts' as "contempts
in the face of the courts." Rather, the court sought to convey that it regarded
the contumacious acts or statements (which were made both in a pleading
filed before the Court and in statements given to the media) and the
misconduct of respondent Gonzalez as serious acts flaunted in the face of
the Court and constituting a frontal assault upon the integrity of the Court
and, through the Court, the entire judicial system. What the Court would
stress is that it required respondent, in its Resolution dated 2 May 1988, to
explain "why he should not be punished for contempt of court and/or
subjected to administrative sanctions" and in respect of which, respondent
was heard and given the most ample opportunity to present all defenses,
arguments and evidence that he wanted to present for the consideration of
this Court. The Court did not summarily impose punishment upon the
respondent which it could have done under Section 1 of Rule 71 of the
Revised Rules of Court had it chosen to consider respondent's acts as
constituting "direct contempt."

2. In his point C, respondent's counsel argues that it was "error for this Court
to charge respondent under Rule 139 (b) and not 139 of the Revised Rules
of Court."
In its per curiam Resolution, the Court referred to Rule 139 (b) of the Revised
Rules of Court pointing out that:
[R]eference of complaints against attorneys either to the Integrated Bar of the
Philippines or to the Solicitor General is not mandatory upon the Supreme
Court such reference to the Integrated Bar of the Philippines or to the
Solicitor General is certainly not an exclusive procedure under the terms of
Rule 139 (b) of the Revised Rules of Court, especially where the charge
consists of acts done before the Supreme Court.
The above statement was made by the Court in response to respondent's
motion for referral of this case either to the Solicitor General or to the
Integrated Bar of the Philippines under Rule 139 (b). Otherwise, there would
have been no need to refer to Rule 139 (b). It is thus only necessary to point
out that under the old rule, Rule 139, referral to the Solicitor General was
similarly not an exclusive procedure and was not the only course of action
open to the Supreme Court. It is well to recall that under Section 1 (entitled
"Motion or complaint") of Rule 139, "Proceedings for the removal or
suspension of attorneys may be taken by the Supreme Court, (1) on its own
motion, or (2) upon the complaint under oath of another in writing"
(Parentheses supplied). The procedure described in Sections 2 et seq. of
Rule 139 is the procedure provided for suspension or disbarment
proceedings initiated upon sworn complaint of another person, rather than a
procedure required for proceedings initiated by the Supreme Court on its own
motion. It is inconceivable that the Supreme Court would initiate motu proprio
proceedings for which it did not find probable cause to proceed against an
attorney. Thus, there is no need to refer a case to the Solicitor General,
which referral is made "for investigation to determine if there is sufficient
ground to proceed with the prosecution of the respondent" (Section 3, Rule
139), where the Court itself has initiated against the respondent. The Court
may, of course, refer a case to the Solicitor General if it feels that, in a
particular case, further factual investigation is needed. In the present case,
as pointed out in the per curiam Resolution of the Court (page 18), there was
"no need for further investigation of facts in the present case for it [was] not
substantially disputed by respondent Gonzalez that he uttered or wrote
certain statements attributed to him" and that "in any case, respondent has
had the amplest opportunity to present his defense: his defense is not that he
did not make the statements ascribed to him but that those statements give
rise to no liability on his part, having been made in the exercise of his
freedom of speech. The issues which thus need to be resolved here are
issues of law and of basic policy and the Court, not any other agency, is
compelled to resolve such issues."
In this connection, we note that the quotation in page 7 of the Motion for
Reconsideration is from a dissenting opinion of Mr. Justice Black in Green v.
United State. 1 It may be pointed out that the majority in Green v. United
States, through Mr. Justice Harlan, held, among other things, that: Federal
courts do not lack power to impose sentences in excess of one year for
criminal contempt; that criminal contempts are not subject to jury trial as a
matter of constitutional right; nor does the (US) Constitution require that
contempt subject to prison terms of more than one year be based on grand
jury indictments.
In his concurring opinion in the same case, Mr. Justice Frankfurter said:
Whatever the conflicting views of scholars in construing more or less dubious
manuscripts of the Fourteenth Century, what is indisputable is that from the
foundation of the United States the constitutionality of the power to punish for
contempt without the intervention of a jury has not been doubted. The First
Judiciary Act conferred such a power on the federal courts in the very act of
their establishment, 1 State 73, 83, and of the Judiciary Committee of eight
that reported the bill to the Senate, five member including the chairman,
Senator, later to be Chief Justice, Ellsworth, had been delegates to the
Constitutional Convention (Oliver Ellsworth, Chairman, William Paterson,
Caleb Strong, Ricard Basett, William Few. 1 Annals of Cong 17). In the First
Congress itself no less than nineteen member including Madison who
contemporaneously introduced the Bill of Rights, had been delegates to the
Convention. And when an abuse under this power manifested itself, and led
Congress to define more explicitly the summary power vested in the courts, it
did not remotely deny the existence of the power but merely defined the
conditions for its exercise more clearly, in an Act "declaratory of the law
concerning contempts of court." Act of Mar. 2, 1831, 4 Stat 487.
xxxxxxxxx
Nor has the constitutionality of the power been doubted by this Court
throughout its existence . In at least two score cases in this Court, not to
mention the vast mass of decisions in the lower federal courts, the power to
punish summarily has been accepted without question. ... 2
To say that a judge who punishes a contemnor judges his own cause, is
simplistic at best. The judge who finds himself compelled to exercise the
power to punish for contempt does so not really to avenge a wrong inflicted
upon his own person; rather he upholds and vindicates the authority, dignity
and integrity of the judicial institution and its claim to respectful behaviour on
the part of all persons who appears before it, and most especially from those
who are officers of the court.
3. In his point D, respondent counsel urges that it is error "for this Court to
apply the "visible tendency" rule rather than the "clear and present danger"
rule in disciplinary and contempt charges."
The Court did not purport to announce a new doctrine of "visible tendency," it
was, more modestly, simply paraphrasing Section 3 (d) of Rule 71 of the
Revised Rules of Court which penalizes a variety of contumacious conduct
including: "any improper conduct tending, directly or indirectly, to impede,
obstruct or degrade the administration of justice."
The "clear and present danger" doctrine invoked by respondent's counsel is
not a magic incantation which dissolves all problems and dispenses with
analysis and judgment in the testing of the legitimacy of claims to free
speech, and which compels a court to exonerate a defendant the moment
the doctrine is invoked, absent proof of impending apocalypse. The clear and
present danger" doctrine has been an accepted method for marking out the
appropriate limits of freedom of speech and of assembly in certain contexts.
It is not, however, the only test which has been recognized and applied by
courts. In Logunzad v. Vda. de Gonzales, 3 this Court, speaking through
Mme. Justice Melencio-Herrera said:
...The right of freedom of expression indeed, occupies a preferred position in
the "hierarchy of civil liberties" (Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191 [1963]. It is
not, however, without limitations. As held in Gonzales v. Commission on
Elections, 27 SCRA 835, 858 [1960]:
"From the language of the specific constitutional provision, it would appear
that the right is not susceptible of any limitation. No law may be passed
abridging the freedom of speech and of the press. The realities of life in a
complex society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that all times
and under all circumstances it should remain unfettered and unrestrained.
There are other societal values that press for recognition."
The prevailing doctrine is that the clear and present danger rule is such a
limitation. Another criterion for permissible limitation on freedom of speech
and of the press, which includes such vehicles of the mass media as radio,
television and the movies, is the "balancing-of-interests test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed., p. 79). The principle
"requires a court to take conscious and detailed consideration of the interplay
of interests observable in a given situation or type of situation (Separate
Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899). (Emphasis Supplied) 4
Under either the "clear and present danger" test or the "balancing-of-interest
test," we believe that the statements here made by respondent Gonzalez are
of such a nature and were made in such a manner and under such
circumstances, as to transcend the permissible limits of free speech. This
conclusion was implicit in the per curiam Resolution of October 7, 1988. It is
important to point out that the "substantive evil" which the Supreme Court
has a right and a duty to prevent does not, in the instant case, relate to
threats of physical disorder or overt violence or similar disruptions of public
order. 5 What is here at stake is the authority of the Supreme Court to
confront and prevent a "substantive evil" consisting not only of the
obstruction of a free and fair hearing of a particular case but also the
avoidance of the broader evil of the degradation of the judicial system of a
country and the destruction of the standards of professional conduct required
from members of the bar and officers of the courts. The "substantive evil"
here involved, in other words, is not as palpable as a threat of public disorder
or rioting but is certainly no less deleterious and more far reaching in its
implications for society.
4. In his point H, respondent's counsel argues that it is error "for this Court to
hold that intent is irrelevant in charges of misconduct." What the Court
actually said on this point was:
Respondent Gonzalez disclaims an intent to attack and denigrate the Court.
The subjectivities of the respondent are irrelevant so far as characterization
of his conduct or misconduct is concerned. He will not, however, be allowed
to disclaim the natural and plain import of his words and acts. It is, upon the
other hand, not irrelevant to point out that the respondent offered no apology
in his two (2) explanations and exhibited no repentance (Resolution, p. 7;
footnotes omitted).
The actual subjectivities of the respondent are irrelevant because such
subjectivities (understood as pyschological phenomena) cannot be
ascertained and reached by the processes of this Court. Human intent can
only be shown derivatively and implied from an examination of acts and
statements. Thus, what the Court was saying was that respondent's
disclaimer of an intent to attack and denigrate the Court, cannot prevail over
the plain import of what he did say and do. Respondent cannot negate the
clear import of his acts and statements by simply pleading a secret intent or
state of mind incompatible with those acts or statements. It is scarcely open
to dispute that, e.g., one accused of homicide cannot successfully deny his
criminal intent by simply asserting that while he may have inserted a knife
between the victim's ribs, he actually acted from high motives and kind
feelings for the latter.

5 In his point 1, respondent's counsel argues that it is error "for this Court to
punish respondent for contempt of court for out of court publications."
Respondent's counsel asks this Court to follow what he presents as alleged
modern trends in the United Kingdom and in the United States concerning
the law of contempt. We are, however, unable to regard the texts that he
cites as binding or persuasive in our jurisdiction. The Court went to some
length to document the state of our case law on this matter in its per curiam
Resolution. There is nothing in the circumstances of this case that would
suggest to this Court that that case law, which has been followed for at least
half a century or so, ought to be reversed.
6. In his point J, respondent's counsel pleads that the imposition of indefinite
suspension from the practice of law constitutes "cruel, degrading or inhuman
punishment". The Court finds it difficult to consider this a substantial
constitutional argument. The indefiniteness of the respondent's suspension,
far from being "cruel" or "degrading" or "inhuman," has the effect of placing,
as it were, the key to the restoration of his rights and privileges as a lawyer in
his own hands. That sanction has the effect of giving respondent the chance
to purge himself in his own good time of his contempt and misconduct by
acknowledging such misconduct, exhibiting appropriate repentance and
demonstrating his willingness and capacity to live up to the exacting
standards of conduct rightly demanded from every member of the bar and
officer of the courts.
ACCORDINGLY, the Court Resolved to DENY the Motion for
Reconsideration for lack of merit. The denial is FINAL.
The Court also NOTED the Ex-Parte Manifestation and Motion, dated
October 25, 1988 and the Supplemental Manifestation, dated October 27,
1988, filed by respondent
Sanidad vs. COMELEC (G.R. 90878, January 29, 1990)
This is a petition for certiorari assailing the constitutionality of Section 19 of
Comelec Resolution No. 2167 on the ground that it violates the constitutional
guarantees of the freedom of expression and of the press.
On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING
FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOUS
REGION" was enacted into law. Pursuant to said law, the City of Baguio and
the Cordilleras which consist of the provinces of Benguet, Mountain
Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera
Autonomous Region, shall take part in a plebiscite for the ratification of said
Organic Act originally scheduled last December 27, 1989 which was,
however, reset to January 30, 1990 by virtue of Comelec Resolution No.
2226 dated December 27, 1989.
The Commission on Elections, by virtue of the power vested by the 1987
Constitution, the Omnibus Election Code (BP 881), said R.A. 6766 and other
pertinent election laws, promulgated Resolution No. 2167, to govern the
conduct of the plebiscite on the said Organic Act for the Cordillera
Autonomous Region.
In a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad,
who claims to be a newspaper columnist of the "OVERVIEW" for the
BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of
Baguio and the Cordilleras, assailed the constitutionality of Section 19 of
Comelec Resolution No. 2167, which provides:
Section 19. Prohibition on columnists, commentators or announcers. —
During the plebiscite campaign period, on the day before and on the
plebiscite day, no mass media columnist, commentator, announcer or
personality shall use his column or radio or television time to campaign for or
against the plebiscite issues.
It is alleged by petitioner that said provision is void and unconstitutional
because it violates the constitutional guarantees of the freedom of
expression and of the press enshrined in the Constitution.
Unlike a regular news reporter or news correspondent who merely reports
the news, petitioner maintains that as a columnist, his column obviously and
necessarily contains and reflects his opinions, views and beliefs on any issue
or subject about which he writes. Petitioner believes that said provision of
COMELEC Resolution No. 2167 constitutes a prior restraint on his
constitutionally-guaranteed freedom of the press and further imposes
subsequent punishment for those who may violate it because it contains a
penal provision, as follows:
Article XIII, Section 122, Election Offenses and Banned Acts or Activities. —
Except to the extent that the same may not be applicable plebiscite. the
banned acts/activities and offenses defined in and penalized by the Omnibus
Election Code ('Sections 261, 262, 263 and Article' XXII, B.P. Blg. 881) and
the pertinent provisions of R.A. No. 6646 shall be aplicable to the plebiscite
governed by this Resolution.
Petitioner likewise maintains that if media practitioners were to express their
views, beliefs and opinions on the issue submitted to a plebiscite, it would in
fact help in the government drive and desire to disseminate information, and
hear, as well as ventilate, all sides of the issue.
On November 28, 1989, We issued a temporary restraining order enjoining
respondent Commission on Elections from enforcing and implementing
Section 19 of Resolution No. 2167. We also required the respondent to
comment on the petition.
On January 9, 1990, respondent Commission on Elections, through the
Office of the Solicitor General filed its Comment.
Respondent Comelec maintains that the questioned provision of Comelec
Resolution No. 2167 is not violative of the constitutional guarantees of the
freedom of expression and of the press. Rather it is a valid implementation of
the power of the Comelec to supervise and regulate media during election or
plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987
Constitution of the Republic of the Philippines.
It is stated further by respondent that Resolution 2167 does not absolutely
bar petitioner from expressing his views and/or from campaigning for or
against the Organic Act. He may still express his views or campaign for or
against the act through the Comelec space and airtime. This is provided
under Sections 90 and 92 of BP 881:
Section 90. Comelec Space. — Commission shall procure space in at least
one newspaper of general circulation in every province or city: Provided,
however, That in the absence of said newspaper, publication shall be done in
any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their
candidacy. Said space shall be allocated, free of charge equally and
impartially within the area in which the newspaper is circulated.
Section 92. Comelec Time. — The Commission shall procure radio and
television time to be known as "Comelec Time" which shall be allocated
equally and impartially among the candidates within the area of coverage of
all radio and television stations. For this purpose, the franchise of all radio
broadcasting and television stations are hereby amended so as to provide
radio or television time, free of charge, during the period of the campaign.
Respondent Comelec has relied much on Article IX-C of the 1987
Constitution and Section 11 of R.A. 6646 as the basis for the promulgation of
the questioned Section 19 of Comelec Resolution 2167.
Article IX-C of the 1987 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.
Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of
1987) likewise provides:
Prohibited 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: ...
(b) for any newspaper, radio, broadcasting or 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 other political purposes
except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcer,
or personality who is a candidate for any elective office shall take a leave of
absence from his work as such during the campaign period. (Emphasis ours)
However, it is clear from Art. IX-C of the 1987 Constitution that what was
granted to the Comelec was the power to supervise and regulate the use and
enjoyment of franchises, permits or other grants issued for the operation of
transportation or other public utilities, media of communication or information
to the end that equal opportunity, time and space, and the right to reply,
including reasonable, equal rates therefor, for public information campaigns
and forums among candidates are ensured. The evil sought to be prevented
by this provision is the possibility that a franchise holder may favor or give
any undue advantage to a candidate in terms of advertising space or radio or
television time. This is also the reason why a "columnist, commentator,
announcer or personality, who is a candidate for any elective office is
required to take a leave of absence from his work during the campaign
period (2nd par. Section 11(b) R.A. 6646). It cannot be gainsaid that a
columnist or commentator who is also a candidate would be more exposed to
the voters to the prejudice of other candidates unless required to take a leave
of absence.
However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par.
of R.A. 6646 can be construed to mean that the Comelec has also been
granted the right to supervise and regulate the exercise by media
practitioners themselves of their right to expression during plebiscite periods.
Media practitioners exercising their freedom of expression during plebiscite
periods are neither the franchise holders nor the candidates. In fact, there
are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec
Resolution No. 2167 has no statutory basis.
In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the
constitutionality of the prohibition of certain forms of election propaganda was
assailed, We ruled therein that the prohibition is a valid exercise of the police
power of the state "to prevent the perversion and prostitution of the electoral
apparatus and of the denial of equal protection of the laws." The evil sought
to be prevented in an election which led to Our ruling in that case does not
obtain in a plebiscite. In a plebiscite, votes are taken in an area on some
special political matter unlike in an election where votes are cast in favor of
specific persons for some office. In other words, the electorate is asked to
vote for or against issues, not candidates in a plebiscite.
Anent respondent Comelec's argument that Section 19 of Comelec
Resolution 2167 does not absolutely bar petitioner-columnist from expressing
his views and/or from campaigning for or against the organic act because he
may do so through the Comelec space and/or Comelec radio/television time,
the same is not meritorious. While the limitation does not absolutely bar
petitioner's freedom of expression, it is still a restriction on his choice of the
forum where he may express his view. No reason was advanced by
respondent to justify such abridgement. We hold that this form of regulation
is tantamount to a restriction of petitioner's freedom of expression for no
justifiable reason.
Plebiscite issues are matters of public concern and importance. The people's
right to be informed and to be able to freely and intelligently make a decision
would be better served by access to an unabridged discussion of the issues,
including the forum. The people affected by the issues presented in a
plebiscite should not be unduly burdened by restrictions on the forum where
the right to expression may be exercised. Comelec spaces and Comelec
radio time may provide a forum for expression but they do not guarantee full
dissemination of information to the public concerned because they are limited
to either specific portions in newspapers or to specific radio or television
times.
ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec
Resolution No. 2167 is declared null and void and unconstitutional. The
restraining order herein issued is hereby made permanent.
SO ORDERED.
Reno vs. ACLU (D-96-511, June 26, 1997)
Facts of the case
Several litigants challenged the constitutionality of two provisions in the 1996
Communications Decency Act. Intended to protect minors from unsuitable
internet material, the Act criminalized the intentional transmission of
"obscene or indecent" messages as well as the transmission of information
which depicts or describes "sexual or excretory activities or organs" in a
manner deemed "offensive" by community standards. After being enjoined by
a District Court from enforcing the above provisions, except for the one
concerning obscenity and its inherent protection against child pornography,
Attorney General Janet Reno appealed directly to the Supreme Court as
provided for by the Act's special review provisions.
Question
Did certain provisions of the 1996 Communications Decency Act violate the
First and Fifth Amendments by being overly broad and vague in their
definitions of the types of internet communications which they criminalized?
Yes. The Court held that the Act violated the First Amendment because its
regulations amounted to a content-based blanket restriction of free speech.
The Act failed to clearly define "indecent" communications, limit its
restrictions to particular times or individuals (by showing that it would not
impact adults), provide supportive statements from an authority on the
unique nature of internet communications, or conclusively demonstrate that
the transmission of "offensive" material is devoid of any social value. The
Court added that since the First Amendment distinguishes between
"indecent" and "obscene" sexual expressions, protecting only the former, the
Act could be saved from facial overbreadth challenges if it dropped the words
"or indecent" from its text. The Court refused to address any Fifth
Amendment issues.
Justice Sandra Day O'Connor authored an opinion concurring in the
judgment in part and dissenting in part, joined by Chief Justice William
Rehnquist. Justice O'Connor would invalidate the provisions only to the
extent that they fail to adhere to the Court's principle that zoning restrictions
may be valid if they do not unduly limit adult access to the material.
Miriam College vs. Court of Appeals (G.R. No. 127930, December 15,
2000)
"Obscene," "vulgar," "indecent," "gross," "sexually explicit," "injurious to
young readers," and devoid of all moral values."1 This was now some
members of the Miriam College community allegedly described the contents
of the September-October 1994 issue (Vol. 41, No. 14) of Miriam College's
school paper (Chi-Rho), and magazine (Ang Magasing Pampanitikan ng Chi-
Rho). The articles in the Chi-Rho included:
. . . a story, clearly fiction, entitled 'Kaskas' written by one Gerald Garry
Renacido . . . Kaskas, written in Tagalog, treats of the experience of a group
of young, male, combo players who, one evening, after their performance
went to see a bold show in a place called "Flirtation". This was the way the
author described the group's exposure during that stage show:
"Sige, sa Flirtation tayo. Happy hour na halos . . . he! he! he! sambit ng
kanilang bokalistang kanina pa di maitago ang pagkahayok sa karneng
babae na kanyang pinananabikan nuong makalawa pa, susog naman ang
tropa.
". . . Pumasok ang unang mananayaw. Si 'Red Raven' ayon sa emcee.
Nakasuot lamang ng bikining pula na may palamuting dilaw sa gilid-gilid at
sa bandang utong. Nagsimula siya sa kanyang pag-giling nang tumugtog na
ang unang tono ng "Goodbye" ng Air Supply. Dahan-dahan ang kanyang
mga malalantik at mapang-akit na galaw sa una. Mistulang sawa na
nililingkis ang hangin, paru-parong padapo-dapo sa mga bulaklak na lamesa,
di-upang umamoy o kumuha ng nektar, ngunit para ipaglantaran ang sariling
bulaklak at ang angkin nitong malansang nektar.
"Kaskas mo babe, sige . . . kaskas."
Napahaling ang tingin ng balerinang huwad kay Mike. Mistulang natipuhan,
dahil sa harap niya'y nagtagal. Nag-akmang mag-aalis ng pangitaas na
kapirasong tela. Hindi nakahinga si Mike, nanigas sa kanyang kinauupuan,
nanigas pati ang nasa gitna ng kanyang hita. Ang mga mata niya'y namagnet
sa kayamanang ngayo'y halos isang pulgada lamang mula sa kanyang
naglalaway na bunganga. Naputol-putol ang kanyang hininga nang
kandungan ni 'Red Raven' ang kanyang kanang hita. Lalo naghingalo siya
nang kabayuhin ito ng dahan dahan . . . Pabilis ng pabilis.'
The author further described Mike's responses to the dancer as follows
(quoted in part):
. . . Nagsimulang lumaban na ng sabayan si Mike sa dancer. Hindi nagpatalo
ang ibong walang pakpak, inipit ng husto ang hita ni Mike at pinag-udyukan
ang kanyang dibdib sa mukha nito.
"Kaskas mo pa, kaskas mo pa!"
Palpakan at halagpakan na tawanan ang tumambad sa kanya ng biglang
halikan siya nito sa labi at iniwang bigla, upang kanyang muniin ang naudlot
niyang pagtikim ng karnal na nektar. Hindi niya maanto kung siya ay nanalo
o natalo sa nangyaring sagupaan ng libog. Ang alam lang niya ay nanlata na
siya."
After the show the group went home in a car with the bokalista driving. A
pedestrian happened to cross the street and the driver deliberately hit him
with these words:
"Pare tingnan natin kung immortal itong baboy na ito. He! He! He! He! Sabad
ng sabog nilang drayber/bokalista."
The story ends (with their car about to hit a truck) in these words: . . .
"Pare . . . trak!!! Put . . .!!!!
Ang Magasing Pampanitikan, October, 1994 issue, was in turn, given the
cover title of "Libog at iba pang tula."
In his foreword which Jerome Gomez entitled "Foreplay", Jerome wrote:
"Alam ko, nakakagulat ang aming pamagat." Jerome then proceeded to write
about previous reactions of readers to women-writers writing about matters
erotic and to gay literature. He justified the Magazine's erotic theme on the
ground that many of the poems passed on to the editors were about
"sekswalidad at iba't ibang karanasan nito." Nakakagulat ang tapang ng mga
manunulat . . . tungkol sa maselang usaping ito . . . at sa isang institusyon
pang katulad ng Miriam!"
Mr. Gomez quoted from a poem entitled "Linggo" written by himself:
may mga palangganang nakatiwangwang -
mga putang biyak na sa gitna,
'di na puwedeng paglabhan,
'di na maaaring pagbabaran . . ."
Gomez stated that the poems in the magazine are not "garapal" and "sa mga
tulang ito namin maipagtatanggol ang katapangan (o pagka-sensasyonal) ng
pamagat na "Libog at iba pang Tula." He finished "Foreplay" with these
words: "Dahil para saan pa ang libog kung hindi ilalabas?"
The cover title in question appears to have been taken from a poem written
by Relly Carpio of the same title. The poem dealt on a woman and a man
who met each other, gazed at each other, went up close and "Naghalikan,
Shockproof." The poem contained a background drawing of a woman with
her two mammary and nipples exposed and with a man behind embracing
her with the woman in a pose of passion-filled mien.
Another poem entitled 'Virgin Writes Erotic' was about a man having
fantasies in his sleep. The last verse said: "At zenith I pull it out and find
myself alone in this fantasy." Opposite the page where this poem appeared
was a drawing of a man asleep and dreaming of a naked woman (apparently
of his dreams) lying in bed on her buttocks with her head up (as in a hospital
bed with one end rolled up). The woman's right nipple can be seen clearly.
Her thighs were stretched up with her knees akimbo on the bed.
In the next page (page 29) one finds a poem entitled "Naisip ko Lang" by
Belle Campanario. It was about a young student who has a love-selection
problem: ". . . Kung sinong pipiliin: ang teacher kong praning, o ang boyfriend
kong bading." The word "praning" as the court understands it, refers to a
paranoid person; while the word "bading" refers to a sward or "bakla" or
"badidang". This poem also had an illustration behind it: of a young girl with
large eyes and sloping hair cascading down her curves and holding a peeled
banana whose top the illustrator shaded up with downward-slanting strokes.
In the poem, the girl wanted to eat banana topped by peanut butter. In line
with Jerome's "Foreplay" and by the way it was drawn that banana with
peanut butter top was meant more likely than not, to evoke a spiritedly
mundane, mental reaction from a young audience.
Another poem entitled "Malas ang Tatlo" by an unknown author went like
this:
'Na picture mo na ba
no'ng magkatabi tayong dalawa
sa pantatluhang sofa -
ikaw, the legitimate asawa
at ako, biro mo, ang kerida?
tapos, tumabi siya, shit!
kumpleto na:
ikaw, ako at siya
kulang na lang, kamera."
A poem "Sa Gilid ng Itim" by Gerald Renacido in the Chi-Rho broadsheet
spoke of a fox (lobo) yearning for "karneng sariwa, karneng bata, karneng
may kalambutan . . . isang bahid ng dugong dalaga, maamo't malasa, ipahid
sa mga labing sakim sa romansa' and ended with 'hinog na para himukin
bungang bibiyakin."2
Following the publication of the paper and the magazine, the members of the
editorial board,3 and Relly Carpio, author of Libog, all students of Miriam
College, received a letter signed by Dr. Aleli Sevilla, Chair of the Miriam
College Discipline Committee. The Letter dated 4 November 1994 stated:
This is to inform you that the letters of complain filed against you by
members of the Miriam Community and a concerned Ateneo grade five
student have been forwarded to the Discipline Committee for inquiry and
investigation. Please find enclosed complaints.
As expressed in their complaints you have violated regulations in the student
handbook specifically Section 2 letters B and R, pages 30 and 32, Section 4
(Major offenses) letter j, page 36 letters m, n, and p, page 37 and no. 2
(minor offenses) letter a, page 37.
You are required to submit a written statement in answer to the charge/s on
or before the initial date of hearing to be held on November 15, 1994,
Tuesday, 1:00 in the afternoon at the DSA Conference Room.4
None of the students submitted their respective answers. They instead
requested Dr. Sevilla to transfer the case to the Regional Office of the
Department of Education, Culture and Sports (DECS) which under Rule XII
of DECS Order No. 94, Series of 1992, supposedly had jurisdiction over the
case.5
In a Letter dated 21 November 1994, Dr. Sevilla again required the students
to file their written answers.
In response, Atty. Ricardo Valmonte, lawyer for the students, submitted a
letter6 to the Discipline Committee reiterating his clients' position that said
Committee had no jurisdiction over them. According to Atty. Valmonte, the
Committee was "trying to impose discipline on his clients on account of their
having written articles and poems in their capacity as campus journalists."
Hence, he argued that "what applies is Republic Act No. 7079 The Campus
Journalism Act and its implementing rules and regulations." He also
questioned the partiality of the members of said Committee who allegedly
"had already articulated their position" against his clients.
The Discipline Committee proceeded with its investigation ex parte.
Thereafter, the Discipline Board, after a review of the Discipline Committee's
report, imposed disciplinary sanctions upon the students, thus:
1. Jasper Briones Expulsion. Briones is the Editor-in-Chief of Chi-Rho
and a 4th year student;
2. Daphne Cowper suspension up to (summer) March, 1995;
3. Imelda Hilario suspension for two (2) weeks to expire on February
2, 1995;
4. Deborah Ligon suspension up to May, 1995. Miss Ligon is a 4th year
student and could graduate as summa cum laude;
5. Elizabeth Valdezco suspension up to (summer) March, 1995;
6. Camille Portugal graduation privileges withheld, including diploma.
She is an Octoberian;
7. Joel Tan suspension for two (2) weeks to expire on February 2, 1995;
8. Gerald Gary Renacido Expelled and given transfer credentials. He
is a 2nd year student. He wrote the fiction story "Kaskas";
9. Relly Carpio Dismissed and given transfer credentials. He is in 3rd year
and wrote the poem "Libog";
10. Jerome Gomez Dismissed and given transfer credentials. He is in
3rd year. He wrote the foreword "Foreplay" to the questioned Anthology of
Poems; and
11. Jose Mari Ramos Expelled and given transfer papers. He is a 2nd year
student and art editor of Chi-Rho.7
The above students thus filed a petition for prohibition and certiorari with
preliminary injunction/restraining order before the Regional Trial Court of
Quezon City questioning the jurisdiction of the Discipline Board of Miriam
College over them.
On 17 January 1995, the Regional Trial Court, Branch CIII, presided by
Judge Jaime N. Salazar, Jr., issued an order denying the plaintiffs' prayer for
a Temporary Restraining Order. It held:
There is nothing in the DECS Order No. 94, S. 1992 dated August 19, 1992
that excludes school Administrators from exercising jurisdiction over cases of
the nature involved in the instant petition. R.A. 7079 also does not state
anything on the matter of jurisdiction. The DECS undoubtedly cannot
determine the extent of the nature of jurisdiction of schools over disciplinary
cases. Moreover, as this Court reads that DECS Order No. 94, S. of 1992, it
merely prescribes for purposes of internal administration which DECS officer
or body shall hear cases arising from R A. 7079 if and when brought to it for
resolution. The said order never mentioned that it has exclusive jurisdiction
over cases falling under R.A. 707.8
The students thereafter filed a "Supplemental Petition and Motion for
Reconsideration." The College followed with its Answer.
Subsequently, the RTC issued an Order dated 10 February 1995 granting
the writ of preliminary injunction.
ACCORDINGLY, so as not to render the issues raised moot and academic,
let a writ of preliminary injunction issue enjoining the defendants, including
the officers and members of the Disciplinary Committee, the Disciplinary
Board, or any similar body and their agents, and the officers and members of
the Security Department, Division, or Security Agency securing the premises
and campus of Miriam College Foundation, Inc. from:
1. Enforcing and/or implementing the expulsion or dismissal resolutions or
orders complained of against herein plaintiffs (a) Jasper Briones; (b) Gerald
Gary Renacido; (c) Relly Carpio; (d) Jerome Gomez; and (e) Jose Mari
Ramos, but otherwise allowing the defendants to impose lesser sanctions on
aforementioned plaintiffs; and
2. Disallowing, refusing, barring or in any way preventing the herein plaintiffs
(all eleven of them) from taking tests or exams and entering the Miriam
campus for such purpose as extended to all students of Miriam College
Foundation, Inc.; neither should their respective course or subject teachers
or professors withhold their grades, including final grades, if and when they
meet the requirements similarly prescribed for all other students, this current
2nd Semester of 1994-95.
The sanctions imposed on the other plaintiffs, namely, Deborah Ligon,
Imelda Hilario, Elizabeth Valdezco, Camille Portugal and Daphne Cowper,
shall remain in force and shall not be covered by this Injunction: Provided,
that Camille Portugal now a graduate, shall have the right to receive her
diploma, but defendants are not hereby prevented from refusing her the
privilege of walking on the graduation stage so as to prevent any likely public
tumults.
The plaintiffs are required to post an injunction bond in the sum of Four
Thousand Pesos (P4,000.00) each.
SO ORDERED.9
Both parties moved for a reconsideration of the above order. In an Order
dated 22 February 1995, the RTC dismissed the petition, thus:
4. On the matter raised by both parties that it is the DECS which has
jurisdiction, inasmuch as both parties do not want this court to assume
jurisdiction here then this court will not be more popish than the Pope and in
fact is glad that it will have one more case out of its docket.
ACCORDINGLY, the instant case is hereby DISMISSED without prejudice to
the parties going to another forum.
All orders heretofore issued here are hereby recalled and set aside.
SO ORDERED.10
The students, excluding Deborah Ligon, Imelda Hilario and Daphne Cowper,
sought relief in this Court through a petition for certiorari and prohibition of
preliminary injunction/restraining order11 questioning the Orders of the RTC
dated 10 and 24 February 1995.
On 15 March 1995, the Court resolved to refer the case to the Court of
Appeals (CA) for disposition.12 On 19 May 1995, the CA issued a resolution
stating:
The respondents are hereby required to file comment on the instant petition
and to show cause why no writ of preliminary injunction should be issued,
within ten (10) days from notice hereof, and the petitioners may file reply
thereto within five (5) days from receipt of former's comment.
In order not to render ineffectual the instant petition, let a Temporary
Restraining Order be issued enjoining the public respondents from enforcing
letters of dismissal/suspension dated January 19, 1995.
SO ORDERED.13
In its Decision dated 26 September 1996, respondent court granted the
students' petition. The CA declared the RTC Order dated 22 February 1995,
as well as the students' suspension and dismissal, void.
Hence, this petition by Miriam College.
We limit our decision to the resolution of the following issues:
(1) The alleged moot character of the case.
(2) The jurisdiction of the trial court to entertain the petition for certiorari filed
by the students.
(3) The power of petitioner to suspend or dismiss respondent students.
(4) The jurisdiction of petitioner over the complaints against the students.
We do not tackle the alleged obscenity of the publication, the propriety of the
penalty imposed or the manner of the imposition thereof. These issues,
though touched upon by the parties in the proceedings below, were not fully
ventilated therein.
I Renacido all of whom were dismissed, and respondent Camille Portugal
Petitioner asserts the Court of Appeals found the case moot thus:
While this petition may be considered moot and academic since more than
one year have passed since May 19, 1995 when this court issued a
temporary restraining order enjoining respondents from enforcing the
dismissal and suspension on petitioners . . .14
Since courts do not adjudicate moot cases, petitioner argues that the CA
should not have proceeded with the adjudication of the merits of the case.
We find that the case is not moot.
It may be noted that what the court issued in 19 May 1995 was a temporary
restraining order, not a preliminary injunction. The records do not show that
the CA ever issued a preliminary injunction.
Preliminary injunction is an order granted at any stage of an action or
proceeding prior to the judgment or final order, requiring a party or a court,
agency or a person to perform to refrain from performing a particular act or
acts.15 As an extraordinary remedy, injunction is calculated to preserve or
maintain the status quo of things and is generally availed of to prevent actual
or threatened acts, until the merits of the case can be heard.16 A preliminary
injunction persists until it is dissolved or until the termination of the action
without the court issuing a final injunction.
The basic purpose of restraining order, on the other hand, is to preserve the
status quo until the hearing of the application for preliminary injunction.17
Under the former 5, Rule 58 of the Rules of Court, as amended by 5, Batas
Pambansa Blg. 224, a judge (or justice) may issue a temporary restraining
order with a limited life of twenty days from date of issue.18 If before the
expiration of the 20-day period the application for preliminary injunction is
denied, the temporary order would thereby be deemed automatically
vacated. If no action is taken by the judge on the application for preliminary
injunction within the said 20 days, the temporary restraining order would
automatically expire on the 20th day by the sheer force of law, no judicial
declaration to that effect being necessary.19 In the instant case, no such
preliminary injunction was issued; hence, the TRO earlier issued
automatically expired under the aforesaid provision of the Rules of Court.20
This limitation as to the duration of the temporary restraining order was the
rule prevailing when the CA issued its TRO dated 19 May 1995.21 By that
time respondents Elizabeth Valdezco and Joel Tan had already served their
respective suspensions. The TRO was applicable only to respondents Jasper
Briones, Jerome Gomez, Relly Carpio, Jose Mari Ramos and Gerald Gary
whose graduation privileges were withheld. The TRO, however, lost its
effectivity upon the lapse of the twenty days. It can hardly be said that in that
short span of time, these students had already graduated as to render the
case moot.
Either the CA was of the notion that its TRO was effective throughout the
pendency of the case or that what is issued was a preliminary injunction. In
either case, it was error on the part of the CA to assume that its order
supposedly enjoining Miriam from enforcing the dismissal and suspension
was complied with. A case becomes moot and academic when there is no
more actual controversy between the parties or no useful purpose can be
served in passing upon the merits.22 To determine the moot character of a
question before it, the appellate court may receive proof or take notice of
facts appearing outside the record.23 In the absence of such proof or notice
of facts, the Court of Appeals should not have assumed that its TRO was
enforced, and that the case was rendered moot by the mere lapse of time.
Indeed, private respondents in their Comment herein24 deny that the case
has become moot since Miriam refused them readmission in violation of the
TRO. This fact is unwittingly conceded by Miriam itself when, to counter this
allegation by the students, it says that private respondents never sought
readmission after the restraining order was issued.25 In truth, Miriam relied
on legal technicalities to subvert the clear intent of said order, which states:
In order not to render ineffectual the instant petition, let a Temporary
Restraining Order be issued enjoining the public respondents from enforcing
letters of dismissal/suspension dated January 19, 1995.
Petitioner says that the above order is "absurd" since the order "incorrectly
directs public respondent, the Hon. Jaime Salazar, presiding judge of the
Regional Trial Court of Quezon City not to dismiss or suspend the
students."26
We do not agree. Padua vs. Robles27 lays down the rules in construing
judgments. We find these rules to be applicable to court orders as well:
The sufficiency and efficacy of a judgment must be tested by its substance
rather than its form. In construing a judgment, its legal effects including such
effects that necessarily follow because of legal implications, rather than the
language used, govern. Also, its meaning, operation, and consequences
must be ascertained like any other written instrument. Thus, a judgment rests
on the intent of the court as gathered from every part thereof, including the
situation to which it applies and attendant circumstances. (Emphasis
supplied.)
Tested by such standards, we find that the order was indeed intended for
private respondents (in the appellate court) Miriam College, et al., and not
public respondent Judge. In dismissing the case, the trial judge recalled and
set aside all orders it had previously issued, including the writ of preliminary
injunction. In doing so, the trial court allowed the dismissal and suspension of
the students to remain in force. Thus, it would indeed be absurd to construe
the order as being directed to the RTC. Obviously, the TRO was intended for
Miriam College.
True, respondent-students should have asked for a clarification of the above
order. They did not. Nevertheless, if Miriam College found the order "absurd,"
then it should have sought a clarification itself so the Court of Appeals could
have cleared up any confusion. It chose not to. Instead, it took advantage of
the supposed vagueness of the order and used the same to justify its refusal
to readmit the students.
As Miriam never readmitted the students, the CA's ruling that the case is
moot has no basis. How then can Miriam argue in good faith that the case
had become moot when it knew all along that the facts on which the
purported moot character of the case were based did not exist? Obviously,
Miriam is clutching to the CA's wrongful assumption that the TRO it issued
was enforced to justify the reversal of the CA's decision.
Accordingly, we hold that the case is not moot, Miriam's pretensions to the
contrary notwithstanding.
II
"To uphold and protect the freedom of the press even at the campus level
and to promote the development and growth of campus journalism as a
means of strengthening ethical values, encouraging critical and creative
thinking, and developing moral character and personal discipline of the
Filipino youth,"28 Congress enacted in 1991 Republic Act No. 7079. Entitled
"AN ACT PROVIDING FOR THE DEVELOPMENT AND PROMOTION OF
CAMPUS JOURNALISM AND FOR OTHER PURPOSES,"29 the law
contains provisions for the selection of the editorial board30 and publication
adviser,31 the funding of the school publication,32 and the grant of
exemption to donations used actually, directly and exclusively for the
promotion of campus journalism from donor's or gift tax.33
Noteworthy are provisions clearly intended to provide autonomy to the
editorial board and its members. Thus, the second paragraph of Section 4
states that "(o)nce the publication is established, its editorial board shall
freely determine its editorial policies and-manage the publication's funds."
Section 7, in particular, provides:
A member of the publication staff must maintain his or her status as student
in order to retain membership in the publication staff. A student shall not be
expelled or suspended solely on the basis of articles he or she has written, or
on the basis of the performance of his or her duties in the student publication.
Section 9 of the law mandates the DECS to "promulgate the rules and
regulations necessary for the effective implementation of this Act."34
Pursuant to said authority, then DECS Secretary Armand Fabella, issued
DECS Order No. 94, Series of 1992, providing under Rule XII that:
GENERAL PROVISIONS
SECTION 1. The Department of Education, Culture and Sports (DECS) shall
help ensure and facilitate the proper carrying out of the Implementing Rules
and Regulations of Republic Act No. 7079. It shall also act on cases on
appeal brought before it.
The DECS regional office shall have the original jurisdiction over cases as a
result of the decisions, actions and policies of the editorial board of a school
within its area of administrative responsibility. It shall conduct investigations
and hearings on the these cases within fifteen (15) days after the completion
of the resolution of each case. (Emphasis supplied.)
The latter two provisions of law appear to be decisive of the present case.
It may be recalled that after the Miriam Disciplinary Board imposed
disciplinary sanctions upon the students, the latter filed a petition for certiorari
and prohibition in the Regional Trial Court raising, as grounds therefor, that:
I dismissed the petition without settling the issues presented before it.
DEFENDANT'S DISCIPLINARY COMMITTEE AND DISCIPLINARY BOARD
OF DEFENDANT SCHOOL HAVE NO JURISDICTION OVER THE CASE.35
II
DEFENDANT SCHOOL'S DISCIPLINARY COMMITTEE AND THE
DISCIPLINARY BOARD DO NOT HAVE THE QUALIFICATION OF AN
IMPARTIAL AND NEUTRAL ARBITER AND, THEREFORE THEIR TAKING
COGNIZANCE OF THE CASE AGAINST PLAINTIFFS WILL DENY THE
LATTER OF THEIR RIGHT TO DUE PROCESS.36
Anent the first ground, the students theorized that under Rule XII of the Rules
and Regulations for the Implementation of R.A. No. 7079, the DECS
Regional Office, and not the school, had jurisdiction over them. The second
ground, on the other hand, alleged lack of impartiality of the Miriam
Disciplinary Board, which would thereby deprive them of due process. This
contention, if true, would constitute grave abuse of discretion amounting to
lack or excess of jurisdiction on the part of the trial court. These were the
same grounds invoked by the students in their refusal to answer the charges
against them. The issues were thus limited to the question of jurisdiction - a
question purely legal in nature and well within the competence and the
jurisdiction of the trial court, not the DECS Regional Office. This is an
exception to the doctrine of primary jurisdiction. As the Court held in Phil.
Global Communications, Inc. vs. Relova.37
Absent such clarity as to the scope and coverage of its franchise, a legal
question arises which is more appropriate for the judiciary than for an
administrative agency to resolve. The doctrine of primary jurisdiction calls for
application when there is such competence to act on the part of an
administrative body. Petitioner assumes that such is the case. That is to beg
the question. There is merit, therefore, to the approach taken by private
respondents to seek judicial remedy as to whether or not the legislative
franchise could be so interpreted as to enable the National
Telecommunications Commission to act on the matter. A jurisdictional
question thus arises and calls for an answer.
However, when Miriam College in its motion for reconsideration contended
that the DECS Regional Office, not the RTC, had jurisdiction, the trial court,
refusing to "be more popish than the Pope," dismissed the case. Indeed, the
trial court could hardly contain its glee over the fact that "it will have one more
case out of its docket." We remind the trial court that a court having
jurisdiction of a case has not only the right and the power or authority, but
also the duty, to exercise that jurisdiction and to render a decision in a case
properly submitted to it.38 Accordingly, the trial court should not have
III
Before we address the question of which between the DECS Regional Office
and Miriam College has jurisdiction over the complaints against the students,
we first delve into the power of either to impose disciplinary sanctions upon
the students. Indeed, the resolution of the issue of jurisdiction would be
reduced to an academic exercise if neither the DECS Regional Office nor
Miriam College had the power to impose sanctions upon the students.
Recall, for purposes of this discussion, that Section 7 of the Campus
Journalism Act prohibits the expulsion or suspension of a student solely on
the basis of articles he or she has written.
A.
Section 5 (2), Article XIV of the Constitution guarantees all institutions of
higher learning academic freedom. This institutional academic freedom
includes the right of the school or college to decide for itself, its aims and
objectives, and how best to attain them free from outside coercion or
interference save possibly when the overriding public welfare calls for some
restraint.39 The essential freedoms subsumed in the term "academic
freedom" encompasses the freedom to determine for itself on academic
grounds:
(1) Who may teach,
(2) What may be taught,
(3) How it shall be taught, and
(4) Who may be admitted to study.40
The right of the school to discipline its students is at once apparent in the
third freedom, i.e., "how it shall be taught." A school certainly cannot function
in an atmosphere of anarchy.
Thus, there can be no doubt that the establishment of an educational
institution requires rules and regulations necessary for the maintenance of an
orderly educational program and the creation of an educational environment
conducive to learning. Such rules and regulations are equally necessary for
the protection of the students, faculty, and property.41
Moreover, the school has an interest in teaching the student discipline, a
necessary, if not indispensable, value in any field of learning. By instilling
discipline, the school teaches discipline. Accordingly, the right to discipline
the student likewise finds basis in the freedom "what to teach."
Incidentally, the school not only has the right but the duty to develop
discipline in its students. The Constitution no less imposes such duty.
All educational institutions shall inculcate patriotism and nationalism, foster
love of humanity, respect for human rights, appreciation of the role of
national heroes in the historical development of the country, teach the rights
and duties of citizenship, strengthen ethical and spiritual values, develop
moral character and personal discipline, encourage critical and creative
thinking, broaden scientific and technological knowledge, and promote
vocational efficiency.42
In Angeles vs. Sison, we also said that discipline was a means for the school
to carry out its responsibility to help its students "grow and develop into
mature, responsible, effective and worthy citizens of the community."43
Finally, nowhere in the above formulation is the right to discipline more
evident than in "who may be admitted to study." If a school has the freedom
to determine whom to admit, logic dictates that it also has the right to
determine whom to exclude or expel, as well as upon whom to impose lesser
sanctions such as suspension and the withholding of graduation privileges.
Thus, in Ateneo de Manila vs. Capulong,44 the Court upheld the expulsion of
students found guilty of hazing by petitioner therein, holding that:
No one can be so myopic as to doubt that the immediate reinstatement of
respondent students who have been investigated and found guilty by the
Disciplinary Board to have violated petitioner university's disciplinary rules
and standards will certainly undermine the authority of the administration of
the school. This we would be most loathe to do.
More importantly, it will seriously impair petitioner university's academic
freedom which has been enshrined in the 1935, 1973 and the present 1987
Constitution.45
Tracing the development of academic freedom, the Court continued:
Since Garcia vs. Loyola School of Theology, we have consistently upheld the
salutary proposition that admission to an institution of higher learning is
discretionary upon a school, the same being a privilege on the part of the
student rather than a right. While under the Education Act of 1982, students
have a right "to freely choose their field of study, subject to existing curricula
and to continue their course therein up to graduation," such right is subject,
as all rights are, to the established academic and disciplinary standards laid
down by the academic institution.
"For private schools have the right to establish reasonable rules and
regulations for the admission, discipline and promotion of students. This right
. . . extends as well to parents . . . as parents under a social and moral (if not
legal) obligation, individually and collectively, to assist and cooperate with the
schools."
Such rules are "incident to the very object of incorporation and indispensable
to the successful management of the college. The rules may include those
governing student discipline." Going a step further, the establishment of the
rules governing university-student relations, particularly those pertaining to
student discipline, may be regarded as vital, not merely to the smooth and
efficient operation of the institution, but to its very survival.
Within memory of the current generation is the eruption of militancy in the
academic groves as collectively, the students demanded and plucked for
themselves from the panoply of academic freedom their own rights
encapsulized under the rubric of "right to education" forgetting that, In
Hohfeldian terms, they have the concomitant duty, and that is, their duty to
learn under the rules laid down by the school.
. . . It must be borne in mind that universities are established, not merely to
develop the intellect and skills of the studentry, but to inculcate lofty values,
ideals and attitudes; may, the development, or flowering if you will, of the
total man.
In essence, education must ultimately be religious - not in the sense that the
founders or charter members of the institution are sectarian or profess a
religious ideology. Rather, a religious education, as the renowned
philosopher Alfred North Whitehead said, is 'an education which inculcates
duty and reverence.' It appears that the particular brand of religious
education offered by the Ateneo de Manila University has been lost on the
respondent students.
Certainly, they do not deserve to claim such a venerable institution as the
Ateneo de Manila University as their own a minute longer, for they may
foreseeably cast a malevolent influence on the students currently enrolled, as
well as those who come after them.1avvphi1
Quite applicable to this case is our pronouncement in Yap Chin Fah v. Court
of Appeals that: "The maintenance of a morally conducive and orderly
educational environment will be seriously imperilled, if, under the
circumstances of this case, Grace Christian is forced to admit petitioner's
children and to reintegrate them to the student body." Thus, the decision of
petitioner university to expel them is but congruent with the gravity of their
misdeeds.46
B.
Section 4 (1), Article XIV of the Constitution recognizes the State's power to
regulate educational institution:
The State recognizes the complementary roles of public and private
institutions in the educational system and shall exercise reasonable
supervision and regulation of all educational institutions.
As may be gleaned from the above provision, such power to regulate is
subject to the requirement of reasonableness. Moreover, the Constitution
allows merely the regulation and supervision of educational institutions, not
the deprivation of their rights.
C.
In several cases, this Court has upheld the right of the students to free
speech in school premises. In the landmark case of Malabanan vs.
Ramento,47 students of the Gregorio Araneta University Foundation,
believing that the merger of the Institute of Animal Science with the Institute
of Agriculture would result in the increase in their tuition, held a
demonstration to protest the proposed merger. The rally however was held at
a place other than that specified in the school permit and continued longer
than the time allowed. The protest, moreover, disturbed the classes and
caused the stoppage of the work of non-academic personnel. For the illegal
assembly, the university suspended the students for one year. In affirming
the students' rights to peaceable assembly and free speech, the Court
through Mr. Chief Justice Enrique Fernando, echoed the ruling of the US
Supreme Court in Tinker v. Des Moines School District.48
Petitioners invoke their rights to peaceable assembly and free speech. They
are entitled to do so. They enjoy like the rest of the citizens the freedom to
express their views and communicate their thoughts to those disposed to
listen in gatherings such as was held in this case. They do not, to borrow
from the opinion of Justice Fortas in Tinker v. Des Moines Community School
District, 'shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate.' While, therefore, the authority of educational
institutions over the conduct of students must be recognized, it cannot go so
far as to be violative of constitutional safeguards. On a more specific level
there is persuasive force to this Fortas opinion. "The principal use to which
the schools are dedicated is to accommodate students during prescribed
hours for the purpose of certain types of activities. Among those activities is
personal intercommunication among the students. This is not only inevitable
part of the educational process. A student's rights, therefore, do not embrace
merely the classroom hours. When he is in the cafeteria, or on the playing
field, or on the campus during the authorized hours, he may express his
opinions, even on controversial subjects like the conflict in Vietnam, if he
does so without 'materially and substantially interfering with the requirements
of appropriate discipline in the operation of the school' and without colliding
with the rights of others. . . . But conduct by the student, in class or out of it,
which for any reason - whether it stems from time, place, or type of behavior
- materially disrupts classwork or involves substantial disorder or invasion of
the rights of others is, of course, not immunized by the constitutional
guarantee of freedom of speech.49
The Malabanan ruling was followed in Villar vs. Technological Institute of the
Philippines,50 Arreza vs. Gregorio Araneta University Foundation,51 and
Non vs. Dames II.52
The right of the students to free speech in school premises, however, is not
absolute. The right to free speech must always be applied in light of the
special characteristics of the school environment.53 Thus, while we upheld
the right of the students to free expression in these cases, we did not rule out
disciplinary action by the school for "conduct by the student, in class or out of
it, which for any reason - whether it stems from time, place, or type of
behavior - which materially disrupts classwork or involves substantial
disorder or invasion of the rights of others."54 Thus, in Malabanan, we held:
6. Objection is made by private respondents to the tenor of the speeches by
the student leaders. That there would be a vigorous presentation of view
opposed to the proposed merger of the Institute of Animal Science with the
Institute of Agriculture was to be expected. There was no concealment of the
fact that they were against such a move as it confronted them with a serious
problem ("isang malaking suliranin.") They believed that such a merger
would result in the increase in tuition fees, an additional headache for their
parents ("isa na naman sakit sa ulo ng ating mga magulang.") If in the course
of such demonstration, with an enthusiastic audience goading them on,
utterances extremely critical at times, even vitriolic, were let loose, that is
quite understandable. Student leaders are hardly the timid, different types.
They are likely to be assertive and dogmatic. They would be ineffective if
during a rally they speak in the guarded and judicious language of the
academe. At any rate, even a sympathetic audience is not disposed to
accord full credence to their fiery exhortations. They take into account the
excitement of the occasion, the propensity of speakers to exaggerate, the
exuberance of youth. They may give the speakers the benefit of their
applause, but with the activity taking place in the school premises and during
the daytime, no clear and present danger of public disorder is discernible.
This is without prejudice to the taking of disciplinary action for conduct,
which, to borrow from Tinker, "materially disrupts classwork or involves
substantial disorder or invasion of the rights of others."55
It is in the light of this standard that we read Section 7 of the Campus
Journalism Act. Provisions of law should be construed in harmony with those
of the Constitution; acts of the legislature should be construed, wherever
possible, in a manner that would avoid their conflicting with the fundamental
law.56 A statute should not be given a broad construction if its validity can be
saved by a narrower one.57 Thus, Section 7 should be read in a manner as
not to infringe upon the school's right to discipline its students. At the same
time, however, we should not construe said provision as to unduly restrict the
right of the students to free speech. Consistent with jurisprudence, we read
Section 7 of the Campus Journalism Act to mean that the school cannot
suspend or expel a student solely on the basis of the articles he or she has
written, except when such article materially disrupt class work or involve
substantial disorder or invasion of the rights of others.
IV.
From the foregoing, the answer to the question of who has jurisdiction over
the cases filed against respondent students becomes self-evident. The
power of the school to investigate is an adjunct of its power to suspend or
expel. It is a necessary corollary to the enforcement of rules and regulations
and the maintenance of a safe and orderly educational environment
conducive to learning.58 That power, like the power to suspend or expel, is
an inherent part of the academic freedom of institutions of higher learning
guaranteed by the Constitution. We therefore rule that Miriam College has
the authority to hear and decide the cases filed against respondent
students.1âwphi1.nêt
WHEREFORE, the decision of the Court of Appeals is REVERSED and SET
ASIDE. Petitioner Miriam College is ordered to READMIT private respondent
Joel Tan whose suspension has long lapsed.
SO ORDERED.
ABS-CBN Broadcasting Corp. vs. COMELEC (G.R. No. 133486, January
28, 2000)
The holding of exit polls and the dissemination of their results through mass
media constitute an essential part of the freedoms of speech and of the
press. Hence, the Comelec cannot ban them totally in the guise of promoting
clean, honest, orderly and credible elections. Quite the contrary, exit polls —
properly conducted and publicized — can be vital tools in eliminating the
evils of election-fixing and fraud. Narrowly tailored countermeasures may be
prescribed by the Comelec so as to minimize or suppress the incidental
problems in the conduct of exit polls, without transgressing in any manner the
fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court
assailing Commission on Elections (Comelec) en banc Resolution No. 98-
14191 dated April 21, 1998. In the said Resolution, the poll body
RESOLVED to approve the issuance of a restraining order to stop ABS-CBN
or any other groups, its agents or representatives from conducting such exit
survey and to authorize the Honorable Chairman to issue the same.
The Resolution was issued by the Comelec allegedly upon "information from
[a] reliable source that ABS-CBN (Lopez Group) has prepared a project, with
PR groups, to conduct radio-TV coverage of the elections . . . and to make
[an] exit survey of the . . . vote during the elections for national officials
particularly for President and Vice President, results of which shall be
[broadcast] immediately."2 The electoral body believed that such project
might conflict with the official Comelec count, as well as the unofficial quick
count of the National Movement for Free Elections (Namfrel). It also noted
that it had not authorized or deputized Petitioner ABS-CBN to undertake the
exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed
for by petitioner. We directed the Comelec to cease and desist, until further
orders, from implementing the assailed Resolution or the restraining order
issued pursuant thereto, if any. In fact, the exit polls were actually conducted
and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent
Commission acted with grave abuse of discretion amounting to a lack or
excess of jurisdiction when it approved the issuance of a restraining order
enjoining the petitioner or any [other group], its agents or representatives
from conducting exit polls during the . . . May 11 elections."3
In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition,
brings up additional issues: (1) mootness and (2) prematurity, because of
petitioner's failure to seek a reconsideration of the assailed Comelec
Resolution.
The Court's Ruling
The Petition5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic,
because the May 11, 1998 election has already been held and done with.
Allegedly, there is no longer any actual controversy before us.
The issue is not totally moot. While the assailed Resolution referred
specifically to the May 11, 1998 election, its implications on the people's
fundamental freedom of expression transcend the past election. The holding
of periodic elections is a basic feature of our democratic government. By its
very nature, exit polling is tied up with elections. To set aside the resolution
of the issue now will only postpone a task that could well crop up again in
future elections.6
In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate
that it "also has the duty to formulate guiding and controlling constitutional
principles, precepts, doctrines, or rules. It has the symbolic function of
educating bench and bar on the extent of protection given by constitutional
guarantees."7 Since the fundamental freedoms of speech and of the press
are being invoked here, we have resolved to settle, for the guidance of
posterity, whether they likewise protect the holding of exit polls and the
dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed
for petitioner's failure to exhaust available remedies before the issuing forum,
specifically the filing of a motion for reconsideration.
This Court, however, has ruled in the past that this procedural requirement
may be glossed over to prevent a miscarriage of justice,8 when the issue
involves the principle of social justice or the protection of labor,9 when the
decision or resolution sought to be set aside is a nullity,10 or when the need
for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.11
The instant Petition assails a Resolution issued by the Comelec en banc on
April 21, 1998, only twenty (20) days before the election itself. Besides, the
petitioner got hold of a copy thereof only on May 4, 1998. Under the
circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time or the May 11, 1998
elections. Moreover, not only is time of the essence; the Petition involves
transcendental constitutional issues. Direct resort to this Court through a
special civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals
or groups of individuals for the purpose of determining the probable result of
an election by confidentially asking randomly selected voters whom they
have voted for, immediately after they have officially cast their ballots. The
results of the survey are announced to the public, usually through the mass
media, to give an advance overview of how, in the opinion of the polling
individuals or organizations, the electorate voted. In our electoral history, exit
polls had not been resorted to until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a
responsible member of the mass media, committed to report balanced
election-related data, including "the exclusive results of Social Weather
Station (SWS) surveys conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting their
results are valid exercises of the freedoms of speech and of the press. It
submits that, in precipitately and unqualifiedly restraining the holding and the
reporting of exit polls, the Comelec gravely abused its discretion and grossly
violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the
assailed Resolution, it gravely abused its discretion. It insists that the
issuance thereof was "pursuant to its constitutional and statutory powers to
promote a clean, honest, orderly and credible May 11, 1998 elections"; and
"to protect, preserve and maintain the secrecy and sanctity of the ballot." It
contends that "the conduct of exit surveys might unduly confuse and
influence the voters," and that the surveys were designed "to condition the
minds of people and cause confusion as to who are the winners and the
[losers] in the election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the
constitutional principle to preserve the sanctity of the ballots," as the "voters
are lured to reveal the contents of ballots," in violation of Section 2, Article V
of the Constitution;12 and relevant provisions of the Omnibus Election
Code.13 It submits that the constitutionally protected freedoms invoked by
petitioner "are not immune to regulation by the State in the legitimate
exercise of its police power," such as in the present case.
The solicitor general, in support of the public respondent, adds that the exit
polls pose a "clear and present danger of destroying the credibility and
integrity of the electoral process," considering that they are not supervised by
any government agency and can in general be manipulated easily. He insists
that these polls would sow confusion among the voters and would undermine
the official tabulation of votes conducted by the Commission, as well as the
quick count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The
question can thus be more narrowly defined: May the Comelec, in the
exercise of its powers, totally ban exit polls? In answering this question, we
need to review quickly our jurisprudence on the freedoms of speech and of
the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic
government. It "is a 'preferred' right and, therefore, stands on a higher level
than substantive economic or other liberties. . . . [T]his must be so because
the lessons of history, both political and legal, illustrate that freedom of
thought and speech is the indispensable condition of nearly every other form
of freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the
freedom of speech or of the press.15 In the landmark case Gonzales v.
Comelec,16 this Court enunciated that at the very least, free speech and a
free press consist of the liberty to discuss publicly and truthfully any matter of
public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment,
of attaining the truth, of securing participation by the people in social and
political decision-making, and of maintaining the balance between stability
and change.17 It represents a profound commitment to the principle that
debates on public issues should be uninhibited, robust, and wide open.18 It
means more than the right to approve existing political beliefs or economic
arrangements, to lend support to official measures, or to take refuge in the
existing climate of opinion on any of public consequence. And paraphrasing
the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom
encompasses the thought we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute
exercise of the freedoms of speech and of the press. Such freedoms could
not remain unfettered and unrestrained at all times and under all
circumstances.20 They are not immune to regulation by the State in the
exercise of its police power.21 While the liberty to think is absolute, the
power to express such thought in words and deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two
theoretical test in determining the validity of restrictions to such freedoms, as
follows:
These are the "clear and present danger" rule and the "dangerous tendency"
rule. The first, as interpreted in a number of cases, means that the evil
consequence of the comment or utterance must be "extremely serious and
the degree of imminence extremely high" before the utterance can be
punished. The danger to be guarded against is the "substantive evil" sought
to be prevented. . . .23
The "dangerous tendency" rule, on the other hand, . . . may be epitomized as
follows: if the words uttered create a dangerous tendency which the state has
a right to prevent, then such words are punishable. It is not necessary that
some definite or immediate acts of force, violence, or unlawfulness be
advocated. It is sufficient that such acts be advocated in general terms. Nor
is it necessary that the language used be reasonably calculated to incite
persons to acts of force, violence, or unlawfulness. It is sufficient if the
natural tendency and probable effect of the utterance be to bring about the
substantive evil which the legislative body seeks to prevent.24
Unquestionably, this Court adheres to the "clear and present danger" test. It
implicitly did in its earlier decisions in Primicias v. Fugoso25 and American
Bible Society v. City of Manila;26 as well as in later ones, Vera v. Arca,27
Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong v. Comelec30
and, more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard
or test for the "clear and present danger" doctrine, the Court echoed the
words of Justice Holmes: "The question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree."32
A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the
"dangerous tendency" doctrine, the danger must not only be clear but also
present. "Present" refers to the time element; the danger must not only be
probable but very likely to be inevitable.33 The evil sought to be avoided
must be so substantive as to justify a clamp over one's mouth or a restraint of
a writing instrument.34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression,
and any restriction is treated an exemption. The power to exercise prior
restraint is not to be presumed; rather the presumption is against its
validity.35 And it is respondent's burden to overthrow such presumption. Any
act that restrains speech should be greeted with furrowed brows,36 so it has
been said.
To justify a restriction, the promotion of a substantial government interest
must be clearly shown.37 Thus:
A government regulation is sufficiently justified if it is within the constitutional
power of the government, if it furthers an important or substantial government
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest.38
Hence, even though the government's purposes are legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental
personal liberties, when the end can be more narrowly achieved.39
The freedoms of speech and of the press should all the more be upheld
when what is sought to be curtailed is the dissemination of information
meant. to add meaning to the equally vital right of suffrage.40 We cannot
support any ruling or order "the effect of which would be to nullify so vital a
constitutional right as free speech."41 When faced with borderline situations
in which the freedom of a candidate or a party to speak or the freedom of the
electorate to know is invoked against actions allegedly made to assure clean
and free elections, this Court shall lean in favor of freedom. For in the
ultimate analysis, the freedom of the citizen and the State's power to regulate
should not be antagonistic. There can be no free and honest elections if, in
the efforts to maintain them, the freedom to speak and the right to know are
unduly curtailed.42
True, the government has a stake in protecting the fundamental right to vote
by providing voting places that are safe and accessible. It has the duty to
secure the secrecy of the ballot and to preserve the sanctity and the integrity
of the electoral process. However, in order to justify a restriction of the
people's freedoms of speech and of the press, the state's responsibility of
ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate
important research data which may be used to study influencing factors and
trends in voting behavior. An absolute prohibition would thus be
unreasonably restrictive, because it effectively prevents the use of exit poll
data not only for election-day projections, but also for long-term research.43
Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having
been issued pursuant to its constitutional mandate to ensure a free, orderly,
honest, credible and peaceful election. While admitting that "the conduct of
an exit poll and the broadcast of the results thereof [are] . . . an exercise of
press freedom," it argues that "[p]ress freedom may be curtailed if the
exercise thereof creates a clear and present danger to the community or it
has a dangerous tendency." It then contends that "an exit poll has the
tendency to sow confusion considering the randomness of selecting
interviewees, which further make[s] the exit poll highly unreliable. The
probability that the results of such exit poll may not be in harmony with the
official count made by the Comelec . . . is ever present. In other words, the
exit poll has a clear and present danger of destroying the credibility and
integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the
very nature of a survey, the interviewees or participants are selected at
random, so that the results will as much as possible be representative or
reflective of the general sentiment or view of the community or group polled.
Second, the survey result is not meant to replace or be at par with the official
Comelec count. It consists merely of the opinion of the polling group as to
who the electorate in general has probably voted for, based on the limited
data gathered from polled individuals. Finally, not at stake here are the
credibility and the integrity of the elections, which are exercises that are
separate and independent from the exit polls. The holding and the reporting
of the results of exit polls cannot undermine those of the elections, since the
former is only part of the latter. If at all, the outcome of one can only be
indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit
polls — disorder and confusion in the voting centers — does not justify a total
ban on them. Undoubtedly, the assailed Comelec Resolution is too broad,
since its application is without qualification as to whether the polling is
disruptive or not.44 Concededly, the Omnibus Election Code prohibits
disruptive behavior around the voting centers.45 There is no showing,
however, that exit polls or the means to interview voters cause chaos in
voting centers. Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends to create
disorder or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data
and their use for any purpose. The valuable information and ideas that could
be derived from them, based on the voters' answer to the survey questions
will forever remain unknown and unexplored. Unless the ban is restrained,
candidates, researchers, social scientists and the electorate in general would
be deprived of studies on the impact of current events and of election-day
and other factors on voters' choices.1âwphi1.nêt
In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute,
one of the purposes of which was to prevent the broadcasting of early
returns, was unconstitutional because such purpose was impermissible, and
the statute was neither narrowly tailored to advance a state interest nor the
least restrictive alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify speech
regulation. Just as curtailing election-day broadcasts and newspaper
editorials for the reason that they might indirectly affect the voters' choices is
impermissible, so is impermissible, so is regulating speech via an exit poll
restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It
does not leave open any alternative channel of communication to gather the
type of information obtained through exit polling. On the other hand, there are
other valid and reasonable ways and means to achieve the Comelec end of
avoiding or minimizing disorder and confusion that may be brought about by
exit surveys.
For instance, a specific limited area for conducting exit polls may be
designated. Only professional survey groups may be allowed to conduct the
same. Pollsters may be kept at a reasonable distance from the voting center.
They may be required to explain to voters that the latter may refuse
interviewed, and that the interview is not part of the official balloting process.
The pollsters may further be required to wear distinctive clothing that would
show they are not election officials.48 Additionally, they may be required to
undertake an information campaign on the nature of the exercise and the
results to be obtained therefrom. These measures, together with a general
prohibition of disruptive behavior, could ensure a clean, safe and orderly
election.
For its part, petitioner ABS-CBN explains its survey methodology as follows:
(1) communities are randomly selected in each province; (2) residences to be
polled in such communities are also chosen at random; (3) only individuals
who have already voted, as shown by the indelible ink on their fingers, are
interviewed; (4) the interviewers use no cameras of any sort; (5) the poll
results are released to the public only on the day after the elections.49 These
precautions, together with the possible measures earlier stated, may be
undertaken to abate the Comelec's fear, without consequently and
unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in
reducing disruption is outweighed by the drastic abridgment of the
constitutionally guaranteed rights of the media and the electorate. Quite the
contrary, instead of disrupting elections, exit polls — properly conducted and
publicized — can be vital tools for the holding of honest, orderly, peaceful
and credible elections; and for the elimination of election-fixing, fraud and
other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the
sanctity and the secrecy of the ballot is off-tangent to the real issue.
Petitioner does not seek access to the ballots cast by the voters. The ballot
system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying
through voter identification. Thus, voters are prohibited from exhibiting the
contents of their official ballots to other persons, from making copies thereof,
or from putting distinguishing marks thereon so as to be identified. Also
proscribed is finding out the contents of the ballots cast by particular voters
or disclosing those of disabled or illiterate voters who have been assisted.
Clearly, what is forbidden is the association of voters with their respective
votes, for the purpose of assuring that the votes have been cast in
accordance with the instructions of a third party. This result cannot, however,
be achieved merely through the voters' verbal and confidential disclosure to a
pollster of whom they have voted for.
In exit polls, the contents of the official ballot are not actually exposed.
Furthermore, the revelation of whom an elector has voted for is not
compulsory, but voluntary. Voters may also choose not to reveal their
identities. Indeed, narrowly tailored countermeasures may be prescribed by
the Comelec, so as to minimize or suppress incidental problems in the
conduct of exit polls, without transgressing the fundamental rights of our
people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining
Order issued by the Court on May 9, 1998 is made PERMANENT. Assailed
Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21,
1998 is hereby NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
Chavez vs. COMELEC (G.R. No. 162777, August 31, 2004)
A. Precis
In this jurisdiction, it is established that freedom of the press is crucial and so
inextricably woven into the right to free speech and free expression, that any
attempt to restrict it must be met with an examination so critical that only a
danger that is clear and present would be allowed to curtail it.
Indeed, we have not wavered in the duty to uphold this cherished freedom.
We have struck down laws and issuances meant to curtail this right, as in
Adiong v. COMELEC,1 Burgos v. Chief of Staff,2 Social Weather Stations v.
COMELEC,3 and Bayan v. Executive Secretary Ermita.4 When on its face, it
is clear that a governmental act is nothing more than a naked means to
prevent the free exercise of speech, it must be nullified.
B. The Facts
1. The case originates from events that occurred a year after the 2004
national and local elections. On June 5, 2005, Press Secretary Ignacio
Bunye told reporters that the opposition was planning to destabilize the
administration by releasing an audiotape of a mobile phone conversation
allegedly between the President of the Philippines, Gloria Macapagal Arroyo,
and a high-ranking official of the Commission on Elections (COMELEC). The
conversation was audiotaped allegedly through wire-tapping.5 Later, in a
Malacañang press briefing, Secretary Bunye produced two versions of the
tape, one supposedly the complete version, and the other, a spliced,
"doctored" or altered version, which would suggest that the President had
instructed the COMELEC official to manipulate the election results in the
President’s favor. 6 It seems that Secretary Bunye admitted that the voice
was that of President Arroyo, but subsequently made a retraction. 7
2. On June 7, 2005, former counsel of deposed President Joseph Estrada,
Atty. Alan Paguia, subsequently released an alleged authentic tape recording
of the wiretap. Included in the tapes were purported conversations of the
President, the First Gentleman Jose Miguel Arroyo, COMELEC
Commissioner Garcillano, and the late Senator Barbers.8
3. On June 8, 2005, respondent Department of Justice (DOJ) Secretary Raul
Gonzales warned reporters that those who had copies of the compact disc
(CD) and those broadcasting or publishing its contents could be held liable
under the Anti-Wiretapping Act. These persons included Secretary Bunye
and Atty. Paguia. He also stated that persons possessing or airing said tapes
were committing a continuing offense, subject to arrest by anybody who had
personal knowledge if the crime was committed or was being committed in
their presence.9
4. On June 9, 2005, in another press briefing, Secretary Gonzales ordered
the National Bureau of Investigation (NBI) to go after media organizations
"found to have caused the spread, the playing and the printing of the
contents of a tape" of an alleged wiretapped conversation involving the
President about fixing votes in the 2004 national elections. Gonzales said
that he was going to start with Inq7.net, a joint venture between the
Philippine Daily Inquirer and GMA7 television network, because by the very
nature of the Internet medium, it was able to disseminate the contents of the
tape more widely. He then expressed his intention of inviting the editors and
managers of Inq7.net and GMA7 to a probe, and supposedly declared, "I
[have] asked the NBI to conduct a tactical interrogation of all concerned." 10
5. On June 11, 2005, the NTC issued this press release: 11
NTC GIVES FAIR WARNING TO RADIO AND TELEVISION
OWNERS/OPERATORS TO OBSERVE ANTI-WIRETAPPING LAW AND
PERTINENT CIRCULARS ON PROGRAM STANDARDS
xxx xxx xxx
Taking into consideration the country’s unusual situation, and in order not to
unnecessarily aggravate the same, the NTC warns all radio stations and
television network owners/operators that the conditions of the authorization
and permits issued to them by Government like the Provisional Authority and/
or Certificate of Authority explicitly provides that said companies shall not use
[their] stations for the broadcasting or telecasting of false information or willful
misrepresentation. Relative thereto, it has come to the attention of the [NTC]
that certain personalities are in possession of alleged taped conversations
which they claim involve the President of the Philippines and a
Commissioner of the COMELEC regarding supposed violation of election
laws.
These personalities have admitted that the taped conversations are products
of illegal wiretapping operations.
Considering that these taped conversations have not been duly
authenticated nor could it be said at this time that the tapes contain an
accurate or truthful representation of what was recorded therein, it is the
position of the [NTC] that the continuous airing or broadcast of the said taped
conversations by radio and television stations is a continuing violation of the
Anti-Wiretapping Law and the conditions of the Provisional Authority and/or
Certificate of Authority issued to these radio and television stations. It has
been subsequently established that the said tapes are false and/or fraudulent
after a prosecution or appropriate investigation, the concerned radio and
television companies are hereby warned that their broadcast/airing of such
false information and/or willful misrepresentation shall be just cause for the
suspension, revocation and/or cancellation of the licenses or authorizations
issued to the said companies.
In addition to the above, the [NTC] reiterates the pertinent NTC circulars on
program standards to be observed by radio and television stations. NTC
Memorandum Circular 111-12-85 explicitly states, among others, that "all
radio broadcasting and television stations shall, during any broadcast or
telecast, cut off from the air the speech, play, act or scene or other matters
being broadcast or telecast the tendency thereof is to disseminate false
information or such other willful misrepresentation, or to propose and/or incite
treason, rebellion or sedition." The foregoing directive had been reiterated by
NTC Memorandum Circular No. 22-89, which, in addition thereto, prohibited
radio, broadcasting and television stations from using their stations to
broadcast or telecast any speech, language or scene disseminating false
information or willful misrepresentation, or inciting, encouraging or assisting
in subversive or treasonable acts.
The [NTC] will not hesitate, after observing the requirements of due process,
to apply with full force the provisions of said Circulars and their
accompanying sanctions on erring radio and television stations and their
owners/operators.
6. On June 14, 2005, NTC held a dialogue with the Board of Directors of the
Kapisanan ng mga Brodkaster sa Pilipinas (KBP). NTC allegedly assured the
KBP that the press release did not violate the constitutional freedom of
speech, of expression, and of the press, and the right to information.
Accordingly, NTC and KBP issued a Joint Press Statement which states,
among others, that: 12
NTC respects and will not hinder freedom of the press and the right to
information on matters of public concern. KBP & its members have always
been committed to the exercise of press freedom with high sense of
responsibility and discerning judgment of fairness and honesty.
NTC did not issue any MC [Memorandum Circular] or Order constituting a
restraint of press freedom or censorship. The NTC further denies and does
not intend to limit or restrict the interview of members of the opposition or
free expression of views.
What is being asked by NTC is that the exercise of press freedom [be] done
responsibly.
KBP has program standards that KBP members will observe in the treatment
of news and public affairs programs. These include verification of sources,
non-airing of materials that would constitute inciting to sedition and/or
rebellion.
The KBP Codes also require that no false statement or willful
misrepresentation is made in the treatment of news or commentaries.
The supposed wiretapped tapes should be treated with sensitivity and
handled responsibly giving due consideration to the process being
undertaken to verify and validate the authenticity and actual content of the
same."
C. The Petition
Petitioner Chavez filed a petition under Rule 65 of the Rules of Court against
respondents Secretary Gonzales and the NTC, "praying for the issuance of
the writs of certiorari and prohibition, as extraordinary legal remedies, to
annul void proceedings, and to prevent the unlawful, unconstitutional and
oppressive exercise of authority by the respondents."13
Alleging that the acts of respondents are violations of the freedom on
expression and of the press, and the right of the people to information on
matters of public concern,14 petitioner specifically asked this Court:
[F]or [the] nullification of acts, issuances, and orders of respondents
committed or made since June 6, 2005 until the present that curtail the
public’s rights to freedom of expression and of the press, and to information
on matters of public concern specifically in relation to information regarding
the controversial taped conversion of President Arroyo and for prohibition of
the further commission of such acts, and making of such issuances, and
orders by respondents. 15
Respondents16 denied that the acts transgress the Constitution, and
questioned petitioner’s legal standing to file the petition. Among the
arguments they raised as to the validity of the "fair warning" issued by
respondent NTC, is that broadcast media enjoy lesser constitutional
guarantees compared to print media, and the warning was issued pursuant
to the NTC’s mandate to regulate the telecommunications industry. 17 It was
also stressed that "most of the [television] and radio stations continue, even
to this date, to air the tapes, but of late within the parameters agreed upon
between the NTC and KBP." 18
D. The Procedural Threshold: Legal Standing
To be sure, the circumstances of this case make the constitutional challenge
peculiar. Petitioner, who is not a member of the broadcast media, prays that
we strike down the acts and statements made by respondents as violations
of the right to free speech, free expression and a free press. For another, the
recipients of the press statements have not come forward—neither
intervening nor joining petitioner in this action. Indeed, as a group, they
issued a joint statement with respondent NTC that does not complain about
restraints on freedom of the press.
It would seem, then, that petitioner has not met the requisite legal standing,
having failed to allege "such a personal stake in the outcome of the
controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the Court so largely depends for
illumination of difficult constitutional questions." 19
But as early as half a century ago, we have already held that where serious
constitutional questions are involved, "the transcendental importance to the
public of these cases demands that they be settled promptly and definitely,
brushing aside if we must, technicalities of procedure." 20 Subsequently, this
Court has repeatedly and consistently refused to wield procedural barriers as
impediments to its addressing and resolving serious legal questions that
greatly impact on public interest,21 in keeping with the Court's duty under the
1987 Constitution to determine whether or not other branches of government
have kept themselves within the limits of the Constitution and the laws and
that they have not abused the discretion given to them.
Thus, in line with the liberal policy of this Court on locus standi when a case
involves an issue of overarching significance to our society,22 we therefore
brush aside technicalities of procedure and take cognizance of this
petition,23 seeing as it involves a challenge to the most exalted of all the civil
rights, the freedom of expression. The petition raises other issues like the
extent of the right to information of the public. It is fundamental, however, that
we need not address all issues but only the most decisive one which in the
case at bar is whether the acts of the respondents abridge freedom of
speech and of the press.
But aside from the primordial issue of determining whether free speech and
freedom of the press have been infringed, the case at bar also gives this
Court the opportunity: (1) to distill the essence of freedom of speech and of
the press now beclouded by the vagaries of motherhood statements; (2) to
clarify the types of speeches and their differing restraints allowed by law; (3)
to discuss the core concepts of prior restraint, content-neutral and content-
based regulations and their constitutional standard of review; (4) to examine
the historical difference in the treatment of restraints between print and
broadcast media and stress the standard of review governing both; and (5) to
call attention to the ongoing blurring of the lines of distinction between print
and broadcast media.
E. Re-examining The law on freedom of speech,
of expression and of the press
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.24
Freedom of expression has gained recognition as a fundamental principle of
every democratic government, and given a preferred right that stands on a
higher level than substantive economic freedom or other liberties. The
cognate rights codified by Article III, Section 4 of the Constitution, copied
almost verbatim from the First Amendment of the U.S. Bill of Rights,25 were
considered the necessary consequence of republican institutions and the
complement of free speech.26 This preferred status of free speech has also
been codified at the international level, its recognition now enshrined in
international law as a customary norm that binds all nations.27
In the Philippines, the primacy and high esteem accorded freedom of
expression is a fundamental postulate of our constitutional system. 28 This
right was elevated to constitutional status in the 1935, the 1973 and the 1987
Constitutions, reflecting our own lesson of history, both political and legal,
that freedom of speech is an indispensable condition for nearly every other
form of freedom.29 Moreover, our history shows that the struggle to protect
the freedom of speech, expression and the press was, at bottom, the
struggle for the indispensable preconditions for the exercise of other
freedoms.30 For it is only when the people have unbridled access to
information and the press that they will be capable of rendering enlightened
judgments. In the oft-quoted words of Thomas Jefferson, we cannot both be
free and ignorant.
E.1. Abstraction of Free Speech
Surrounding the freedom of speech clause are various concepts that we
have adopted as part and parcel of our own Bill of Rights provision on this
basic freedom.31 What is embraced under this provision was discussed
exhaustively by the Court in Gonzales v. Commission on Elections, 32 in
which it was held:
…At the very least, free speech and free press may be identified with the
liberty to discuss publicly and truthfully any matter of public interest without
censorship and punishment. There is to be no previous restraint on the
communication of views or subsequent liability whether in libel suits,
prosecution for sedition, or action for damages, or contempt proceedings
unless there be a clear and present danger of substantive evil that Congress
has a right to prevent. 33
Gonzales further explained that the vital need of a constitutional democracy
for freedom of expression is undeniable, whether as a means of assuring
individual self-fulfillment; of attaining the truth; of assuring participation by the
people in social, including political, decision-making; and of maintaining the
balance between stability and change.34 As early as the 1920s, the trend as
reflected in Philippine and American decisions was to recognize the broadest
scope and assure the widest latitude for this constitutional guarantee. The
trend represents a profound commitment to the principle that debate on
public issue should be uninhibited, robust, and wide-open. 35
Freedom of speech and of the press means something more than the right to
approve existing political beliefs or economic arrangements, to lend support
to official measures, and to take refuge in the existing climate of opinion on
any matter of public consequence.36 When atrophied, the right becomes
meaningless.37 The right belongs as well -- if not more – to those who
question, who do not conform, who differ.38 The ideas that may be
expressed under this freedom are confined not only to those that are
conventional or acceptable to the majority. To be truly meaningful, freedom
of speech and of the press should allow and even encourage the articulation
of the unorthodox view, though it be hostile to or derided by others; or though
such view "induces a condition of unrest, creates dissatisfaction with
conditions as they are, or even stirs people to anger."39 To paraphrase
Justice Holmes, it is freedom for the thought that we hate, no less than for
the thought that agrees with us. 40
The scope of freedom of expression is so broad that it extends protection to
nearly all forms of communication. It protects speech, print and assembly
regarding secular as well as political causes, and is not confined to any
particular field of human interest. The protection covers myriad matters of
public interest or concern embracing all issues, about which information is
needed or appropriate, so as to enable members of society to cope with the
exigencies of their period. The constitutional protection assures the broadest
possible exercise of free speech and free press for religious, political,
economic, scientific, news, or informational ends, inasmuch as the
Constitution's basic guarantee of freedom to advocate ideas is not confined
to the expression of ideas that are conventional or shared by a majority.
The constitutional protection is not limited to the exposition of ideas. The
protection afforded free speech extends to speech or publications that are
entertaining as well as instructive or informative. Specifically, in Eastern
Broadcasting Corporation (DYRE) v. Dans,41 this Court stated that all forms
of media, whether print or broadcast, are entitled to the broad protection of
the clause on freedom of speech and of expression.
While all forms of communication are entitled to the broad protection of
freedom of expression clause, the freedom of film, television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to
newspapers and other print media, as will be subsequently discussed.
E.2. Differentiation: The Limits & Restraints of Free Speech
From the language of the specific constitutional provision, it would appear
that the right to free speech and a free press is not susceptible of any
limitation. But the realities of life in a complex society preclude a literal
interpretation of the provision prohibiting the passage of a law that would
abridge such freedom. For freedom of expression is not an absolute, 42 nor
is it an "unbridled license that gives immunity for every possible use of
language and prevents the punishment of those who abuse this freedom."
Thus, all speech are not treated the same. Some types of speech may be
subjected to some regulation by the State under its pervasive police power,
in order that it may not be injurious to the equal right of others or those of the
community or society.43 The difference in treatment is expected because the
relevant interests of one type of speech, e.g., political speech, may vary from
those of another, e.g., obscene speech. Distinctions have therefore been
made in the treatment, analysis, and evaluation of the permissible scope of
restrictions on various categories of speech. 44 We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene speech, as well as
"fighting words" are not entitled to constitutional protection and may be
penalized.45
Moreover, the techniques of reviewing alleged restrictions on speech
(overbreadth, vagueness, and so on) have been applied differently to each
category, either consciously or unconsciously. 46 A study of free speech
jurisprudence—whether here or abroad—will reveal that courts have
developed different tests as to specific types or categories of speech in
concrete situations; i.e., subversive speech; obscene speech; the speech of
the broadcast media and of the traditional print media; libelous speech;
speech affecting associational rights; speech before hostile audiences;
symbolic speech; speech that affects the right to a fair trial; and speech
associated with rights of assembly and petition. 47
Generally, restraints on freedom of speech and expression are evaluated by
either or a combination of three tests, i.e., (a) the dangerous tendency
doctrine which permits limitations on speech once a rational connection has
been established between the speech restrained and the danger
contemplated; 48 (b) the balancing of interests tests, used as a standard
when courts need to balance conflicting social values and individual
interests, and requires a conscious and detailed consideration of the
interplay of interests observable in a given situation of type of situation; 49
and (c) the clear and present danger rule which rests on the premise that
speech may be restrained because there is substantial danger that the
speech will likely lead to an evil the government has a right to prevent. This
rule requires that the evil consequences sought to be prevented must be
substantive, "extremely serious and the degree of imminence extremely
high." 50
As articulated in our jurisprudence, we have applied either the dangerous
tendency doctrine or clear and present danger test to resolve free speech
challenges. More recently, we have concluded that we have generally
adhered to the clear and present danger test. 51
E.3. In Focus: Freedom of the Press
Much has been written on the philosophical basis of press freedom as part of
the larger right of free discussion and expression. Its practical importance,
though, is more easily grasped. It is the chief source of information on current
affairs. It is the most pervasive and perhaps most powerful vehicle of opinion
on public questions. It is the instrument by which citizens keep their
government informed of their needs, their aspirations and their grievances. It
is the sharpest weapon in the fight to keep government responsible and
efficient. Without a vigilant press, the mistakes of every administration would
go uncorrected and its abuses unexposed. As Justice Malcolm wrote in
United States v. Bustos:52
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged with the
balm of clear conscience.
Its contribution to the public weal makes freedom of the press deserving of
extra protection. Indeed, the press benefits from certain ancillary rights. The
productions of writers are classified as intellectual and proprietary. Persons
who interfere or defeat the freedom to write for the press or to maintain a
periodical publication are liable for damages, be they private individuals or
public officials.
E.4. Anatomy of Restrictions: Prior Restraint, Content-Neutral and Content-
Based Regulations
Philippine jurisprudence, even as early as the period under the 1935
Constitution, has recognized four aspects of freedom of the press. These are
(1) freedom from prior restraint; (2) freedom from punishment subsequent to
publication; 53 (3) freedom of access to information; 54 and (4) freedom of
circulation.55
Considering that petitioner has argued that respondents’ press statement
constitutes a form of impermissible prior restraint, a closer scrutiny of this
principle is in order, as well as its sub-specie of content-based (as
distinguished from content-neutral) regulations.
At this point, it should be noted that respondents in this case deny that their
acts constitute prior restraints. This presents a unique tinge to the present
challenge, considering that the cases in our jurisdiction involving prior
restrictions on speech never had any issue of whether the governmental act
or issuance actually constituted prior restraint. Rather, the determinations
were always about whether the restraint was justified by the Constitution.
Be that as it may, the determination in every case of whether there is an
impermissible restraint on the freedom of speech has always been based on
the circumstances of each case, including the nature of the restraint. And in
its application in our jurisdiction, the parameters of this principle have been
etched on a case-to-case basis, always tested by scrutinizing the
governmental issuance or act against the circumstances in which they
operate, and then determining the appropriate test with which to evaluate.
Prior restraint refers to official governmental restrictions on the press or other
forms of expression in advance of actual publication or dissemination.56
Freedom from prior restraint is largely freedom from government censorship
of publications, whatever the form of censorship, and regardless of whether it
is wielded by the executive, legislative or judicial branch of the government.
Thus, it precludes governmental acts that required approval of a proposal to
publish; licensing or permits as prerequisites to publication including the
payment of license taxes for the privilege to publish; and even injunctions
against publication. Even the closure of the business and printing offices of
certain newspapers, resulting in the discontinuation of their printing and
publication, are deemed as previous restraint or censorship. 57 Any law or
official that requires some form of permission to be had before publication
can be made, commits an infringement of the constitutional right, and remedy
can be had at the courts.
Given that deeply ensconced in our fundamental law is the hostility against
all prior restraints on speech, and any act that restrains speech is presumed
invalid,58 and "any act that restrains speech is hobbled by the presumption
of invalidity and should be greeted with furrowed brows," 59 it is important to
stress not all prior restraints on speech are invalid. Certain previous
restraints may be permitted by the Constitution, but determined only upon a
careful evaluation of the challenged act as against the appropriate test by
which it should be measured against.
Hence, it is not enough to determine whether the challenged act constitutes
some form of restraint on freedom of speech. A distinction has to be made
whether the restraint is (1) a content-neutral regulation, i.e., merely
concerned with the incidents of the speech, or one that merely controls the
time, place or manner, and under well defined standards;60 or (2) a content-
based restraint or censorship, i.e., the restriction is based on the subject
matter of the utterance or speech. 61 The cast of the restriction determines
the test by which the challenged act is assayed with.
When the speech restraints take the form of a content-neutral regulation,
only a substantial governmental interest is required for its validity.62 Because
regulations of this type are not designed to suppress any particular message,
they are not subject to the strictest form of judicial scrutiny but an
intermediate approach—somewhere between the mere rationality that is
required of any other law and the compelling interest standard applied to
content-based restrictions.63 The test is called intermediate because the
Court will not merely rubberstamp the validity of a law but also require that
the restrictions be narrowly-tailored to promote an important or significant
governmental interest that is unrelated to the suppression of expression. The
intermediate approach has been formulated in this manner:
A governmental regulation is sufficiently justified if it is within the
constitutional power of the Government, if it furthers an important or
substantial governmental interest; if the governmental interest is unrelated to
the suppression of free expression; and if the incident restriction on alleged
[freedom of speech & expression] is no greater than is essential to the
furtherance of that interest. 64
On the other hand, a governmental action that restricts freedom of speech or
of the press based on content is given the strictest scrutiny in light of its
inherent and invasive impact. Only when the challenged act has overcome
the clear and present danger rule will it pass constitutional muster,65 with the
government having the burden of overcoming the presumed
unconstitutionality.
Unless the government can overthrow this presumption, the content-based
restraint will be struck down.66
With respect to content-based restrictions, the government must also show
the type of harm the speech sought to be restrained would bring about—
especially the gravity and the imminence of the threatened harm – otherwise
the prior restraint will be invalid. Prior restraint on speech based on its
content cannot be justified by hypothetical fears, "but only by showing a
substantive and imminent evil that has taken the life of a reality already on
ground."67 As formulated, "the question in every case is whether the words
used are used in such circumstances and are of such a nature as to create a
clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree."68
The regulation which restricts the speech content must also serve an
important or substantial government interest, which is unrelated to the
suppression of free expression. 69
Also, the incidental restriction on speech must be no greater than what is
essential to the furtherance of that interest. 70 A restriction that is so broad
that it encompasses more than what is required to satisfy the governmental
interest will be invalidated. 71 The regulation, therefore, must be reasonable
and narrowly drawn to fit the regulatory purpose, with the least restrictive
means undertaken. 72
Thus, when the prior restraint partakes of a content-neutral regulation, it is
subjected to an intermediate review. A content-based regulation,73 however,
bears a heavy presumption of invalidity and is measured against the clear
and present danger rule. The latter will pass constitutional muster only if
justified by a compelling reason, and the restrictions imposed are neither
overbroad nor vague. 74
Applying the foregoing, it is clear that the challenged acts in the case at bar
need to be subjected to the clear and present danger rule, as they are
content-based restrictions. The acts of respondents focused solely on but
one object—a specific content— fixed as these were on the alleged taped
conversations between the President and a COMELEC official. Undoubtedly
these did not merely provide regulations as to the time, place or manner of
the dissemination of speech or expression.
E.5. Dichotomy of Free Press: Print v. Broadcast Media
Finally, comes respondents’ argument that the challenged act is valid on the
ground that broadcast media enjoys free speech rights that are lesser in
scope to that of print media. We next explore and test the validity of this
argument, insofar as it has been invoked to validate a content-based
restriction on broadcast media.
The regimes presently in place for each type of media differ from one other.
Contrasted with the regime in respect of books, newspapers, magazines and
traditional printed matter, broadcasting, film and video have been subjected
to regulatory schemes.
The dichotomy between print and broadcast media traces its origins in the
United States. There, broadcast radio and television have been held to have
limited First Amendment protection,75 and U.S. Courts have excluded
broadcast media from the application of the "strict scrutiny" standard that
they would otherwise apply to content-based restrictions.76 According to
U.S. Courts, the three major reasons why broadcast media stands apart from
print media are: (a) the scarcity of the frequencies by which the medium
operates [i.e., airwaves are physically limited while print medium may be
limitless]; 77 (b) its "pervasiveness" as a medium; and (c) its unique
accessibility to children.78 Because cases involving broadcast media need
not follow "precisely the same approach that [U.S. courts] have applied to
other media," nor go "so far as to demand that such regulations serve
‘compelling’ government interests,"79 they are decided on whether the
"governmental restriction" is narrowly tailored to further a substantial
governmental interest,"80 or the intermediate test.
As pointed out by respondents, Philippine jurisprudence has also echoed a
differentiation in treatment between broadcast and print media. Nevertheless,
a review of Philippine case law on broadcast media will show that—as we
have deviated with the American conception of the Bill of Rights81— we
likewise did not adopt en masse the U.S. conception of free speech as it
relates to broadcast media, particularly as to which test would govern
content-based prior restraints.
Our cases show two distinct features of this dichotomy. First, the difference
in treatment, in the main, is in the regulatory scheme applied to broadcast
media that is not imposed on traditional print media, and narrowly confined to
unprotected speech (e.g., obscenity, pornography, seditious and inciting
speech), or is based on a compelling government interest that also has
constitutional protection, such as national security or the electoral process.
Second, regardless of the regulatory schemes that broadcast media is
subjected to, the Court has consistently held that the clear and present
danger test applies to content-based restrictions on media, without making a
distinction as to traditional print or broadcast media.
The distinction between broadcast and traditional print media was first
enunciated in Eastern Broadcasting Corporation (DYRE) v. Dans,82 wherein
it was held that "[a]ll forms of media, whether print or broadcast, are entitled
to the broad protection of the freedom of speech and expression clause. The
test for limitations on freedom of expression continues to be the clear and
present danger rule…"83
Dans was a case filed to compel the reopening of a radio station which had
been summarily closed on grounds of national security. Although the issue
had become moot and academic because the owners were no longer
interested to reopen, the Court still proceeded to do an analysis of the case
and made formulations to serve as guidelines for all inferior courts and
bodies exercising quasi-judicial functions. Particularly, the Court made a
detailed exposition as to what needs be considered in cases involving
broadcast media. Thus:84
xxx xxx xxx
(3) All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and present
danger rule, that words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the
substantive evils that the lawmaker has a right to prevent, In his Constitution
of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M.
Fernando cites at least nine of our decisions which apply the test. More
recently, the clear and present danger test was applied in J.B.L. Reyes in
behalf of the Anti-Bases Coalition v. Bagatsing. (4) The clear and present
danger test, however, does not lend itself to a simplistic and all embracing
interpretation applicable to all utterances in all forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated
among qualified users. A broadcast corporation cannot simply appropriate a
certain frequency without regard for government regulation or for the rights of
others.
All forms of communication are entitled to the broad protection of the
freedom of expression clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and indecent
regular radio program, explained why radio broadcasting, more than other
forms of communications, receives the most limited protection from the free
expression clause. First, broadcast media have established a uniquely
pervasive presence in the lives of all citizens, Material presented over the
airwaves confronts the citizen, not only in public, but in the privacy of his
home. Second, broadcasting is uniquely accessible to children. Bookstores
and motion picture theaters may be prohibited from making certain material
available to children, but the same selectivity cannot be done in radio or
television, where the listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in
the lives of all Filipinos. Newspapers and current books are found only in
metropolitan areas and in the poblaciones of municipalities accessible to fast
and regular transportation. Even here, there are low income masses who find
the cost of books, newspapers, and magazines beyond their humble means.
Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television
set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person
of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to
inflammatory or offensive speech would be difficult to monitor or predict. The
impact of the vibrant speech is forceful and immediate. Unlike readers of the
printed work, the radio audience has lesser opportunity to cogitate analyze,
and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the industry
itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite
the listeners to violently overthrow it. Radio and television may not be used to
organize a rebellion or to signal the start of widespread uprising. At the same
time, the people have a right to be informed. Radio and television would have
little reason for existence if broadcasts are limited to bland, obsequious, or
pleasantly entertaining utterances. Since they are the most convenient and
popular means of disseminating varying views on public issues, they also
deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a
representative democracy. In the 1918 case of United States v. Bustos (37
Phil. 731) this Court was already stressing that.
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.
(7) Broadcast stations deserve the special protection given to all forms of
media by the due process and freedom of expression clauses of the
Constitution. [Citations omitted]
It is interesting to note that the Court in Dans adopted the arguments found in
U.S. jurisprudence to justify differentiation of treatment (i.e., the scarcity,
pervasiveness and accessibility to children), but only after categorically
declaring that "the test for limitations on freedom of expression continues to
be the clear and present danger rule," for all forms of media, whether print or
broadcast. Indeed, a close reading of the above-quoted provisions would
show that the differentiation that the Court in Dans referred to was narrowly
restricted to what is otherwise deemed as "unprotected speech" (e.g.,
obscenity, national security, seditious and inciting speech), or to validate a
licensing or regulatory scheme necessary to allocate the limited broadcast
frequencies, which is absent in print media. Thus, when this Court declared
in Dans that the freedom given to broadcast media was "somewhat lesser in
scope than the freedom accorded to newspaper and print media," it was not
as to what test should be applied, but the context by which requirements of
licensing, allocation of airwaves, and application of norms to unprotected
speech. 85
In the same year that the Dans case was decided, it was reiterated in
Gonzales v. Katigbak,86 that the test to determine free expression
challenges was the clear and present danger, again without distinguishing
the media.87 Katigbak, strictly speaking, does not treat of broadcast media
but motion pictures. Although the issue involved obscenity standards as
applied to movies,88 the Court concluded its decision with the following
obiter dictum that a less liberal approach would be used to resolve obscenity
issues in television as opposed to motion pictures:
All that remains to be said is that the ruling is to be limited to the concept of
obscenity applicable to motion pictures. It is the consensus of this Court that
where television is concerned, a less liberal approach calls for observance.
This is so because unlike motion pictures where the patrons have to pay their
way, television reaches every home where there is a set. Children then will
likely be among the avid viewers of the programs therein shown…..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.
More recently, in resolving a case involving the conduct of exit polls and
dissemination of the results by a broadcast company, we reiterated that the
clear and present danger rule is the test we unquestionably adhere to issues
that involve freedoms of speech and of the press.89
This is not to suggest, however, that the clear and present danger rule has
been applied to all cases that involve the broadcast media. The rule applies
to all media, including broadcast, but only when the challenged act is a
content-based regulation that infringes on free speech, expression and the
press. Indeed, in Osmena v. COMELEC,90 which also involved broadcast
media, the Court refused to apply the clear and present danger rule to a
COMELEC regulation of time and manner of advertising of political
advertisements because the challenged restriction was content-neutral.91
And in a case involving due process and equal protection issues, the Court in
Telecommunications and Broadcast Attorneys of the Philippines v.
COMELEC92 treated a restriction imposed on a broadcast media as a
reasonable condition for the grant of the media’s franchise, without going into
which test would apply.
That broadcast media is subject to a regulatory regime absent in print media
is observed also in other jurisdictions, where the statutory regimes in place
over broadcast media include elements of licensing, regulation by
administrative bodies, and censorship. As explained by a British author:
The reasons behind treating broadcast and films differently from the print
media differ in a number of respects, but have a common historical basis.
The stricter system of controls seems to have been adopted in answer to the
view that owing to their particular impact on audiences, films, videos and
broadcasting require a system of prior restraints, whereas it is now accepted
that books and other printed media do not. These media are viewed as
beneficial to the public in a number of respects, but are also seen as possible
sources of harm.93
Parenthetically, these justifications are now the subject of debate.
Historically, the scarcity of frequencies was thought to provide a rationale.
However, cable and satellite television have enormously increased the
number of actual and potential channels. Digital technology will further
increase the number of channels available. But still, the argument persists
that broadcasting is the most influential means of communication, since it
comes into the home, and so much time is spent watching television. Since it
has a unique impact on people and affects children in a way that the print
media normally does not, that regulation is said to be necessary in order to
preserve pluralism. It has been argued further that a significant main threat to
free expression—in terms of diversity—comes not from government, but from
private corporate bodies. These developments show a need for a
reexamination of the traditional notions of the scope and extent of broadcast
media regulation. 94
The emergence of digital technology -- which has led to the convergence of
broadcasting, telecommunications and the computer industry -- has likewise
led to the question of whether the regulatory model for broadcasting will
continue to be appropriate in the converged environment.95 Internet, for
example, remains largely unregulated, yet the Internet and the broadcast
media share similarities, 96 and the rationales used to support broadcast
regulation apply equally to the Internet.97 Thus, it has been argued that
courts, legislative bodies and the government agencies regulating media
must agree to regulate both, regulate neither or develop a new regulatory
framework and rationale to justify the differential treatment. 98
F. The Case At Bar
Having settled the applicable standard to content-based restrictions on
broadcast media, let us go to its application to the case at bar. To
recapitulate, a governmental action that restricts freedom of speech or of the
press based on content is given the strictest scrutiny, with the government
having the burden of overcoming the presumed unconstitutionality by the
clear and present danger rule. This rule applies equally to all kinds of media,
including broadcast media.
This outlines the procedural map to follow in cases like the one at bar as it
spells out the following: (a) the test; (b) the presumption; (c) the burden of
proof; (d) the party to discharge the burden; and (e) the quantum of evidence
necessary. On the basis of the records of the case at bar, respondents who
have the burden to show that these acts do not abridge freedom of speech
and of the press failed to hurdle the clear and present danger test. It appears
that the great evil which government wants to prevent is the airing of a tape
recording in alleged violation of the anti-wiretapping law. The records of the
case at bar, however, are confused and confusing, and respondents’
evidence falls short of satisfying the clear and present danger test. Firstly,
the various statements of the Press Secretary obfuscate the identity of the
voices in the tape recording. Secondly, the integrity of the taped conversation
is also suspect. The Press Secretary showed to the public two versions, one
supposed to be a "complete" version and the other, an "altered" version.
Thirdly, the evidence of the respondents on the who’s and the how’s of the
wiretapping act is ambivalent, especially considering the tape’s different
versions. The identity of the wire-tappers, the manner of its commission and
other related and relevant proofs are some of the invisibles of this case.
Fourthly, given all these unsettled facets of the tape, it is even arguable
whether its airing would violate the anti-wiretapping law.
We rule that not every violation of a law will justify straitjacketing the exercise
of freedom of speech and of the press. Our laws are of different kinds and
doubtless, some of them provide norms of conduct which even if violated
have only an adverse effect on a person’s private comfort but does not
endanger national security. There are laws of great significance but their
violation, by itself and without more, cannot support suppression of free
speech and free press. In fine, violation of law is just a factor, a vital one to
be sure, which should be weighed in adjudging whether to restrain freedom
of speech and of the press. The totality of the injurious effects of the violation
to private and public interest must be calibrated in light of the preferred status
accorded by the Constitution and by related international covenants
protecting freedom of speech and of the press. In calling for a careful and
calibrated measurement of the circumference of all these factors to
determine compliance with the clear and present danger test, the Court
should not be misinterpreted as devaluing violations of law. By all means,
violations of law should be vigorously prosecuted by the State for they breed
their own evil consequence. But to repeat, the need to prevent their violation
cannot per se trump the exercise of free speech and free press, a preferred
right whose breach can lead to greater evils. For this failure of the
respondents alone to offer proof to satisfy the clear and present danger test,
the Court has no option but to uphold the exercise of free speech and free
press. There is no showing that the feared violation of the anti-wiretapping
law clearly endangers the national security of the State.
This is not all the faultline in the stance of the respondents. We slide to the
issue of whether the mere press statements of the Secretary of Justice and
of the NTC in question constitute a form of content-based prior restraint that
has transgressed the Constitution. In resolving this issue, we hold that it is
not decisive that the press statements made by respondents were not
reduced in or followed up with formal orders or circulars. It is sufficient that
the press statements were made by respondents while in the exercise of
their official functions. Undoubtedly, respondent Gonzales made his
statements as Secretary of Justice, while the NTC issued its statement as
the regulatory body of media. Any act done, such as a speech uttered, for
and on behalf of the government in an official capacity is covered by the rule
on prior restraint. The concept of an "act" does not limit itself to acts already
converted to a formal order or official circular. Otherwise, the non
formalization of an act into an official order or circular will result in the easy
circumvention of the prohibition on prior restraint. The press statements at
bar are acts that should be struck down as they constitute impermissible
forms of prior restraints on the right to free speech and press.
There is enough evidence of chilling effect of the complained acts on record.
The warnings given to media came from no less the NTC, a regulatory
agency that can cancel the Certificate of Authority of the radio and broadcast
media. They also came from the Secretary of Justice, the alter ego of the
Executive, who wields the awesome power to prosecute those perceived to
be violating the laws of the land. After the warnings, the KBP inexplicably
joined the NTC in issuing an ambivalent Joint Press Statement. After the
warnings, petitioner Chavez was left alone to fight this battle for freedom of
speech and of the press. This silence on the sidelines on the part of some
media practitioners is too deafening to be the subject of misinterpretation.
The constitutional imperative for us to strike down unconstitutional acts
should always be exercised with care and in light of the distinct facts of each
case. For there are no hard and fast rules when it comes to slippery
constitutional questions, and the limits and construct of relative freedoms are
never set in stone. Issues revolving on their construct must be decided on a
case to case basis, always based on the peculiar shapes and shadows of
each case. But in cases where the challenged acts are patent invasions of a
constitutionally protected right, we should be swift in striking them down as
nullities per se. A blow too soon struck for freedom is preferred than a blow
too late.
In VIEW WHEREOF, the petition is GRANTED. The writs of certiorari and
prohibition are hereby issued, nullifying the official statements made by
respondents on June 8, and 11, 2005 warning the media on airing the
alleged wiretapped conversation between the President and other
personalities, for constituting unconstitutional prior restraint on the exercise
of freedom of speech and of the press
SO ORDERED.
Babst vs. NBI [132 SCRA 316 (1984)]
This was originally a petition for prohibition with preliminary injunction which
was superseded by the amended and supplemental petition for prohibition
with preliminary injunction filed by petitioners on March 3, 1983, seeking to
prohibit the respondents (a) from issuing subpoenas or letters of invitation to
petitioners and interrogating them, and (b) from filing libel suits on matters
that have been the subject of inquiry by respondent National Intelligence
Board (NIB).
Petitioners are columnists, feature article writers and reporters of various
local publications. At different dates since July, 1980, some of them have
allegedly been summoned by military authorities who have subjected them to
sustained interrogation on various aspects of their works, feelings,
sentiments, beliefs, associations and even their private lives. Typical of the
letters received by the petitioners from respondent NIB is that addressed to
petitioner Arlene Babst, dated December 20,1982, which reads:
Madam:

Pursuant to the authority vested in me by law, you are hereby requested to
appear before this Special Committee at Philippine Army Officer's
Clubhouse, Fort Bonifacio, Metro Manila (sketch attached), 9:00 A.M.,
December 22, 1982, to shed light on confidential matters being looked into
by this Committee.
Your failure to appear on the specified date and place shall be considered as
a waiver on your part and this Committee will be constrained to proceed in
accordance with law.
Very truly yours,
(SGD.) WILFREDO C. ESTRADA
Brig. General, AFP (Ret.)
Chairman
Aside from the interrogations, a criminal complaint for libel was filed by Brig.
Gen. Artemio Tadiar, Jr. on February 9, 1983 with the Office of the City
Fiscal, Manila, against petitioners Domini Torrevillas-Suarez, editor of the
Panorama, and Ma. Ceres Doyo based on an article written by Doyo and
published in the March 28, 1982 issue of the Panorama, on which the author
had been interrogated by respondents. The complaint included an staggering
P10 million claim for damages. (An information for libel has since been filed
with the Regional Trial Court of the National Capital Region against Suarez
and Doyo.)
Petitioners maintain that the respondents have no jurisdiction over the
proceedings which are violative of the constitutional guarantee on free
expression since they have the effect of imposing restrictive guidelines and
norms on mass media; that they are a punitive ordeal or subsequent
punishment of petitioners for lawful publications; that they amount to a
system of censorship, curtailing the "free flow of information and petition and
opinion," indispensable to the right of the people to know matters of public
concern guaranteed in Section 6 of Article IV of the Constitution; and that
they constitute intrusions into spheres of individual liberty. Regarding the libel
charge against Suarez and Doyo, petitioners denounce the filing as instituted
with intent to intimidate and based on illegally obtained evidence, referring to
the matters inquired into by respondents in previously conducted, allegedly
illegal interrogations.
In their comment, respondents counter that no issue of jurisdiction exists
since they do not pretend to exercise jurisdiction over the petitioners; that
what respondents have sent to petitioners were neither subpoenas nor
summonses, but mere invitations to dialogues which were completely
voluntary, without any compulsion employed on petitioners; that the
dialogues themselves were designed simply to elicit information and
exchange Ideas and that the expression of personal preferences and
opinions by members of the respondent Board is not equivalent to the
imposition of norms and guidelines to be followed by petitioners. Relative to
the libel case, respondents contend that petitioners have no cause of action
against respondent Board since respondent General Tadiar is not a member
of respondent Board and has filed the libel case in his personal capacity; and
the libel case is not pending before any of the respondents. Furthermore,
respondents aver that this case has been rendered moot and academic
because the proceedings before NIB Special Committee No. 2 (which
conducted the interrogations) have already been ordered terminated by
General Fabian C. Ver in his capacity as Director General and Chairman of
the NIB, and said proceedings have in fact been terminated.
The petition is premised upon the alleged illegality and unconstitutionality of
the issuance by respondent NIB to petitioners of letters of invitation, their
subsequent interrogation, and the filing of the aforementioned libel suit.
Under the circumstances of the case, the petition cannot be granted.
The assailed proceedings have come to an end. The acts sought to be
prohibited (i.e., the issuance of letters of invitation petition and subsequent
interrogations) have therefore been abated, thereby rendering the petition
moot and academic as regards the aforesaid matters.
Be that as it may, it is not Idle to note that ordinarily, an invitation to attend a
hearing and answer some questions, which the person invited may heed or
refuse at his pleasure, is not illegal or constitutionally objectionable. Under
certain circumstances, however, such an invitation can easily assume a
different appearance. Thus, where the invitation comes from a powerful
group composed predominantly of ranking military officers issued at a time
when the country has just emerged from martial rule and when the
suspension of the privilege of the writ of habeas corpus has not entirely been
lifted and the designated interrogation site is a military camp, the same can
easily be taken, not as a strictly voluntary invitation which it purports to be,
but as an authoritative command which one can only defy at his peril,
especially where, as in the instant case, the invitation carries the ominous
seaming that "failure to appear . . . shall be considered as a waiver . . . and
this Committee will be constrained to proceed in accordance with law."
Fortunately, the NIB director general and chairman saw the wisdom of
terminating the proceedings and the unwelcome interrogation.
Similarly, prohibition will not issue in respect of the libel charges now pending
in court against two of the petitioners and similar suits that might be filed.
Firstly, the writ of prohibition is directed against a tribunal, board or person
acting without or in excess of jurisdiction or with grave abuse of discretion
vis-a-vis certain proceedings pending before it. The libel cases adverted to
are not pending before respondent NIB or any other respondent.
Secondly, the issue of validity of the libel, charges by reason of their alleged
collision with freedom of expression, is a matter that should be raised in the
proper forum, i.e., before the court where the libel cases are pending or
where they may be filed. The same rule applies to the issue of admissibility
as evidence of matters that have been elicited in the course of an inquiry or
interrogation conducted by respondent NIB, which petitioners claim to have
been illegally obtained.
Finally, the right to seek redress when libeled is a personal and individual
privilege of the aggrieved party, and no one among the respondent officials
has the authority to restrain any of his subordinates who has been libeled
from vindicating his right by instituting a libel suit. Brig. Gen. Tadiar has filed
the libel case against petitioners Suarez and Doyo in his personal capacity.
Moreover, he is not even a member of respondent NIB. And the NIB does not
appear to have anything to do with Gen. Tadiar's private right to complain of
libel.
WHEREFORE, the petition is dismissed.
SO ORDERED.
Espuelas vs. NBI [132 SCRA 316 (1984)]
Article 142 of the Revised Penal Code punishes those who shall write,
publish or circulate scurrilous libels against the Government of the
Philippines or any of the duly constituted authorities thereof or which suggest
or incite rebellious conspiracies or riots or which tend to stir up the people
againts the lawful authorities or to disturb the peace of the community.
The appellant Oscar Espuelas y Mendoza was, after trial, convicted in the
Court of First Instance of Bohol of a violation of the above article. The
conviction was affirmed by the Court of Appeals, because according to said
court.
"About the time compromised between June 9 and June 24, 1947, both dates
inclusive, in the town of Tagbilaran, Bohol, Oscar Espuelas y Mendoza had
his picture taken, making it to appear as if he were hanging lifeless at the end
of a piece of rope suspended form the limb of the tree, when in truth and in
fact, he was merely standing on a barrel (Exhibit A, C-I). After securing
copies of his photograph, Espuelas sent copies of same to several
newspapers and weeklies of general circulation (Exhibit C, F, G, H, I), not
only in the Province of Bohol but also throughout the Philippines and abroad,
for their publication with a suicide note or letter, wherein he made to appear
that it was written by a fictitious suicide, Alberto Reveniera and addressed to
the latter's supposed wife translation of which letter or note in hereunder
reproduced:
Dearest wife and children, bury me five meters deep. Over my grave don't
plant a cross or put floral wreaths, for I don't need them.
Please don't bury me in the lonely place. Bury me in the Catholic cemetery.
Although I have committed suicide, I still have the right to burried among
Christians.
But don't pray for me. Don't remember me, and don't feel sorry. Wipe me out
of your lives.
My dear wife, if someone asks to you why I committed suicide, tell them I did
it because I was not pleased with the administration of Roxas. Tell the whole
world about this.
And if they ask why I did not like the administration of Roxas, point out to
them the situation in Central Luzon, the Leyte.
Dear wife, write to President Truman and Churchill. Tell them that here in the
Philippines our government is infested with many Hitlers and
Mussolinis.lawphil.net
Teach our children to burn pictures of Roxas if and when they come across
one.
I committed suicide because I am ashamed of our government under Roxas.
I cannot hold high my brows to the world with this dirty government.
I committed suicide because I have no power to put under Juez de Cuchillo
all the Roxas people now in power. So, I sacrificed my own self.
The accused admitted the fact that he wrote the note or letter above quoted
and caused its publication in the Free Press, the Evening News, the Bisayas,
Lamdang and other local periodicals and that he had impersonated one
Alberto Reveniera by signing said pseudonymous name in said note or letter
and posed himself as Alberto Reveniera in a picture taken wherein he was
shown hanging by the end of a rope tied to a limb of a tree."
The latter is a scurrilous libel against the Government. 1 It calls our
government one of crooks and dishonest persons (dirty) infested with Nazis
and a Fascistis i.e. dictators.

And the communication reveals a tendency to produce dissatisfaction or a
feeling incompatible with the disposition to remain loyal to the government. 2
Writings which tend to overthrow or undermine the security of the
government or to weaken the confidence of the people in the government are
against the public peace, and are criminal not only because they tend to
incite to a breach of the peace but because they are conducive to the
destruction of the very government itself (See 19 Am. Law Rep. 1511).
Regarded as seditious libels they were the subject of criminal proceedings
since early times in England. (V op. cit.).
As explained by Paterson, 3 ". . . the great factors of government, consisting
of the Sovereign, the Parliament, the ministers of state, the courts of justice,
must be recognized as holding functions founded on sound principles and to
be defended and treated with an established and well-nigh unalterable
respect. Each of these great institutions has peculiar virtues and peculiar
weaknesses, but whether at any one time the virtue or the weakness
predominates, there must be a certain standard of decorum reserved for all.
Each guarded remonstrance, each fiery invective, each burst of indignation
must rest on some basis of respect and deference towards the depository,
for the time being, of every great constitutional function. Hence another limit
of free speech and writing is sedition. And yet within there is ample room and
verge enough for the freest use of the tongue and pen in passing strictures in
the judgment and conduct of every constituted authority."
Naturally, when the people's share in the government was restricted, there
was a disposition to punish even mild criticism of the ruler or the departments
of government. But as governments grew to be more representative, the laws
of sedition became less drastic and freedom of expression strife continue to
be prohibited.
The United States punished seditious utterances in the act of July 14, 1798
containing provisions parallel to our own article 142. Analogous prohibitions
are found in the Espionage Act of June 1917 and the seditious libel
amendment thereto in May, 1918.
Of course such legislation despite its general merit is liable to become a
weapon of intolerance constraining the free expression of opinion, or mere
agitation for reform. But so long as there is a sufficient safeguard by requiring
intent on the part of the defendant to produce illegal action-such legislation
aimed at anarchy and radicalism presents largely a question of policy. Our
Legislature has spoken in article 142 and the law must be applied.
In disposing of this appeal, careful thought had to be given to the
fundamental right to freedom of speech. Yet the freedom of speech secured
by the Constitution "does not confer an absolute right to speak or publish
without responsibility whatever one may choose." It is not "unbridled license
that gives immunity for every possible use of language and prevents the
punishment of those who abuse this freedom. 4" So statutes against sedition
have guaranty, although they should not be interpreted so as to agitate for
institutional changes. 5
Not to be restrained is the privilege of any citizen to criticize his government
officials and to submit his criticism to the "free trade of ideas" and to plead for
its acceptance in "the competition of the market." However, let such criticism
be specific and therefore constructive, reasoned or tempered, and not a
contemptuous condemnation of the entire government set-up. Such
wholesale attack is nothing less than an invitation to disloyalty to the
government. In the article now under examination one will find no particular
objectionable actuation of the government. It is called dirty, it is called a
dictatorship, it is called shameful, but no particular omissions or commissions
are set forth. Instead the article drip with male-violence and hate towards the
constituted authorities. It tries to arouse animosity towards all public servants
headed by President Roxas whose pictures this appellant would burn and
would teach the younger generation to destroy.
Analyzed for meaning and weighed in its consequences the article cannot fail
to impress thinking persons that it seeks to sow the seeds of sedition and
strife. The infuriating language is not a sincere effort to persuade, what with
the writer's simulated suicide and false claim to martyrdom and what with is
failure to particularize. When the use irritating language centers not on
persuading the readers but on creating disturbances, the rationable of free
speech cannot apply and the speaker or writer is removed from the
protection of the constitutional guaranty.
If it be argued that the article does not discredit the entire governmental
structure but only President Roxas and his men, the reply is that article 142
punishes not only all libels against the Government but also "libels against
any of the duly constituted authorities thereof." The "Roxas people" in the
Government obviously refer of least to the President, his Cabinet and the
majority of legislators to whom the adjectives dirty, Hitlers and Mussolinis
were naturally directed. On this score alone the conviction could be upheld. 6
As heretofore stated publication suggest or incites rebellious conspiracies or
riots and tends to stir up people against the constituted authorities, or to
provoke violence from opposition who may seek to silence the writer. 7
Which is the sum and substance of the offense under consideration.
The essence of seditious libel may be said to its immediate tendency to stir
up general discontent to the pitch of illegal courses; that is to say to induce
people to resort to illegal methods other than those provided by the
Constitution, in order to repress the evils which press upon their minds. 8
"The idea of violence prevades the whole letter" says Justice Paredes of the
Court of Appeals. "The mere fact that a person was so disgusted with his
"dirty government" to the point of taking his own life, is not merely a sign of
disillusionment; it is a clear act to arouse its readers a sense of
dissatisfaction against its duly constituted authorities. The mention made in
said letter of the situation in Central Luzon, the Hukbalahaps, Julio Guillen
and the banditry in Leyte, which are instances of flagrant and armed attacks
against the law and the duly constituted authorities cannot but be interpreted
by the reading public as an indirect justification of the open defiance by the
Hukbalahaps against the constituted government, the attempt against the life
of President Roxas and the ruthless depredations committed by the bandits
of Leyte, thus insinuating that a state on lawlessness, rebellion and anarchy
would be very much better than the maladministration of said President and
his men.
To top it all, the appellant proclaimed to his readers that he committed
suicide because he had "no power to put under juez de cuchillo all the Roxas
people now in power." Knowing, that the expression Juez de Cuchillo means
to the ordinary layman as the Law of the Knife, a "summary and arbitrary
execution by the knife", the idea intended by the appellant to be conveyed
was no other than bloody, violent and unpeaceful methods to free the
government from the administration of Roxas and his men.
The meaning, intent and effect of the article involves maybe a question of
fact, making the findings of the court of appeals conclusive upon us. 9
Anyway, it is clear that the letter suggested the decapitation or assassination
of all Roxas officials (at least members of the Cabinet and a majority of
Legislators including the Chief Executive himself). And such suggestion
clinches the case against appellant.
In 1922 Isaac Perez of Sorsogon while discussing political matter with
several persons in a public place uttered theses words: "Filipinos must use
bolos for cutting off Wood's head" — referring to the them Governor-General,
Leonard Wood. Perez was found guilty of inciting to sedition in a judgment of
this court published in Volume 45 of the Philippine Reports. That precedent is
undeniably opposite. Note that the opinion was penned by Mr. Justice
Malcolm probably of speech. Adopting his own words we could say, "Here
the person maligned by the accused is the Chief Executive of the Philippine
Islands. His official position, like the President of the United States and other
high office, under form of government, instead of affording immunity from
promiscuous comment, seems rather to invite abusive attacks. But in this
instance, the attack on the President passes the furthest bounds of free
speech and common decency. More than a figure of speech was intended.
There is a seditious tendency in the words used, which could easily produce
disaffection among the people and a state of feeling incompatible with a
disposition to remain loyal to the Government and obedient to the laws."
The accused must therefore be found guilty as charged. And there being no
question as to the legality of the penalty imposed on him, the decision will be
affirmed with costs.
Elizalde vs. CFI [116 SCRA 93 (1982)]
It was the refusal of respondent Judge Mario J. Gutierrez 1 to grant motion to
quash of petitioners, who were the accused in a prosecution for libel,
notwithstanding the invocation of their constitutional right to freedom of
expression 2 that led to this suit for certiorari and prohibition. All that could be
alleged in the information against them was the publication in the Evening
News, a newspaper of general circulation, of an item reproducing in full a
dispatch from the Philippine News Service, a reputable news-gathering
agency. It summarized the testimony of Jaime Jose in a pending rape case
wherein the name of Vincent Crisologo, the offended party in the information
for libel, was mentioned. This excerpt from the recent case of Bocobo v.
Estanislao 3 comes to mind: "This is contrary to the legal tradition of the
Philippines dating back to the landmark case of United States v. Bustos,
where Justice Malcolm emphasized that to prevent dilution of the
constitutional right to free speech and free press, every libel prosecution
should be tested by the rigorous and exacting standard of whether or not it
could be violative of such fundamental guarantee. 4 It is easily
understandable then why in the motion to quash, the main reliance was on
the Bustos doctrine, although other grounds were alleged as warranting the
dismissal of the information. 5 When respondent Judge ignored such a
fundamental constitutional principle, the proper basis for a certiorari and
prohibition proceeding was laid. Petitioners are entitled to the remedies
sought.
The alleged offending news item was a reproduction of a news item coming
from the Philippine News Service, furnished the Evening News, of which
petitioners Manuel Elizalde and Fred J. Elizalde were the Publisher and
Assistant Publisher and Prudencio R. Europa was the Editor-in-Chief. It
reads thus: "Jaime Jose implicated Tuesday Vincent Crisologo, son of Rep.
Floro Crisologo ( N, Ilocos Sur ) as among his four companions the night of
the alleged rape of a former nightclub hostess last year. Jose, one of four
principal accused in the celebrated Maggie de la Riva rape case, denied,
however, the charges of forcible abduction with rape and robbery filed
against him and his companions by Zenaida de la Cruz, 28, and Araceli Sy,
both nightclub hostesses. Jose mentioned Vincent Crisologo as among his
companions while testifying in his defense before Judge Francisco de la
Rosa of the local court of first instance. Jose claimed that both Zenaida and
Araceli went voluntarily with his group to the Queen's Court motel here in the
early morning of July 4, 1966. Jose said Zenaida and Crisologo went to a
room together. However, Jose said, the two girls complained when he and
his companions failed to give the girls any money. ...6 This was the
continuation of such news item: "The girls charged that they were robbed by
Jose and his friends of cash and jewelry inside the hotel. In their original
complaint filed with the fiscal's office, the two girls named Vincent Crisologo
as among the accused. The taxi driver, whose vehicle was used by Miss de
la Cruz, also Identified Vincent Crisologo among the five youths in the
incident. But the girls later executed an affidavit saying that they were
mistaken in Identifying Crisologo as among the five men who allegedly
abused them. Jose testified that he and Tillman were about to go to a party in
Mandaluyong, Rizal, on the night of July 3, 1966, when Crisologo with three
companions arrived. Jose said that young Crisologo wanted to borrow his car
since his car would be used by his congressman father. Jose said that after
the party they proceeded to Pasay City where Crisologo and a companion
went to Bayside nightclub to look for Crisologo's girl friend. Minutes later,
Crisologo and his friend went out of the club and they all proceeded to the
Barbecue Plaza where they drank liquor. Shortly before 2 a.m., July 4, the
group allegedly started for home in Jose's two-toned Mercedez Benz car. On
the way, a taxicab overtook them. The cab allegedly carried Zenaida and
Araceli. Jose said that Zenaida called Vincent and shouted for them to stop.
They then proceeded to Queen's Court motel, Jose said. 7 The alleged
offended party, according to the information filed by respondent Provincial
Fiscal, Jesus F. Guerrero, is Vincent Crisologo. The information is dated
February 5, 1970. Thereafter, there was a motion to quash filed by
petitioners on August 14, 1970. An opposition was then filed by an assistant
provincial fiscal on September 25, 1970. The order by respondent Judge
denying the motion to quash came on December 17, 1970. An extensive
motion for reconsideration submitted on February 23, 1971 having proved
futile in view of an order of denial a month later from respondent Judge, this
petition for certiorari and prohibition was filed with this Court.
As noted at the outset, certiorari and prohibition lie.
1. Petitioners were prosecuted for libel because the Evening News carried in
its issue of September 1, 1967 a news item furnished it by the Philippine
News Service. It was a faithful and accurate summary of what was testified to
by a witness in a pending rape case. That was all. The name of the alleged
offended party, Vincent Crisologo, was repeatedly mentioned in such
testimony. It would have been a plain and simple distortion thereof if such a
fact were omitted by the Philippine News Service. The Evening News in turn
published such item. This is a case therefore that falls squarely within the
protection of the free press provision found in the Constitution. That such
news item possessed a defamatory aspect is beside the point. It cannot
justify a prosecution for libel. Even prior to the 1935 Constitution, under the
previous organic act, the Philippine Autonomy Act of 1916, which contained a
similar provision mandating a free press, this Court, in the epochal Malcolm
opinion in United States v. Bustos 8 decided almost sixty years ago, to be
precise on March 8, 1918, enunciated the principle that the freedom of the
press is
"so sacred to the people of these Islands and won at so dear a cost, [that it]
should now be protected and carried forward as one would protect and
preserve the covenant of liberty itself." 9 Thus it is clear that a prosecution for
libel lacks justification if the offending words find sanctuary within the shelter
of the free press guarantee. This Court has since then been committed to
such an authoritative doctrine. 10 The opinion of Chief Justice Paras in
Quisumbing v. Lopez, 11 a 1955 decision, is even more explicit on the
matter. Thus: "The newspapers should be given such leeway and tolerance
as to enable them to courageously and effectively perform their important
role in our democracy. In the preparation of stories, press reporters and
edition usually have to race with their deadlines; and consistently with good
faith and reasonable care, they should not be held to account, to a point of
suppression, for honest mistakes or imperfection in the choice of words. 12
At the beginning of this decade, this Court in Lopez v. Court of Appeals 13
expressed its commitment to such a principle in these words: "No inroads on
press freedom should be allowed in the guise of punitive action visited on
what otherwise could be characterized as libel whether in the form of printed
words or a defamatory imputation resulting from the publication of
respondent's picture with the offensive caption as in the case here
complained of. ... If the cases mean anything at all then, to emphasize what
has so clearly emerged, they call for the utmost care on the part of the
judiciary to assure that in safeguarding the interest of the party allegedly
offended, a realistic account of the obligation of a news media to disseminate
information of a public attendant on the business of publishing cannot be
ignored. 14
2. To be more specific, no culpability could be imputed to petitioners for the
alleged offending publication without doing violence to the concept of
privileged communication implicit in freedom of the press. As was so well put
by Justice Malcolm in Bustos: "Public policy, the welfare of society, and the
orderly administration of government have demanded protection for public
opinion. The inevitable and incontestable result has been the development
and adoption of the doctrine of privilege. 15 He then quoted this excerpt from
an American Supreme Court decision, Abbott v. National Bank of Commerce:
"The doctrine of privileged communication rests upon public policy, 'which
looks to the free and unfettered administration of justice, though as incidental
result, it may in some instances afford an immunity to the evil-disposed and
malignant slanderer. 16 Considering how ample is the protection afforded a
person alleged to have injured another's reputation, it appears quite obvious
that respondent Judge did infringe on the constitutional right of petitioners to
press freedom when it denied the motion to quash. He apparently was
equally unaware of this relevant paragraph in the Malcolm opinion: "A
privileged communication should not be subjected to microscopic
examination to discover grounds of malice or falsity. Such excessive scrutiny
would defeat the protection which the law throws over privileged
communications. The ultimate test is that of bona fides. 17 By no stretch of
the imagination then could it be said that the Philippine News Service and the
Evening News exhibited mala fides by the mere fact of narrating in a news
item the testimony of a witness in a rape case just because it did cast a
reflection on the conduct of a third party. The prosecution in its pleadings
before the lower court could not deny the accuracy of what was reported.
Petitioners then ought not to have been subjected to the annoyance,
inconvenience, and trouble of going to a distant province and defend
themselves against a charge unwarrant under well-settled norms of
constitutional dimension. The doctrine of privileged communication moreover
is explicitly provided for in the Revised Penal Code, as an exception to the
general principle that every defamatory imputation is presumed to be
malicious, even if it is true in the absence of "good intention" and "justifiable
motive" thus: "A fair and true report, made in good faith, without any
comments or remarks, of any judicial, legislative, or other official proceedings
which are not of confidential nature, or of any statement, report, or speech
delivered in said proceedings, or of any other act performed by public officers
in the exercise of their functions. 18
3. There being a denial of a constitutional right, a jurisdictional issue was
raised. It has been a well-settled doctrine since Conde v. Rivera, 19 that
under such circumstances, the competence of a court to continue with a
pending case ceases. 20 Nor is it to indulge merely in general propositions.
In People v. Andres, 21 this Court precisely sustained a court of first instance
when it quashed an information for libel, the accused, respondent Andres,
relying on press freedom to show that the fact charged do not constitute an
offense. As pointed out in the opinion of Justice Barrera, it was argued by the
prosecution "that the trial court erred in dismissing the case on a mere
motion to quash, contending that the trial judge's conclusion on the face of
the information that defendant-appellee was prompted only by good motives
assumes a fact to he proved, and that the alleged privileged nature of
defendant-appellee's publication is a matter of defense and is not a proper
ground for dismissal of the complaint for libel ... ." 22 That contention was
rejected in this wise: "While there is some point to this contention, yet when
in the information itself it appears, as it does in the present case, that the
communication alleged to be libelous is contained in an appropriate pleading
in a court proceeding, the privilege becomes at once apparent and defendant
need not wait until the trial and produce evidence before he can raise the
question of privilege. And if added to this, the questioned imputations appear,
as they seem in this case, to be really pertinent and relevant to defendant's
plea for reconsideration based on complainant's supposed partiality and
abuse of power from which defendant has a right to seek relief in vindication
of his client's interest as a litigant in complainant's court, it would become
evident that the facts thus alleged in the information would not constitute an
offense of libel. 23 Similarly, a motion to quash was sustained in the later
case of People v. Alvarez, 24 In the opinion of Justice Regala, it was pointed
out: "As heretofore stated, this Court has adopted a liberal attitude in favor of
the writer in matter of the relevancy of allegedly libelous statements in judicial
pleadings. In U.S. v. Bustos, et al., 37 Phil. 731, this Court found occasion to
express ills opinion on privileged communications, to wit: ... A privileged
communication should not be subjected to miscroscopic examination to
discover grounds of malice or falsity. Such excessive scrunity would defeat
the protection which the law throws over privileged communication. ... It is
worthy to mention here that in the information for libel, there is no allegation
of the irrelevancy or impertinency of the questioned statements to the cause.
Considering the above, We are of the opinion and so hold that no error was
committed by the lower court in considering the questioned remarks of the
appellee as privileged and in consequently dismissing the information for lack
of cause of action. 25 In a third case, People v. Aquino, 26 reference was
made to People v. Andres to demonstrate that it is fitting and appropriate for
a court of first instance to dismiss an information on a motion to quash where
the privileged character of the, alleged offending publication is apparent.
Respondent Judge ought not to have betrayed lack of sensitivity to the
categorical pronouncements of this Court in the above three decisions that
call for application,
4. Nor is a different conclusion called for just because the heading of the
news item arising from the testimony of Jaime Jose was worded thus: "LINK
CRISOLOGO SON TO PASAY RAPE CASE." How else could it have been
expressed? That was to portray with accuracy what was contained in the
news item. What was testified to was to that effect. It succinctly set forth the
facts. There was no attempt to sensationalize. The tone is both neutral and
objective. Again there is relevance to the following excerpt from Quisumbing
v. Lopez: "The Court of Appeals found 'that the context of the article in
question, is a fair, impartial and true report of official or public proceeding
authorized by law. The news item was the result of a press release in
connection with an official investigation of the Anti-Usury Division, N. B. I.,
and was a substantial, if not a faithful reproduction of the said press release
which was, in turn, an accurate report of the official proceedings taken by the
Anti-Usury Division. The article merely reported a raid on the 'business
offices of three alleged money lenders;' and related the steps actually taken
or to be taken by the proper officials relative to the investigation. It did not go
beyond the actual report of official actuations. The theory of the petitioner,
stripped of incidentals, is that while the body of the news item may be
considered as being fair, impartial and accurate report of an official
investigation of the Anti-Usury Division of the National Bureau of
Investigation and therefore privileged, its headline NBI MEN RAID OFFICES
OF 3 CITY USURERS, admittedly not forming part of the basic press release
but merely added by the respondents, is libelous per se, because the
petitioner had thereby been branded and condemned as a 4 usurer' when as
a matter of fact no criminal charge was even filed against him for the crime of
usury in any court of justice. 27 Nonetheless, the newspaper publisher was
not held liable. The Chief Justice then explained why: "We are of the opinion
that the appealed decision is correct. The petitioner, while assuming that the
article in question is privileged, argues that the headline (libelous per se)
added by the respondents rendered the same actionable, because said
headline is not borne out by the facts recited in the context. We believe that
nobody reading the whole news item would come to the conclusion that the
petitioner had been accused or convicted of usury. We agree with the Court
of Appeals that the headline complained of may fairly be said to contain a
correct description of the news story. The fact that the raid was conducted by
anti-usury agents following receipt of a complaint against the petitioner and
two others, coupled with the announcement by the Chief of the NBI Anti-
Usury Division that criminal action would be filed in the city fiscal's office,
naturally would lead one to think that the persons involved were usurers.
Nothing in the headline or the context of the article suggested the Idea that
the petitioner was already charged with or convicted of the crime of usury. 28
WHEREFORE, the writ of certiorari prayed for is granted and the order of
respondent Judge denying the motion to quash of December 17, 1970 as
well as the order of respondent Judge of March 25, 1971 denying the motion
for reconsideration filed by petitioners are set aside and nullified. The writ of
prohibition is likewise granted and the restraining order issued on June 10,
1971 made permanent, respondent Judge or any person who may have
taken his place being prohibited from taking any action in Criminal Case No.
11-V for Libel except for the purpose of dismissing the same. No costs.
Lopez vs. Court of Appeals [34 SCRA 116 (1970)]
There is an element of novelty in this appeal by certiorari from a decision of
respondent Court of Appeals holding petitioners, the then publisher and
editor of This Week Magazine, liable in damages to the tune of eleven
thousand pesos arising from the publication of a picture of respondent, Fidel
G. Cruz, as being responsible for the hoax of the year. The absence of any
connection either fanciful or remote with such event is admitted. The view is
pressed by petitioners, invoking a liberal construction of the implications of
press freedom, owning up to the mistake, unfortunately not discovered until it
was too late, and publishing a correction as an earnest of its good faith, that
they should not be made to pay at all. This Court, without discounting the
elements of plausibility of their contention, cannot, however, close its eyes to
the injury inflicted on respondent and indulge them in such a plea. It is not
disposed though to affirm respondent Court's decision in its entirety.
Considering all the circumstances, the damages awarded to private
respondent appear to be far too generous. A reduction is in order. The sum
of one thousand pesos would be enough. So we decide.
The antecedents of the case follow: In the early part of January, 1956, there
appeared on the front page of The Manila Chronicle, of which petitioner
Eugenio Lopez was the publisher, as well as on other dailies, a news story of
a sanitary inspector assigned to the Babuyan Islands, Fidel Cruz by name,
sending a distress signal to a passing United States Airforce plane which in
turn relayed the message to Manila. He was not ignored, an American Army
plane dropping on the beach of an island an emergency-sustenance kit
containing, among other things, a two-way radio set. He utilized it to inform
authorities in Manila that the people in the place were living in terror, due to a
series of killings committed since Christmas of 1955. Losing no time, the
Philippines defense establishment rushed to the island a platoon of scout
rangers led by Major Wilfredo Encarnacion. Upon arriving at the reported
killer-menaced Babuyan Claro, however, Major Encarnacion and his men
found, instead of the alleged killers, a man, the same Fidel Cruz, who merely
wanted transportation home to Manila. In view of this finding, Major Wilfredo
Encarnacion branded as a "hoax," to use his own descriptive word, the report
of Fidel Cruz. That was the term employed by the other newspapers when
referring to the above-mentioned incident.
This Week Magazine of the Manila Chronicle, then edited by petitioner Juan
T. Gatbonton, devoted a pictorial article to it in its issue of January 15, 1956.
Mention was made that while Fidel Cruz story turned out to be false if
brought to light the misery of the people living in that place, with almost
everybody sick, only two individuals able to read and write, food and clothing
being scarce. Then in the January 29, 1956 issue of This Week Magazine,
the "January News Quiz" included an item on the central figure in what was
known as the Calayan Hoax, who nevertheless did the country a good turn
by calling the government's attention to that forsaken and desolate corner of
the Republic. Earlier in its Special Year End Quiz appearing in its issue of
January 13, 1956, reference was made to a health inspector who suddenly
felt "lonely" in his isolated post, cooked up a story about a murderer running
loose on the island of Calayan so that he could be ferried back to civilization.
He was given the appellation of "Hoax of the Year."
The magazine on both occasions carried photographs of the person
purporting to be Fidel Cruz. Unfortunately, the pictures that were published
on both occasions were that of private respondent Fidel G. Cruz, a
businessman contractor from Santa Maria, Bulacan. It turned out that the
photographs of respondent Cruz and that of Fidel Cruz, sanitary inspector,
were on file in the library of the Manila Chronicle in accordance with the
standard procedure observed in other newspaper offices, but when the news
quiz format was prepared, the two photographs were in advertently switched.
As soon, however, as the inadvertent error was brought to the attention of
petitioners, the following correction was immediately published in This Week
Magazine on January 27, 1957: "While we were rushing to meet: the
deadline for January 13th issue of This Week, we inadvertently published the
picture of former Mayor Fidel G. Cruz of Sta. Maria, Bulacan, businessman
and contractor, in 'Our Own Who's Who feature in the Year End Quiz' of This
Week in lieu of the health inspector Fidel Cruz, who was connected with a
story about a murderer running loose on Calayan Island. We here express
our profound regrets that such an error occurred." Together with the
foregoing correction, petitioners published the picture of Fidel Cruz; the
photographs and the correction moreover were enclosed by four lines the
type used was bolder than ordinary, and the item was placed in a
conspicuous place in order to call the attention of the readers to such
amends being made.1
Respondent Fidel G. Cruz sued petitioners in the Court of First Instance of
Manila for the recovery of damages alleging the defamatory character of the
above publication of his picture. After trial duly had, he was awarded five
thousand pesos as actual damages, another five thousand pesos as moral
damages, and one thousand pesos for attorney's fees. That judgment was
affirmed on appeal to respondent Court. Hence, this petition for certiorari with
the result, as already announced at the opening of this opinion, that while
respondent Cruz is entitled to Prevail, the damages awarded him should be
reduced.
1. It is on the freedom of the press that petitioners would stake their case to
demonstrate that no action for libel would lie arising from the publication of
the picture of respondent Cruz identified as responsible for the hoax of the
year, when such was not the case at all. It is easily understandable why. No
liability would be incurred if it could be demonstrated that it comes within the
well-nigh all embracing scope of freedom of the press. Included therein is the
widest latitude of choice as to what items should see the light of day so long
as they are relevant to a matter of public interest, the insistence on the
requirement as to its truth yielding at times to unavoidable inaccuracies
attendant on newspapers and other publications being subject to the tyranny
of deadlines. If no such showing could be plausibly made, however, it is
difficult to resist the conclusion that there was in fact the commission of such
quasi-delict. It was held in Lu Chu Sing v. Lu Tiong Gui,2 that "the repeal of
the old Libel Law (Act No. 277) did not abolish the civil action for libel."3 A
libel was defined in that Act as a "malicious defamation, expressed either in
writing, printing, or by signs or pictures, or the like, ..., tending to blacken the
memory of one who is dead or to impeach the honesty, virtue, or reputation,
or publish the alleged or natural defects of one who is alive, and thereby
"pose him to public hatred, contempt, or ridicule,"4 There was an express
provision in such legislation for a tort or a quasi-delict action arising from
libel.5 There is reinforcement to such a view in the new Civil Code providing
for the recovery of moral damages for libel, slander or any other form of
defamation.6
There has been no time then in our judicial history when civil actions for libel
did not form a staple part of litigations which had reached this Court.7 Such
is the case in a far greater measure in the United States. According to the
standard treatise of Newell on Slander and Libel: "Publication of a person's
photograph in connection with an article libelous of a third person, is a libel
on the person whose picture is published, where the acts set out in the article
are imputed to such person."8 In support of the above statement, he made
reference to several cases.9 Other decisions to the same effect have been
promulgated since the fourth edition of Newell published in 1924. 1 0 Why
libel law has both a criminal and a civil aspect is explained by Hale in his Law
of the Press thus: "On the one hand, libeling a person results in depriving him
of his good reputation. Since reputation is a thing of value, truly rather to be
chosen than great riches , an impairment of it is a personal wrong. To
redress this personal wrong money damages are awarded to the injured
person. On the other hand, the publication of defamatory statements tends
strongly to induce breach of the peace by the person defamed, and hence is
of peculiar moment to the state as the guardian of the public peace. Viewed
from this angle, libel is a crime, and as such subjects the offender to a fine or
imprisonment." 1 1
The first decision cited by Newell is a decision of Justice Holmes. The case is
Peck v. Tribune Co. 1 2 Plaintiff there complained of her picture being
published in an advertisement in defendant's newspaper. The Chicago
Sunday Tribune, with certain words of commendation for a brand of liquor
attributed to her when in fact she did not make such a statement at all and
could not have made it, as she was a total abstainer. The defendant was
held liable, for as Justice Holmes pointed out: "There was some suggestion
that the defendant published the portrait by mistake, and without knowledge
that it was the plaintiff's portrait, or was not what it purported to be. But the
fact, if it was one, was no excuse. If the publication was libelous, the
defendant took the risk. As was said of such matters by Lord Mansfield,
'Whenever a man publishes, he publishes at his peril.' ... The reason is plain.
A libel is harmful on its face. If a man sees fit to publish manifestly hurtful
statements concerning an individual, without other justification than exists for
an advertisement or a piece of news, the usual principles of tort will make
him liable if the statements are false, or are true only of someone else." 1 3
Learned Hand, in holding that an action for libel would lie arising from a
publication in an advertisement of plaintiff's photograph yielding a "grotesque
monstrous and obscene impression" and that he was "substantially enough
ridiculed" to complain reached the conclusion "that because the picture taken
with the legends was calculated to expose the plaintiff to more than trivial
ridicule, it was prima facie actionable; that the fact that it did not assume to
state a fact or an opinion is irrelevant; and that in consequence the
publication is actionable." 1 4 It is likewise an accepted fact that such
publications do occasion greater injury to reputation than would mere words
alone. Cardozo so aptly put the matter thus: "'It has its genesis in evils which
the years have not erased. Many things that are defamatory may be said with
impunity through the medium of speech. Not so, however, when speech is
caught upon the wing and transmuted into print. What gives the sting to the
writing is its permanence of form. The spoken word dissolves, but the written
one abide and Perpetuates the scandal.' ... When one speaks of a writing in
this connection, one does not limit oneself to writings in manuscripts or
books. Any symbol suffices — Pictures, hieroglyphics shorthand notes — if
only what is written is intelligible to him who reads." 1 5
2. That is only one side of the picture, however. There is an impressive
recognition in our decisions of the curtailment to which press freedom would
be subjected if an action for libel were not rigorously scrutinized to remove
doubts as to its being utilized to penalize the exercise of that constitutional
right Thus, in the first leading case, United States v. Bustos, 1 6 Justice
Malcolm could correctly stress: "The interest of society and the maintenance
of good government demand a full discussion of public affairs. Complete
liberty to comment on the conduct of public men is a scalpel in the case of
free speech. The sharp incision of its probe relieves the abscesses of
officialdom. Men in public life may suffer under a hostile and an unjust
accusation: the wound can be assuaged with the balm of a clear conscience.
A public officer must not to be too thin-skinned with reference to comment
upon his official acts. Only thus can the intelligence and dignity of the
individual be exalted. Of course, criticism does not authorize defamation.
Nevertheless, as an individual is less than the State, so must expected
criticism be born for the common good." 1 7 On this aspect of the question
which, as answered by him, would require that a criminal suit for libel should
not be utilized as a means for stifling press freedom, he categorically
declared: "Public policy, the welfare of society, and the orderly administration
of government have demanded protection for public opinion. The inevitable
and incontestable result has been the development and adoption of the
doctrine of privilege." 1 8
In another civil action for libel, such a thought is expressed differently in this
wise: "So long as it is done in good faith, newspapers have the legal right to
have and express opinions on legal questions. To deny them that right would
infringe upon the freedom of the press." 1 9 The last word on the subject, up
to now at least, came from Quisumbing v. Lopez. 2 0 In the language of the
then Chief Justice Paras, who penned the opinion: "The Court of Appeals
found as a fact that "there is no evidence in the record to prove that the
publication of the news item under Consideration was prompted by personal
ill will or spite, or that there was intention to do harm,' and that on the other
hand there was 'an honest and high sense of duty to serve the best interests
of the public, without self-seeking motive and with malice towards none.'
Every citizen of course has the right to enjoy a good name and reputation,
but we do not consider that the respondents, under the circumstances of this
case, had violated said right or abused the freedom of the press. The
newspapers should be given such leeway and tolerance as to enable them to
courageously and effectively perform their important role in our democracy.
In the preparation of stories, press reporters and edition usually have to race
with their deadlines; and consistently with good faith and reasonable care,
they should not be held to account, to a point of suppression, for honest
mistakes or imperfection in the choice of words." 2 1
It was not until 1964 that the United States Supreme Court had occasion to
speak its mind on the subject. In the leading case of New York Times Co. v.
Sulivan, 2 2 the nature of the question presented was set forth by Justice
Brennan for the Court in the opening paragraph of his opinion: "We are
required in this case to determine for the first time the extent to which the
constitutional protections for speech and press limit a State's power to award
damages in a libel action brought by a public official against critics of his
official conduct." 2 3 This is the Court's approach to such an issue: "In
deciding the question now, we are compelled by neither precedent nor Policy
to give any more weight to the epithet 'libel' than we have to other 'mere
labels' of state law. ... Like insurrection, contempt, advocacy of unlawful acts,
breach of the peace, obscenity, solicitation of legal business, and the various
other formulae for the repression of expression that have been challenged in
this Court, libel can claim no talismanic immunity from constitutional
limitations. It must be measured by standards that satisfy the First
Amendment." 2 4 Continuing the same trend, the opinion stressed further:
"Thus we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open, and that it may well include vehement,
caustic, and sometimes unpleasantly sharp attacks on government and
public officials. ... The present advertisement, as an expression of grievance
and protest on one of the major public issues of our time, would seem clearly
to qualify for the constitutional protection." 2 5
For liability to arise then without offending press freedom, there is this test to
meet: "The constitutional guarantees require, we think, a federal rule that
prohibits a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement
was made with 'actual malice' — that is, with knowledge that it was false or
with reckless disregard of whether it was false or not." 2 6 The United States
Supreme Court went further in Curtis Publishing Co. v. Butts, 2 7 where such
immunity, was held as covering statements concerning public figures
regardless of whether or not they are government officials. Why there should
be such an extension is understandable in the light of the broad scope
enjoyed by press freedom which certainly allows a full and free discussion of
public issues. What can be more logical and appropriate, then, than such an
expansion of the principle. As noted by a commentator: "Since discussion of
public issues cannot be meaningful without reference to the men involved on
both sides of such issues, and since such men will not necessarily be public
officials, one cannot but agree that the Court was right in Curtis to extend the
Times rule to all public figures." 2 8
The significance of the foregoing line of decisions impressive for their
consistency is quite obvious. No inroads on press freedom should be allowed
in the guise of punitive action visited on what otherwise could be
characterized as libel whether in the form of printed words or a defamatory
imputation resulting from the publication of respondent's picture with the
offensive caption as in the case here complained of. This is not to deny that
the party responsible invites the institution either of a criminal prosecution or
a civil suit. It must be admitted that what was done did invite such a dire
consequence, considering the value the law justly places on a man's
reputation. This is merely to underscore the primacy that freedom of the
press enjoys. It ranks rather high in the hierarchy of legal values. If the cases
moan anything at all then, to emphasize what has so clearly emerged, they
call for the utmost care on the part of the judiciary to assure that in
safeguarding the interest of the party allegedly offended a realistic account of
the obligation of a news media to disseminate information of a public
character and to comment thereon as well as the conditions attendant on the
business of publishing cannot be ignored. To single out one decision,
Quisumbing v. Lopez so speaks in tones loud and clear.
3. It is to the haven thus afforded by such a highly sympathetic ruling to press
freedom that petitioners would seek refuge. The defamatory matter
complained of in the Quisumbing case appeared in the headline. It was
without basis, as shown by the text of the news item itself. Nonetheless, for
the reasons expressed with vigor and clarity by former Chief Justice Paras,
no liability was deemed incurred by the then publisher of the Manila
Chronicle A newspaper, it is stressed, "should not be held to account to a
point of suppression for honest mistakes or imperfection in the choice of
words." The above ruling, coupled with the requirement in the New York
Times decision of the United States Supreme Court, would for the writer of
this opinion, furnish a sufficient basis for the success of this appeal. The
Court, however, is not inclined to view matters thus. Obviously Quisumbing v.
Lopez is not squarely in point. Here there was no pressure of a daily deadline
to meet no occasion to act with haste as the picture of respondent was
published in a weekly magazine. Moreover, there is the added requirement of
reasonable care imposed by such decision which from the facts here found,
appeared not to be satisfied. It cannot be concluded then that the plea of
petitioners is sufficiently persuasive. The mandate of press freedom is not
ignored, but here it does not speak unequivocally. It is not decisive of the
basic issue. By itself, it does not have a controlling significance. So we hold.
4. Petitioners would make much, likewise, of their correction, which has all
the force of a retraction, as a basis from being absolved from any pecuniary
responsibility. The present Chief Justice in Policarpio v. Manila Times 2 9
restated the controlling principle: "We note that the news item published on
August 13, 1956, rectified a major inaccuracy contained in the first article, by
stating that neither Col. Alba nor the PCAC had filed the aforementioned
complaints with the city fiscal's office. It, likewise, indicated the number of
sheets of stencil involved in said complaints. But, this rectification or
clarification does not wipe out the responsibility arising from the publication of
the first article, although it may and should mitigate it (Jimenez vs. Reyes, 27
Phil. 52)." 3 0
The correction promptly made by petitioners would thus call for a reduction in
the damages awarded. It should be noted that there was no proof of any
actual pecuniary logs arising from the above publication. It is worthwhile to
recall what Justice Malcolm referred to as the tolerant attitude on the part of
appellate courts on this score, the usual practice being "more likely to reduce
damages for libel than to increase them." 3 1
WHEREFORE, the decision of respondent Court of Appeals of August 25,
1966 affirming the lower court decision of March 22, 1958 is hereby modified,
petitioners Eugenio Lopez and Juan T. Gatbonton being ordered to pay
jointly and severally the sum of P500.00 as moral damages and the
additional amount of P500.00 for attorney's fees. Costs against petitioners.
PJI vs. Thoenen (G.R. No. 143372, December 13, 2005)
For almost a century, this Court has sought that elusive equilibrium between
the law on defamation on one hand, and the constitutionally guaranteed
freedoms of speech and press on the other. This case revisits that search.
On 30 September 1990, the following news item appeared in the People’s
Journal, a tabloid of general circulation:
Swiss Shoots Neighbors’ Pets
RESIDENTS of a subdivision in Parañaque have asked the Bureau of
Immigration to deport a Swiss who allegedly shoots wayward neighbors’ pets
that he finds in his domain.
The BF Homes residents through lawyer Atty. Efren Angara complained that
the deportation of Francis Thoenen, of 10 Calcutta BF Homes Phase III,
could help "prevent the recurrence of such incident in the future."
Angara explained that house owners could not control their dogs and cats subdivision with children playing around (sic) the street. Before my clients
when they slip out of their dwellings unnoticed. petitioned themselves with the endorsement of the Homeowners Association
and filed to your office for deportation we’re respectfully seeking your
An alleged confrontation between Thoenen and the owner of a pet he shot assistance to investigate this alien to prevent further incident occurrence (sic)
recently threatens to exacerbate the problem, Angara said. in the future. He should not be allowed to dominate the citizens of this
country.
Cristina Lee1
Very truly yours,
The subject of this article, Francis Thoenen, is a retired engineer
permanently residing in this country with his Filipina wife and their children. Atty. Efren B. Angara
Claiming that the report was false and defamatory, and that the petitioners
acted irresponsibly in failing to verify the truth of the same prior to The petitioners claim that Lee, as the reporter assigned to cover news events
publication, he filed a civil case for damages against herein petitioners in the CID, acquired a copy of the above letter from a trusted source in the
Philippine Journalists, Inc., Zacarias Nuguid, Jr., its publisher, and reporter CID’s Intelligence Division. They claimed to "have reasonable grounds to
Cristina Lee. believe in the truth and veracity of the information derived (from their)
sources."4
Thoenen claimed that the article destroyed the respect and admiration he
enjoyed in the community, and that since it had been published, he and his It was proven at trial that the news article contained several inaccuracies.
wife received several queries and angry calls from friends, neighbors and The headline, which categorically stated that the subject of the article
relatives. For the impairment of his reputation and standing in the community, engaged in the practice of shooting pets, was untrue.5 Moreover, it is
and his mental anguish, Thoenen sought ₱200.00 fine pursuant to Section 44 of Act200,000.00 in moral damages, immediately apparent from a comparison between the above letter and the
₱200.00 fine pursuant to Section 44 of Act100,000.00 in exemplary damages, and ₱200.00 fine pursuant to Section 44 of Act50,000.00 in attorney’s fees. news item in question that while the letter is a mere request for verification of
Thoenen’s status, Lee wrote that residents of BF Homes had "asked the
The petitioners admitted publication of the news item, ostensibly out of a Bureau of Immigration to deport a Swiss who allegedly shoots neighbors’
"social and moral duty to inform the public on matters of general interest, pets." No complaints had in fact been lodged against him by any of the BF
promote the public good and protect the moral public (sic) of the people," and Homeowners,6 nor had any pending deportation proceedings been initiated
that the story was published in good faith and without malice.2 against him in the Bureau of Immigration.7

The principal source of the article was a letter3 by a certain Atty. Efren Thoenen also submitted a Certification8 from the Office of the Bar Confidant
Angara addressed to Commissioner Andrea Domingo of the Commission on that there was no lawyer in its rolls by the name of Efren Angara, earlier cited
Immigration and Deportation (CID, now Bureau of Immigration), which states: by petitioner Lee as the author of the letter on which she based her article.
Finally, the trial also showed that despite the fact that respondent’s address
Dear Madame: was indicated in the letter, Cristina Lee made no efforts to contact either him
or the purported letter-writer, Atty. Angara.9
We would like to request your office to verify the true status/authenticity of
the residency in the Philippines of a foreign national (a Swiss) by the name of The petitioners claim that Lee sought confirmation of the story from the
Francis Thoenen who is presently residing at No. 10 Calcuta cor. Beirut newspaper’s correspondent in Parañaque, who told her that a woman who
Street, BF Homes (PH. III), Parañaque, Metro Manila. I received (sic) refused to identify herself confirmed that there had indeed been an incident
complaint from my clients residing around his vicinity that this foreigner had of pet-shooting in the neighborhood involving the respondent.10 However,
(sic) been causing troubles ever since he showed up. He is too meticulous the correspondent in question was never presented in court to verify the truth
and had (sic) been shooting dogs and cats passing his house wall everytime. of this allegation. Neither was the alleged CID source presented to verify that
the above letter had indeed come from the Department, nor even that the
Such act which (sic) is unacceptable to the owners especially if inspite (sic) same was a certified true copy of a letter on file in their office.
of control their pets slips (sic) out unnoticed. A confrontation between him
and the owner of the dog he shoot, (sic) already occurred last time. In some On 31 August 1994, the Regional Trial Court, Branch 62, Makati City,
instances this guy had been always driving his car barbarously inside the rendered a Decision11 in favor of the petitioners, which reads in part:

There is no malice on the part of the defendants in publishing the news item
done in the exercise of their profession as journalists reporting to the people
on matters of public interest. The news report was based on an official
communication filed with the Bureau of Immigration and Deportation.
As noted by the Court of Appeals in Marti(r)ez vs. Alanao, CA-G.R No.
27086, September 30, 1991, which is similar to the present case:
While indeed, the news item subject of the present case might have ruffled
the sensitivities of plaintiff, this Court however believes that the alleged
defamatory articles falls within the purview of a qualifiedly privileged matter,
and that therefore, it cannot be presumed to be malicious. The onus of
proving malice is accordingly shifted to the plaintiff, that is, that he must
prove that the defendants were actuated by ill-will in what they caused to be
printed and published, with a design to carelessly or wantonly injure the
plaintiff. (US vs. Bustos, et al., 37 Phil. 731)
This, plaintiff failed to do, consequently, his case must fall.
The publication in question is a privileged communication protected by the
freedom of the press.
WHEREFORE, the Complaint is hereby ordered DISMISSED WITHOUT
PRONOUNCEMENT AS TO COSTS.12
On appeal, the court a quo reversed13 the trial court. It held that although
freedom of expression and the right of speech and of the press are among
the most zealously guarded in the Constitution, still, in the exercise of these
rights, Article 19 of the Civil Code requires everyone to "act with justice, give
everyone his due, and observe honesty and good faith." The appellate court
emphasized that Thoenen was neither a public official nor a public figure,
and thus,
. . . [E]ven without malice on the part of defendants-appellees, the news item
published in the 30 September 1990 edition of People’s Journal had been
done in violation of the principle of abuse of right under Article 19 of the Civil
Code, in the absence of a bona fide effort to ascertain the truth thereof, i.e.,
"to observe honesty and good faith," which makes their act a wrongful
omission. Neither did they "act with justice and give everyone his due,"
because without ascertaining the veracity of the information given them by
the Intelligence Bureau of the Bureau of Immigration, they published a news
article which they were aware would bring the person specifically named
therein, viz, Francis Thoenen, the plaintiff-appellant in this case, into
disrepute.
….
WHEREFORE, the foregoing considered, the Decision appealed from is
hereby REVERSED and SET ASIDE. In its stead, We find for the appellant
and award him moral damages of ₱200.00 fine pursuant to Section 44 of Act200,000.00; exemplary damages of
₱200.00 fine pursuant to Section 44 of Act50,000.00, and legal fees to ₱200.00 fine pursuant to Section 44 of Act30,000.00; all of which shall be borne jointly
and severally by appellees.14
Petitioners’ motion for reconsideration having been denied,15 this petition for
certiorari under Rule 45 of the 1997 Rules of Civil Procedure was filed on the
following grounds:
1. The Court of Appeals erred in finding the petitioners Cristina Lee, Nuguid
and PJI liable under Article 19 of the Civil Code.
2. The Court of Appeals erred in finding the petitioners liable for libel even if
the article was based on a letter released by the Bureau of Immigration,
hence a qualified privilege communication.
3. The Court of Appeals erred in concluding that petitioners did not ascertain
the truth of the subject news item.
4. The Court of Appeals erred in awarding damages notwithstanding that the
same was excessive unconscionable and devoid of any basis.
The petitioners argue that this case is one for damages arising from libel, and
not one for abuse of rights under the New Civil Code. They further claim the
constitutional protections extended by the freedom of speech and of the
press clause of the 1987 Constitution against liability for libel, claiming that
the article was published in fulfillment of its social and moral duty to inform
the public "on matters of general interest, promote the public good and
protect the moral [fabric] of the people."16 They insist that the news article
was based on a letter released by the Bureau of Immigration, and is thus a
qualifiedly privileged communication. To recover damages, the respondent
must prove its publication was attended by actual malice - that is, with
knowledge that it was false or with reckless disregard of whether it was false
or not.17
For the reasons stated below, we hold that the constitutional privilege
granted under the freedom of speech and the press against liability for
damages does not extend to the petitioners in this case.
The freedom of speech and of the press is not absolute. The freedom of
speech and press and assembly, first laid down by President McKinley in the
Instruction to the Second Philippine Commission of 07 April 1900, is an
almost verbatim restatement of the first amendment of the Constitution of the
United States.18 Enshrined in Section 4, Article III of the Bill of Rights of the
1987 Constitution, it states, "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."
But not all speech is protected. "The right of free speech is not absolute at all
times and under all circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment of which
has never been thought to raise any Constitutional problem. These include
the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’
words - those which by their very utterance inflict injury or tend to incite an
immediate breach of the peace. It has been well observed that such
utterances are no essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality." 19
Libel is not protected speech. Article 353 of the Revised Penal Code defines
libel as "a public and malicious imputation of a crime, or of a vice or defect,
real or imaginary, or any act, omission, condition, status, or circumstance
tending to cause the dishonor, discredit, or contempt of a natural or juridical
person, or to blacken the memory of one who is dead."
For an imputation to be libelous, the following requisites must be met: (a) the
allegation of a discreditable act or condition concerning another; (b)
publication of the charge; (c) identity of the person defamed; and (d)
existence of malice.20 In Vasquez v. Court of Appeals,21 we had occasion to
further explain. Thus:
An allegation is considered defamatory if it ascribes to a person the
commission of a crime, the possession of a vice or defect, real or imaginary,
or any act, omission, condition, status or circumstance which tends to
dishonor or discredit or put him in contempt, or which tends to blacken the
memory of one who is dead.
There is publication if the material is communicated to a third person. It is not
required that the person defamed has read or heard about the libelous
remark. What is material is that a third person has read or heard the libelous
statement, for "a man’s reputation is the estimate in which others hold him,
not the good opinion which he has of himself."
On the other hand, to satisfy the element of identifiability, it must be shown
that at least a third person or a stranger was able to identify him as the object
of the defamatory statement.
Finally, malice or ill will must be present. Art. 354 of the Revised Penal Code
provides:
Every defamatory imputation is presumed to be malicious, even if it be true, if
no good intention and justifiable motive for making it is shown, except in the
following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or security duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions. (citations omitted, emphasis supplied)
In this case, there is no controversy as to the existence of the three
elements. The respondent’s name and address were clearly indicated in the
article ascribing to him the questionable practice of shooting the wayward
pets of his neighbors. The backlash caused by the publication of the article
was in fact such that stones had been thrown at their house, breaking
several flower pots, and daily and nightly calls compelled him to request a
change of their telephone number.22 These facts are not contested by the
petitioners. What the petitioners claim is the absence of proof of the fourth
element - malice.
As a general rule, malice is presumed. Article 354 of the Revised Penal Code
states:
ART. 354. Requirement of Publicity. - Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.
The article is not a privileged communication. We first discussed the freedom
of speech and press and assembly vis-a-vis the laws on libel and slander in
the groundbreaking case of US v. Bustos,23 where we applied the prevailing
English and American jurisprudence to the effect that:
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted. Of course, criticism does
not authorize defamation. Nevertheless, as the individual is less than the
State, so must expected criticism be born for the common good? Rising
superior to any official, or set of officials, to the Chief Executive, to the
Legislature, to the Judiciary - to any or all the agencies of Government -
public opinion should be the constant source of liberty and democracy.
(citations omitted)
The demand to protect public opinion for the welfare of society and the
orderly administration of government inevitably lead to the adoption of the
doctrine of privileged communication. "A privileged communication may be
either absolutely privileged or qualifiedly privileged. Absolutely privileged
communications are those which are not actionable even if the author has
acted in bad faith. An example is found in Sec. 11, Art. VI of the 1987
Constitution which exempts a member of Congress from liability for any
speech or debate in the Congress or in any Committee thereof. Upon the
other hand, qualifiedly privileged communications containing defamatory
imputations are not actionable unless found to have been made without good
intention or justifiable motive. To this genre belong ‘private communications’
and ‘fair and true report without any comments or remarks.’"24
The appellate court correctly ruled that the petitioners’ story is not privileged
in character, for it is neither "private communication" nor a fair and true report
without any comments or remarks.
US v. Bustos defined the concept of private communication thus: "A
communication made bona fide upon any subject-matter in which the party
communicating has an interest, or in reference to which he has a duty, is
privileged, if made to a person having a corresponding interest or duty,
although it contained criminatory matter which without this privilege would be
slanderous and actionable. A pertinent illustration of the application of
qualified privilege is a complaint made in good faith and without malice in
regard to the character or conduct of a public official when addressed to an
officer or a board having some interest or duty in the matter."25
This defense is unavailing to petitioners. In Daez v. Court of Appeals26 we
held that:
As a rule, it is the right and duty of a citizen to make a complaint of any
misconduct on the part of public officials, which comes to his notice, to those
charged with supervision over them. Such a communication is qualifiedly
privileged and the author is not guilty of libel. The rule on privilege, however,
imposes an additional requirement. Such complaints should be addressed
solely to some official having jurisdiction to inquire into the charges, or power
to redress the grievance or has some duty to perform or interest in
connection therewith. (emphasis supplied)
In the instant case, even if we assume that the letter written by the spurious
Atty. Angara is privileged communication, it lost its character as such when
the matter was published in the newspaper and circulated among the general
population. A written letter containing libelous matter cannot be classified as
privileged when it is published and circulated in public,27 which was what the
petitioners did in this case.
Neither is the news item a fair and true report without any comments or
remarks of any judicial, legislative or other official proceedings; there is in
fact no proceeding to speak of. Nor is the article related to any act performed
by public officers in the exercise of their functions, for it concerns only false
imputations against Thoenen, a private individual seeking a quiet life.
The petitioners also claim to have made the report out of a "social and moral
duty to inform the public on matters of general interest."
In Borjal v. Court of Appeals, we stated that "the enumeration under Art. 354
is not an exclusive list of qualifiedly privileged communications since fair
commentaries on matters of public interest are likewise privileged. We stated
that the doctrine of fair commentaries means "that while in general every
discreditable imputation publicly made is deemed false, because every man
is presumed innocent until his guilt is judicially proved, and every false
imputation is deemed malicious, nevertheless, when the discreditable
imputation is directed against a public person in his public capacity, it is not
necessarily actionable. In order that such discreditable imputation to a public
official may be actionable, it must either be a false allegation of fact or a
comment based on a false supposition."28
Again, this argument is unavailing to the petitioners. As we said, the
respondent is a private individual, and not a public official or public figure. We
are persuaded by the reasoning of the United States Supreme Court in Gertz
v. Robert Welch, Inc.,29 that a newspaper or broadcaster publishing
defamatory falsehoods about an individual who is neither a public official nor
a public figure may not claim a constitutional privilege against liability, for
injury inflicted, even if the falsehood arose in a discussion of public
interest.30
Having established that the article cannot be considered as privileged
communication, malice is therefore presumed, and the fourth requisite for the
imputation of libel to attach to the petitioners in this case is met. The news
article is therefore defamatory and is not within the realm of protected
speech. There is no longer a need to discuss the other assignment of errors,
save for the amount of damages to which respondent is entitled.
In Policarpio v. Manila Times Publishing Co., Inc.,31 we awarded damages
where the defendants deliberately presented a private individual in a worse
light that what she actually was, and where other factual errors were not
prevented although defendants had the means to ascertain the veracity of
their report. Such are the facts obtaining here.
We must point out that Lee’s brief news item contained falsehoods on two
levels. On its face, her statement that residents of BF Homes had "asked the
Bureau of Immigration to deport a Swiss who allegedly shoots neighbors’
pets" is patently untrue since the letter of the spurious Atty. Angara was a
mere request for verification of Thoenen’s status as a foreign resident. Lee’s
article, moreover, is also untrue, in that the events she reported never
happened. The respondent had never shot any of his neighbors’ pets, no
complaints had been lodged against him by his neighbors, and no
deportation proceedings had been initiated against him. Worse, the author of
Lee’s main source of information, Atty. Efren Angara, apparently either does
not exist, or is not a lawyer. Petitioner Lee would have been enlightened on
substantially all these matters had she but tried to contact either Angara or
Thoenen.
Although it has been stressed that a newspaper "should not be held to
account to a point of suppression for honest mistakes, or imperfection in the
choice of words,"32 even the most liberal view of free speech has never
countenanced the publication of falsehoods, especially the persistent and
unmitigated dissemination of patent lies.33 "There is no constitutional value
in false statements of fact. Neither the intentional lie nor the careless error
materially advances society’s interest in ‘uninhibited, robust, and wide-open’
debate."34 The use of the known lie as a tool is at once at odds with the
premises of democratic government and with the orderly manner in which
economic, social, or political change is to be effected. Calculated falsehood
falls into that class of utterances which "are no essential part of any
exposition of ideas, and are of such slight social value as a step to truth that
any benefit that may be derived from them is clearly outweighed by the social
interest in order and morality… The knowingly false statement and the false
statement made with reckless disregard of the truth, do not enjoy
constitutional protection" (citations omitted).35
The legitimate state interest underlying the law of libel is the compensation of
the individuals for the harm inflicted upon them by defamatory falsehood.
After all, the individual’s right to protection of his own good name "reflects no
more than our basic concept of the essential dignity and worth of every
human being – a concept at the root of any decent system of ordered
liberty."36
The appellate court awarded Thoenen moral damages of ₱200.00 fine pursuant to Section 44 of Act200,000.00,
exemplary damages of ₱200.00 fine pursuant to Section 44 of Act50,000.00 and legal fees of ₱200.00 fine pursuant to Section 44 of Act30,000.00, to be borne
jointly and severally by the herein petitioners. In Guevarra v. Almario,37 we
noted that the damages in a libel case must depend upon the facts of the
particular case and the sound discretion of the court, although appellate
courts were "more likely to reduce damages for libel than to increase
them."38 So it is in this case.
WHEREFORE, the Decision of the Court of Appeals of 17 January 2000
reversing the Decision of the Regional Trial Court, Branch 62, Makati City, of
31 August 1994 is hereby AFFIRMED, subject to the modification that
petitioners are ordered to pay, jointly and severally, moral damages in the
sum of ₱200.00 fine pursuant to Section 44 of Act100,000.00, exemplary damages of ₱200.00 fine pursuant to Section 44 of Act30,000.00, and legal fees of
₱200.00 fine pursuant to Section 44 of Act20,000.00. No costs.
SO ORDERED.
Texas vs. Johnson [491 U.S. 397 (1989)]
Facts of the case
In 1984, in front of the Dallas City Hall, Gregory Lee Johnson burned an
American flag as a means of protest against Reagan administration policies.
Johnson was tried and convicted under a Texas law outlawing flag
desecration. He was sentenced to one year in jail and assessed a $2,000
fine. After the Texas Court of Criminal Appeals reversed the conviction, the
case went to the Supreme Court.
Question
Is the desecration of an American flag, by burning or otherwise, a form of
speech that is protected under the First Amendment?
In a 5-to-4 decision, the Court held that Johnson's burning of a flag was
protected expression under the First Amendment. The Court found that
Johnson's actions fell into the category of expressive conduct and had a
distinctively political nature. The fact that an audience takes offense to
certain ideas or expression, the Court found, does not justify prohibitions of
speech. The Court also held that state officials did not have the authority to
designate symbols to be used to communicate only limited sets of messages,
noting that "[i]f there is a bedrock principle underlying the First Amendment, it
is that the Government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or disagreeable."
Borjal vs. CA. [301 SCRA 1 (1999)]
PERPETUALLY HAGRIDDEN as the public is about losing one of the most
basic yet oft hotly contested freedoms of man, the issue of the right of free
expression be stirs and presents itself time and again, in cyclic occurrence,
to inveigle, nay, challenge the courts to re-survey its ever shifting terrain,
explore and furrow its heretofore uncharted moors and valleys and finally
redefine the metes and bounds of its controversial domain. This, prominently,
is one such case.
Perhaps, never in jurisprudential history has any freedom of man undergone
radical doctrinal metamorphoses than his right to freely and openly express
his views. Blackstone's pontifical comment that "where blasphemous,
immoral, treasonable, schismatical, seditious, or scandalous libels are
punished by English law ... the liberty of the press, properly understood, is by
no means infringed or violated," found kindred expression in the landmark
opinion of England's Star Chamber in the Libelis Famosis case in 1603. 1
That case established two major propositions in the prosecution of
defamatory remarks: first, that libel against a public person is a greater
offense than one directed against an ordinary man, and second, that it is
immaterial that the libel be true.
Until republicanism caught fire in early America, the view from the top on libel
was no less dismal. Even the venerable Justice Holmes appeared to waffle
as he swayed from the concept of criminal libel liability under the clear and
present danger rule, to the other end of the spectrum in defense of the
constitutionally protected status of unpopular opinion in free society.
Viewed in modern times and the current revolution in information and
communication technology, libel principles formulated at one time or another
have waxed and waned through the years in the constant ebb and flow of
judicial review. At the very least, these principles have lost much of their
flavor, drowned and swamped as they have been by the ceaseless
cacophony and din of thought and discourse emanating from just about every
source and direction, aided no less by an increasingly powerful and
irrepressible mass media. Public discourse, laments Knight, has been
devalued by its utter commonality; and we agree, for its logical effect is to
benumb thought and sensibility on what may be considered as criminal
illegitimate encroachments on the right of persons to enjoy a good, honorable
and reputable name. This may explain the imperceptible demise of criminal
prosecutions for libel and the trend to rely instead on indemnity suits to repair
any damage on one's reputation.
In this petition for review, we are asked to reverse the Court of Appeals in
"Francisco Wenceslao v. Arturo Borjal and Maximo Soliven," CA-G.R. No.
40496, holding on 25 March 1996 that petitioners Arturo Borjal and Maximo
Soliven are solidarily liable for damages for writing and publishing certain
articles claimed to be derogatory and offensive to private respondent
Francisco Wenceslao.
Petitioners Arturo Borjal and Maximo Soliven are among the incorporators of
Philippines Today, Inc. (PTI), now PhilSTAR Daily, Inc., owner of The
Philippine Star, a daily newspaper. At the time the complaint was filed,
petitioner Borjal was its President while Soliven was (and still is) Publisher
and Chairman of its Editorial Board. Among the regular writers of The
Philippine Star is Borjal who runs the column Jaywalker.
Private respondent Francisco Wenceslao, on the other hand, is a civil
engineer, businessman, business consultant and journalist by profession. In
1988 he served as a technical adviser of Congressman Fabian Sison, then
Chairman of the House of Representatives Sub-Committee on Industrial
Policy.
During the congressional hearings on the transport crisis sometime in
September 1988 undertaken by the House Sub-Committee on Industrial
Policy, those who attended agreed to organize the First National Conference
on Land Transportation (FNCLT) to be participated in by the private sector in
the transport industry and government agencies concerned in order to find
ways and means to solve the transportation crisis. More importantly, the
objective of the FNCLT was to draft an omnibus bill that would embody a
long-term land transportation policy for presentation to Congress. The
conference which, according to private respondent, was estimated to cost
around P1,815,000.00 would be funded through solicitations from various
sponsors such as government agencies, private organizations, transport
firms, and individual delegates or participants.2
On 28 February 1989, at the organizational meeting of the FNCLT, private
respondent Francisco Wenceslao was elected Executive Director. As such,
he wrote numerous solicitation letters to the business community for the
support of the conference.
Between May and July 1989 a series of articles written by petitioner Borjal
was published on different dates in his column Jaywalker. The articles dealt
with the alleged anomalous activities of an "organizer of a conference"
without naming or identifying private respondent. Neither did it refer to the
FNCLT as the conference therein mentioned. Quoted hereunder are excerpts
from the articles of petitioner together with the dates they were published. 3
31 May 1989

Another self-proclaimed "hero" of the EDSA Revolution goes around
organizing "seminars and conferences" for a huge fee. This is a simple ploy
coated in jazzy letterheads and slick prose. The "hero" has the gall to solicit
fees from anybody with bucks to spare. Recently, in his usual straightforward
style, Transportation Secretary Rainerio "Ray" Reyes, asked that his name,
be stricken off from the letterheads the "hero" has been using to implement
one of his pet "seminars." Reyes said: "I would like to reiterate my request
that you delete my name." Note that Ray Reyes is an honest man who would
confront anybody eyeball to eyeball without blinking.
9 June 1989
Another questionable portion of the so-called conference is its unauthorized
use of the names of President Aquino and Secretary Ray Reyes. The
conference program being circulated claims that President Aquino and
Reyes will be main speakers in the conference. Yet, the word is that Cory
and Reyes have not accepted the invitation to appear in this confab. Ray
Reyes even says that the conference should be unmasked as a
moneymaking gimmick.
19 June 1989
. . . some 3,000 fund solicitation letters were sent by the organizer to every
Tom, Dick and Harry and to almost all government agencies. And the
letterheads carried the names of Reyes and Periquet. Agrarian Reform
Secretary on leave Philip Juico received one, but he decided to find out front
Reyes himself what the project was all about. Ray Reyes, in effect, advised
Juico to put the fund solicitation letter in the waste basket. Now, if the 3,000
persons and agencies approached by the organizer shelled out 1,000 each,
that's easily P3 million to a project that seems so unsophisticated. But note
that one garment company gave P100,000, after which the Garments
Regulatory Board headed by Trade and Industry Undersecretary Gloria
Macapagal-Arroyo was approached by the organizer to expedite the garment
license application of the P100,000 donor.
21 June 1989
A "conference organizer" associated with shady deals seems to have a lot of
trash tucked inside his closet. The Jaywalker continues to receive information
about the man's dubious deals. His notoriety, in according to reliable
sources, has reached the Premier Guest House where his name is spoken
like dung.
xxx xxx xxx
The first information says that the "organizer" tried to mulct half a million
pesos from a garment producer and exporter who was being investigated for
violation of the rules of the Garments, Textile, Embroidery and Apparel
Board. The "organizer" told the garment exporter that the case could be fixed
for a sum of P500,000.00. The organizer got the shock of his life when the
exporter told him: "If I have that amount. I will hire the best lawyers, not you."
The organizer left in a huff, his thick face very pale.
xxx xxx xxx
Friends in government and the private sector have promised the Jaywalker
more "dope" on the "organizer." It seems that he was not only indiscreet; he
even failed to cover his tracks. You will be hearing more of the "organizer's"
exploits from this corner soon.
22 June 1989
The scheming "organizer" we have been writing about seems to have been
spreading his wings too far. A congressional source has informed the
Jaywalker that the schemer once worked for a congressman from the North
as some sort of a consultant on economic affairs. The first thing the
"organizer" did was to initiate hearings and round-the-table discussions with
people from the business, export and — his favorite — the garments sector.
xxx xxx xxx
The "organizer's" principal gamely went along, thinking that his "consultant"
had nothing but the good of these sectors in mind. It was only later that he
realized that the "consultant" was acting with a burst of energy "in aid of
extortion." The "consultant" was fired.
xxx xxx xxx
There seems to be no end to what a man could do to pursue his dubious
ways. He has tried to operate under a guise of a well-meaning, reformist. He
has intellectual pretensions — and sometimes he succeeds in getting his
thoughts in the inside pages of some newspapers, with the aid of some naive
newspaper people. He has been turning out a lot of funny-looking advice on
investments, export growth, and the like.
xxx xxx xxx
A cabinet secretary has one big wish. He is hoping for a broad power to ban
crooks and influence-peddlers from entering the premises of his department.
But the Cabinet man might not get his wish. There is one "organizer" who,
even if physically banned, call still concoct ways of doing his thing. Without a
tinge of remorse, the "organizer" could fill up his letterheads with, names of
Cabinet members, congressmen, and reputable people from the private
sector to shore up his shady reputation and cover up his notoriety.
3 July 1989
A supposed conference on transportation was a big failure. The attendance
was very poor and the few who participated in, the affair were mostly leaders
of jeepney drivers' groups. None of the government officials involved in
regulating public transportation was there. The big names in the industry also
did not participate. With such a poor attendance, one wonders why the
conference organizers went ahead with the affair and tried so hard to
convince 3,000 companies and individuals to contribute to the affair.
xxx xxx xxx
The conference was doomed from the start. It was bound to fail. The
personalities who count in the field of transpiration refused to attend the affair
or withdrew their support after finding out the background of the organizer of
the conference. How could a conference on transportation succeed without
the participation of the big names in the industry and government policy-
makers?
Private respondent reacted to the articles. He sent a letter to The Philippine
Star insisting that he was the "organizer" alluded to in petitioner Borjal's
columns.4 In a subsequent letter to The Philippine Star, private respondent
refuted the matters contained in petitioner Borjal's columns and openly
challenged him in this manner —
To test if Borjal has the guts to back up his holier than thou attitude, I am
prepared to relinquish this position in case it is found that I have
misappropriated even one peso of FNCLT money. On the other hand, if I can
prove that Borjal has used his column as a "hammer" to get clients for his PR
Firm, AA Borjal Associates, he should resign from the STAR and never again
write a column. Is it a deal?5
Thereafter, private respondent filed a complaint with the National Press Club
(NPC) against petitioner Borjal for unethical conduct. He accused petitioner
Borjal of using his column as a form of leverage to obtain contracts for his
public relations firm, AA Borjal Associates.6 In turn, petitioner Borjal
published a rejoinder to the challenge of private respondent not only to
protect his name and honor but also to refute the claim that he was using his
column for character assassination. 7
Apparently not satisfied with his complaint with the NPC, private respondent
filed a criminal case for libel against petitioners Borjal and Soliven, among
others. However, in a Resolution dated 7 August 1990, the Assistant
Prosecutor handling the case dismissed the complaint for insufficiency of
evidence. The dismissal was sustained by the Department of Justice and
later by the Office of the President.
On 31 October 1990 private respondent instituted against petitioners a civil
action for damages based on libel subject of the instant case.8 In their
answer, petitioners interposed compulsory counterclaims for actual, moral
and exemplary damages, plus attorney's fees and costs. After due
consideration, the trial court decided in favor of private respondent
Wenceslao and ordered petitioners Borjal and Soliven to indemnify private
respondent P1,000,000.00 for actual and compensatory damages, in addition
to P200,000.00 for moral damages, P100,000.00 for exemplary damages,
P200,000.00 for attorney's fees, and to pay the costs of suit.
The Court of Appeals affirmed the decision of the court a quo but reduced
the amount of the monetary award to P110,000.00 actual damages,
P200,000.00 moral damages and P75,000.00 attorney's fees plus costs. In a
20-page Decision promulgated 25 March 1996, the appellate court ruled inter
alia that private respondent was sufficiently identifiable, although not named,
in the questioned articles; that private respondent was in fact defamed by
petitioner Borjal by describing him variously as a "self-proclaimed hero," "a
conference organizer associated with shady deals who has a lot of trash
tucked inside his closet," "thick face," and "a person with dubious ways;" that
petitioner's claim of privilege communication was unavailing since the
privileged character of the articles was lost by their publication in a
newspaper of general circulation; that petitioner could have performed his
officer as a newspaperman without necessarily transgressing the rights of
Wenceslao by calling the attention of the government offices concerned to
examine the authority by which Wenceslao acted, warning the public against
contributing to a conference that, according to his perception, lacked the
univocal indorsement of the responsible government officials, or simply
informing the public of the letters Wenceslao wrote and the favors he
requested or demanded; and, that when he imputed dishonesty, falsehood
and misrepresentation, shamelessness and intellectual pretentions to
Wenceslao, petitioner Borjal crossed the thin but clear line that separated fair
comment from actionable defamation.
Private respondent manifested his desire to appeal that portion of the
appellate court's decision which reduced the amount of damages awarded
him by filing with this Court a Petition for Extension of Time to File Petition
and a Motion for Suspension of Time to File Petition.9 However, in a
Resolution dated 27 May 1996, the Second Division denied both motions: the
first, for being premature, and the second, for being a wrong remedy.
On 20 November 1996 when the First Division consolidated and transferred
the present case to the Second Division, there was no longer any case
thereat with which to consolidate this case since G.R. No. 124396 had
already been disposed of by the Second Division almost six (6) months
earlier.
On their part, petitioners filed a motion for reconsideration but the Court of
Appeals denied the motion in its Resolution of 12 September 1996. Hence
the instant petition for review. The petitioners contend that the Court of
Appeals erred: (a) in ruling that private respondent Wenceslao was
sufficiently identified by petitioner Borjal in the questioned articles; (b) in
refusing to accord serious consideration to the findings of the Department of
Justice and the Office of the President that private respondent Wenceslao
was not sufficiently identified in the questioned articles, this notwithstanding
that the degree of proof required in a preliminary investigation is merely
prima facie evidence which is significantly less than the preponderance of
evidence required in civil cases; (c) in ruling that the subject articles do not
constitute qualifiedly privileged communication; (d) in refusing to apply the
"public official doctrine" laid down in New York Times v. Sullivan; (e) in ruling
that the questioned articles lost their privileged character because of their
publication in a newspaper of general circulation; (f) in ruling that private
respondent has a valid cause of action for libel against petitioners although
he failed to prove actual malice on their part, and that the prosecutors of the
City of Manila, the Department of Justice, and eventually, the Office of the
President, had already resolved that there was no sufficient evidence to
prove the existence of libel; and, (g) assuming arguendo that Borjal should
be held liable, in adjudging petitioner Soliven solidarily liable with him. Thus,
petitioners pray for the reversal of the appellate court's ruling, the dismissal
of the complaint against them for lack of merit, and the award of damages on
their counterclaim.
The petition is impressed with merit. In order to maintain a libel suit, it is
essential that the victim be identifiable although it is not necessary that he be
named. It is also not sufficient that the offended party recognized himself as
the person attacked or defamed, but it must be shown that at least a third
person could identify him as the object of the libelous publication.10
Regrettably, these requisites have not been complied with in the case at bar.
In ruling for private respondent, the Court of Appeals found that Borjal's
column writings sufficiently identified Wenceslao as the "conference
organizer." It cited the First National Conference on Land Transportation, the
letterheads used listing different telephone numbers, the donation of
P100,000.00 from Juliano Lim and the reference to the '"organizer of the
conference" — the very same appellation employed in all the column items
— as having sufficiently established the identity of private respondent
Wenceslao for those who knew about the FNCLT who were present at its
inception, and who had pledged their assistance to it.
We hold otherwise. These conclusions are at variance with the evidence at
hand. The questioned articles written by Borjal do not identify private
respondent Wenceslao as the organizer of the conference. The first of the
Jaywalker articles which appeared in the 31 May 1989 issue of The
Philippine Star yielded nothing to indicate that private respondent was the
person referred to therein. Surely, as observed by petitioners, there were
millions of "heroes" of the EDSA Revolution and anyone of them could be
"self-proclaimed" or an "organizer of seminars and conferences." As a matter
of fact, in his 9 June 1989 column petitioner Borjal wrote about the "so-called
First National Conference on Land Transportation whose principal organizers
are not specified" (emphasis supplied). 11 Neither did the FNCLT
letterheads12 disclose the identity of the conference organizer since these
contained only an enumeration of names where private respondent
Francisco Wenceslao was described as Executive Director and Spokesman
and not as a conference organizer. 13 The printout 14 and tentative program
15 of the conference were devoid of any indication of Wenceslao as
organizer. The printout which contained an article entitled "Who Organized
the NCLT?" did not even mention private respondent's name, while the
tentative program only denominated private respondent as "Vice Chairman
and Executive Director," and not as organizer.
No less than private respondent himself admitted that the FNCLT had
several organizers and that he was only a part of the organization, thus —
I would like to clarify for the record that I was only a part of the organization. I
was invited then because I was the head of the technical panel of the House
of Representatives Sub-Committee on Industrial Policy that took care of
congressional hearings.16
Significantly, private respondent himself entertained doubt that he was the
person spoken of in Borjal's columns. The former even called up columnist
Borjal to inquire if he (Wenceslao) was the one referred to in the subject
articles. 17 His letter to the editor published in the 4 June 1989 issue of The
Philippine Star even showed private respondent Wenceslao's uncertainty —
Although he used a subterfuge, I was almost certain that Art Borjal referred
to the First National Conference on Land Transportation (June 29-30) and
me in the second paragraph of his May 31 column . . . 18
Identification is grossly inadequate when even the alleged offended party is
himself unsure that he was the object of the verbal attack. It is well to note
that the revelation of the identity of the person alluded to came not from
petitioner Borjal but from private respondent himself; when he supplied the
information through his 4 June 1989 letter to the editor. Had private
respondent not revealed that he was the "organizer" of the FNCLT referred to
in the Borjal articles, the public would have remained in blissful ignorance of
his identity. It is therefore clear that on the element of identifiability alone the
case falls.
The above disquisitions notwithstanding, and on the assumption arguendo
that private respondent has been sufficiently identified as the subject of
Borjal's disputed comments, we now proceed to resolve the other issues and
pass upon the pertinent findings of the courts a quo.
The third, fourth, fifth and sixth assigned errors all revolve around the primary
question of whether the disputed articles constitute privileged
communications as to exempt the author from liability.
The trial court ruled that petitioner Borjal cannot hide behind the proposition
that his articles are privileged in character under the provisions of Art. 354 of
The Revised Penal Code which state —
Art. 354. Requirement for publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1) A private communication made by any person to another in the
performance of any legal, moral or social duty; and,
2) A fair and true report, made in good faith, without any comments or
remarks, of any judicial or other official proceedings which are not of
confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.
Respondent court explained that the writings in question did not fall under
any of the exceptions described in the above-quoted article since these were
neither "private communications" nor "fair and true report . . . without any
comments or remarks." But this is incorrect.
A privileged communication may be either absolutely privileged or qualifiedly
privileged. Absolutely privileged communications are those which are not
actionable even if the author has acted in bad faith. An example is found in
Sec. 11, Art.VI, of the 1987 Constitution which exempts a member of
Congress from liability for any speech or debate in the Congress or in any
Committee thereof. Upon the other hand, qualifiedly privileged
communications containing defamatory imputations are not actionable unless
found to have been made without good intention justifiable motive. To this
genre belong "private communications" and "fair and true report without any
comments or remarks."
Indisputably, petitioner Borjal's questioned writings are not within the
exceptions of Art. 354 of The Revised Penal Code for, as correctly observed
by the appellate court, they are neither private communications nor fair and
true report without any comments or remarks. However this does not
necessarily mean that they are not privileged. To be sure, the enumeration
under Art. 354 is not an exclusive list of qualifiedly privileged communications
since fair commentaries on matters of public interest are likewise privileged.
The rule on privileged communications had its genesis not in the nation's
penal code but in the Bill of Rights of the Constitution guaranteeing freedom
of speech and of the press. 19 As early as 1918, in United States v.
Cañete,20 this Court ruled that publications which are privileged for reasons
of public policy are protected by the constitutional guaranty of freedom of
speech. This constitutional right cannot be abolished by the mere failure of
the legislature to give it express recognition in the statute punishing libels.
The concept of privileged communications is implicit in the freedom of the
press. As held in Elizalde v. Gutierrez21 and reiterated in Santos v. Court of
Appeals22 —
To be more specific, no culpability could be imputed to petitioners for the
alleged offending publication without doing violence to the concept of
privileged communications implicit in the freedom of the press. As was so
well put by Justice Malcolm in Bustos: "Public policy, the welfare of society,
and the orderly administration of government have demanded protection of
public opinion. The inevitable and incontestable result has been the
development and adoption of the doctrine of privilege."
The doctrine formulated in these two (2) cases resonates the rule that
privileged communications must, sui generis, be protective of public opinion.
This closely adheres to the democratic theory of free speech as essential to
collective self-determination and eschews the strictly libertarian view that it is
protective solely of self-expression which, in the words of Yale Sterling
Professor Owen Fiss,23 makes its appeal to the individualistic ethos that so
dominates our popular and political culture. It is therefore clear that the
restrictive interpretation vested by the Court of Appeals on the penal
provision exempting from liability only private communications and fair and
true report without comments or remarks defeats, rather than promotes, the
objective of the rule on privileged communications, sadly contriving as it
does, to suppress the healthy effloresence of public debate and opinion as
shining linchpins of truly democratic societies.
To reiterate, fair commentaries on matters of public interest are privileged
and constitute a valid defense in an action for libel or slander. The doctrine of
fair comment means that while in general every discreditable imputation
publicly made is deemed false, because every man is presumed innocent
until his guilt is judicially proved, and every false imputation is deemed
malicious, nevertheless, when the discreditable imputation is directed against
a public person in his public capacity, it is not necessarily actionable. In order
that such discreditable imputation to a public official may be actionable, it
must either be a false allegation of fact or a comment based on a false
supposition. If the comment is an expression of opinion, based on
established facts, then it is immaterial that the opinion happens to be
mistaken, as long as it might reasonably be inferred from the facts.21
There is no denying that the questioned articles dealt with matters of public
interest. In his testimony, private respondent spelled out the objectives of the
conference thus —
. . . The principal conference objective is to come up with a draft of an
Omnibus Bill that will embody a long term land transportation policy for
presentation to Congress in its next regular session in July. Since last
January, the National Conference on Land Transportation (NCLT), the
conference secretariat, has been enlisting support from all sectors to ensure
the success of the project.25
Private respondent likewise testified that the FNCLT was raising funds
through solicitation from the public -
Q: Now, in this first letter, you have attached a budget and it says here that in
this seminar of the First National Conference on Land Transportation, you
will need around One million eight hundred fifteen thousand pesos, is that
right?
A: That was the budget estimate, sir.
Q: How do you intend as executive officer, to raise this fund of your seminar?
A: Well, from sponsors such as government agencies and private sectors or
organizations as well as individual transport firms and from individual
delegates/participants.26
The declared objective of the conference, the composition of its members
and participants, and the manner by which it was intended to be funded no
doubt lend to its activities as being genuinely imbued with public interest. An
organization such as the FNCLT aiming to reinvent and reshape the
transportation laws of the country and seeking to source its funds for the
project from the public at large cannot dissociate itself from the public
character of its mission. As such, it cannot but invite close scrutiny by the
media obliged to inform the public of the legitimacy of the purpose of the
activity and of the qualifications and integrity of the personalities behind it.
This in effect is the strong message in New York Times v. Sullivan27 which
the appellate court failed to consider or, for that matter, to heed. It insisted
that private respondent was not, properly speaking, a "public official" nor a
"public figure," which is why the defamatory imputations against him had
nothing to do with his task of organizing the FNCLT.
New York Times v. Sullivan was decided by the U. S. Supreme Court in the
1960s at the height of the bloody rioting in the American South over racial
segregation. The then City Commissioner L. B. Sullivan of Montgomery,
Alabama, sued New York Times for publishing a paid political advertisement
espousing racial equality and describing police atrocities committed against
students inside a college campus. As commissioner having charge over
police actions Sullivan felt that he was sufficiently identified in the ad as the
perpetrator of the outrage; consequently, he sued New York Times on the
basis of what he believed were libelous utterances against him.
The U. S. Supreme Court speaking through Mr. Justice William J. Brennan
Jr. ruled against Sullivan holding that honest criticisms on the conduct of
public officials and public figures are insulated from libel judgments. The
guarantees of freedom of speech and press prohibit a public official or public
figure from recovering damages for a defamatory falsehood relating to his
official conduct unless he proves that the statement was made with actual
malice, i.e., with knowledge that it was false or with reckless disregard of
whether it was false or not.
The raison d' être for the New York Times doctrine was that to require critics
of official conduct to guarantee the truth of all their factual assertions on pain
of libel judgments would lead to self-censorship, since would be critics would
be deterred from, voicing out their criticisms even if such were believed to be
true, or were in fact true, because of doubt whether it could be proved or
because of fear of the expense of having to prove it. 28
In the present case, we deem private respondent a public figure within the
purview of the New York Times ruling. At any rate, we have also defined
"public figure" in Ayers Production Pty., Ltd. v. Capulong29 as —
. . . . a person who, by his accomplishments, fame, mode of living, or by
adopting a profession or calling which gives the public a legitimate interest in
his doings, his affairs and his character, has become a "public personage."
He is, in other words, a celebrity. Obviously to be included in this category
are those who have achieved some degree of reputation by appearing before
the public, as in the case of an actor, a professional baseball player, a
pugilist, or any other entertainer. The list is, however, broader than this. It
includes public officers, famous inventors and explorers, war heroes and
even ordinary soldiers, infant prodigy, and no less a personage than the
Great Exalted Ruler of the lodge. It includes, in short, anyone who has
arrived at a position where the public attention is focused upon him as a
person.
The FNCLT was air undertaking infused with public interest. It was promoted
as a joint project of the government and the private sector, and organized by
top government officials and prominent businessmen. For this reason, it
attracted media mileage and drew public attention not only to the conference
itself but to the personalities behind as well. As its Executive Director and
spokesman, private respondent consequently assumed the status of a public
figure.
But even assuming ex-gratia argumenti that private respondent, despite the
position he occupied in the FNCLT, would not qualify as a public figure, it
does not necessarily follow that he could not validly be the subject of a public
comment even if he was not a public official or at least a public figure, for he
could be, as long as he was involved in a public issue. If a matter is a subject
of public or general interest, it cannot suddenly became less so merely
because a private individual is involved or because in some sense the
individual did not voluntarily choose to become involved. The public's primary
interest is in the event; the public focus is on the conduct of the participant
and the content, effect and significance of the conduct, not the participant's
prior anonymity or notoriety.30
There is no denying that the questioned articles dealt with matters of public
interest. A reading of the imputations of petitioner Borjal against respondent
Wenceslao shows that all these necessarily bore upon the latter's official
conduct and his moral and mental fitness as Executive Director of the
FNCLT. The nature and functions of his position which included solicitation of
funds, dissemination of information about the FNCLT in order to generate
interest in the conference, and the management and coordination of the
various activities of the conference demanded from him utmost honesty,
integrity and competence. These are matters about which the public has the
right to be informed, taking into account the very public character of the
conference itself.
Concededly, petitioner Borjal may have gone overboard in the language
employed describing the "organizer of the conference." One is tempted to
wonder if it was by some mischievous gambit that he would also dare test the
limits of the "wild blue yonder" of free speech in this jurisdiction. But no
matter how intemperate or deprecatory the utterances appear to be, the
privilege is not to be defeated nor rendered inutile for, as succinctly
expressed by Mr. Justice Brennan in New York Times v. Sullivan, "[D]ebate
on public issues should be uninhibited, robust and wide open, and that it may
well include vehement, caustic and sometimes unpleasantly sharp attacks on
the government and public officials. 31
The Court of Appeals concluded that since malice is always presumed in the
publication of defamatory matters in the absence of proof to the contrary, the
question of privilege is immaterial.
We reject this postulate. While, generally, malice can be presumed from
defamatory words, the privileged character of a communication destroys the
presumption of malice. 32 The onus of proving actual malice then lies on
plaintiff, private respondent Wenceslao herein. He must bring home to the
defendant, petitioner Borjal herein, the existence of malice as the true motive
of his conduct.33
Malice connotes ill will or spite and speaks not in response to duty but merely
to injure the reputation of the person defamed, and implies an intention to do
ulterior and unjustifiable harm.34 Malice is bad faith or bad motive.35 It is the
essence of the crime of libel. 36
In the milieu obtaining, can it be reasonably inferred that in writing and
publishing the articles in question petitioner Borjal acted with malice?
Primarily, private respondent failed to substantiate by preponderant evidence
that petitioner was animated by a desire to inflict unjustifiable harm on his
reputation, or that the articles were written and published without good
motives or justifiable ends. On the other hand, we find petitioner Borjal to
have acted in good faith. Moved by a sense of civic duty and prodded by his
responsibility as a newspaperman, he proceeded to expose and denounce
what he perceived to be a public deception. Surely, we cannot begrudge him
for that. Every citizen has the right to enjoy a good name and reputation, but
we do not consider that petitioner Borjal has violated that right in this case
nor abused his press freedom.
Furthermore, to be considered malicious, the libelous statements must be
shown to have been written or published with the knowledge that they are
false or in reckless disregard of whether they are false or not. 37 "Reckless
disregard of what is false or not" means that the defendant entertains serious
doubt as to the truth of the publication, 38 or that he possesses a high
degree of awareness of their probable falsity.39
The articles subject of the instant case can hardly be said to have been
written with knowledge that these are false or in reckless disregard of what is
false or not. This is not to say however that the very serious allegations of
petitioner Borjal assumed by private respondent to be directed against him
are true. But we nevertheless find these at least to have been based on
reasonable grounds formed after the columnist conducted several personal
interviews and after considering the varied documentary evidence provided
him by his sources. Thus, the following are supported by documentary
evidence: (a) that private respondent requested Gloria Macapagal-Arroyo,
then head of the Garments and Textile Export Board (GTEB), to expedite the
processing and release of the import approval and certificate of availability of
a garment firm in exchange for the monetary contribution of Juliano Lim,
which necessitated a reply from the office of Gloria Macapagal-Arroyo
explaining the procedure of the GTEB in processing applications and
clarifying that all applicants were treated
equally;40 (b) that Antonio Periquet was designated Chairman of the
Executive Committee of the FNCLT notwithstanding that he had previously
declined the offer;41 and, (c) that despite the fact that then President Aquino
and her Secretary of Transportation Rainerio Reyes declined the invitation to
be guest speakers in the conference, their names were still included in the,
printout of the FNCLT. 42 Added to these are the admissions of private
respondent that: (a) he assisted Juliano Lim in his application for a quota
allocation with the GTEB in exchange for monetary contributions to the
FNCLT; 43 (b) he included the name of then Secretary of Transportation
Rainerio Reyes in the promotional materials of the conference
notwithstanding the latter's refusal to lend his name to and participate in the
FNCLT;44 and, (c) he used different letterheads and telephone numbers. 45
Even assuming that the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and
debate. Consistent with good faith and reasonable care, the press should not
be held to account, to a point of suppression, for honest mistakes or
imperfections in the choice of language. There must be some room for
misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as
critical agencies in our democracy. 46 In Bulletin Publishing Corp. v. Noel47
we held -
A newspaper especially one national in reach and coverage, should be free
to report on events and developments in which the public has a legitimate
interest with minimum fear of being hauled to court by one group or another
on criminal or civil charges for libel, so long as the newspaper respects and
keeps within the standards of morality and civility prevailing within the
general community.
To avoid the self-censorship that would necessarily accompany strict liability
for erroneous statements, rules governing liability for injury to reputation are
required to allow an adequate margin of error by protecting some
inaccuracies. It is for the same reason that the New York Times doctrine
requires that liability for defamation of a public official or public figure may not
be imposed in the absence of proof of "actual malice" on the part of the
person making the libelous statement.
At any rate, it may be salutary for private respondent to ponder upon the
advice of Mr. Justice Malcolm expressed in U.S. v. Bustos, 48 that "the
interest of society and the maintenance of good government demand a full
discussion of public affairs. Complete liberty to comment on the conduct of
public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound may be assuaged by the
balm of a clear conscience. A public official must not be too thin-skinned with
reference to comments upon his official acts."
The foregoing disposition renders the second and seventh assigned errors
moot and academic, hence, we find no necessity to pass upon them.
We must however take this opportunity to likewise remind media practitioners
of the high ethical standards attached to and demanded by their noble
profession. The danger of an unbridled irrational exercise of the right of free
speech and press, that is, in utter contempt of the rights of others and in
willful disregard of the cumbrous responsibilities inherent in it, is the eventual
self-destruction of the right and the regression of human society into a
veritable Hobbesian state of nature where life is short, nasty and brutish.
Therefore, to recognize that there can be no absolute "unrestraint" in speech
is to truly comprehend the quintessence of freedom in the marketplace of
social thought and action, genuine freedom being that which is limned by the
freedom of others. If there is freedom of the press, ought there not also be
freedom from the press? It is in this sense that self-regulation as
distinguished from self-censorship becomes the ideal mean for, as Mr.
Justice Frankfurter has warned, "[W]ithout
. . . a lively sense of responsibility, a free press may readily become a
powerful instrument of injustice." 49
Lest we be misconstrued, this is not to diminish nor constrict that space in
which expression freely flourishes and operates. For we have always
strongly maintained, as we do now, that freedom of expression is man's
birthright -constitutionally protected and guaranteed, and that it has become
the singular role of the press to act as its "defensor fidei" in a democratic
society such as ours. But it is also worth keeping in mind that the press is the
servant, not the master, of the citizenry, and its freedom does not carry with it
an restricted hunting license to prey on the ordinary citizen. 50
On petitioners' counterclaim for damages, we find the evidence too meager
to sustain any award. Indeed, private respondent cannot be said to have
instituted the present suit in abuse of the legal processes and with hostility to
the press; or that he acted maliciously, wantonly, oppressively, fraudulently
and for the sole purpose of harassing petitioners, thereby entitling the latter
to damages. On the contrary, private respondent acted within his rights to
protect his honor from what he perceived to be malicious imputations against
him. Proof and motive that the institution of the action was prompted by a
sinister design to vex and humiliate a person must be clearly and
preponderantly established to entitle the victim to damages. The law could
not have meant to impose a penalty on the right to litigate, nor should
counsel's fees be awarded every time a party wins a suit.51
For, concluding with the wisdom in Warren v. Pulitzer Publishing
Co.52 —
Every man has a right to discuss matters of public interest. A clergyman with
his flock, an admiral with his fleet, a general with his army, a judge with his
jury; we are, all of us, the subject of public discussion. The view of our court
has been thus stated: "It is only in despotisms that one must speak sub rosa,
or in whispers, with bated breath, around the corner, or in the dark on a
subject touching the common welfare. It is the brightest jewel in the crown of
the law to speak and maintain the golden mean between defamation, on one
hand, and a healthy and robust right of free public discussion, on the other.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals of 25 March 1996 and its Resolution of 12 September 1996 denying
reconsideration are, REVERSED and SET ASIDE, and the complaint for
damages against petitioners is DISMISSED. Petitioners' counterclaim for
damages is likewise DISMISSED for lack of merit. No costs.1âwphi1.nêt
SO ORDERED.
Baguio Midland Courier vs. CA (G.R. No. 107566, November 25,2004)
This is a petition for review on certiorari seeking to set aside the Decision1 of
the Court of Appeals, dated 07 January 1992, and the Resolution,2 dated 29
September 1992, reversing the decision of the Regional Trial Court (RTC),
dated 14 June 1990, which dismissed herein private respondent's claim for
damages.
Culled from the records are the following facts:
During the time material to this case, petitioner Oseo C. Hamada (Hamada)
was the president and general manager of the Baguio Printing and
Publishing Co., Inc., which publishes the Baguio Midland Courier, a weekly
newspaper published and circulated in Baguio City and other provinces
within the Cordillera region. He was also, at that time, the business manager
of said newsweekly. Petitioner Cecille Afable (Afable) was Baguio Midland
Courier's editor-in-chief and one of its columnists who ran the column "In and
Out of Baguio."
On the other hand, private respondent Ramon L. Labo, Jr., was among the
mayoralty candidates in Baguio City for the 18 January 1988 local elections.3
Prior to this, in 1984, private respondent had already embarked on a political
career by running for a seat in the former Batasang Pambansa during which
time he appointed a certain Benedicto Carantes (Carantes) as his campaign
manager. It appears that as part of the campaign propaganda for private
respondent in the 1984 local elections, political ads appeared in the various
issues of Baguio Midland Courier and campaign paraphernalia were printed
by Baguio Printing and Publishing Co., Inc., on his behalf.
Apart from his political endeavors, private respondent was also an active
member of the civic group Lions Club having been elected governor of said
organization in 1984, 1986, and 1988.
Before the 18 January 1988 local elections, petitioner Afable wrote in her
column a series of articles dealing with the candidates for the various elective
positions in Baguio City. Quoted hereunder are excerpts from said articles,
as well as the respective dates when they were published in the Baguio
Midland Courier –
January 3, 1988
. . . Of all the candidates for mayor, Labo has the most imponderables about
him, people would ask, "Can he read and write?" Why is he always talking
about his Japanese father-in-law? Is he really a Japanese Senator or a barrio
kapitan? Is it true that he will send P18 million aid to Baguio? Somebody
wanted to put an advertisement of Labo in the Midland Courier but was
refused because he has not yet paid his account of the last time he was a
candidate for Congress. We will accept all advertisements for him if he pays
his old accounts first.4
January 10, 1988
I heard that the "Dumpty in the egg" is campaigning for Cortes. Not fair.
Some real doctors are also busy campaigning against Labo, because he has
not also paid their medical services with them. Since he is donating millions
he should settle his small debts like the reportedly insignificant amount of
P27,000 only. If he wins several teachers were signifying to resign and leave
Baguio forever, and Pangasinan will be the franca-liqua of Baguio.5
Claiming that the aforequoted portions of petitioner Afable's column were
tainted with malice, private respondent instituted separate criminal and civil
actions for libel against herein petitioners. In a resolution, dated 26
December 1988, the Department of Justice dismissed the criminal case due
to insufficiency of evidence6 while the civil suit was raffled off to RTC, Branch
6, Baguio City.
In the complaint for damages, private respondent alleged that in her 03
January 1988 and 10 January 1988 columns, petitioner Afable made it
appear that he (private respondent) could not comply with his financial
obligations; that Yuko Narukawa Labo (Narukawa Labo), his co-plaintiff in the
case before the trial court, was accused of misrepresenting her social status
to the general public thereby subjecting her to public ridicule; that the subject
articles were written solely for the purpose of destroying his reputation,
integrity, and personality as well as that of Ms. Narukawa Labo; and that said
articles were false, untrue, libelous, and published with evil intent. Private
respondent and Ms. Narukawa Labo, therefore, prayed for moral damages,
exemplary damages, litigation expenses, attorney's fees, and costs of
litigation.
Prior to filing their respective answers, petitioners filed separate motions to
dismiss7 upon the ground that there was failure to comply with Section 6 of
Presidential Decree (P.D.) No. 1508,8 otherwise known as the Katarungang
Pambarangay Law, which required the referral of certain disputes to the
barangay conciliation process before they are filed in court. Petitioner
Hamada also claimed that the complaint stated no cause of action.
On 05 April 1988, private respondent and Ms. Narukawa Labo filed a motion
with leave of court to amend and admit attached amended complaint.9
Impleaded in the amended complaint10 was the Baguio Printing and
Publishing Co., Inc., as the publisher of the Baguio Midland Courier.
In its Order, dated 12 April 1988,11 the trial court denied petitioners' motions
to dismiss. According to the trial court, as one of the parties to this case was
a corporation, P.D. No. 1508 was not applicable as said statute pertained
only to actions involving natural persons. In the same order, the trial court
granted private respondent and Ms. Narukawa Labo's motion to admit their
amended complaint and directed the petitioners to file their answers.
In their answer,12 petitioners Baguio Midland Courier and Hamada denied
that petitioner Afable's 03 and 10 January 1988 articles were libelous. They
also claimed that per their company's records, private respondent still owed
them a certain sum of money for the political ads and campaign
paraphernalia printed by Baguio Printing and Publishing Co., Inc., during
private respondent's 1984 campaign, and that the 03 January 1988 column
did not accuse Ms. Narukawa Labo of misrepresenting herself before the
public. Moreover, they asserted that petitioner Afable's write-ups were fair
comments on facts and reports that were of public interest as private
respondent was a mayoralty candidate at that time. Finally, petitioners
Baguio Midland Courier and Hamada interposed counterclaims for moral
damages, exemplary damages, attorney's fees, and costs.
In her answer,13 petitioner Afable also denied that the quoted portions of her
03 and 10 January 1988 column were libelous, insisting that they were
devoid of malice and "at most contained valid and timely doubts."14 She also
contended that the contents of her column were protected by the
constitutional guarantees of freedom of speech and of the press and that the
same were privileged as they dealt with a public figure. Petitioner Afable
likewise sought counterclaims for moral damages, exemplary damages, and
attorney's fees.
During the pre-trial of the case on 31 March 1989, the parties agreed to limit
the issues to the following: (1) whether the published items were libelous,
false and malicious; (2) whether plaintiffs below were entitled to damages;
and (3) whether petitioners (defendants therein) were entitled to damages as
claimed in their respective counterclaims.
On 17 July 1989, private respondent's counsel manifested before the trial
court that Ms. Narukawa Labo would no longer testify in support of the
allegations in the amended complaint as far as they pertain to her.15 In
addition, the 03 January 1988 article was no longer offered in evidence by
the private respondent's counsel thus, the trial court interpreted this
development to mean that the same ceased to be a part of this suit. The
court a quo thereafter proceeded with the trial of the case taking into
consideration only the 10 January 1988 column.
In the trial that ensued, private respondent testified that he felt that the
phrase "dumpty in the egg" referred to him, interpreting the same to mean
someone who is a failure in his business undertakings.16 Private respondent
asserted that such allegation was baseless as he was successful in his
various endeavors abroad. With regard to the remainder of the article, private
respondent insisted that petitioner Afable made it appear to the public that he
owed P27,000 in unpaid medical expenses while in truth, he could not
remember having been hospitalized.17
Subsequently, private respondent presented Dr. Pedro Rovillos, his fellow
Lions Club member, who testified that he understood the term "dumpty in the
egg" to mean "a zero or a big lie."18 He further testified that the 10 January
1988 article painted private respondent as a "balasubas"19 due to the latter's
alleged failure to pay his medical expenses.
On the other hand, the petitioners presented Ms. Sylvia Lambino (Lambino),
Baguio Printing and Publishing Co., Inc.'s, bookkeeper and accountant, as
their first witness. According to Lambino, Baguio Printing and Publishing Co.,
Inc., sent several statements of accounts and demand letters to private
respondent pertaining to his unpaid obligations amounting to P27,415 which
he incurred during his campaign for the Batasang Pambansa in 1984.20 She
further testified that despite the repeated demands to private respondent, the
aforementioned obligations remained unpaid.21
Thereafter, petitioner Hamada himself took the witness stand. In his
testimony, petitioner Hamada stated that as the president and general
manager of the Baguio Printing and Publishing Co., Inc., and as the business
manager of the Baguio Midland Courier, he only dealt with the business and
advertising aspects of their newspaper business and that the contents of the
articles appearing in the pages of the Baguio Midland Courier were overseen
by the rest of the staff.22 In addition, petitioner Hamada also corroborated
the earlier testimony of Lambino with respect to the outstanding obligations
of private respondent.
On 20 December 1989, Carantes took the witness stand for the petitioners.
Carantes testified that he was appointed as private respondent's campaign
manager when the latter ran for assemblyman in Batasang Pambansa in
1984 and that in his capacity as campaign manager,23 he hired the services
of a certain Noli Balatero to oversee the printing of campaign paraphernalia
and publication of political advertisements of private respondent.24 Carantes
further testified that the P27,415 indebtedness to Baguio Printing and
Publishing Co., Inc., had remained unpaid because the campaign funds
private respondent entrusted to him were already fully exhausted. Besides,
according to Carantes, the campaign materials printed by the Baguio Printing
and Publishing Co., Inc., and political advertisements published in Baguio
Midland Courier were no longer covered by the agreement he had with
Balatero. However, these materials were printed and published upon the
instructions of one Atty. Conrado Bueno who acted as private respondent's
"unofficial campaign manager" during the said election. Carantes thus
concluded that private respondent was supposed to pay for these campaign
materials and advertisements before or after the 1984 election.
For her part, petitioner Afable acknowledged having written the 10 January
1988 article but denied that the same was malicious and intended to destroy
private respondent's reputation and integrity; that the phrase "dumpty in the
egg" referred to Horato Aquino who was among the candidates for the 1988
local elections in Baguio City; and that the P27,000 pertained to private
respondent's unpaid obligation to Baguio Printing and Publishing Co., Inc.,
the exact amount of which was P27,415.
In its decision, dated 14 June 1990, the trial court dismissed the complaint for
lack of merit. According to the trial court, the article in question was privileged
and constituted fair comment on matters of public interest as it dealt with the
integrity, reputation, and honesty of private respondent who was a candidate
for local elective office at that time.
This decision of the trial court was, however, reversed by the appellate court
in a decision, dated 07 January 1992, the dispositive portion of which reads:
Construed in the light of the facts and the principles on the matter, and under
the plain language of the applicable law, We hold that the evidence was
sufficient to prove by preponderance of evidence that the defendants were
GUILTY of committing libel on the person of the complainant Ramon Labo,
Jr. and should be liable to pay damages. The decision of the trial court is
hereby REVERSED and SET ASIDE and the defendants are hereby ordered
to pay the plaintiffs as follows:
1) The amount of P200,000.00 as moral damages;
2) The amount of P100,000.00 as exemplary damages;
3) The amount of P50,000.00 for attorney's fees plus costs of litigation.25
In brushing aside the conclusion reached by the trial court, the Court of
Appeals noted that private respondent was, at the time the article in question
was published, not a public official but a private citizen seeking an elective
office and petitioner Afable's article was intended to impeach his honesty,
virtue or reputation and to make him appear in the eyes of the public as unfit
for public office.
The appellate court also declared that the malicious nature of the article may
be deduced from the fact that it was published in the Baguio Midland Courier
a few days before the scheduled local elections and from the style and tone
of writing employed by petitioner Afable. According to the Court of Appeals,
while the entire article was composed of ten paragraphs and referred to
several unnamed personalities, it was only in the disputed paragraph where
a specific individual was named – herein private respondent. The appellate
court therefore concluded that the phrase "dumpty in the egg" could only
refer to private respondent and the claimed P27,000 indebtedness is
imputable solely to him.
Petitioners thereafter filed their respective motions for reconsideration26 of
the aforementioned decision of the Court of Appeals but these were denied
through a resolution27 of the appellate court, dated 29 September 1992.
Thus, petitioners now come before us raising the following issues:
I
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
HOLDING THAT "THERE IS GOOD REASON AND REASONABLE
GROUND TO ASSUME THAT THE PUBLICATION OF THE LIBELOUS
ARTICLES WAS A MANIFESTATION OF THE SPOUSES' (DEFENDANTS
OSEO HAMADA and CECILLE AFABLE) THINKING ON THE MERIT OR
DEMERIT OF CANDIDATES FOR BAGUIO CITY MAYOR FOR THE
JANUARY 18, 1988 ELECTIONS" SINCE THEY ARE NOT SPOUSES NOR
RELATED TO ONE ANOTHER.
II
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
CONCLUDING THAT PLAINTIFF-APPELLANT RAMON LABO, JR. WAS
THE ONE REFERRED TO AS THE "DUMPTY IN THE EGG."
III
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
CONCLUDING THAT THE PORTION OF THE SUBJECT ARTICLE WHICH
STATES THAT "SINCE HE IS DONATING MILLIONS HE SHOULD SETTLE
HIS SMALL DEBTS LIKE THE REPORTEDLY INSIGNIFICANT AMOUNT
OF P27,000.00" REFERS TO AN INDEBTEDNESS OF LABO TO THE
REAL DOCTORS AND NOT TO THE BAGUIO MIDLAND COURIER.
IV
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
HOLDING THAT THERE WAS MALICE WHEN THE DEFENDANT-
APPELL(ANT) CECILLE AFABLE INVITED PUBLIC ATTENTION ON
LABO'S PRIVATE LIFE BEING A CANDIDATE FOR THE HIGHEST PUBLIC
OFFICE IN THE CITY OF BAGUIO OR THAT THE DEFENDANTS "WERE
ACTUALLY NOT MOTIVATED BY GOOD AND JUSTIFIABLE ENDS" IN
PUBLISHING SAID ARTICLES ABOUT THE PRIVATE RESPONDENT.
V regarding private respondent but also her take on the other issues involving
THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN
REVERSING THE DECISION OF THE TRIAL COURT DISMISSING THE
COMPLAINT FOR LACK OF MERIT.28
In a manifestation dated 10 November 1993, we were informed of the death
of petitioner Hamada. In our resolution of 08 December 1993, we resolved to
substitute the estate of Oseo C. Hamada, for the deceased petitioner
Hamada.29
The Court's Ruling
We shall first address the contention of petitioners with regard to alleged
errors of facts committed by the Court of Appeals. While we adhere to the
principle that findings of fact of the appellate court are binding and conclusive
upon us,30 such adherence has not prevented this Court from setting aside
the findings of fact of the Court of Appeals when circumstances so warrant.
In the recent case of The Insular Life Assurance Company, Ltd. v. Court of
Appeals and Sun Brothers & Company,31 this Court had the occasion to
enumerate the exceptions to the general rule as regards the conclusiveness
of the findings of fact of the appellate court, to wit: "(1) when the findings are
grounded entirely on speculation, surmises or conjectures; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) when there
is grave abuse of discretion; (4) when the judgment is based on a
misapprehension of facts; (5) when the findings of facts are conflicting; (6)
when in making its findings the Court of Appeals went beyond the issues of
the case, or its findings are contrary to the admissions of both the appellant
and the appellee; (7) when the findings are contrary to the trial court; (8)
when the findings are conclusions without citation of specific evidence on
which they are based; (9) when the facts set forth in the petition as well as in
the petitioner's main and reply briefs are not disputed by the respondent; (10)
when the findings of facts are premised on the supposed absence of
evidence and contradicted by the evidence on record; and (11) when the
Court of Appeals manifestly overlooked certain relevant facts not disputed by
the parties, which, if properly considered, would justify a different
conclusion."32
In the case at bar, except for numbers (1), (6), (9), and (10), all of the above
exceptions are present.
First. Contrary to the findings of the Court of Appeals that private respondent
was the only candidate named in petitioner Afable's column on 10 January
1988, said article actually dealt with the other named candidates for the 1988
local elections in Baguio City and Benguet. A perusal of said article would
likewise reveal that it contained not only the opinion of petitioner Afable
the other candidates. It would be grave error to impute malice on the subject
article based upon a finding that private respondent was unduly singled out
by petitioner Afable in her column. In this regard, we dismiss the following
conclusion of the appellate court:
. . . Malice may also be inferred from the style and tone of the publication.
The entire column on "In and Out of Baguio" on January 10 was composed
of ten paragraphs and each paragraph featured or referred to a single person
without knowing the person; however, in the second paragraph which
mentions the non-payment of P27,000.00, the complainant [private
respondent herein] was specifically mentioned in name; hence, no amount of
reasoning would erase the fact that the dumpty in the egg was referring to
Labo.33 (Emphasis supplied)
Second. From the abovequoted portion of the Court of Appeals' ruling, it is
daylight clear that the appellate court assumed that since the name of private
respondent and the phrase "dumpty in the egg" appeared in the same
paragraph, the epithet referred only to the former. We cannot, however,
subscribe to such simplistic deduction. A perusal of the paragraph in
question easily reveals that the person alluded to by petitioner Afable in her
use of "dumpty in the egg" was someone who was campaigning for a certain
Atty. Reynaldo Cortes - one of the mayoralty candidates in Baguio City at
that time. If, indeed, "dumpty in the egg" referred to private respondent, it
follows that he campaigned for his own opponent during the 1988 local
elections. Although such gracious attitude on the part of private respondent
towards his political opponent would have been commendable, nevertheless,
the same is totally contrary to human experience. On this score, we uphold
the following argument of petitioners:
Clearly, the private respondent was hallucinating when he claims himself as
the person referred to as the "Dumpty in the egg." Otherwise, he would be
the one making a mockery out of himself for campaigning against himself
and in favor of his political opponent. Had he done that, it is doubtful whether
he could have won as City Mayor of Baguio in the 1988 elections, which he
actually did.34
Third. In its assailed decision, the Court of Appeals likewise highlighted the
fact that petitioners Hamada and Afable were husband and wife and went on
to conclude, albeit erroneously, that "(t)here is good reason and reasonable
ground to assume that the publication of the libelous article was a
manifestation of the spouses' thinking on the merit or demerit of candidates
for Baguio City mayor for the 18 January 1988 elections."35 Again, we
disagree in this conclusion of the appellate court. The records of this case
clearly establish the fact that petitioners Hamada and Afable were siblings
and not spouses in that during his testimony on 19 December 1989,
petitioner Hamada referred to petitioner Afable as his sister.36 The Court of
Appeals' supposition, therefore, that the article subject of this petition
reflected the stance of the "husband and wife team" of the petitioners utterly
lacks factual support.
Having addressed the factual issues of this case, we shall now proceed to
discuss its substantive question of whether the 10 January 1988 article of
petitioner Afable was defamatory.
It is a basic precept that in cases involving claims for damages arising out of
alleged defamatory articles, it is essential that the alleged victim be
identifiable although it is not necessary that he be named.37 It is enough if by
intrinsic reference the allusion is apparent or if the publication contains
matters of descriptions or reference to facts and circumstances from which
others reading the article may know the plaintiff was intended, or if
extraneous circumstances point to him such that persons knowing him could
and did understand that he was the person referred to.38
In the case of Borjal v. Court of Appeals,39 this Court declared that "[i]t is
also not sufficient that the offended party recognized himself as the person
attacked or defamed, but it must be shown that at least a third person could
identify him as the object of the libelous publication."40 Plainly, private
respondent has the bounden duty to present before the court evidence that a
third person could easily identify him as the person libeled. In this case,
private respondent has utterly failed to dispose of this responsibility.
To be sure, private respondent's lone witness, Dr. Rovillos, was able to offer
his own understanding of what the phrase "dumpty in the egg" meant.41
However, during his cross-examination, he failed to sufficiently explain before
the court a quo how he arrived at the conclusion that the term referred to
private respondent, thus:
Q Now, you said you read this first sentence that says: "I heard that the
Dumpty in the egg is campaigning for Cortes." Then you gave us what you
thought was the meaning of "Dumpty in the egg." You did not tell us,
however, whether you thought that was Ramon Labo or somebody else.
Could you tell us, Doctor, when you heard that, you understood that to be
Ramon Labo?
A That is what I understand.
Q You understood that to be Ramon Labo because a dumpty in the egg
means a big zero. Why? You consider Labo a big zero that is why you
understood him to be referred to when Cecille C. Afable said "dumpty in the
egg?"
A That is what I understand.
Q You also said a "dumpty in the egg" is a big lie. You consider Ramon Labo
a big lie that you also thought he was referred to as "dumpty in the egg?"
A No, sir.
Q In fact, Ramon Labo, in your assessment, is the exact opposite of a
dumpty [in] the egg?
A That I cannot answer.
A So, from your honest perception, some – this this Labo (sic) is a big zero or
a big lie that is why you cannot say he is the exact opposite?
A Maybe.42
This Court finds Dr. Rovillos's proposition as to what "dumpty in the egg"
meant is insufficient to support any finding of liability on the part of the
petitioners as he was unable to offer an iota of justification for his conclusion
that it pertained to private respondent.
The Court of Appeals also maintained that petitioners could not invoke
"public interest" in their defense. It ruled that "[a]n abuse of the freedom of
speech and the press should not be tolerated and encouraged if the article
published transcends the limit of decent, fair and impartial news reporting
and instead becomes a bludgeon or a scalpel to brow beat or slice into
shreds a private citizen, of his rights to his good name."43
We do not agree.
Concededly, private respondent was not yet a public official at the time the
10 January 1988 article was published. Nevertheless, this fact does not
remove said article from the mantle of protection guaranteed by the freedom
of expression provision of the Constitution. Indeed, as early as 1909, in the
case of United States v. Sedano,44 this Court had recognized the public's
right to be informed on the mental, moral, and physical fitness of candidates
for public office.
Subsequently, in the leading case of New York Times Co. vs. Sullivan,45 the
US Supreme Court expounded on this principle, viz:
. . . It is of the utmost consequence that the people should discuss the
character and qualifications of candidates for their suffrages. The importance
to the state and to society of such discussions is so vast, and the advantages
derived are so great, that they more than counterbalance the inconvenience
of private persons whose conduct may be involved, and occasional injury to
the reputations of individuals must yield to the public welfare, although at
times such injury may be great. The public benefit from publicity is so great,
and the chance of injury to private character so small, that such discussion
must be privileged.
...
In such a case the occasion gives rise to a privilege, qualified to this extent:
any one claiming to be defamed by the communication must show actual
malice or go remediless. The privilege extends to a great variety of subjects,
and includes matters of public concern, public men, and candidates for
office.46
Plainly, the rule only applies to fair comment on matters of public interest, fair
comment being that which is true, or which if false, expresses the real
opinion of the author based upon reasonable degree of care and on
reasonable grounds.47 The principle, therefore, does not grant an absolute
license to authors or writers to destroy the persons of candidates for public
office by exposing the latter to public contempt or ridicule by providing the
general public with publications tainted with express or actual malice. In the
latter case, the remedy of the person allegedly libeled is to show proof that
an article was written with the author's knowledge that it was false or with
reckless disregard of whether it was false or not. While the law itself creates
the presumption that every defamatory imputation is malicious,48
nevertheless, the privileged character of a communication destroys said
presumption. The burden of proving actual malice shall then rest on the
plaintiff, private respondent herein.49
In the present case, private respondent was unable to prove that petitioner
Afable's column was tainted with actual malice. Verily, the records are replete
with evidence that, indeed, private respondent incurred an obligation which
had remained unpaid until the time the questioned article was published.
While counsel for private respondent persistently harped at the difference
between the P27,000 which appeared in petitioner Afable's column and the
P27,415 actual indebtedness of private respondent to Baguio Printing and
Publishing Co., Inc., the minuscule difference in the amount fails to establish
reckless disregard for truth on the part of petitioners. As held by this Court in
the Borjal case –
Even assuming that the contents of the articles are false, mere error,
inaccuracy or even falsity alone does not prove actual malice. Errors or
misstatements are inevitable in any scheme of truly free expression and
debate. Consistent with good faith and reasonable care, the press should not
be held to account, to a point of suppression, for honest mistakes or
imperfections in the choice of language. There must be some room for
misstatement of fact as well as for misjudgment. Only by giving them much
leeway and tolerance can they courageously and effectively function as
critical agencies in our democracy.50
Lastly, we hold that petitioner Afable's article constitutes a fair comment on a
matter of public interest as it dealt with the character of private respondent
who was running for the top elective post in Baguio City at the time.
Considering that private respondent assured his would-be constituents that
he would be donating millions of his own money, petitioner Afable's column
with respect to private respondent's indebtedness provided the public with
information as regards his financial status which, in all probability, was still
unbeknownst to them at that time. Indeed, the information might have
dissuaded some members of the electorate from voting in favor of private
respondent but such is the inevitable result of the application of the law. The
effect would have been adverse to the private respondent but public interest
in this case far outweighs the interest of private respondent.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals, dated 07 January 1992, and its Resolution, dated 29 September
1992, denying reconsideration are REVERSED and SET ASIDE, and the trial
court's Decision of 14 June 1990 is AFFIRMED. No costs.
SO ORDERED.
Cabansag vs. Fernandez (102 Phil. 152)
This is a contempt proceeding which arose in Civil Case No. 9564 of the
Court of First Instance of Pangasinan wherein Apolonio Cabansag and his
lawyers Roberto V. Merrera were found guilty and sentenced the first to pay
a fine of P20 and the last two P50 each with the warning that a repetition of
the of offense will next time be heavily dealt with.
Apolonio Cabansag filed on January 13, 1947 in the Court of First Instance of
Pangasinan a complaint seeking the ejectment of Geminiana Fernandez, et
al. from a parcel of land. Defendants filed their answer on January 31, 1947
and a motion to dismiss on February 2, 1947 and a motion of plaintiff's
counsel, set the case for hearing on July 30, 1947. The meeting was
postponed to August 8, 1947. On that day only one witness testified and the
case was postponed to August 25, 1947. Thereafter, three incidents
developed, namely: one regarding a claim for damages which was answered
by defendants, another concerning the issuance of a writ of preliminary
injunction which was set for on March 23, 1948, and the third relative to an
alleged contempt for violation of an agreement of the parties approved by the
court. Pleadings were filed by the parties on these incidents and the court set
the case for hearing on October 27, 1948. Hearing was postponed to
December 10, 1948. On this date, only part of the evidence was received
and the next hearing was scheduled for January 24,1949 when again only a
part of the evidence was received and the case was continued to October 4,
1949.
On October 4, 1949, the court, presided over by Judge Villamor upon petition
of both parties, ordered the stenographers who took down the notes during
the previous hearings to transcribe them within 15 days upon payment of
their fees, and the hearing was postponed until the transcript of said notes
had been submitted. Notwithstanding the failure of the stenographers to
transcribe their notes, the hearing was set for March 17, 1950. Two more
postponements followed for March 23, 1950 and March 27, 1950. On August
9, 1950, August 23, 1950, September 26, 1950 and November 29, 1950,
hearings were had but the case was only partly tried to be postponed again
to January 30, 1951 and February 19, 1951. Partial hearings were held on
February 20, 1951, March 12, 1951 and June 6,1951. These hearings were
followed by three more postponements and on August 15, 1951, the case
was partially heard. After this partial hearing, the trial was continued on
March 6, 1952 only to be postponed to May 27, 1952. No hearing took place
on said date and the case was set for continuation on December 9, 1952
when the court, Judge Pasicolan presiding, issued an order suggesting to the
parties to arrange with the stenographers who took down the notes to
transcribe their respective notes and that the case would be set for hearing
after the submission of the transcript. From December 9, 1952 to August 12,
1954, no further step was taken either by the court or any of the contending
parties in the case. .
On December 30, 1953, President Magsaysay assumed office, he issued
Executive Order No. I creating the Presidential Complaints and Action
Commission (PCAC), which was later superseded by Executive Order 19
promulgated on March 17, 1954. And on August 12, 1954 Apolonio
Cabansag, apparently irked and disappointed by the delay in the disposition
of his case, wrote the PCAC, a letter copy which he furnished the Secretary
of Justice and the Executive Judge of the Court of First Instance of
Pangasinan, which reads:
We, poor people of the Philippines are very grateful for the creation of your
Office. Unlike in the old days, poor people are not heard, but now the PCAC
is the sword of Damocles ready to smite bureaucratic aristocracy. Poor
people can now rely on PCAC to help them.
Undaunted, the undersigned begs to request the help of the PCAC in the
interest of public service, as President Magsaysay has in mind to create the
said PACC, to have his old case stated above be terminated once and for all.
The undersigned has long since been deprived of his land thru the careful
maneuvers of a tactical lawyer. The said case which had long been pending
could not be decided due to the fact that the transcript of the records has not,
as yet, been transcribed by the stenographers who took the stenographic
notes. The new Judges could not proceed to hear the case before the
transcription of the said notes. The stenographers who took the notes are
now assigned in another courts. It seems that the undersigned will be
deprived indefinitely of his right of possession over the land he owns. He has
no other recourse than to ask the help of the ever willing PCAC to help him
solve his predicament at an early date.
Now then, Mr. Chief, the undersigned relies on you to do your utmost best to
bring justice to its final destination. My confidence reposes in you. Thanks.
Most confidently yours,
(Sgd.) APOLONIO CABANSAG
Plaintiff
Upon the receipt of the letter, the Secretary of Justice indorsed it to the Clerk
of Court of First Instance of Pangasinan instructing him to require the
stenographers concerned to transcribe their notes in Civil Case No. 9564.
The clerk of court, upon receipt of this instruction on August 27, 1954,
referred the matter to Judge Jesus P. Morfe before whom the case was then
informing him that the two stenographers concerned, Miss Iluminada Abello
and Juan Gaspar, have already been assigned elsewhere. On the same
date, Judge Morfe wrote the Secretary of Justice informing him that under
provisions of Act No. 2383 and Section 12 of Rule 41 of the Rules of Court,
said stenographers are not obliged to transcribe their notes except in cases
of appeal and that since the parties are not poor litigants, they are not
entitled to transcription free of charge, aside from the fact that said
stenographers were no longer under his jurisdiction.
Meanwhile, on September 1, 1954, Atty. Manuel Fernandez, counsel for
defendants, filed a motion before Judge Morfe praying that Apolonio
Cabansag be declared in contempt of court for an alleged scurrilous remark
he made in his letter to the PCAC to the effect that he, Cabansag, has long
been deprived of his land "thru the careful maneuvers of a tactical lawyer", to
which counsel for Cabansag replied with a counter-charge praying that Atty.
Fernandez be in turn declared in contempt because of certain contemptuous
remarks made by him in his pleading. Acting on these charges and counter-
charges, on September 14, 1954, Judge Morfe dismissed both charges but
ordered Cabansag to show cause in writing within 10 days why he should not
be held liable for contempt for sending the above letter to the PCAC which
tended to degrade the court in the eyes of the President and the people.
Cabansag filed his answer stating that he did not have the idea to besmirch
the dignity or belittle the respect due the court nor was he actuated with
malice when he addressed the letter to the PCAC; that there is no single
contemptuous word in said letter nor was it intended to give the Chief
Executive a wrong impression or opinion of the court; and that if there was
any inefficiency in the disposal of his case, the same was committed by the
judges who previously intervened in the case.
In connection with this answer, the lawyers of Cabansag, Roberto V. Merrera
and Rufino V. Merrera' also submitted a written manifestation stating that the
sending of the letter to their client to the PCAC was through their knowledge
and consent because they believed that there was nothing wrong in doing so.
And it appearing that said attorneys had a hand in the writing and remittance
of the letter to the PCAC, Judge Morfe on, on September 29, 1954, issued
another order requiring also said attorneys to show cause why they should
not likewise be held for contempt for having committed acts which tend to
impede, obstruct or degrade the administration of justice.
Anent the charge for contempt preferred by Judge Morfe against Apolonio
Cabansag, several incidents took place touching on the right of the Special
Counsel of the Department of Justice to appear as counsel for Cabansag,
which were however settled when the court allowed said Special Counsel to
appear as amicus curiae in his official capacity. In addition to this Special
Counsel, other members of the local bar were likewise allowed to appear for
respondents in view of the importance of the issues involved. After due
hearing, where the counsel of respondents were allowed to argue and submit
memoranda, the decision finding respondents guilty of contempt and
sentencing them to pay a fine as stated in the early part of this decision.
Respondents in due time appealed to this Court.
The issues involved in this appeal appear well stated in the decision of the
trial Court. They are: (a) Did the writing in the letter in question to the PCAC
tend directly or indirectly to put the lower court into disrepute or belittle,
degrade or embarrass it in its administration of justice?; and (b) Did writing of
said letter tend to draw the intervention of the PCAC in the instant case
which will have the effect of undermining the court's judicial independence?
We agree that the trial court that courts have the power to preserve their
integrity and maintain their dignity without which their administration of justice
is bound to falter or fail (Villavicencio vs. Lukban, 39 Phil., 778; Borromeo vs.
Mariano, 41 Phil., 322). This is the preservative power to punish for contempt
(Rule 64, Rules of Court; Villavicencio vs. Lukban, supra). This power is
inherent in all courts and essential to their right of self-preservation (Slade
Perkins vs. Director of Prisons, 58 Phil., 271). In order that it may conduct its
business unhampered by publications which tends to impair the impartiality
of its decisions or otherwise obstruct the administration of justice, the court
will not hesitate to exercise it regardless of who is affected. For, "as important
as is the maintenance of unmuzzled press and the free exercise of the rights
of the citizen is the maintenance of the independence of the judiciary" (In re
Lozano and Quevedo, 54 Phil., 801).The reason for this is that respect of the
courts guarantees the stability of their institution. Without such said institution
would be resting on a very shaky foundation (Salcedo vs. Hernandez, 61
Phil., 724).
The question that now arises is: Has the lower court legitimately and
justifiably exercised this power in the instant case?
The lower court tells us that it has because in its opinion the act of
respondents to put it belittle or degrade or embarrass it in its administration
of justice, and so it punished them for contempt to protect its judicial
independence. But appellants believe otherwise, for they contend that in
sending the letter in question to the PCAC, they did nothing but to exercise
their right to petition the government for redress of their grievance as
guaranteed by our constitution (section 1, paragraph 8, Article III).
The very idea of a government, republican in form, implies a right on the part
of its citizens to meet peaceably for consultation in respect affairs and to
petition for a redress of grievances." The First Amendments of the Federal
expressly guarantees that right against abridgement by Congress. But
mention does not argue exclusion elsewhere. For the right is one that cannot
be denied without violating those fundamental principles of liberty and justice
which lie at the base of all civil and political institutions,- principles which the
Fourteenth Amendment embodies in the general terms of its due process
clause. (Emerson and Haber, Political and Civil Rights in the United States,
p. 419.).
We are therefore confronted with a clash of two fundamental rights which lie
at the bottom of our democratic institutions-the independence of the judiciary
the right to petition the government for redress of grievance. How to balance
and reconcile the exercise of these rights is the problem posed in the case
before us.
. . . A free press is not to be judiciary, nor an independent judiciary to a free
press. Neither has primacy over the other; both are indispensable to a free
society.
The freedom of the press in itself presupposes an independent judiciary
through which that freedom may, if necessary, be vindicated. And one of the
potent means of assuring judges their independence is a free press. (Justice
Frankfurter, concurring in Pennekamp vs. Florida, 328 U.S. 354-356)
Two theoretical formulas had been devised in the determination of conflicting
rights of similar import in an attempt to draw the proper constitutional
boundary between freedom of expression and independence of the judiciary.
These are the "clear and present danger" rule and the "dangerous tendency"
rule. The first as interpreted in a number of cases, means that the evil
consequence of the comment or utterance must be "extremely serious and
the degree of imminence extremely high" before the utterance can be
punished. The danger to be guarded against is the "substantive evil" sought
to be prevented. And this evil is primarily the "disorderly and unfair
administration of justice." This test establishes a definite rule in constitutional
law. It provides the criterion as to what words maybe published. Under this
rule, the advocacy of ideas cannot constitutionally be abridged unless there
is a clear and present danger that such advocacy will harm the administration
of justice.
This rule had its origin in Schenck vs. U. S. (249) U. S. 47), promulgated in
1919, and ever since it has afforded a practical guidance in a great variety of
cases in which the scope of the constitutional protection of freedom of
expression was put in issue.1 In one of said cases, the United States
Supreme Court has made the significant suggestion that this rule "is an
appropriate guide in determining the constitutionality of restriction upon
expression where the substantial evil sought to be prevented by the
restriction is destruction of life or property or invasion of the right of privacy"
Thornhill vs. Alabama, 310 U.S. 88).
Thus, speaking of the extent and scope of the application of this rule, the
Supreme Court of the United States said "Clear and present danger of
substantive evils as a result of indiscriminate publications regarding judicial
proceedings justifies an impairment of the constitutional right of freedom of
speech and press only if the evils are extremely serious and the degree of
imminence extremely high. . . . A public utterance or publication is not to be
denied the constitutional protection of freedom of speech and press merely
because it concerns a judicial proceeding still pending in the courts, upon the
theory that in such a case it must necessarily tend to obstruct the orderly and
fair administration of justice. The possibility of engendering disrespect for the
judiciary as a result of the published criticism of a judge is not such a
substantive evil as will justify impairment of the constitutional right of freedom
of speech and press." (Bridges vs. California, 314 U.S. 252, syllabi)
No less important is the ruling on the power of the court to punish for
contempt in relation to the freedom of speech and press. We quote;
"Freedom of speech and press should not be impaired through the exercise
of the punish for contempt of court unless there is no doubt that the
utterances in question are a serious and imminent threat to the
administration of justice. A judge may hold in contempt one who ventures to
publish anything that tends to make him unpopular or to belittle him. . . . The
vehemence of the language used in newspaper publications concerning a
judge's decision is not alone the measure of the power to punish for
contempt. The fires which it kindles must constitute an imminent not merely a
likely, threat to the administration of justice. (Craig vs. Harney, 331 U. S. 367,
syllabi)
And in weighing the danger of possible interference with the courts by
newspaper criticism against the right of free speech to determine whether
such criticism may constitutionally be punished as contempt, it was ruled that
"freedom of public comment should in borderline instances weigh heavily
against a possible tendency to influence pending cases." (Pennekamp vs.
Florida, 328 U. S. 331).
The question in every case, according to Justice Holmes, is whether the
words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive
evils that congress has a right to prevent. It is a question of proximity and
degree (Schenck vs. U. S., supra).
The "dangerous tendency" rule, on the other hand, has been adopted in
cases where extreme difficulty is confronted determining where the freedom
of expression ends and the right of courts to protect their independence
begins. There must be a remedy to borderline cases and the basic principle
of this rule lies in that the freedom of speech and of the press, as well as the
right to petition for redress of grievance, while guaranteed by the constitution,
are not absolute. They are subject to restrictions and limitations, one of them
being the protection of the courts against contempt (Gilbert vs. Minnesota,
254 U. S. 325.)
This rule may be epitomized as follows: If the words uttered create a
dangerous tendency which the state has a right to prevent, then such words
are punishable. It is not necessary that some definite or immediate acts of
force, violence, or unlawfulness be advocated. It is sufficient that such acts
be advocated in general terms. Nor is it necessary that the language used be
reasonably calculated to incite persons to acts of force, violence or
unlawfulness. It is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil the utterance be to bring
about the substantive evil which the legislative body seeks to prevent. (Gitlow
vs. New York, 268 U.S. 652.).
It is a fundamental principle, long established, that the freedom of speech
and of the press which is secured by the Constitution does not confer an
absolute right to speak or publish, without responsibility, whatever one may
choose, or an unrestricted and unbridled license that gives immunity for
every possible use of language, and prevents the punishment of those who
abuse this freedom. . . . Reasonably limited, it was said by story in the
passage cited this freedom is an inestimable privilege in a free government;
without such limitation, it might become the scourge of the Republic.
xxx xxx xxx
And, for yet more imperative reasons, a state may punish utterances
endangering the foundations of organized government and threatening its
overthrow by unlawful means. These imperil its own existence as a
constitutional state. . . .
xxx xxx xxx
. . . And the immediate danger is none the less real and substantial because
the effect of a given utterance cannot be accurately foreseen. The state
cannot reasonably be required to measure the danger from every such
utterance in the nice balance of a jeweler's scale. A single revolutionary
spark, may kindle a fire that, smoldering for a time, may burst into a
sweeping and destructive conflagration. It cannot be said that the state is
acting arbitrarily or unreasonably when, in the exercise of its judgment as to
the measures necessary to protect the public peace and safety it seeks to
extinguish the spark without waiting until it has enkindled the flame or blazed
into the conflagration. It cannot reasonably be required to defer the adoption
of measures for its own peace and safety until the revolutionary utterances
lead to actual disturbances of the public peace or imminent and immediate
danger of its own destruction; but it may, in the exercise of its judgment,
suppress the threatened danger in its incipiency. In People vs. Lloyd, supra,
p. 35 (136 N. E. 505), it was aptly said: Manifestly, the legislature has
authority to forbid the advocacy of a doctrine until there is a present and
imminent danger of the success of the plan advocated. If the state were
compelled to wait until the apprehended danger became certain, than its right
to protect itself would come into being simultaneously with the overthrow of
the government, when there would be neither prosecuting officers nor courts
for the enforcement of the law." Gitlow va. New York, supra.)
The question then to be determined is: Has the letter of Cabansag created a
sufficient danger to a fair administration of justice? Did its remittance to the
PCAC create a danger sufficiently imminent to come under the two rules
mentioned above?
Even if we make a careful analysis of the letter sent by appellant Cabansag
to the PCAC which has given rise to the present contempt proceedings, we
would at once see that it was far from his mind to put the court in ridicule and
much less to belittle or degrade it in the eyes of those to whom the letter was
addressed for, undoubtedly, he was compelled to act the way he did simply
because he saw no other way of obtaining the early termination of his case.
This is clearly inferable from its context wherein, in respectful and courteous
language, Cabansag gave vent to his feeling when he said that he "has long
since been deprived of his land thru the careful maneuvers of a tactical
lawyer"; that the case which had long been pending could not be decided
due to the fact that the transcript of the records has not as yet, been
transcribed by the stenographer who took the stenographic notes", and that
the new Judges could not proceed to hear the case before the transcription
of the said notes." Analyzing said utterances, one would see that if they ever
criticize, "the criticism refers, not to the court, but to opposing counsel whose
tactical maneuvers" has allegedly caused the undue delay of the case. The
grievance or complaint, if any, is addressed to the stenographers for their
apparent indifference in transcribing their notes.
The only disturbing effect of the letter which perhaps has been the motivating
factor of the lodging of the contempt charge by the trial judge is the fact that
the letter was sent to the Office of the President asking for help because of
the precarious predicament of Cabansag. While the course of action he had
taken may not be a wise one for it would have been proper had he
addressed his letter to the Secretary of Justice or to the Supreme Court,
such act alone would not be contemptuous. To be so the danger must cause
a serious imminent threat to the administration of justice. Nor can we infer
that such act has "a dangerous tendency" to belittle the court or undermine
the administration of justice for the writer merely exercised his constitutional
right to petition the government for redress of a legitimate grievance.
The fact is that even the trial court itself has at the beginning entertained
such impression when it found that the criticism was directed not against the
court but against the counsel of the opposite party, and that only on second
thought did it change its mind when it developed that the act of Cabansag
was prompted by the advice of his lawyers. Nor can it be contended that the
latter is groundless or one motivated by malice. The circumstances borne by
the record which preceded the sending of that letter show that there was an
apparent cause for grievance.
Thus, the record shows that on January 13, 1947, or more than 8 years ago,
appellant Cabansag filed with the lower court a complaint against Geminiana
Fernandez, et al. seeking to eject them from a portion of land covered by a
torrens title. On October 4, 1949, or two years thereafter, the court, Judge
Villamor presiding, issued an order requiring the stenographers who took
down the notes to transcribe them within 15 days upon payment of their
corresponding fees. On December 9, 1952, or almost 3 years thereafter, the
court, Judge Pasicolan presiding, issued a similar order requiring the
stenographers to transcribe their notes and decreeing that the case be set for
hearing after said notes had been transcribed. No further step was taken
from his last date either by the by the court or by the opposing parties.
Meanwhile, the stenographers were given assignment elsewhere, and when
this matter brought to the attention of the court by its own clerk of court, said
court in an indorsement sent to the Secretary of Justice expressed its
inability to take action in view of the fact that the stenographers were no
longer under its jurisdiction. And in said indorsement nothing was said about
its readiness to continue the trial even in the absence of the transcript of the
notes.
Under such a state of affairs, appellant Cabansag cannot certainly be blamed
for entertaining the belief that the only way by which he could obtain redress
of his grievance is to address his letter to the PCAC which after all is the
office created by the late President to receive and hear all complaints against
officials and employees of the government to facilitate which the assistance
and cooperation of all the executive departments were enjoined (Executive
Order No. 1, as amended by Executive Order No. 19). And one of the
departments that come under the control of the President is the Department
of Justice which under the law has administrative supervision over courts of
first instance.(Section 83, Revised Administrative Code) The PCAC is part of
the Office of the President. It can, therefore, be said that the letter of
Cabansag though sent to the PCAC is intended for the Department of Justice
where it properly belongs. Consequently, the sending of that letter may be
considered as one sent to the Department of Justice and as such cannot
constitute undue publication that would place him beyond the mantle of
protection of our constitution.
. . . under the presidential type of government which we adopted and
considering the departmental organization established and continued in force
by paragraph, section 12, Article VII, of our Constitution, all executive and
administrative organizations are adjuncts of the Executive Department, the
heads of the executive departments are assistants and agents of the Chief
Executive, and, except in cases where the Chief Executive is required by the
Constitution or the law to act in person or the exigencies of the situation
demand that he act personally, the multifarious executive and administrative
functions of the Chief Executive are performed by and through the executive
departments, and the acts of the secretaries of such departments, performed
and promulgated in the regular course of business, are unless disapproved
or reprobated by the Chief Executive presumptively the acts of the Chief
Executive. (Villena vs. The Secretary of the Interior, 67 Phil., 451, 463.)
We would only add one word in connection with the participation in the
incident of Cabansag's co-appellants, Attys. Roberto V. Merrera and Rufino
V. Merrera. While the conduct of Cabansag may be justified considering that,
being a layman, he is unaware of the technical rules of law and procedure
which may place him under the protective mantle of our constitution, such
does not obtain with regard to his co-appellants. Being learned in the law and
officers of the court, they should have acted with more care and
circumspection in advising their client to avoid undue embarrassment to the
court or unnecessary interference with the normal course of its proceedings.
Their duty as lawyers is always to observe utmost respect to the court and
defend it against unjust criticism and clamor. Had they observed a more
judicious behavior, they would have avoided the unpleasant incident that had
arisen. However, the record is bereft of any proof showing improper motive
on their part, much less bad faith in their actuation. But they should be
warned, as we now do, that a commission of a similar misstep in the future
would render them amenable to a more severe disciplinary action.
Wherefore, the decision appealed from is reversed, without pronouncement
as to costs.
People vs. Alarcon [69 Phil. 265 (1939)]
As an aftermath of the decision rendered by the Court of first Instance of
Pampanga in criminal case No. 5733, The People of the Philippines vs.
Salvador Alarcon, et al., convicting the accused therein — except one — of
the crime of robbery committed in band, a denunciatory letter, signed by Luis
M. Taruc, was addressed to His Excellency, the President of the Philippines.
A copy of said letter found its way to the herein respondent, Federico
Mañgahas who, as columnist of the Tribune, a newspaper of general
circulation in the Philippines, quoted the letter in an article published by him
in the issue of that paper of September 23, 1937. The objectionable portion is
inserted in the following petition of the provincial fiscal of Pampanga, filed
with the Court of First Instance of that province on September 29, 1937:
PETICION PARA QUE FEDERICO MAÑGAHAS SEA CASTIGADO POR
DESACATO
Comparece el fiscal provincial que suscribe y al Hon. Juzgado, como
motivos de accion, restuosamente alega:
1.º Que el 23 de julio de 1937, el que suscribe presento una querella en la
causa arriba titulada, por el delito de ROBO EN CUADRILLA, habiendose
celebrado la vista de esta causa durante los dias 28, 29 y 30 del mismo mes
y año;
2.º Que el 2 de agosto de 1937, el Hon. Juzgado dicto su decision
declarando culpables a los cincuenta y dos acusados, y condenando al
acusado Ricardo Serrano 1.º como jefe de la cuadrilla, a una pena
indeterminada no menor de cuatro meses de arresto mayor, ni mayor de
cuatro años de prision correccional, y a todos los demas acusados a una
pena indeterminada no menor de cuatro meses de arresto mayor, ni mayor
de cuatro añ os de prision correccional, y a todos los demas acusados a una
pena indeterminada no menor de dos meses y un dia de arresto mayor, ni
mayor de tres años, ocho meses y un dia de prision correccional y al pago
proporcional de las costas;
3.º Que el 9 de agosto de 1937, no estando conformes de esta decision, los
referidos acusados presentaron su escrito de apelacion para ante la Corte
de Apelaciones;
4.º Que el 23 de septiembre de 1937, el recurrido Federico Mangahas
escribio, redacto, imprimio y publico e hizo que se publicara en el periodico
diario The Tribune que se edite en la Ciudad de Manila y de general
circulacion en las Islas Filipinas, en su numero correspondiente a dicha
fecha, un articulo que hacia referencia a este Hon. Juzgado y a la actuacion
de este en esta causa, cuyo articulo en parte es del tenor siguiente:
'Fifty-two (52) tenants in Floridablanca, Pampanga, have been charged and
convicted on a trumped up charge of robbery in band because they took
each a few cavans of palay for which they issued the corresponding receipts,
from the bodega in the hacienda where they are working. These tenants
contend that they have the right to take the palay for their food as the
hacienda owner has the obligation to give them rations of palay for their
maintenance and their families to be paid later with their share of their crop.
But this is not all. When the convicted tenants appealed the case and were
released on bail pending their appeal, court and public officials exerted
pressure upon one of their bondsmen, as this bondsman informed the
tenants, to withdraw his bail for them, and the fifty-two tenants were arrested
again and put in jail.'lawphil.net
5.º Que la publicacion de este articulo acotado constituye un verdadero
desacato al Tribunal, porque tiene por objeto obstaculizar la recta
administracion de justicia, y tiende, ademas, a impresionar en el animo del
Tribunal y a ejercer influencia en la decision que se dictare en este causa;
6.º Que la publicacion de dicho articulo es igualmente un verdadero
desacato a este Hon. Juzgado, por ser completamente falsos y tendenciosos
los hechos expuestos en el mismo como hechos ejecutados por este Hon.
Juzgado;
7.º Que el recurrido Federico Mangahas con dicho articulo acotado,
voluntaria, maliciosa y deliberadamente trato y se propuso atacar la honra,
virtud y reputacion de este Hon. Juzgado exponiendolo el menosprecio y
ridiculo del publico por las imputaciones falsas, maliciosas y difamatorias
contenidas en dicho articulo.
Por tanto, pide se sirva ordenar el emplazamiento del recurrido Federico
Mangahas, c/o T.V.T. Publishing Corporation, Calle Florentino Torres,
Manila, para que comparezca ante este Hon. Juzgado y conteste a la
presente peticion, y, previos los tramites legales, dicho recurido sea
castigado por desacato. Pide igualmente se sirva dictar cualquier otra
resolucion que en derecho proceda.
San Fernando, Pampanga, septiembre 23, 1937.
On the same date, the lower court ordered the respondent to appear and
show cause. The respondent appeared and filed an answer, alleging:
1. That he did not draft and write the paragraph above quoted in the petition
of the Provincial Fiscal, but the same is merely a part of a letter addressed to
the President of the Philippines, certified copy of which is hereto attached,
and marked Exhibit "1."
2. That he caused the said letter to be copied without comments or remarks
as may be seen from the attached issue of the "The Tribune" on September
23, 1937, marked Exhibit "2."
3. That in having the said letter copied it was not the intention, much less the
purpose and design of the respondent to attack the honor, virtue and
reputation of this Honorable Court but merely cited it as an instance of the
popular tendency to resort to the President in everything.
4. That far from reflecting on the honor, virtue and reputation of this
Honorable Court, the publication of the letter to the President simply
constitutes an indirect criticism of the methods of the Popular Front in
building up its political prestige.
5. That the publication of the letter in question did not and does not
embarrass, impede, intimidate or influence this Honorable Court in the
exercise of its judicial functions, or prevent an impartial trial in this case,
inasmuch as the case has already been decided.
6. That the respondent alleges that this case is no longer pending before this
Hon. Court and therefore the Court has lost its jurisdiction over it.
7. The respondents contends that the portion of the article quoted by the
provincial fiscal in his petition for contempt does not constitute contempt of
court because it does not attack nor question the judgment of the Court but
only explain the side of the defendant.
8. "The general rule is that to constitute any publication a contempt it must
have reference to a matter then pending in court, and be of a character
tending to the injury of pending proceeding before if and of the subsequent
proceeding. It is accordingly held that libelous comments upon a sentence
already passed in a criminal proceeding is not a contempt." (Percival v.
State, 45 Neb., 741 50 Am. St. Rept., 568; 64 NW. 221; 68 L. R.A., 255.)
9. "But comment upon the lower court's decision was held not contemptous
because relating to a concluded matter, in Re Dalton, 46 Jan., 256; 26 Pac.,
673 and Dumhan v. State, 6 Iowa, 245; although the case was then pending
on appeal." (68 L.R.A., 262.) (Underlining ours.)
10. That the publication of the letter in question is in line with the
constitutional guarantee of freedom of the press.
On November 29, 2937, the lower court entered an order, the dispositive part
of which read thus:
Considerando, sin embargo, todas las circunstancias del case, el Juzgado
solamente impone al recurrido una multa nominal de P25, o en case de
insolvencia, cinco dias de prision sin perjuico de la accion por libelo que el
fiscal creyere conviniente incoar contra Luis M. Taruc.
Asi se ordena.
Respondent Mañgahas appealed from this order to the Court of Appeals —
which later certified the case to this Court as involving only a question of law
— assigning the following errors allegedly committed by the trial court;
I. The lower court erred in finding the respondent guilty of contempt of court.
II. The lower court erred in considering the letter quoted in the article in
question as falling under the Rules on the Investigation of Judges of First
Instance.
III. The lower court erred in taking jurisdiction of the motion for contempt.
Consideration of the first error is all that is necessary as the same will lead
incidentally to the disposition of the other two.
The elements of contempt by newspaper publications are well defined by the
cases adjudicated in this as in other jurisdictions. Newspaper publications
tending to impede, obstruct, embarrass, or influence the courts in
administering justice in a pending suit or proceeding constitutes criminal
contempt which is summarily punishable by the courts. The rule is otherwise
after the cause is ended. (In re Lozano and Quevedo, 54 Phil., 801; In re
Abistado, 57 Phil., 668.) It must, however, clearly appear that such
publications do impede, interfere with, and embarrass the administration of
justice before the author of the publications should be held for contempt.
(Nixon v. State 207 Ind., 426, 193 N.E., 591, 97 A.L.R., 894.) What is thus
sought to be shielded against the influence of newspaper comments is the
all-important duty of the court to administer justice in the decision of a
pending case. There is no pending case to speak of when and once the court
has come upon a decision and has lost control either to reconsider or amend
it. That, we believe, is the case at bar, for here we have a concession that
the letter complained of was published after the Court of First Instance of
Pampanga had decided the aforesaid criminal case for robbery in band, and
after that decision had been appealed to the Court of Appeals. The fact that a
motion to reconsider its order confiscating the bond of the accused therein
was subsequently filed may be admitted; but, the important consideration is
that it was then without power to reopen or modify the decision which it had
rendered upon the merits of the case, and could not have been influenced by
the questioned publication.
If it be contended, however, that the publication of the questioned letter
constitutes contempt of the Court of Appeals where the appeal in the criminal
case was then pending, as was the theory of the provincial fiscal below which
was accepted by the lower court, we take the view that in the interrelation of
the different courts forming our integrated judicial system, one court is not an
agent or representative of another and may not, for this reason, punish
contempts in vindication of the authority and decorum which are not its own.
The appeal transfer the proceedings to the appellate court, and this last word
becomes thereby charged with the authority to deal with contempts
committed after the perfection of the appeal.
The Solicitor-General, in his brief, suggests that "even if there had been
nothing more pending before the trial court, this still had jurisdiction to punish
the accused for contempt, for the reason that the publication scandalized the
court. (13 C.J., p. 37, 45; 6 R.C.L., 513.)" The rule suggested, which has its
origin at common law, is involved in some doubt under modern English law
and in the United States, "the weight of authority, however, is clearly to the
effect that comment upon concluded cases is unrestricted under our
constitutional guaranty of the liberty of the press." (Annotations, 68 L.R.A.,
255.) Other considerations argue against our adoption of the suggested
holding. As stated, the rule imported into this jurisdiction is that "newspaper
publications tending to impede, obstruct, embarrass, or influence the courts
in administering justice in a pending suit or proceeding constitute criminal
contempt which is summarily punishable by the courts; that the rule is
otherwise after the case is ended." (In re Lozano and Quevedo, supra; In re
Abistado, supra.) In at least two instances, this Court has exercised the
power to punish for contempt "on the preservative and on the vindicative
principle" (Villavicencio vs. Lukban, 39 Phil., 778), "on the corrective and not
on the retaliatory idea of punishment". In re Lozano and Quevedo, supra.)
Contempt of court is in the nature of a criminal offense (Lee Yick Hon vs.
Collector of Customs, 41 Phil., 548), and in considering the probable effects
of the article alleged to be contemptuous, every fair and reasonable
inference consistent with the theory of defendant's innocence will be indulged
(State v. New Mexican Printing Co., 25 N. M., 102, 177 p. 751), and where a
reasonable doubt in fact or in law exists as to the guilt of one of constructive
contempt for interfering with the due administration of justice the doubt must
be resolved in his favor, and he must be acquitted. (State v. Hazeltine, 82
Wash., 81, 143 p. 436.) The appealed order is hereby reversed, and the
respondent acquitted, without pronouncement as to costs. So ordered.
In Re: Ramon Tulfo (AM 90-4-1545-0, April 17, 1990)
The Hon. Jose T. Bartolome, presiding Judge of Branch 5, Regional Trial
Court, Dinalupihan, Bataan, is the respondent in these five administrative
cases for gross misconduct.
In his column "On Target", columnist Ramon Tulfo of the Philippine Daily
Inquirer, a newspaper of general circulation (November 15, 1989), referred to
"a regional trial court in Bataan . . . extorting money from persons who have
pending cases in his sala." 1 "The amount ranges," he wrote subsequently,
"from P50 up to how much a litigant can afford. . . ." and that in addition, "the
judge encashes checks for bail bonds and spends the amount for himself." 2
On January 18, 1990, as a consequence of Mr. Tulfo's information, the Court
issued a Resolution directing the Court Administrator to conduct an
investigation of the matter.
On January 25, 1990, then Court Administrator Meynardo Tiro filed a
Complaint in which he alleged:
2. The person alluded is herein respondent Judge of the Regional Trial
Court, Branch 5, Dinalupihan, Bataan, where he maybe served with
summons and other court processes;
3. Criminal Cases Nos. DH-044-88, DH Nos. 035-88 and DH-047-87 are
pending before respondent's court;
4. In the aforestated Criminal Cases, respondent issued an Order dated July
18, 1989 directing his Deputy Sheriff to receive for and in behalf of the court
any cash or check as payment for the confiscated bonds; if however the
payment is in the form of a check, the same must be in the sheriffs name for
encashment;
5. The above-mentioned allegations were affirmed by Deputy Sheriff Leaño;
6. A perusal of the letter dated November 15, 1989 to Ramon Tulfo also
denounced the actuations of respondent of accepting bribes from party
litigants; 3
At the same time, the Court Administrator addressed a request to the
National Bureau of Investigation for further investigation.
On January 30, 1990, the Court issued a Resolution directing Judge
Bartolome to answer the Complaint.
On March 12, 1990, Judge Bartolome filed an Answer, admitting having
issued two orders in connection with Criminal Case Nos. DH-039-87, DH-
047-87, and DH-044-88, both authorizing the branch sheriff Antonio Leaño,
to accept certain bail payments of P13,200.00 and P14,000.00 in his
(Leaño's) name, subject to "full responsibility and accountability" 4 thereof.
That recourse was necessary, according to him, because of the alleged
insolvent condition of the bondsman and in order to insure future payment, if
warranted. He also claimed that he later issued an order directing Leaño to
turn over the sum of P13,200.00 to the Clerk of Court. He denied, however,
having received by himself or through Leaño (in spite of his order) the other
sum of P14,000.00. As to the letter addressed to Tulfo (Tulfo's source
apparently), accusing him of extorting money from litigants, he denied the
veracity thereof and challenged the credibility of Tulfo himself.

Meanwhile, the National Bureau of Investigation, on May 9, 1990, forwarded
its report, stating:
03. Investigation disclosed that there is truth to the allegation about the
corrupt and nefarious practices of Subject RTC Judge. Thus, in an agrarian
case pending before his sala entitled Agustin v. Jarin docketed as Civil Case
No. DH-04987, plaintiff SALVADOR AGUSTIN of Hermosa, Bataan filed an
ejectment case against his leasehold tenant ALFONSO JARIN for not paying
his leasehold rental. Plaintiff SALVADOR AGUSTIN was able to secure a
favorable discussion (sic) from Subject Judge. However, AGUSTIN has to
pay the Judge the total amount of P10,000.00, aside from the goods that the
Judge would ask from plaintiff almost every hearing of the case, like sugpo
and alimango and sometimes P1,000 to P2,000.00
04. In the case of Francisco dela Cruz v. Pedro Valencia a civil case for
ejectment, Judge BARTOLOME, in his decision, ordered defendant PEDRO
VALENCIA to pay the sum of P75,000.00 to plaintiff FRANCISCO DELA
CRUZ as rental for the fishpond located at Abucay, Bataan. Reliable
information had it that out of the P75,000, Judge Bartolome pocketed
P50,000; P20,000 was given to the lawyer of FRANCISCO DELA CRUZ as
attorney's fee and only the remaining P5,000 was given to plaintiff
FRANCISCO DELA CRUZ.
05. In that case of People of the Philippines v. Lazaro Martin, et al., docketed
as Criminal Case No. DH-03987 for violation of Section 68 of PD No. 705
and the case of People of the Phils. v. Carina Alma Jose docketed as
Criminal Case No. DH-04787 for Estafa; the Subject Judge ordered his
deputy sheriff ANTONIO V. LEAÑO to encash the check of P13,200 of Inter
World Assurance Corp.; thereafter, appropriated the same. The said amount,
represents the payment for the confiscated bond in the said criminal cases.
In another criminal case (No. DH-04486 for Estafa) the same Judge also
directed the Deputy Sheriff ANTONIO LEAÑO to get the cash payment of
P14,000 representing the confiscated bond of the said case. Subject Judge,
evidently in connivance with the abovenamed Deputy Sheriff,
misappropriated the sum of P14,000. 5
On September 27, 1990, the respondent Judge filed another Answer denying
the allegations of the Bureau specifically: (1) as to Agustin v. Jaring, that had
"any monkey business" attended its resolution, "the losing party . . . would
have taken some positive steps against" him, 6 (Id., p. 17) and that on the
contrary, his decision was in fact affirmed by this Court; 7 (Jaring v. Court of
Appeals, G.R. No. 92965) and (2) as to Francisco v. Valencia, that he did
order the deposit of the sum of P75,000 as unpaid rentals for the leasing of a
fishpond, but denied misappropriating the same. He likewise presented a
statement of Atty. Dante Ilaya denying having been interviewed by the
National Bureau of Investigation.
Subsequently, the Court received two more complaints, one from publishers
of certain Bataan newspapers, accusing Judge Bartolome of deliberate
violation of Presidential Decree No. 1079 and demanding, through "his Clerk
of Court and his Deputy Sheriff, 8 advance commission," 9 and another,
preferred by Bataan Governor Leonardo Roman requesting the transfer of
the respondent Judge to "another assignment" 10 on the ground of
"numerous complaints on nefarious activities." 11 The respondent Judge
answered the publishers' complaint, admitting that he did not adopt the raffle
system required by Presidential Decree No. 1079 but rather, the "rotation
system" which "provides an equal and better chance and opportunity for
participating publishers and editors . . . " 12
On October 18, 1990, the Court issued a Resolution referring these cases to
Justice Oscar Herrera of the Court of Appeals for investigation, report, and
recommendation.
On August 26, 1991, Justice Herrera submitted his report, finding Judge
Bartolome guilty of gross misconduct.
After going over the records of these cases, we agree with the factual
findings of the Investigator, adopt the report of Justice Herrera, and on the
basis of our review, mete out the penalty of dismissal from the service
against Judge Jose T. Bartolome.
The Court is fully convinced that enough facts have been established to
warrant the penalty. First, the issuance of the orders in which Judge
Bartolome authorized his sheriff, Antonio Leaño, to accept payment of bail
bonds was itself improper, because Leaño was (is) not a bonded officer to
whom checks may be payable in an official capacity. Payment to Leaño,
unlike payment to the Clerk of Court, amounted therefore to payment to
Leaño in his personal capacity. The Judge's orders therefore allowed Leaño,
and if he wanted to, the Judge himself, to make use of money belonging to
the Government by means intended to pre-erase future liability and to
conceal future questions as to legality.
It is no defense that he, Judge Bartolome, did instruct Leaño to turn over to
the Clerk of Court the sum of P13,200.00 (subject of the first questioned
order), because as we said, the very order was unlawful to begin with and
second, if the money were payable, after all, to the Clerk of Court, there was
no reason to make the bondsman's check payable to Leaño, if the Judge did
not after all have any "monkey business" (his words) in mind. He could not
have mitigated his misconduct by vesting on Leaño "full responsibility" for
possible misdemeanors on Leaño's part because Leaño had no responsibility
to begin with if the bond payments were made payable in his name.
The records show that Judge Bartolome did receive the money
notwithstanding his denials; this is a fact that came from the lips of Leaño
himself. 13
Apparently, Judge Bartolome had been in the habit of encashing the
Government's checks, and as Leaño would once more confirm, he, Judge
Bartolome had issued similar orders (mga sampu po") 14 before.
What aggravates the misconduct is that the respondent Judge, in an effort to
exonerate himself and to cover up for his misconduct after the affair had
blown up, began a pattern of falsifying evidence, first by making his clerk,
Marissa Bondoc, 15 prepare (in vain) an antedated receipt evidencing
supposedly the fact that he turned over to the court the money covering the
en- cashed checks; 16 and second, by making Leaño sign a prepared
Sinumpaang Salaysay in which he, Leaño, allegedly attempted to remit to the
Clerk of Court who allegedly refused to accept it. 17
Obviously, Judge Bartolome was in a hurry, most important, to exculpate
himself and no less significant, to find a scapegoat — Leaño who he had, in
the first place, sought to carry the responsibility (he "has full responsibility
and accountability") when obviously, as judge, the responsibility was his and
his alone. True to his designs, he orchestrated a charge against Leaño
arising from the loss of money, intended for no other purpose than to
consummate a coverup.
The Court agrees with the Investigator that Leaño was a reliable witness —
and the events indeed speak for themselves — and quite to the contrary, the
Court can not say the same thing for the respondent Judge's own witnesses.
The Court does not find Judge Eliseo Peñaflor, who purportedly notarized the
Sinumpaang Salaysay in question, as well as court stenographer Marilyn
Olavides, who allegedly took down "Leaño's statement", to be worthy
witnesses. The Court can not believe that Judge Peñaflor merely neglected
to read the same before affixing his signature thereon when as Judge, he
should be the first person expected to be meticulous and scrupulous.
Evidently, he too was seeking to relieve himself from liability for notarizing a
falsified document. As the Investigator found his explanation to be none but a
"poor excuse," 18 so we find it to be a lame attempt to mislead the
investigating officer. Marilyn Olavides in fact contradicted him, when she
testified that she brought the paper to him for signature, but that he refused
initially, to sign it, meaning that he, Judge Peñaflor, was aware of what it was
all about. 19
Justice Herrera was also correct in denying credence to the testimony of
Jose Palera, Judge Bartolome's aide and driver, whom Justice Herrera
noted, was "a bodyguard . . . ready to die for [his] employer. 20
The fact of the matter is that Judge Bartolome's acts, as earlier stated, speak
for themselves: (1) his orders authorizing Leaño to accept money were by
themselves in contravention of law; Leaño, a Deputy Sheriff (branch sheriff)
had no authority to receive money in his name, for the court; (2) his orders
facilitated, as they were meant to facilitate, the turnover of legitimate court
money into private hands (without the Judge being responsible ostensibly;
(3) his behavior after the matter reached the attention of the Court-making
Leaño sign a prepared (false) statement absolving him and indirectly
inculpating Leaño; (4) engineering a "drive" to cleanse his name by way of a
spurious petition 21 although he, Judge Bartolome, had not yet been found
guilty. These events impress the Court fully that the facts speak for
themselves and no explanation is possible to extract any meaning from them
other than the meaning they in fact convey.
The Court turns to the publishers' charges.
Under Presidential Decree No. 1079, we quote:
Sec. 2. The executive judge of the court of first instance shall designate a
regular working day and a definite time each week during which the said
judicial notices or advertisements shall be distributed personally by him for
publication to qualified newspapers or periodicals as defined in the preceding
section, which distribution shall be done by raffle: Provided, That should the
circumstances require that, another day be set for the purpose, he shall
notify in writing the editors, and publishers concerned at least three (3) days
in advance of the designated date: Provided, further, That the distribution of
the said notices by raffle shall be dispensed with in case only one newspaper
or periodical is in operation in a particular province or city. 22
the raffle system is indispensable not only because it is the decree of the law
but in order to avoid favoritism — a rung away from the ladder of graft and
corruption — by judges.
The respondent Judge's "rotation system" is plainly, in violation of the
Decree.
The court can not accept the respondent's attempt to justify the "rotation
system" because of his alleged concern for equitable division of work, as it
were, among Bataan's various periodicals. First, save in those cases where
only one periodical is circulated in the province or city, the law provides for
no exemption. Second, there can be no more equitable method than the
raffle system. Third it is too easy to justify an unlawful act with "good
intentions."
The respondent Judge was wrong in entrusting publications to Roberto
Rubiano, the court interpreter, when under Presidential Decree No. 1879, it
was his duty to notify in writing the editors and publishers.
The National Bureau of Investigation's finding is that the respondent Judge
misappropriated money belonging to one of the parties. Justice Herrera
found no, conclusive evidence that the Judge indeed "pocketed" the sum of
P75,000.00 (representing judicial deposit of unpaid rentals in connection with
a pending case). However, it is indeed peculiar; (1) why the money should
have been delivered to the Judge himself rather than to the clerk of court 23
or arguably, the party himself to whom it was payable and (2) why it was
necessary for the Judge to accept the money so that he, the Judge could
deliver it to the party.
The Court finds it strange, that it was necessary for the ceremony where the
Judge accepted the money and the Judge delivered the money to the owner
— and why the Judge took extra pains to have the record reflect it. We can
speculate on motivations for a long time. The fact remains that judges, fairly
or unfairly, are not ordinary employees — they should not place themselves
in a position leading to speculations of misbehavior.
The judge's office is an exalted office, so we have repeatedly held 24 and the
judge himself should be beyond suspicion. 25
While the charge of demanding bribes has not been proven, the Court is just
as concerned about the poor reputation that Judge Jose Bartolome has
developed in Bataan. A Judge anywhere should be the last person to be
perceived as no better than a mulcting traffic cop or a corrupt bureaucrat out
to make money at every turn. The reputation of the respondent unfortunately
appears to have preceded him, and while situations are possible where a
judge is unfairly ruined by well — orchestrated attempts of disgruntled
litigants or power blocks or influential members of the community whose
interests are threatened by a judge's zeal and integrity, Judge Bartolome has
in this case shown not one shred of evidence that the mounting complaints
against him are the byproducts of similar maneuvers. At any rate, the thing
itself has spoken, and it has spoken eloquently.
The Court finds this occasion proper to remind our brethren everywhere that
judges are the epitome of moral rectitude in society — even if nobody else is.
Judges are not common men and women, whose errors men and women
forgive and time forgets. Judges sit as the embodiment of the people's sense
of justice, their last recourse where all other institutions have failed. As such,
they bring stability to society, especially where society is under stress. They
should prove that the system, after all, works even if the system has, after all,
its built-in weaknesses.
The Code of Judicial Conduct prescribes an awesome responsibility for
judges, among them, to "avoid impropriety and the appearance of impropriety
in all activities." 26 It is an "unfair" responsibility, to be sure, in a regime that
honor merits beyond appearances of demerits. Yet it underscores a judge's
exalted position, that above his individual merits, he too appears meritorious.
Judge Jose Bartolome has clearly betrayed his robes and if the perception of
the inhabitants of Bataan has not been kind to him, he probably deserves it;
the damage which his misconduct has rubbed off on the judiciary in particular
and the solemn institutions of our constitutional democracy in general, is not
deserved by his honest and hardworking fellow workers in government.
WHEREFORE, Judge Jose T. Bartolome, is hereby DISMISSED from the
service with prejudice to his reinstatement or appointment to any public office
including government — owned or controlled corporations and his retirement
benefits, if any, are ordered forfeited. Let a copy of this resolution be included
in his record and served on all courts throughout the land.
SO ORDERED.
Nestle Phils. vs. Sanchez [154 SCRA 542 (1987)]
During the period July 8-10. 1987, respondent in G.R. No. 75029, Union of
Filipro Employees, and petitioner in G.R. No. 78791, Kimberly Independent
Labor Union for Solidarity, Activism and Nationalism-Olalia intensified the
intermittent pickets they had been conducting since June 17, 1987 in front of
the Padre Faura gate of the Supreme Court building. They set up pickets'
quarters on the pavement in front of the Supreme Court building, at times
obstructing access to and egress from the Court's premises and offices of
justices, officials and employees. They constructed provisional shelters along
the sidewalks, set up a kitchen and littered the place with food containers
and trash in utter disregard of proper hygiene and sanitation. They waved
their red streamers and placards with slogans, and took turns haranguing the
court all day long with the use of loud speakers.
These acts were done even after their leaders had been received by Justices
Pedro L. Yap and Marcelo B. Fernan as Chairmen of the Divisions where
their cases are pending, and Atty. Jose C. Espinas, counsel of the Union of
Filipro Employees, had been called in order that the pickets might be
informed that the demonstration must cease immediately for the same
constitutes direct contempt of court and that the Court would not entertain
their petitions for as long as the pickets were maintained. Thus, on July 10,
1987, the Court en banc issued a resolution giving the said unions the
opportunity to withdraw graciously and requiring Messrs. Tony Avelino. Lito
Payabyab, Eugene San Pedro, Dante Escasura, Emil Sayao and Nelson
Centeno, union leaders of respondent Union of Filipro Employees in the
Nestle case and their counsel of record, Atty. Jose C. Espinas; and Messrs.
Ernesto Facundo, Fausto Gapuz, Jr. and Antonio Gonzales, union leaders of
petitioner Kimberly Independent Labor Union for Solidarity, Activism and
Nationalism-Olalia in the Kimberly case to appear before the Court on July
14, 1987 at 10:30 A.M. and then and there to SHOW CAUSE why they
should not be held in contempt of court. Atty. Jose C. Espinas was further
required to SHOW CAUSE why he should not be administratively dealt with.
On the appointed date and time, the above-named individuals appeared
before the Court, represented by Atty. Jose C. Espinas, in the absence of
Atty. Potenciano Flores, counsel of record of petitioner in G.R. No. 78791,
who was still recuperating from an operation.
Atty. Espinas, for himself and in behalf of the union leaders concerned,
apologized to the Court for the above-described acts, together with an
assurance that they will not be repeated. He likewise manifested to the Court
that he had experienced to the picketers why their actions were wrong and
that the cited persons were willing to suffer such penalty as may be
warranted under the circumstances. 1 He, however, prayed for the Court's
leniency considering that the picket was actually spearheaded by the leaders
of the "Pagkakaisa ng Mangagawa sa Timog Katagalogan" (PAMANTIK), an
unregistered loose alliance of about seventy-five (75) unions in the Southern
Tagalog area, and not by either the Union of Filipro Employees or the
Kimberly Independent Labor Union. 2
Atty. Espinas further stated that he had explained to the picketers that any
delay in the resolution of their cases is usually for causes beyond the control
of the Court and that the Supreme Court has always remained steadfast in its
role as the guardian of the Constitution.
To confirm for the record that the person cited for contempt fully understood
the reason for the citation and that they wig abide by their promise that said
incident will not be repeated, the Court required the respondents to submit a
written manifestation to this effect, which respondents complied with on July
17, 1987.
We accept the apologies offered by the respondents and at this time, forego
the imposition of the sanction warranted by the contemptuous acts described
earlier. The liberal stance taken by this Court in these cases as well as in the
earlier case of AHS/PHILIPPINES EMPLOYEES UNION vs. NATIONAL
LABOR RELATIONS COMMISSION, et al., G.R. No. 73721, March 30, 1987,
should not, however, be considered in any other light than an
acknowledgment of the euphoria apparently resulting from the rediscovery of
a long-repressed freedom. The Court will not hesitate in future similar
situations to apply the full force of the law and punish for contempt those who
attempt to pressure the Court into acting one way or the other in any case
pending before it. Grievances, if any, must be ventilated through the proper
channels, i.e., through appropriate petitions, motions or other pleadings in
keeping with the respect due to the Courts as impartial administrators of
justice entitled to "proceed to the disposition of its business in an orderly
manner, free from outside interference obstructive of its functions and
tending to embarrass the administration of justice." 3
The right of petition is conceded to be an inherent right of the citizen under all
free governments. However, such right, natural and inherent though it may
be, has never been invoked to shatter the standards of propriety entertained
for the conduct of courts. For "it is a traditional conviction of civilized society
everywhere that courts and juries, in the decision of issues of fact and law
should be immune from every extraneous influence; that facts should be
decided upon evidence produced in court; and that the determination of such
facts should be uninfluenced by bias, prejudice or sympathies."4
Moreover, "parties have a constitutional right to have their causes tried fairly
in court by an impartial tribunal, uninfluenced by publication or public clamor.
Every citizen has a profound personal interest in the enforcement of the
fundamental right to have justice administered by the courts, under the
protection and forms of law free from outside coercion or interference." 5 The
aforecited acts of the respondents are therefore not only an affront to the
dignity of this Court, but equality a violation of the above-stated right of the
adverse parties and the citizenry at large.
We realize that the individuals herein cited who are non-lawyers are not
knowledgeable in her intricacies of substantive and adjective laws. They are
not aware that even as the rights of free speech and of assembly are
protected by the Constitution, any attempt to pressure or influence courts of
justice through the exercise of either right amounts to an abuse thereof, is no
longer within the ambit of constitutional protection, nor did they realize that
any such efforts to influence the course of justice constitutes contempt of
court. 6 The duty and responsibility of advising them, therefore, rest primarily
and heavily upon the shoulders of their counsel of record. Atty. Jose C.
Espinas, when his attention was called by this Court, did his best to
demonstrate to the pickets the untenability of their acts and posture. Let this
incident therefore serve as a reminder to all members of the legal profession
that it is their duty as officers of the court to properly apprise their clients on
matters of decorum and proper attitude toward courts of justice, and to labor
leaders of the importance of a continuing educational program for their
members.
WHEREFORE, the contempt charges against herein respondents are
DISMISSED. Henceforth, no demonstrations or pickets intended to pressure
or influence courts of justice into acting one way or the other on pending
cases shall be allowed in the vicinity and/or within the premises of any and all
courts.
SO ORDERED.
In Re: Atty. Emil Jurado (AM 90-5-2373 July 12, 1990)
Liability for published statements demonstrably false or misleading, and
derogatory of the courts and individual judges, is what is involved in the
proceeding at bar — than which, upon its facts, there is perhaps no more
appropriate setting for an inquiry into the limits of press freedom as it relates
to public comment about the courts and their workings within a constitutional
order.
1. Basic Postulates
To resolve the issue raised by those facts, application of fairly elementary
and self-evident postulates is all that is needed, these being:
1) that the utterance or publication by a person of falsehood or half-truths, or
of slanted or distorted versions of facts — or accusations which he made no
bona fide effort previously to verify, and which he does not or disdains to
prove — cannot be justified as a legitimate exercise of the freedom of speech
and of the press guaranteed by the Constitution, and cannot be deemed an
activity shielded from sanction by that constitutional guaranty;
2) that such utterance or publication is also violative of "The Philippine
Journalist's Code of Ethics" which inter alia commands the journalist to
"scrupulously report and interpret the news, taking care not to suppress
essential facts nor to distort the truth by improper omission or emphasis," and
makes it his duty "to air the other side and to correct substantive errors
promptly;" 1
3) that such an utterance or publication, when it is offensive to the dignity and
reputation of a Court or of the judge presiding over it or degrades or tends to
place the courts in disrepute and disgrace or otherwise to debase the
administration of justice, constitutes contempt of court and is punishable as
such after due proceedings; and
4) that prescinding from the obvious proposition that any aggrieved party
may file a complaint to declare the utterer or writer in contempt, the initiation
of appropriate contempt proceedings against the latter by the court is not
only its prerogative but indeed its duty, imposed by the overmastering need
to preserve and protect its authority and the integrity, independence and
dignity of the nation's judicial system.
2. Antecedents
This proceeding treats of Emiliano P. Jurado, a journalist who writes in a
newspaper of general circulation, the "Manila Standard." He describes
himself as a columnist, who "incidentally happens to be a lawyer," remarking
that while he values his membership in the law profession, "such
membership is neither a critical nor indispensable adjunct in the exercise of
his occupation as a newspaperman." 2 His column in the "Manila Standard"
is entitled "Opinion."
Jurado had been writing about alleged improperties and irregularities in the
judiciary over several months (from about October, 1992 to March, 1993).
Other journalists had also been making reports or comments on the same
subject. At the same time, anonymous communications were being
extensively circulated, by hand and through the mail, about alleged venality
and corruption in the courts. And all these were being repeatedly and
insistently adverted to by certain sectors of society.
In light of these abnormal developments, the Chief Justice took an
extraordinary step. He issued Administrative Order No. 11-93 dated January
25, 1993, "Creating an Ad Hoc Committee to Investigate Reports of
Corruption in the Judiciary," 3 reading as follows:
WHEREAS, the Court's attention has been drawn to the many and persistent
rumors and unverified reports respecting corruption in the judiciary, said
rumors and reports not only having been mentioned by media and in
anonymous communications, but having also been adverted to by certain
government officials and civic leaders.
NOW, THEREFORE, by authority of the Court, an Ad Hoc committee is
hereby constituted composed of Chief Justice Andres R. Narvasa, as
Chairman, and former Justices of the Court, Hon. Lorenzo Relova and Hon.
Ameurfina A. Melencio-Herrera, as Members, which shall seek to ascertain
the truth respecting said reports and statements, and to this end, forthwith
interview at closed-door sessions or otherwise, such persons as may appear
to it to have some knowledge of the matter and who may be appealed to to
share that knowledge with the Court, and otherwise gather such evidence as
may be available. The Committee is hereby authorized to use such facilities
and personnel of the court as may be necessary or convenient in the
fulfillment of its assigned mission, and shall submit its report to the Court
within thirty (30) days.
Material to the present inquiry are Jurado's published statements from late
1992 to the middle of February, 1993.
1. In his column of October 21, 1992, he wrote of "(j)udges in a number of
regional trial courts in Metro Manila (who) have become so notorious in their
dealings with litigants and lawyers that they are now called the "Magnificent
Seven."" He stated that "(i)t has come to a point where lawyers and litigants
try their darndest to stay away from these judges. The answer, of course, is
obvious."
2. In his February 3, 1993 column, he adverted to another group, also named
"Magnificent Seven," which, he said, should be distinguished from the first.
He wrote: "When lawyers speak of the "Magnificent Seven" one has to make
sure which group they are referring to. Makati's "Magnificent Seven" are a
bunch of Makati regional trial court judges who fix drug-related cases. The
"Magnificent Seven" in the Supreme Court consists of a group of justices
who vote as one." 4
3. Aside from the "Magnificent Seven," he also wrote about a group which he
dubbed the "Dirty Dozen." In his column of October 21, 1992 he said that
there are " . . . 12 judges who have acquired such reputation for graft and
corruption that they are collectively known as the "dirty dozen". These
judges, I am told, are not satisfied with accepting bribes; they actually sell
their decisions to the litigants and "solicit" their bids for what is clearly an
auction for the judge's decision."
According to him, the most corrupt judges now are Makati's "Dirty Dozen"
judges, supplanting some of those from Pasay, Pasig and Quezon City;
corruption in lower Courts had been admitted by an Executive Judge in a
Metro Manila Regional Trial Court (column of November 9, 1992); and
because the "Dirty Dozen" had given Makati the reputation of having the
most corrupt RTC in the country, multi-nationals and financing institutions
explicitly stipulate in their agreements that litigation in connection with these
contracts may be held anywhere in Metro Manila except in Makati; and
lawyers confirm that Makati Judges, including some persons in the sheriffs
office, are the most corrupt, where before, Pasay and Quezon City had that
dubious distinction (column of December 1, 1992).
4. In his November 9, 1992 column, he wrote about "a former appellate
justice (who) "holds office" at a restaurant near the Court of Appeals building.
He is known as the contact man of five CA divisions. Lawyers say that this
former jurist really delivers." In his column of January 29, 1993, he adverted
to the same unnamed former Justice as being "known for fixing cases for five
CA divisions (that is what he tells lawyers and litigants) for a fee. And if the
price is right, the lawyer of the litigant paying can even write his own decision
using a CA justice as ponente. This ex-justice holds court at the mezzanine
of a restaurant owned by the wife of a former Marcos cabinet member and
which has become a meeting place for judges, CA justices, practicing
lawyers, prosecutors and even Supreme Court justices. The former CA
justice also has his own Chinese contact. After I exposed this last year, the
habitues became scarce. But they are back again, and the ex-justice is still-
doing brisk business."
5. In his column of March 24, 1993, he made the claim that one can "get a
temporary restraining order from a regional trial court in Metro-Manila by
paying the judge anywhere between P30,000.00 and P50,000.00."
Other columns of Jurado refer to:
a) a police from the South Capital Command . . . (to the effect) that 8 Makati
judges where paid for decisions favoring drug-traffickers and other big-time
criminals, naming the judges and giving detailed accounts of the bribery
(January 30, 1993);
b) a bank, later identified by him as the Equitable Banking Corporation
(Ermita Branch), which had "hosted a lunch at its penthouse mainly for some
justices, judges, prosecutors and law practitioners" (January 12, 1993); 5
c) the lady secretary of an RTC Judge in Makati who allegedly makes sure,
for a fee of P10,000.00 or more, depending on how much money is at stake,
that a case is raffled off to a Judge who will be "extremely sympathetic," and
can arrange to have the Court issue attachments or injunctions for a service
fee of 1% over and above the regular premium of the attachment or
injunction bond; a Chinese-Filipino businessman who paid this "miracle
worker" P300,000.00 on top of the regular premium on the
attachment/injunction bond (October 27, 1992);
d) Executive Judge de la Rosa, who "has unilaterally decided to discard the
rule that cases seeking provisional remedies should be raffled off to the
judges," thus violating the rule that no case may be assigned in multi-sala
courts without a raffle (January 28, 1993);
e) the Secretary of the Judicial and Bar Council (JBC), who had supposedly
gotten that body to nominate him to the Court of Appeals; and a son and a
nephew of JBC members, who were also nominated to the Court of Appeals,
contrary to ethics and delicadeza (January l6, 1993; and January 29, 1993);
f) what he denominates "a major determinant of promotion," i.e., having a
relative in the JBC or the Supreme Court, or having a powerful politician as
sponsor, citing specifically, the following nominees to the Court of Appeals —
Conrado Vasquez, Jr., son and namesake of the Ombudsman and brother of
the head of the Presidential Management Staff; Rosalio de la Rosa, "nephew
of Justice Relova and cousin of Chief Justice Narvasa;" and the fact that
nomination of some worthy individuals was blocked because they "incurred
the ire of the powers that be," e.g., Judge Maximiano Asuncion, Quezon City
RTC, and Raul Victorino, closely identified with former Senate President
Salonga (January 25, 1993).
3. Events Directly Giving Rise
to the Proceeding at Bar
What may be called the seed of the proceeding at bar was sown by the
decision promulgated by this Court on August 27, 1992, in the so-called
"controversial case" of "Philippine Long Distance Telephone Company v.
Eastern Telephone Philippines, Inc. (ETPI)," G.R. No, 94374. In that decision
the Court was sharply divided; the vote was 9 to 4, in favor of the petitioner
PLDT. Mr. Justice Hugo E. Gutierrez, Jr., wrote the opinion for the
majority. 6 A motion for reconsideration of the decision was filed in
respondent's behalf on September 16, 1992, which has recently been
resolved.
In connection with this case, G.R. No. 94374, the "Philippine Daily Inquirer"
and one or two other newspapers published, on January 28, 1993, a report of
the purported affidavit of a Mr. David Miles Yerkes, an alleged expert in
linguistics. This gentleman, it appears, had been commissioned by one of the
parties in the case, Eastern Telephone Philippines, Inc. (ETPI), to examine
and analyze the decision of Justice Gutierrez in relation to a few of his prior
ponencias and the writings of one of the lawyers of PLDT, Mr. Eliseo
Alampay, to ascertain if the decision had been written, in whole or in part, by
the latter. Yerkes proffered the conclusion that the Gutierrez decision "looks,
reads and sounds like the writing of the PLDT's counsel," 7
As might be expected, the Yerkes "revelations" spawned more public
discussion and comment about the judiciary and the Supreme Court itself,
much of it unfavorable. There were calls for impeachment of the justices, for
resignation of judges. There were insistent and more widespread reiterations
of denunciations of incompetence and corruption in the judiciary. Another
derogatory epithet for judges was coined and quickly gained currency:
"Hoodlums in Robes."
It was at about this time and under these circumstances — particularly the
furor caused by the Yerkes opinion that the PLDT decision was authored by
a PLDT lawyer — that Jurado wrote in his column on February 8, 1993, an
item entitled, "Who will judge the Justices?" referring among other things to" .
..
(a) report that six justices, their spouses, children and grandchildren (a total
of 36 persons) spent a vacation in Hong Kong some time last year — and
that luxurious hotel accommodations and all their other expenses were paid
by a pubic utility firm . . . and that the trip . . . was arranged by the travel
agency patronized by this public utility firm." 8
This was the event that directly gave rise to the proceeding at bar.
a. Letter and Affidavit of PLDT
For shortly afterwards, on February 10, 1993, Mr. Vicente R. Samson, First
Vice President of the PLDT (Philippine Long Distance Telephone Company),
addressed a letter to the Chief Justice, submitting his sworn statement in
confutation of "the item in the column of Mr. Emil P. Jurado of the Manila
Standard on a vacation trip supposedly taken by six Justices with their
families last year," and requesting that the Court "take such action as may be
appropriate." In his affidavit, Samson made the following averments: 9
xxx xxx xxx
While the name of the public utility which supposedly financed the alleged
vacation of the Justices in Hongkong has not been disclosed in the Jurado
column, the publication thereof, taken in relation to the spate of recent
newspaper reports alleging that the decision of the Supreme Court, penned
by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT
and Eastern Telecommunications Phils., Inc. was supposedly ghost written
by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil
Jurado is alluding to PLDT in the said column; and, this in fact was the
impression or perception of those who talked to me and the other officers of
the PLDT after having read the Jurado column;
4. In as much as the PLDT case against Eastern Telecommunications
Philippines is still sub-judice, since the motions for reconsideration filed by
the losing litigants therein, Eastern Telecommunications Philippines, Inc. and
NTC are still pending before the Court, we have tried to refrain from making
any public comments on these matters, lest any statement we make be
interpreted to be an attempt on our part to unduly influence the final decision
of the Supreme Court in the above described case. However in the interest of
truth and justice, PLDT is compelled to emphatically and categorically
declare that it is not the public utility firm referred to in the Jurado column and
that specifically, it has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his family during
their vacation, if any, in Hongkong last year. It is not even aware that any of
the justices or their families have made the trip referred to in the Jurado
column;
5. I further state that neither Atty. Emil P. Jurado nor anyone in his behalf has
ever spoken to me or any other responsible officer of PLDT about the matter
quoted in par. 2 hereof;

6. PLDT further emphatically and categorically denies that it had ever talked
to or made arrangements with any travel agency or any person or entity in
connection with any such alleged trip of the Justices and their families to
Hongkong, much less paid anything therefor to such agencies, fully or in part,
in the year 1992 as referred to in Par. 2 hereinabove;
7. The travel agencies which PLDT patronizes or retains for the trips, hotels
or other accommodations of its officers and employees are:
a. Philway Travel Corporation
M-7 Prince Tower Cond.
Tordesillas St., Salcedo Village
Makati, Metro Manila
b. Citi-World Travel Mart Corp.
Suite 3-4 Ramada Midtown Arcade
M. Adriatico Street
Ermita, Manila.
The records of these travel agencies will bear out the fact that no
arrangements were made by them at the instance of PLDT for the trip
referred to in the Jurado column.
b. Affidavit of Atty. William Veto
The Samson affidavit was followed by another submitted to the Court by Atty.
William Veto, the "in-house counsel of Equitable Banking Corporation since
1958," subscribed and sworn to on February 10, 1993, in relation to another
article of Jurado. 10 Veto deposed that on Tuesday, January 5, 1993 he had
"hosted a lunch party at the Officers' Lounge, 7th Floor of the Equitable
Banking Corporation Building, Ermita Branch . . . upon prior permission . . .
obtained;" that the "expenses for said party were exclusively from my
personal funds and the food was prepared in my house by my wife and
served by my house help . . . and four (4) waiters . . . hired from the nearby
Barrio Fiesta Restaurant;" that among the invited guests "were members of
the Supreme Court and Court of Appeals who . . . were my friends of forty
years since our days in law school;" and that the party was held in the lounge
of the bank instead of in "my residence" "unlike in former years . . . because
my birthday happened to fall on a working day and my friends from the
Equitable Banking
Corporation . . . suggested that I hold it there (at the lounge) for their
convenience because my residence is far from down town."
However, this birthday luncheon of Atty. Veto was reported in Jurado's
column (in the Manila Standard issues of January 12 and 28, 1993) as
having been "hosted (by the Equitable Bank) at its penthouse mainly for
some justices, judges, prosecutors and law practitioners. . . ." And upon this
premise, Jurado indulged in the following pontification: "When those in the
judiciary fraternize this way, what chances before the courts do other
lawyers, who are not "batang club," have against others who belong to the
fraternity? In the case of prosecutors and fiscals, what chances do opposing
counsels have against those in the fraternity?" (column of January 12, 1993)
c. Information from Ad Hoc Committee
At about this time, too, the Court received information from the Ad Hoc
Committee (created by Administrative Order No. 11-93) to the following
effect:
1) that by letter dated February 1, 1993, the Chairman of the Ad Hoc
Committee extended an invitation to Atty. Emiliano Jurado to appear before it
"at 2 o'clock in the afternoon of February 4, 1993 . . . (to) give the committee
information that will assist it in its task," i.e., to definitely and accurately
determine the facts as regards the published rumors and reports of
corruption in the judiciary;
2) that despite receipt of this letter by a responsible individual at the business
address of Jurado, the latter failed to appear at the time and place indicated;
that instead, in his column in the issue of Manila Standard of February 4,
1993, Jurado stated that he was told he was being summoned by the Ad Hoc
Committee, but "(t)here is really no need to summon me. The committee can
go by the many things I have written in my column about corruption in the
judiciary. Many of these column items have been borne out by subsequent
events."
3) that another letter was sent by the Chairman to Jurado, dated February 5,
1993, reiterating the Committee's invitation, viz.:
It is regretted that you failed to respond to the invitation of the Ad Hoc
Committee to appear at its session of February 4, 1992. All indications are
that you are the person with the most knowledge about corruption in the
judiciary and hence, appear to be best positioned to assist the Ad Hoc
Committee in its function of obtaining evidence, or leads, on the matter. You
have, I believe, expressed more than once the laudable desire that the
judiciary rid itself of the incompetents and the misfits in its ranks, and we
believe you will want to help the Court do precisely that, by furnishing the
Committee with competent evidence, testimonial or otherwise. Clearly, the
purging process cannot be accomplished without proof, testimonial or
otherwise, as you must no doubt realize, being yourself a lawyer.
We would like you to know that the Ad Hoc Committee created by
Administrative Order No. 11-93 is simply a fact-finding body. Its function is
evidence-gathering. Although possessed of the authority to maintain and
enforce order in its proceedings, and to compel obedience to its processes, it
is not an adjudicative body in the sense that it will pronounce persons guilty
or innocent, or impose sanctions, on the basis of such proofs as may be
presented to it. That function is reserved to the Supreme Court itself, in which
it is lodged by the Constitution and the laws. Thus, at the conclusion of its
evidence-gathering mission, the Ad Hoc Committee will submit its report and
recommendations to the Court which will then take such action as it deems
appropriate.
The Ad Hoc Committee has scheduled hearings on the 11th and 12th of
February, 1993. Mr. Justice Hilario G. Davide, Jr. will preside as Chairman at
these hearings since I will be unable to do so in view of earlier commitments.
We reiterate our invitation that you come before the Committee, and you may
opt to appear either on the 11th or 12th of February, 1993, at 2 o'clock in the
afternoon."
4) that notwithstanding receipt of this second letter by a certain Mr. Gerry Gil
of the Manila Standard, Jurado still failed to appear.
4. Statement of the Case:
Resolutions and Pleadings
a. Resolution of the February 16, 1993
After considering all these circumstances, the Court by Resolution dated
February 16, 1993, ordered:
1) that the matter dealt with in the letter and affidavit of the PLDT herein
mentioned be duly DOCKETED, and hereafter considered and acted upon as
an official Court proceeding for the determination of whether or not the
allegations made by Atty. Emil Jurado herein specified are true;
2) that the Clerk of Court SEND COPIES of the PLDT letter and affidavit, and
of the affidavit of Atty. William Veto to Atty. Emil Jurado, c/o the Manila
Standard, Railroad & 21 Streets, Port Area, Manila; and copies of the same
PLDT letter and affidavit, to Philway Travel Corporation, M-7 Prince Tower
Cond., Tordesillas St., Salcedo Village, Makati, Metro Manila; and Citi-World
Travel Mart Corp., Suite 3-4 Ramada Midtown Arcade, M. Adriatico Street,
Ermita, Manila;
3) that within five (5) days from their receipt of notice of this resolution and of
copies of the PLDT letter and affidavit, the Philway Travel Corporations and
the Citi-World Travel Mart Corporation each FILE A SWORN STATEMENT
affirming or denying the contents of the PLDT affidavit; and
4) that within fifteen (15) days from his receipt of notice of this resolution and
of copies of said PLDT letter and affidavit and of the affidavit of Atty. Veto,
Atty. Emil Jurado FILE A COMMENT on said affidavits as well as the
allegations made by him in his columns, herein specified, in which he shall
make known to the Court the factual or evidentiary bases of said allegations.
b. Jurado's Comment dated
March 1, 1993.
As directed, Jurado filed his comment, dated March 1, 1993.
He explained that he had not "snubbed" the invitation of the Ad Hoc
Committee, it being in fact his desire to cooperate in any investigation on
corruption in the judiciary as this was what "his columns have always wanted
to provoke." What had happened, according to him, was that the first
invitation of the Ad Hoc Committee was routed to his desk at the Manila
Standard office on the day of the hearing itself, when it was already
impossible to cancel previous professional and business appointments; and
the second invitation, "if it was ever received" by his office, was never routed
to him; and he had yet to see
it." 11 If the impression had been created that he had indeed "snubbed" the
Ad Hoc Committee, he "sincerely apologizes."
He averred that his columns are self-explanatory and reflect his beliefs, and
there was no need to elaborate further on what he had written. He expressed
his firm belief that justice can be administered only by a judicial system that
is itself just and incorruptible, and the hope that this Court would view his
response in this light.
He also made the following specific observations:
1. The affidavit of Antonio Samson of the PLDT dated February 9, 1993 was
an assertion of the affiant's belief and opinion and he (Jurado) would not
comment on it except to say that while Mr. Samson is entitled to his beliefs
and opinions, these "bind only him and the PLDT."
2. Atty. William Veto's affidavit substantially corroborated what he had written
in vital details; hence, further substantiation would be surplusage. In fact, the
Supreme Court had confirmed the story in its press statement quoted by him
(Jurado) in his January 30, 1993 column. His column about the Veto party
constitutes fair comment on the public conduct of public officers.
3. The column about Executive Judge Rosalio de la Rosa merely
summarized the position of Judge Teresita Dy-Liaco Flores on the actuations
of Judge de la Rosa and called the attention of the Court thereto, Judge
Flores' complaint, a copy of which had been sent to the Court Administrator,
being on meriting its attention.
4. The "factual and evidentiary basis" of his column of January 30, 1993 was
the police report on seven (7) Makati judges authored by Chief Inspector
Laciste Jr., of the Narcotics Branch of the RPIU, South CAPCOM, PNP,
addressed to Vice-President Joseph E. Estrada, a copy of which he had
received in the news room of the Manila Standard. The existence of the
report had been affirmed by a reporter of the Manila Standard, Jun Burgos,
when he appeared at the hearing of the Ad Hoc Committee on January 11,
1993.
5. His observations in his columns of January 6 and 29, 1993 regarding the
nominations of relatives in the Judicial and Bar Council echo the public
perception, and constitute fair comment on a matter of great public interest
and concern.
6. His columns with respect to the "RTC's Magnificent Seven" (October 20,
1992); the "RTC-Makati's Dirty Dozen" (October 2, 1992, November 9, 1992,
and December 1, 1992); the "Magnificent Seven" in the Supreme Court
(February 3,1993); 12 the lady secretary of an RTC Judge (October 27,
1992); and the former Court of Appeals Justice "fixing" cases (January 29,
1993) were all based on information given to him in strict confidence by
sources he takes to be highly reliable and credible; and he could not
elaborate on the factual and evidentiary basis of the information without
endangering his sources.
By necessity and custom and usage, he relies as a journalist not only on first-
hand knowledge but also on information from sources he has found by
experience to be trustworthy. He cannot compromise these sources. He
invokes Republic Act No. 53, as amended by R.A. No. 1477, exempting the
publisher, editor or reporter of any publication from revealing the source of
published news or information obtained in confidence, and points out that
none of the matters subject of his columns has any bearing on the security of
the state.
c. Resolution of March 2, 1993
Subsequent to the Resolution of February 16, 1993 and before the filing of
Jurado's comment above mentioned, the Court received the affidavits of the
executive officials of the two travel agencies mentioned in the affidavit of
PLDT Executive Vice-President Vicente R. Samson — in relation to the
Jurado column of February 8, 1993: that of Mr. Ermin Garcia, Jr., President
of the Citi-World Travel Mart Corporation, dated February 22, 1993, and that
of Mrs. Marissa de la Paz, General Manager of Philway Travel Corporation,
dated February 19, 1993. Both denied ever having made any travel
arrangements for any of the Justices of the Supreme Court or their families to
Hongkong, clearly and categorically belying the Jurado article.
By Resolution dated March 2, 1993, the Court directed that Jurado be given
copies of these two (2) affidavits and that he submit comment thereon, if
desired, within ten (10) days from receipt thereof.
d. Jurado's Supplemental Comment
with Request for Clarification
In response, Jurado filed a pleading entitled "Supplemental Comment with
Request for Clarification" dated March 15, 1993. In this pleading he alleged
that the sworn statements of Mr. Ermin Garcia, Jr. and Mrs. Marissa de la
Paz are affirmations of matters of their own personal knowledge; that he
(Jurado) had no specific knowledge of "the contents of these, let alone their
veracity;" and that the affidavits "bind no one except the affiants and possibly
the PLDT." He also sought clarification on two points — as to the capacity in
which he is being cited in these administrative proceedings — whether "as
full time journalist or as a member of the bar," and why he is being singled
out, from all his other colleagues in media who had also written about
wrongdoings in the judiciary, and required to comment in a specific
administrative matter before the Court sitting En Banc — so that he might
"qualify his comment and/or assert his right and privileges . . . .
e. Resolution of March 18, 1993
Through another Resolution, dated March 18, 1993, the Court directed the
Clerk of Court to inform Jurado that the Resolutions of February 16 and
March 2, 1993 had been addressed to him (according to his own depiction) in
his capacity as "a full-time journalist" "who coincidentally happens to be a
member of the bar at the same time," and granted him fifteen (15) days from
notice" to qualify his comment and/or assert his rights and privileges . . . in an
appropriate manifestation or pleading."
f. Jurado's Manifestation
dated March 31, 1993
Again in response, Jurado filed a "Manifestation" under date of March 31,
1993. He moved for the termination of the proceeding on the following
posited premises:
1. The court has no administrative supervision over him as a member of the
press or over his work as a journalist.

2. The present administrative matter is not a citation for (a) direct contempt
as there is no pending case or proceeding out of which a direct contempt
charge against him may arise, or (b) indirect contempt as no formal charge
for the same has been laid before the court in accordance with Section 3
(Rule 71) of the Rules of Court.
3. His comments would be more relevant and helpful to the Court if taken
together with the other evidence and reports of other journalists gathered
before the Ad Hoc Committee. He perceives no reason why his comments
should be singled out and taken up in a separate administrative proceeding.
It is against this background of the material facts and occurrences that the
Court will determine Jurado's liability, if any, for the above mentioned
statements published by him, as well as "such action as may be appropriate"
in the premises, as the PLDT asks.
5. Norms for Proper Exercise of
Press Freedom
a. Constitutional Law Norms
In Zaldivar v. Gonzalez (166 SCRA 316 [1988]), the Court underscored the
importance both of the constitutional guarantee of free speech and the reality
that there are fundamental and equally important public interests which need
on occasion to be balanced against and accommodated with one and the
other. There, the Court stressed the importance of the public interest in the
maintenance of the integrity and orderly functioning of the administration of
justice. The Court said: 13
The principal defense of respondent Gonzalez is that he was merely
exercising his constitutional right of free speech. He also invokes the related
doctrines of qualified privileged communications and fair criticism in the
public interest.
Respondent Gonzalez is entitled to the constitutional guarantee of free
speech. No one seeks to deny him that right, least of all this Court. What
respondent seems unaware of is that freedom of speech and of expression,
like all constitutional freedoms, is not absolute and that freedom of
expression needs on occasion to be adjusted to and accommodated with the
requirements of equally important public interests. One of these fundamental
public interests is the maintenance of the integrity and orderly functioning of
the administration of justice. There is no antinomy between free expression
and the integrity of the system of administering justice. For the protection and
maintenance of freedom of expression itself can be secured only within the
context of a functioning and orderly system of dispensing justice, within the
context, in other words, of viable independent institutions for delivery of
justice which are accepted by the general community. As Mr. Justice
Frankfurter put it:
. . . A free press is not to be preferred to an independent judiciary, nor an
independent judiciary to a free press. Neither has primacy over the other;
both are indispensable to a free society.
The freedom of the press in itself presupposes an independent judiciary
through which that freedom may, if necessary, be vindicated. And one of the
potent means for assuring judges their independence is a free press.
(Concurring in Pennekamp v. Florida, 328 U.S. 331 at 354-356 [1946]).
Mr. Justice. Malcolm of this Court expressed the same thought in the
following terms:
The Organic Act wisely guarantees freedom of speech and press. This
constitutional right must be protected in its fullest extent. The Court has
heretofore given evidence of its tolerant regard for charges under the Libel
Law which come dangerously close to its violation. We shall continue in this
chosen path. The liberty of the citizens must be preserved in all of its
completeness. But license or abuse of liberty of the press and of the citizens
should not be confused with liberty in its true sense. As important as is the
maintenance of an unmuzzled press and the free exercise of the rights of the
citizens is the maintenance of the independence of the Judiciary. Respect for
the Judiciary cannot be had if persons are privileged to scorn a resolution of
the court adopted for good purposes, and if such persons are to be permitted
by subterranean means to diffuse inaccurate accounts of confidential
proceedings to the embarrassment of the parties and the court. (In Re
Severino Lozano and Anastacio Quevedo, 54 Phil. 801 at 807 [1930]).
b. Civil Law Norms
The Civil Code, in its Article 19 lays down the norm for the proper exercise of
any right, constitutional or otherwise, viz.:
Art. 19. Every person must, in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith.
The provision is reflective of the universally accepted precept of "abuse of
rights," "one of the most dominant principles which must be deemed always
implied in any system of law." 14 It parallels too "the supreme norms of
justice which the law develops" and which are expressed in three familiar
Latin maxims: honeste vivere, alterum non laedere and jus suum quique
tribuere (to live honorably, not to injure others, and to render to every man
his due). 15
Freedom of expression, the right of speech and of the press is, to be sure,
among the most zealously protected rights in the Constitution. But every
person exercising it is, as the Civil Code stresses, obliged "to act with justice,
give everyone his due, and observe honesty and good faith." The
constitutional right of freedom of expression may not be availed of to
broadcast lies or half-truths — this would not be "to observe honesty and
good faith;" it may not be used to insult others; destroy their name or
reputation or bring them into disrepute. — this would not be "to act with
justice" or "give everyone his due."
c. Philippine Journalist's
Code of Ethics
Also relevant to the determination of the propriety of Jurado's acts subject of
the inquiry at bar are the norms laid down in "The Philippine Journalist's
Code of Ethics." The Code was published in the issue of February 11, 1993
of the Manila Standard, for which Jurado writes, as part of the paper's
"Anniversary Supplement." The first paragraph of the Code, 16 and its
corresponding annotations, read as follows:
1. I shall scrupulously report and interpret the news, taking care not to
suppress essential facts nor to distort the truth by improper omission or
emphasis. I recognize the duty to air the other side and the duty to correct
substantive errors promptly.
1. Scrupulous news gathering and beat coverage is required. Relying
exclusively on the telephone or on what fellow reporters say happened at
one's beat is irresponsible.
2. The ethical journalist does not bend the facts to suit his biases or to please
benefactors. He gathers all the facts, forms a hypothesis, verifies it and
arrives at an honest interpretation of what happened.
3. The duty to air the other side means that the journalist must contact the
person or persons against whom accusations are lodged. A court proceeding
provides for this balance by presenting the prosecution and then the defense.
A news story or editorial column that fails to present the other side is like a
court that does not hear the side of the defense.
4. Correcting substantive errors is the mark of mature newspapers like the
New York Times, the International Herald Tribune, and some of Manila's
papers.
d. Right to Private Honor
and Reputation
In the present proceeding, there is also involved an acknowledged and
important interest of individual persons: the right to private reputation.
Judges, by becoming such, are commonly and rightly regarded as voluntarily
subjecting themselves to norms of conduct which embody more stringent
standards of honesty, integrity, and competence than are commonly required
from private persons. 17 Nevertheless, persons who seek or accept from
appointment to the Judiciary cannot reasonably be regarded as having
thereby forfeited any right whatsoever to private honor and reputation. For so
to rule will be simply, in the generality of cases, to discourage all save those
who feel no need to maintain their self-respect as a human being in society,
from becoming judges, with obviously grievous consequences for the quality
of our judges and the quality of the justice that they will dispense. Thus, the
protection of the right of individual persons to private reputations is also a
matter of public interest and must be reckoned with as a factor in identifying
and laying down the norms concerning the exercise of press freedom and
free speech.
Clearly, the public interest involved in freedom of speech and the individual
interest of judges (and for that matter, all other public officials) in the
maintenance of private honor and reputation need to be accommodated one
to the other. And the point of adjustment or accommodation between these
two legitimate interest is precisely found in the norm which requires those
who, invoking freedom of speech, publish statements which are clearly
defamatory to identifiable judges or other public officials to exercise bona fide
care in ascertaining the truth of the statements they publish. The norm does
not require that a journalist guarantee the truth of what he says or publishes.
But the norm does prohibit the reckless disregard of private reputation by
publishing or circulating defamatory statements without any bona fide effort
to ascertain the truth thereof. That this norm represents the generally
accepted point of balance or adjustment between the two interests involved
is clear from a consideration of both the pertinent civil law norms and the
Code of Ethics adopted by the journalism profession in the Philippines. 17a
6. Analysis of Jurado Columns
a. Re "Public Utility Firm"
Now, Jurado's allegation in his column of February 8, 1993 — "that six
justices, their spouses, children and grandchildren (a total of 36 persons)
spent a vacation in Hong Kong some time last year — and that luxurious
hotel accommodations and all their other expenses were paid by a public
utility firm and that the trip reportedly was arranged by the travel agency
patronized by this public utility firm," supra is — in the context of the facts
under which it was made — easily and quickly perceived as a transparent
accusation that the PLDT had bribed or "rewarded" six (6) justices for their
votes in its favor in the case of "Philippine Long Distance Telephone
Company v. Eastern Telephone Philippines, Inc. (ETPI)," G.R. No. 94374, 18
by not only paying all their expenses — i.e., hotel accommodations and all
other expenses for the trip — but also by having one of its own travel
agencies arrange for such a trip.
As already stated, that allegation was condemned as a lie, an outright
fabrication, by the PLDT itself, through one of its responsible officers, Mr.
Vicente Samson, as well as by the heads of the two (2) travel agencies
"patronized by it," Ermin Garcia, Jr. and Marissa de la Paz, supra.
That categorical denial logically and justly placed on Jurado the burden of
proving the truth of his grave accusation, or showing that it had been made
through some honest mistake or error committed despite good faith efforts to
arrive at the truth, or if unable to do either of these things, to offer to atone for
the harm caused.
But the record discloses that Jurado did none of these things. He exerted no
effort whatever to contest or qualify in any manner whatever the emphatic
declaration of PLDT Vice-President Samson that —
While the name of the public utility which supposedly financed the alleged
vacation of the Justices in Hongkong has not been disclosed in the Jurado
column, the publication thereof, taken in relation to the spate of recent
newspaper reports alleging that the decision of the Supreme Court, penned
by Mr. Justice Hugo E. Gutierrez, Jr., in the pending case involving the PLDT
and Eastern Telecommunications Phils., Inc. was supposedly ghost written
by a lawyer of PLDT, gives rise to the innuendo or unfair inference that Emil
Jurado is alluding to PLDT in the said column; and, this in fact was the
impression or perception of those who talked to me and the other officers of
the PLDT after having read the Jurado column.
The record shows that he made no effort whatsoever to impugn, modify,
clarify or explain Samson's positive assertion that:
. . . (the PLDT) has never paid for any such trip, hotel or other
accommodations for any justice of the Supreme Court or his family during
their vacation, if any, in Hongkong last year. It is not even aware that any of
the justices or their families have made the trip referred to in the Jurado
column;
. . . neither Atty. Emil P. Jurado nor any one in his behalf has ever spoken to
me or any other responsible officer of PLDT about the matter. . .;
. . . PLDT . . . (never) talked to or made arrangements with any travel agency
or any person or entity in connection with any such alleged trip of the
Justices and their families to Hongkong, much less paid anything therefor to
such agencies, fully or in part, in the year 1992 as referred to in Par. 2
hereinabove;
What appears from the record is that without first having made an effort to
talk to any one from the PLDT or the Supreme Court to ascertain the veracity
of his serious accusation, Jurado went ahead and published it.
His explanation for having aired the accusation consists simply of a
declaration that Samson's affidavit, as well as the affidavits of the heads of
the two travel agencies regularly patronized by it, were just assertions of the
affiants' belief and opinion; and that he (Jurado) would not comment on them
except to say that while they are entitled to their beliefs and opinions, these
were binding on them only. This is upon its face evasion of duty of the most
cavalier kind; sophistry of the most arrant sort. What is made plain is that
Jurado is in truth unable to challenge any of the averments in the affidavits of
PLDT and its travel agencies, or otherwise substantiate his accusation, and
that his is a mere resort to semantics to justify the unjustifiable. What is made
plain is that his accusation is false, and possesses not even the saving grace
of honest error.
If relying on second-hand sources of information is, as the Journalists' Code
states, irresponsible, supra, then indulging in pure speculation or gossip is
even more so; and a failure to "present the other side" is equally
reprehensible, being what in law amounts to a denial of due process.
b. Re Equitable Bank Party
Jurado is also shown by the record to have so slanted his report of the
birthday luncheon given by Atty. William Veto (the "in-house counsel of
Equitable Banking Corporation since 1958") as to project a completely false
depiction of it. His description of that affair (in the Manila Standard issues of
January 12 and 28, 1993) as having been hosted by the Equitable Bank "at
its penthouse mainly for some justices, judges, prosecutors and law
practitioners . . . , carries the sanctimonious postscript already quoted,
putting the rhetorical question about how such fraternization affects the
chances in court of lawyers outside that charmed circle.
When confronted with Veto's affidavit to the effect that the party was given by
him at his (Veto's) own expense, the food having been prepared by his wife
in his house, and served by his house help and waiters privately hired by
him; that he had invited many persons including friends of long standing,
among them justices of the Supreme Court and the Court of Appeals; and
that the party had been held in the Officers' Lounge of Equitable Bank,
instead of his home, as in years past, to suit the convenience of his guests
because his birthday fell on a working day, Jurado could not, or would not
deign to, contradict any of those statements. He merely stated that Veto's
affidavit substantially corroborated what he had written in vital details, which
is obviously far from correct.
Most importantly, the record does not show that before he published that
story, Jurado ever got in touch with Veto or anyone in Equitable Bank, Ermita
Branch, to determine the accuracy of what he would later report. If he did, he
would quickly have learned that his sources, whoever or whatever they were,
were not to be relied upon. If he did not, he was gravely at fault — at the very
least for disregarding the Journalist's Code of Ethics — in failing to exert
bona fide efforts to verify the accuracy of his information.
In either case, his publication of the slanted, therefore misleading and false,
report of the affair is censurable. His proffered explanation that the justices
having confirmed their presence at the luncheon, thus corroborating what he
had written in vital details and making further substantiation unnecessary,
and that his report constituted fair comment on the public conduct of public
officers, obviously does not at all explain why a party given by Atty. Veto was
reported by him as one tendered by Equitable Bank. The only conclusion that
may rationally be drawn from these circumstances is that Jurado, unable to
advance any plausible reason for the conspicuous divergence between what
in fact transpired and what he reported, again resorts to semantics and
sophistry to attempt an explanation of the unexplainable. Paraphrasing the
Code of Ethics, he failed to scrupulously report and interpret the news; on the
contrary, his failure or refusal to verify such essential facts as who really
hosted and tendered the luncheon and spent for it, and his playing up of the
Bank's supposed role as such host have resulted in an improper suppression
of those facts and a gross distortion of the truth about them.
c. Re Other Items
Jurado disregarded the truth again, and in the process vilified the Supreme
Court, in the item in his column of February 3, 1993 already adverted to, 19
and more fully quoted as follows:
When lawyers speak of the "Magnificent Seven" one has to make sure which
group they are referring to. Makati's "Magnificent Seven" are a bunch of
Makati regional trial court judges who fix drug related cases. The
"Magnificent Seven" in the Supreme Court consists of a group of justices
who vote as one."
About the last (italicized) statement there is, as in other accusations of
Jurado, not a shred of proof; and the volumes of the Supreme Court Reports
Annotated (SCRA) in which are reported the decisions of the Supreme Court
En Banc for the year 1992 (January to December) and for January 1993,
divulge not a single non-unanimous decision or resolution where seven (7)
justices voted "as one," nor any group of decisions or resolutions where the
recorded votes would even suggest the existence of such a cabal.
This is yet another accusation which Jurado is unable to substantiate
otherwise than, as also already pointed out, by invoking unnamed and
confidential sources which he claims he considers highly credible and
reliable and which would be imperiled by elaborating on the information
furnished by them. He would justify reliance on those sources on grounds of
necessity, custom and usage and claim the protection of Republic Act No.
53, as amended by Republic Act No. 1477 from forced, revelation of
confidential news sources except when demanded by the security of the
state. 20
Surely it cannot be postulated that the law protects a journalist who
deliberately, prints lies or distorts the truth; or that a newsman may escape
liability who publishes derogatory or defamatory allegations against a person
or entity, but recognizes no obligation bona fide to establish beforehand the
factual basis of such imputations and refuses to submit proof thereof when
challenged to do so. It outrages all notions of fair play and due process, and
reduces to uselessness all the injunctions of the Journalists' Code of Ethics
to allow a newsman, with all the potential of his profession to influence
popular belief and shape public opinion, to make shameful and offensive
charges destructive of personal or institutional honor and repute, and when
called upon to justify the same, cavalierly beg off by claiming that to do so
would compromise his sources and demanding acceptance of his word for
the reliability of those sources.
Jurado's other writings already detailed here are of the same sort. While it
might be tedious to recount what has already been stated about the nature
and content of those writings, it is necessary to do so briefly in order not only
to stress the gravity he makes, but also to demonstrate that his response to
the call for their substantiation has been one of unvarying intransigence: an
advertance to confidential sources with whose reliability he professes
satisfaction and whom fuller disclosure would supposedly compromise.
There can be no doubt of the serious and degrading character — not only to
the Court of Appeals, but also to the judiciary in general — of his columns of
November 9, 1992 and January 29, 1993 concerning an unnamed former
justice of the Court of Appeals who had allegedly turned "fixer" for five of the
Court's divisions and who, for the right price, could guarantee that a party's
lawyer could write his own decision for and in the name of the ponente; and
of his column of March 24, 1993 to the effect that anywhere from P30,000 to
P50,000 could buy a temporary restraining order from a regional trial court in
Manila.

The litany of falsehoods, and charges made without bona fide effort at
verification or substantiation, continues:
(a) Jurado's column of January 30, 1993 about eight (8) Makati judges who
were "handsomely paid" for decisions favoring drug-traffickers and other big-
time criminals was based on nothing more than raw intelligence contained is
confidential police report. It does not appear that any part of that report has
been reliably confirmed.
(b) He has refused to offer any substantiation, either before the Ad Hoc
Committee or in this proceeding, for his report of October 27, 1992
concerning an unnamed lady secretary of a Makati RTC Judge who, besides
earning at least P10,000 for making sure a case is raffled off to a
"sympathetic" judge, can also arrange the issuance of attachments and
injunctions for a fee of one (1%) percent over and above usual premium for
the attachment or injunction bond, a fee that in one instance amounted to
P300,000.
(c) His report (columns of January 16 and 29, 1993) that the Judicial and Bar
Council acted contrary to ethics and delicadeza in nominating to the Court of
Appeals a son and a nephew of its members is completely untrue. The most
cursory review of the records of the Council will show that since its
organization in 1987, there has not been a single instance of any son or
nephew of a member of the Council being nominated to the Court of Appeals
during said member's incumbency; and in this connection, he mistakenly and
carelessly identified RTC Judge Rosalio de la Rosa as the nephew of Justice
(and then Member of the Judicial and Bar Council) Lorenzo Relova when the
truth, which he subsequently learned and admitted, was that the person
referred to was Judge Joselito de la Rosa, the son-in-law, not the nephew, of
Justice Relova. Had he bothered to make any further verification, he would
have learned that at all sessions of the Council where the nomination of
Judge Joselito de la Rosa was considered, Justice Relova not only declined
to take part in the deliberations, but actually left the conference room; and he
would also have learned that Judge Rosalio de la Rosa had never been
nominated — indeed, to this date, he has not been nominated to the Court of
Appeals.
(d) He has recklessly slandered the Judicial and Bar Council by charging that
it has improperly made nominations to the Court of Appeals on
considerations other than of merit or fitness, through the manipulations of the
Council's Secretary, Atty. Daniel Martinez; or because the nominee happens
to be a relative of a member of the Council (e.g., Judge Joselito de la Rosa,
initially identified as Judge Rosalio de la Rosa) or of the Supreme Court (he
could name none so situated); or has powerful political sponsor (referring to
RTC Judge Conrado Vasquez, Jr., son and namesake of the Ombudsman).
Acceptance of the truth of these statements is precluded, not only by the
familiar and established presumption of regularity in the performance of
official functions, but also, and even more conclusively by the records of the
Judicial and Bar Council itself, which attest to the qualifications of Atty.
Daniel Martinez, Clerk of Court of the Supreme Court, Judge Joselito de la
Rosa, and Judge Conrado Vasquez, Jr., for membership in the Appellate
Tribunal;
(e) Equally false is Jurado's report (column of January 25, 1993) that
nomination to the Court of Appeals of some worthy individuals like Quezon
City RTC Judge Maximiano Asuncion, and Atty. Raul Victorino (who was
closely identified with former Senate President Salonga) had been blocked
because they had "incurred the ire of the powers that be," the truth, which
could very easily have been verified, being that a pending administrative
case against Judge Asuncion had stood in the way of his nomination, and
since Mr. Victorino had been sponsored or recommended by then Senate
President Salonga himself, the fact that he was not nominated can hardly be
attributed to the hostility or opposition of persons in positions of power or
influence.
(f) Jurado was similarly unfair, untruthful and unfoundedly judgmental in his
reporting about Executive Judge Rosalio de la Rosa of the Manila Regional
Trial Court as:
(1) having been nominated to the Court of Appeals by the Judicial and Bar
Council chiefly, if not only, by reason of being the nephew of Justice Relova
and the cousin of Chief Justice Narvasa, the truth, as already pointed out,
being that Judge Rosalio de la Rosa had never been thus nominated to the
Court of Appeals, the nominee having been Judge Joselito de la Rosa, the
son-in-law (not nephew) of Justice Relova; and
(2) having discarded the rule that cases seeking provisional remedies should
be raffled off to the judges (column of January 28, 1993) and adopted a
system of farming out applications for temporary restraining orders, etc.,
among all the branches of the court; here again, Jurado is shown to have
written without thinking, and made statements without verifying the accuracy
of his information or seeking the views of the subject of his pejorative
statements; the merest inquiry would have revealed to him that while Circular
No. 7 dated September 23, 1974 requires that no case may be assigned in
multi-sala courts without raffle (for purposes of disposition on the merits),
Administrative Order No. 6, dated June 30, 1975 (Sec. 15, Par. IV), 21
empowers Executive Judges to act on all applications for provisional
remedies (attachments, injunctions, or temporary restraining orders,
receiverships, etc.), or on interlocutory matters before raffle, in order to
"balance the workload among courts and judges, (Sec. l, par. 2, id.), and
exercise such other powers and prerogatives as may in his judgment be
necessary or incidental to the performance of his functions as a Court
Administrator" (Sec. 7, par. 1, id.) — these provisions being broad enough,
not only to authorize unilateral action by the Executive Judge himself on
provisional remedies and interlocutory matters even prior to raffle of the main
case, but also to delegate the authority to act thereon to other judges.
Jurado does not explain why: (1) he made no effort to verify the state of the
rules on the matter; (2) he precipitately assumed that the views of Judge
Teresita Dy-Liaco Flores, whose complaint on the subject he claims he
merely summarized, were necessarily correct and the acts of Judge de la
Rosa necessarily wrong or improper; and (3) he did not try to get Judge de la
Rosa's side at all.
Common to all these utterances of Jurado is the failure to undertake even the
most cursory verification of their objective truth; the abdication of the
journalist's duty to report and interpret the news with scrupulous fairness; and
the breach of the law's injunction that a person act with justice, give everyone
his due and observe honesty and good faith both in the exercise of his rights
and in the performance of his duties.
7. Jurado's Proffered Excuses
and Defenses
The principle of press freedom is invoked by Jurado in justification of these
published writings. That invocation is obviously unavailing in light of the basic
postulates and the established axioms or norms for the proper exercise of
press freedom earlier set forth in this opinion. 22
Jurado next puts in issue this Court's power to cite him for contempt. The
issue is quickly disposed of by adverting to the familiar principle reiterated
inter alia in Zaldivar v. Gonzales: 23
. . . (T)he Supreme Court has inherent power to punish for contempt, to
control in the furtherance of justice the conduct of ministerial officers of the
Court including lawyers and all other persons connected in any manner with
a case before the Court (In re Kelly, 35 Phil. 944 [1916]; In re Severino
Lozano and Anastacio Quevedo, 54 Phil. 801 (1930]; In re Vicente Pelaez,
44 Phil. 567 [1923]; and In re Vicente Sotto, 82 Phil. 595 [1949]). The power
to punish for contempt is "necessary for its own protection against improper
interference with the due administration of justice," "(i)t is not dependent
upon the complaint of any of the parties litigant" (Halili v. Court of Industrial
Relations, 136 SCRA 112 [1985]; Andres v. Cabrera, 127 SCRA 802 [1984];
Montalban v. Canonoy, 38 SCRA 1 [1971]; Commissioner of Immigration v.
Cloribel, 20 SCRA 1241 [1967]; Herras Teehankee v. Director of Prisons, 76
Phil. 630 [1946]).
Contempt is punishable, even if committed without relation to a pending
case. Philippine jurisprudence parallels a respectable array of English
decisions holding contumacious scurrilous attacks against the courts
calculated to bring them into disrepute, even when made after the trial stage
or after the end of the proceedings. The original doctrine laid down in People
vs. Alarcon 24 — that there is no contempt if there is no pending case — has
been abandoned in subsequent rulings of this Court which have since
adopted the Moran dissent therein, 25 viz.:
Contempt, by reason of publications relating to court and to court
proceedings, are of two kinds. A publication which tends to impede, obstruct,
embarrass or influence the courts in administering justice in a pending suit or
proceeding, constitutes criminal contempt which is summarily punishable by
courts. This is the rule announced in the cases relied upon by the majority. A
publication which tends to degrade the courts and to destroy public
confidence in them or that which tends to bring them in any way into
disrepute, constitutes likewise criminal contempt, and is equally punishable
by courts. In the language of the majority, what is sought, in the first kind of
contempt, to be shielded against the influence of newspaper comments, is
the all-important duty of the courts to administer justice in the decision of a
pending case. In the second kind of contempt, the punitive hand of justice is
extended to vindicate the courts from any act or conduct calculated to bring
them into disfavor or to destroy public confidence in them. In the first, there is
no contempt where there is no action pending, as there is no decision which
might in any be influenced by the newspaper publication. In the second, the
contempt exists, with or without a pending case, as what is sought to be
protected is the court itself and its dignity. (12 Am. Jur. pp. 416-417.) Courts
would lose their utility if public confidence in them is destroyed.
The foregoing disposes of Jurado's other contention that the present
administrative matter is not a citation for direct contempt, there being no
pending case or proceeding out of which a charge of direct contempt against
him may arise; this, even without regard to the fact that the statements made
by him about sojourn in Hongkong of six Justices of the Supreme Court were
clearly in relation to a case involving two (2) public utility companies, then
pending in this Court. 26
His theory that there is no formal charge against him is specious. His
published statements about that alleged trip are branded as false in no
uncertain terms by the sworn statement and letter of Vice-President Vicente
R. Samson of the Philippine Long Distance Telephone Company which:
(a) "emphatically and categorically" deny that PLDT had made any
arrangements with any travel agency, or with the two travel agencies it
patronized or retained, or paid anything, on account of such alleged trip;
(b) positively affirm (i) that PLDT was "not even aware that any of the justices
or their families . . . (had) made the trip referred to in the Jurado column," and
(ii) that neither Atty. Emil P. Jurado nor anyone in his behalf has ever spoken
to . . . (said Mr. Samson) or any other responsible officer of PLDT about the
matter . . .; and
(c) beseech the Court to "take such action (on the matter) as may be
appropriate.
As already stated, the Court, in its Resolution of February 16, 1993:
(a) ordered the subject of Samson's letter and affidavit docketed as an official
Court proceeding to determine the truth of Jurado's allegations about it; and
(b) directed also that Jurado be furnished copies of Atty. William Veto's
affidavit on the luncheon party hosted by him (which Jurado reported as one
given by Equitable Bank) and that Jurado file comment on said affidavits as
well as allegations in specified columns of his. Jurado was also furnished
copies of the affidavits later submitted by the two travel agencies mentioned
in Samson's statement, and was required to comment thereon.
It was thus made clear to him that he was being called to account for his
published statements about the matters referred to, and that action would be
taken thereon against him as "may be appropriate." That that was in fact how
he understood it is evident from his submitted defenses, denying or
negativing liability for contempt, direct indirect. Indeed, as journalist of no
little experience and a lawyer to boot, he cannot credibly claim an inability to
understand the nature and import of the present proceedings.
Jurado would also claim that the Court has no administrative supervision
over him as a member of the press or over his work as a journalist, and asks
why he is being singled out, and, by being required to submit to a separate
administrative proceeding, treated differently than his other colleagues in
media who were only asked to explain their reports and comments about
wrongdoing in the judiciary to the Ad Hoc Committee. The answer is that
upon all that has so far been said, the Court may hold anyone to answer for
utterances offensive to its dignity, honor or reputation which tend to put it in
disrepute, obstruct the administration of justice, or interfere with the
disposition of its business or the performance of its functions in an orderly
manner. Jurado has not been singled out. What has happened is that there
have been brought before the Court, formally and in due course, sworn
statements branding his reports as lies and thus imposing upon him the
alternatives of substantiating those reports or assuming responsibility for
their publication.
Jurado would have the Court clarify in what capacity — whether a journalist,
or as a member of the bar — he has been cited in these proceeding. Thereby
he resurrects the issue he once raised in a similar earlier proceeding: that he
is being called to account as a lawyer for his statements as a
journalist. 27 This is not the case at all. Upon the doctrines and principles
already inquired into and cited, he is open to sanctions as journalist who has
misused and abused press freedom to put the judiciary in clear and present
to the danger of disrepute and of public obdium and opprobrium, detriment
and prejudice of the administration of justice. That he is at the same time a
member of the bar has nothing to do with the setting in of those sanctions,
although it may aggravate liability. At any rate, what was said about the
matter in that earlier case is equally cogent here:
Respondent expresses perplexity at being called to account for the
publications in question in his capacity as a member of the bar, not as a
journalist. The distinction is meaningless, since as the matter stands, he has
failed to justify his actuations in either capacity, and there is no question of
the Court's authority to call him to task either as a newsman or as a lawyer.
What respondent proposes is that in considering his actions, the Court judge
them only as those of a member of the press and disregard the fact that he is
also a lawyer. But his actions cannot be put into such neat compartments. In
the natural order of things, a person's acts are determined by, and reflect, the
sum total of his knowledge, training and experience. In the case of
respondent in particular the Court will take judicial notice of the frequent
appearance in his regular columns of comments and observations utilizing
legal language and argument, bearing witness to the fact that in pursuing his
craft as a journalist he calls upon his knowledge as a lawyer to help inform
and influence his readers and enhance his credibility. Even absent this
circumstance, respondent cannot honestly assert that in exercising his
profession as journalist he does not somehow, consciously or unconsciously,
draw upon his legal knowledge and training. It is thus not realistic, nor
perhaps even possible, to come to fair, informed and intelligent judgment of
respondent's actuations by divorcing from consideration the fact that he is a
lawyer as well as a newspaperman, even supposing, which is not the case —
that he may thereby be found without accountability in this matter.
To repeat, respondent cannot claim absolution even were the Court to lend
ear to his plea that his actions be judged solely as those of a newspaperman
unburdened by the duties and responsibilities peculiar to the law profession
of which he is also a member.
8. The Dissents
The eloquent, well-crafted dissents of Messrs. Justices Puno and Melo that
would invoke freedom of the press to purge Jurado's conduct of any taint of
contempt must now be briefly addressed.
a. Apparent Misapprehension
of Antecedents and Issue
Regrettably, there appears to be some misapprehension not only about the
antecedents directly leading to the proceedings at bar but also the basic
issues involved.
The dissents appear to be of the view, for instance, that it was chiefly
Jurado's failure to appear before the Ad Hoc Committee in response to two
(2) letters of invitation issued to him, that compelled the Court to order the
matter to be docketed on February 16, 1993 and to require respondent
Jurado to file his Comment. This is not the case at all. As is made clear in
Sub-Heads 3 and 4 of this opinion, supra, the direct cause of these
proceedings was not Jurado's refusal to appear and give evidence before the
Ad Hoc Committee. The direct cause was the letters of PLDT and Atty.
William Veto, supported by affidavits, denouncing certain of his stories as
false, 28 with the former praying that the Court take such action as may be
appropriate. And it was precisely "the matter dealt with in the letter and
affidavit of the PLDT" that this Court ordered to "be duly DOCKETED, and
hereafter considered and acted upon as an official Court proceeding;" this, by
Resolution dated February 16, 1993; the Court also requiring, in the same
Resolution, "that the Clerk of Court SEND COPIES of the PLDT letter and
affidavit, and of the affidavit of Atty. William Veto to Atty. Emil Jurado . . .,"
and that Jurado should comment thereon "as well as (on) the allegations
made by him in his columns, herein specified" — because of explicit claims,
and indications of the falsity or, inaccuracy thereof.
There thus also appears to be some misapprehension of the basic issues, at
least two of which are framed in this wise: (1) the right of newsmen to refuse
subpoenas, summons, or "invitations" to appear in administrative
investigations," and (2) their right "not to reveal confidential sources of
information under R.A. No. 53, as amended" — which are not really involved
here — in respect of which it is theorized that the majority opinion will have
an inhibiting effect on newsmen's confidential sources of information, and
thereby abridges the freedom of the press.
(1) No Summons or Subpoena
Ever Issued to Jurado
The fact is that no summons or subpoena was ever issued to Jurado by the
Ad Hoc Committee; nor was the issuance of any such or similar processes,
or any punitive measures for disobedience thereto, intended or even
contemplated. Like most witnesses who gave evidence before the
Committee, Jurado was merely invited to appear before it to give information
in aid of its assigned task of ascertaining the truth concerning persistent
rumors and reports about corruption in the judiciary. When he declined to
accept the invitations, the Ad Hoc Committee took no action save to inform
the Court thereof; and the Court itself also took no action. There is thus
absolutely no occasion to ascribe to that investigation and the invitation to
appear thereat a "chilling effect" on the by and large "hard-boiled" and self-
assured members of the media fraternity. If at all, the patience and
forbearance of the Court, despite the indifference of some of its invitees and
projected witnesses, appear to have generated an attitude on their part
bordering on defiant insolence.
(2) No Blanket Excuse Under RA 53
From Responding to Subpoena
Even assuming that the facts were as presented in the separate opinion, i.e.,
that subpoenae had in fact been issued to and served on Jurado, his
unexplained failure to obey the same would prima facie constitute
constructive contempt under Section 3, Rule 71 of the Rules of Court. It
should be obvious that a journalist may not refuse to appear at all as required
by a subpoena on the bare plea that under R.A. No 53, he may not be
compelled to disclose the source of his information. For until he knows what
questions will be put to him as witness — for which his presence has been
compelled — the relevance of R.A. No. 53 cannot be ascertained. His duty is
clear. He must obey the subpoena. He must appear at the appointed place,
date and hour, ready to answer questions, and he may invoke the protection
of the statute only at the appropriate time.
b. The Actual Issue
The issue therefore had nothing to do with any failure of Jurado's to obey a
subpoena, none ever having been issued to him, and the Ad Hoc Committee
having foreborne to take any action at all as regards his failure to accept its
invitations. The issue, as set out in the opening sentence of this opinion,
essentially concerns "(l)iability for published statements demonstrably false
or misleading, and derogatory of the courts and individual judges."
Jurado is not being called to account for declining to identify the sources of
his news stories, or for refusing to appear and give testimony before the Ad
Hoc Committee. He is not being compelled to guarantee the truth of what he
publishes, but to exercise honest and reasonable efforts to determine the
truth of defamatory statements before publishing them. He is being meted
the punishment appropriate to the publication of stories shown to be false
and defamatory of the judiciary — stories that he made no effort whatsoever
to verify and which, after being denounced as lies, he has refused, or is
unable, to substantiate.
c. RA 53 Confers No Immunity from Liability
for False or Defamatory Publications
This opinion neither negates nor seeks to enervate the proposition that a
newsman has a right to keep his sources confidential; that he cannot be
compelled by the courts to disclose them, as provided by R.A. 53, unless the
security of the State demands such revelation. But it does hold that he
cannot invoke such right as a shield against liability for printing stories that
are untrue and derogatory of the courts, or others. The ruling, in other words,
is that when called to account for publications denounced as inaccurate and
misleading, the journalist has the option (a) to demonstrate their truthfulness
or accuracy even if in the process he disclose his sources, or (b) to refuse,
on the ground that to do so would require such disclosure. In the latter event,
however, he must be ready to accept the consequences of publishing
untruthful or misleading stories the truth and accuracy of which he is
unwilling or made no bona fide effort to prove; for R.A. 53, as amended, is
quite unequivocal that the right of refusal to disclose sources is "without
prejudice to . . . liability under civil and criminal laws."
R.A. 53 thus confers no immunity from prosecution for libel or for other
sanction under law. It does not declare that the publication of any news
report or information which was "related in confidence" to the journalist is not
actionable; such circumstance (of confidentiality) does not purge, the
publication of its character as defamatory, if indeed it be such, and actionable
on that ground. All it does is give the journalist the right to refuse (or not to be
compelled) to reveal the source of any news report published by him which
was revealed to him in confidence.
A journalist cannot say, e.g.: a person of whose veracity I have no doubt told
me in confidence that Justices X and Y received a bribe of P1M each for their
votes in such and such a case, or that a certain Judge maintains a mistress,
and when called to account for such statements, absolve himself by claiming
immunity under R.A. 53, or invoking press freedom.
d. A Word about "Group Libel"
There is hardly need to belabor the familiar doctrine about group libel and
how it has become the familiar resort of unscrupulous newsmen who can
malign any number of anonymous members of a common profession, calling
or persuasion, thereby putting an entire institution — like the judiciary in this
case — in peril of public contumely and mistrust without serious risk of being
sued for defamation. The preceding discussions have revealed Jurado's
predilection for, if not his normal practice of, refusing to specifically identify or
render identifiable the persons he maligns. Thus, he speaks of the
"Magnificent Seven," by merely referring to undisclosed regional trial court
judges in Makati; the "Magnificent Seven" in the Supreme Court, as some
undesignated justices who supposedly vote as one; the "Dirty Dozen," as
unidentified trial judges in Makati and three other cities. He adverts to an
anonymous group of justices and judges for whom a bank allegedly hosted a
party; and six unnamed justices of this Court who reportedly spent a prepaid
vacation in Hong Kong with their families. This resort to generalities and
ambiguities is an old and familiar but reprehensible expedient of
newsmongers to avoid criminal sanctions since the American doctrine of
group libel is of restricted application in this jurisdiction. For want of a
definitely identified or satisfactorily identifiable victim, there is generally no
actionable libel, but such a craven publication inevitably succeeds in putting
all the members of the judiciary thus all together referred to under a cloud of
suspicion. A veteran journalist and lawyer of long standing that he is, Jurado
could not have been unaware of the foregoing realities and consequences.
e. Substantiation of News Report
Not Inconsistent with RA 53
It is argued that compelling a journalist to substantiate the news report or
information confidentially revealed to him would necessarily negate or dilute
his right to refuse disclosure of its source. The argument will not stand
scrutiny.
A journalist's "source" either exists or is fictitious. If the latter, plainly, the
journalist is entitled to no protection or immunity whatsoever.
If the "source" actually exists, the information furnished is either capable of
independent substantiation, or it is not. If the first, the journalist's duty is
clear: ascertain, if not obtain, the evidence by which the information may be
verified before publishing the same; and if thereafter called to account
therefor, present such evidence and in the process afford the party adversely
affected thereby opportunity to dispute the information or show it to be false.
If the information is not verifiable, and it is derogatory of any third party, then
it ought not to be published for obvious reasons. It would be unfair to the
subject of the report, who would be without means of refuting the imputations
against him. And it would afford an unscrupulous journalist a ready device by
which to smear third parties without the obligation to substantiate his
imputations by merely claiming that the information had been given to him "in
confidence".
It is suggested that there is another face to the privileged character of a
journalist's source of information than merely the protection of the journalist,
and that it is intended to protect also the source itself. What clearly is implied
is that journalist may not reveal his source without the latter's clearance or
consent. This totally overlooks the fact that the object of a derogatory
publication has at least an equal right to know the source thereof and, if
indeed traduced, to the opportunity of obtaining just satisfaction from the
traducer.
9. Need for Guidelines
Advertences to lofty principle, however eloquent and enlightening, hardly
address the mundane, but immediate and very pertinent, question of whether
a journalist may put in print unverified information derogatory of the courts
and judges and yet remain immune from liability for contempt for refusing,
when called upon, to demonstrate their truth on the ground of press freedom
or by simply claiming that he need not do so since (or if) it would compel him
to disclose the identity of his source or sources.
The question, too, is whether or not we are prepared to say that a journalist's
obligation to protect his sources of information transcends, and is greater
than, his duty to the truth; and that, accordingly, he has no obligation
whatsoever to verify, or exercise bona fide efforts to verify, the information he
is given or obtain the side of the party adversely affected before he publishes
the same.
True, the pre-eminent role of a free press in keeping freedom alive and
democracy in full bloom cannot be overemphasized. But it is debatable if that
role is well and truly filled by a press let loose to print what it will, without
reasonable restraints designed to assure the truth and accuracy of what is
published. The value of information to a free society is in direct proportion to
the truth it contains. That value reduces to little or nothing when it is no
longer possible for the public to distinguish between truth and falsehood in
news reports, and the courts are denied the mechanisms by which to make
reasonably sure that only the truth reaches print.
a. No Constitutional Protection for Deliberately
False or Recklessly Inaccurate Reports
It is worth stressing that false reports about a public official or other person
are not shielded from sanction by the cardinal right to free speech enshrined
in the Constitution. Even the most liberal view of free speech has never
countenanced the publication of falsehoods, specially the persistent and
unmitigated dissemination of patent lies. The U.S. Supreme Court, 29 while
asserting that "(u)nder the First Amendment there is no such thing as a false
idea," and that "(h)owever pernicious an opinion may seem, we depend for
its correction not on the conscience of judges and juries but on the
competition of other ideas" (citing a passage from the first Inaugural Address
of Thomas Jefferson), nonetheless made the firm pronouncement that "there
is no constitutional value in false statements of fact," and "the erroneous
statement of fact is not worthy of constitutional protection (although) . . .
nevertheless inevitable in free debate." "Neither the intentional lie nor the
careless error," it said, "materially advances society's interest in "unhibited,
robust, and wide-open" debate on public issues. New York Times Co. v.
Sullivan, 376 US, at 270, 11 L Ed 2d 686, 95 ALR2d 1412. They belong to
that category of utterances which "are no essential part of any exposition of
ideas, and are of such slight social value as a step to the truth that any
benefit that may be derived from them is clearly outweighed by the social
interest in order and morality." Chaplinsky v, new Hampshire, 315 US 568,
572, 86 L Ed 1031, 62 S Ct 766 (1942).
"The use of calculated falsehood," it was observed in another case, 30
"would put a different cast on the constitutional question. Although honest
utterances, even if inaccurate, may further the fruitful exercise of the right of
free speech, it does not follow that the lie, knowingly and deliberately
published about a public official, should enjoy a like immunity. . . . (T)he
knowingly false statement and the false statement made with reckless
disregard of the truth, do not enjoy constitutional protection."
Similarly, in a 1969 case concerning a patently false accusation made
against a public employee avowedly in fulfillment of a "legal, moral, or social
duty," 31 this Court, through the late Chief Justice Roberto Concepcion, ruled
that the guaranty of free speech cannot be considered as according
protection to the disclosure of lies, gossip or rumor, viz.:
. . . Defendant's civil duty was to help the Government clean house and weed
out dishonest, unfit or disloyal officers and employees thereof, where there is
reasonable ground to believe that they fall under this category. He had no
legal right, much less duty, to gossip, or foster the circulation of rumors, or
jump at conclusions and more so if they are gratuitous or groundless.
Otherwise, the freedom of speech, which is guaranteed with a view to
strengthening our democratic institutions and promoting the general welfare,
would be a convenient excuse to engage in the vituperation of individuals, for
the attainment of private, selfish and vindictive ends, thereby hampering the
operation of the Government with. administrative investigations of charges
preferred without any color or appearance of truth and with no other probable
effect than the harassment of the officer or employee concerned, to the
detriment of public service and public order.
b. No "Chilling Effect"
The fear expressed, and earlier adverted to, that the principles here affirmed
would have a "chilling effect" on media professionals, seems largely
unfounded and should be inconsequential to the greater number of
journalists in this country who, by and large, out of considerations of truth,
accuracy, and fair play, have commendably refrained from ventilating what
would otherwise be "sensational" or "high-visibility" stories. In merely seeking
to infuse and perpetuate the same attitude and sense of responsibility in all
journalists, i.e., that there is a need to check out the truth and correctness of
information before publishing it, or that, on the other hand, recklessness and
crass sensationalism should be eschewed, this decision, surely, cannot have
such "chilling effect," and no apprehension that it would deter the
determination of truth or the public exposure of wrong can reasonably be
entertained.
The people's right to discover the truth is not advanced by unbridled license
in reportage that would find favor only with extremist liberalism. If it has done
nothing else, this case has made clear the compelling necessity of the
guidelines and parameters elsewhere herein laid down. They are eminently
reasonable, and no responsible journalist should have cause to complain of
difficulty in their observance.
10. Afterword
It seems fitting to close this opinion, with the words of Chief Justice Moran,
whose pronouncements have already been earlier quoted, 32 and are as
germane today as when they were first written more than fifty (50) years ago.
33
It may be said that respect to courts cannot be compelled and that public
confidence should be a tribute to judicial worth, virtue and intelligence. But
compelling respect to courts is one thing and denying the courts the power to
vindicate themselves when outraged is another. I know of no principle of law
that authorizes with impunity a discontended citizen to unleash, by
newspaper publications, the avalanche of his wrath and venom upon courts
and judges. If he believes that a judge is corrupt and that justice has
somewhere been perverted, law and order require that he follow the
processes provided by the Constitution and the statutes by instituting the
corresponding proceedings for impeachment or otherwise. . . .
xxx xxx xxx
It might be suggested that judges who are unjustly attacked have a remedy
in an action for libel. This suggestion has, however, no rational basis in
principle. In the first place, the outrage is not directed to the judge as a
private individual but to the judge as such or to the court as an organ of the
administration of justice. In the second place, public interests will gravely
suffer where the judge, as such, will, from time to time, be pulled down and
disrobed of his judicial authority to face his assailant on equal grounds and
prosecute cases in his behalf as a private individual. The same reasons of
public policy which exempt a judge from civil liability in the exercise of his
judicial functions, most fundamental of which is the policy to confine his time
exclusively to the discharge of his public duties, applies here with equal, if
not superior, force (Hamilton v. Williams, 26 Ala. 529; Busteed v. Parson, 54
Ala. 403; Ex parte McLeod, 120 Fed. 130; Coons v. State, 191 Ind. 580; 134
N. E. 194). . . .
Jurado's actuations, in the context in which they were done, demonstrate
gross irresponsibility, and indifference to factual accuracy and the injury that
he might cause to the name and reputation of those of whom he wrote. They
constitute contempt of court, directly tending as they do to degrade or abase
the administration of justice and the judges engaged in that function. By
doing them, he has placed himself beyond the circle of reputable, decent and
responsible journalists who live by their Code or the "Golden Rule" and who
strive at all times to maintain the prestige and nobility of their calling.
Clearly unrepentant, exhibiting no remorse for the acts and conduct detailed
here, Jurado has maintained a defiant stance. "This is a fight I will not run
from," he wrote in his column of March 21, 1993; and again, "I will not run
away from a good fight," in his column of March 23, 1993. Such an attitude
discourages leniency, and leaves no choice save the application of sanctions
appropriate to the offense.
WHEREFORE, the Court declares Atty. Emil (Emiliano) P. Jurado guilty of
contempt of court and in accordance with Section 6, Rule 71 of the Rules of
Court, hereby sentences him to pay a fine of one thousand pesos
(P1,000,00).
IT IS SO ORDERED.
Disini vs. Secretary of Justice (G.R. No. 203335, February 11, 2014)
These consolidated petitions seek to declare several provisions of Republic
Act (R.A.) 10175, the Cybercrime Prevention Act of 2012, unconstitutional
and void.
The Facts and the Case
The cybercrime law aims to regulate access to and use of the cyberspace.
Using his laptop or computer, a person can connect to the internet, a system
that links him to other computers and enable him, among other things, to:
1. Access virtual libraries and encyclopedias for all kinds of information that
he needs for research, study, amusement, upliftment, or pure curiosity;
2. Post billboard-like notices or messages, including pictures and videos, for
the general public or for special audiences like associates, classmates, or
friends and read postings from them;
3. Advertise and promote goods or services and make purchases and
payments;
4. Inquire and do business with institutional entities like government
agencies, banks, stock exchanges, trade houses, credit card companies, The Issues Presented
public utilities, hospitals, and schools; and
Petitioners challenge the constitutionality of the following provisions of the
5. Communicate in writing or by voice with any person through his e-mail cybercrime law that regard certain acts as crimes and impose penalties for
address or telephone. their commission as well as provisions that would enable the government to
track down and penalize violators. These provisions are:
This is cyberspace, a system that accommodates millions and billions of
simultaneous and ongoing individual accesses to and uses of the internet. a. Section 4(a)(1) on Illegal Access;
The cyberspace is a boon to the need of the current generation for greater
information and facility of communication. But all is not well with the system b. Section 4(a)(3) on Data Interference;
since it could not filter out a number of persons of ill will who would want to
use cyberspace technology for mischiefs and crimes. One of them can, for c. Section 4(a)(6) on Cyber-squatting;
instance, avail himself of the system to unjustly ruin the reputation of another
or bully the latter by posting defamatory statements against him that people d. Section 4(b)(3) on Identity Theft;
can read.
e. Section 4(c)(1) on Cybersex;
And because linking with the internet opens up a user to communications
from others, the ill-motivated can use the cyberspace for committing theft by f. Section 4(c)(2) on Child Pornography;
hacking into or surreptitiously accessing his bank account or credit card or
defrauding him through false representations. The wicked can use the g. Section 4(c)(3) on Unsolicited Commercial Communications;
cyberspace, too, for illicit trafficking in sex or for exposing to pornography
guileless children who have access to the internet. For this reason, the h. Section 4(c)(4) on Libel;
government has a legitimate right to regulate the use of cyberspace and
contain and punish wrongdoings. i. Section 5 on Aiding or Abetting and Attempt in the Commission of
Cybercrimes;
Notably, there are also those who would want, like vandals, to wreak or
cause havoc to the computer systems and networks of indispensable or j. Section 6 on the Penalty of One Degree Higher;
highly useful institutions as well as to the laptop or computer programs and
memories of innocent individuals. They accomplish this by sending electronic k. Section 7 on the Prosecution under both the Revised Penal Code (RPC)
viruses or virtual dynamites that destroy those computer systems, networks, and R.A. 10175;
programs, and memories. The government certainly has the duty and the
right to prevent these tomfooleries from happening and punish their l. Section 8 on Penalties;
perpetrators, hence the Cybercrime Prevention Act.
m. Section 12 on Real-Time Collection of Traffic Data;
But petitioners claim that the means adopted by the cybercrime law for
regulating undesirable cyberspace activities violate certain of their n. Section 13 on Preservation of Computer Data;
constitutional rights. The government of course asserts that the law merely
seeks to reasonably put order into cyberspace activities, punish o. Section 14 on Disclosure of Computer Data;
wrongdoings, and prevent hurtful attacks on the system.
p. Section 15 on Search, Seizure and Examination of Computer Data;
Pending hearing and adjudication of the issues presented in these cases, on
February 5, 2013 the Court extended the original 120-day temporary q. Section 17 on Destruction of Computer Data;
restraining order (TRO) that it earlier issued on October 9, 2012, enjoining
respondent government agencies from implementing the cybercrime law until r. Section 19 on Restricting or Blocking Access to Computer Data;
further orders.
s. Section 20 on Obstruction of Justice;
t. Section 24 on Cybercrime Investigation and Coordinating Center (CICC);
and
u. Section 26(a) on CICC’s Powers and Functions.
Some petitioners also raise the constitutionality of related Articles 353, 354,
361, and 362 of the RPC on the crime of libel.
The Rulings of the Court
Section 4(a)(1)
Section 4(a)(1) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
(1) Illegal Access. – The access to the whole or any part of a computer
system without right.
Petitioners contend that Section 4(a)(1) fails to meet the strict scrutiny
standard required of laws that interfere with the fundamental rights of the
people and should thus be struck down.
The Court has in a way found the strict scrutiny standard, an American
constitutional construct,1 useful in determining the constitutionality of laws
that tend to target a class of things or persons. According to this standard, a
legislative classification that impermissibly interferes with the exercise of
fundamental right or operates to the peculiar class disadvantage of a suspect
class is presumed unconstitutional. The burden is on the government to
prove that the classification is necessary to achieve a compelling state
interest and that it is the least restrictive means to protect such interest.2
Later, the strict scrutiny standard was used to assess the validity of laws
dealing with the regulation of speech, gender, or race as well as other
fundamental rights, as expansion from its earlier applications to equal
protection.3
In the cases before it, the Court finds nothing in Section 4(a)(1) that calls for
the application of the strict scrutiny standard since no fundamental freedom,
like speech, is involved in punishing what is essentially a condemnable act –
accessing the computer system of another without right. It is a universally
condemned conduct.4
Petitioners of course fear that this section will jeopardize the work of ethical
hackers, professionals who employ tools and techniques used by criminal
hackers but would neither damage the target systems nor steal information.
Ethical hackers evaluate the target system’s security and report back to the
owners the vulnerabilities they found in it and give instructions for how these
can be remedied. Ethical hackers are the equivalent of independent auditors
who come into an organization to verify its bookkeeping records.5
Besides, a client’s engagement of an ethical hacker requires an agreement
between them as to the extent of the search, the methods to be used, and
the systems to be tested. This is referred to as the "get out of jail free card."6
Since the ethical hacker does his job with prior permission from the client,
such permission would insulate him from the coverage of Section 4(a)(1).
Section 4(a)(3) of the Cybercrime Law
Section 4(a)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx
(3) Data Interference. – The intentional or reckless alteration, damaging,
deletion or deterioration of computer data, electronic document, or electronic
data message, without right, including the introduction or transmission of
viruses.
Petitioners claim that Section 4(a)(3) suffers from overbreadth in that, while it
seeks to discourage data interference, it intrudes into the area of protected
speech and expression, creating a chilling and deterrent effect on these
guaranteed freedoms.
Under the overbreadth doctrine, a proper governmental purpose,
constitutionally subject to state regulation, may not be achieved by means
that unnecessarily sweep its subject broadly, thereby invading the area of
protected freedoms.7 But Section 4(a)(3) does not encroach on these
freedoms at all. It simply punishes what essentially is a form of vandalism,8
the act of willfully destroying without right the things that belong to others, in
this case their computer data, electronic document, or electronic data
message. Such act has no connection to guaranteed freedoms. There is no
freedom to destroy other people’s computer systems and private documents.
All penal laws, like the cybercrime law, have of course an inherent chilling
effect, an in terrorem effect9 or the fear of possible prosecution that hangs on
the heads of citizens who are minded to step beyond the boundaries of what
is proper. But to prevent the State from legislating criminal laws because they
instill such kind of fear is to render the state powerless in addressing and
penalizing socially harmful conduct.10 Here, the chilling effect that results in
paralysis is an illusion since Section 4(a)(3) clearly describes the evil that it
seeks to punish and creates no tendency to intimidate the free exercise of
one’s constitutional rights.
Besides, the overbreadth challenge places on petitioners the heavy burden
of proving that under no set of circumstances will Section 4(a)(3) be valid.11
Petitioner has failed to discharge this burden.
Section 4(a)(6) of the Cybercrime Law
Section 4(a)(6) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
(a) Offenses against the confidentiality, integrity and availability of computer
data and systems:
xxxx
(6) Cyber-squatting. – The acquisition of domain name over the internet in
bad faith to profit, mislead, destroy the reputation, and deprive others from
registering the same, if such a domain name is:
(i) Similar, identical, or confusingly similar to an existing trademark registered
with the appropriate government agency at the time of the domain name
registration;
(ii) Identical or in any way similar with the name of a person other than the
registrant, in case of a personal name; and
(iii) Acquired without right or with intellectual property interests in it.
Petitioners claim that Section 4(a)(6) or cyber-squatting violates the equal
protection clause12 in that, not being narrowly tailored, it will cause a user
using his real name to suffer the same fate as those who use aliases or take
the name of another in satire, parody, or any other literary device. For
example, supposing there exists a well known billionaire-philanthropist
named "Julio Gandolfo," the law would punish for cyber-squatting both the
person who registers such name because he claims it to be his pseudo-
name and another who registers the name because it happens to be his real
name. Petitioners claim that, considering the substantial distinction between
the two, the law should recognize the difference.
But there is no real difference whether he uses "Julio Gandolfo" which
happens to be his real name or use it as a pseudo-name for it is the evil
purpose for which he uses the name that the law condemns. The law is
reasonable in penalizing him for acquiring the domain name in bad faith to
profit, mislead, destroy reputation, or deprive others who are not ill-motivated
of the rightful opportunity of registering the same. The challenge to the
constitutionality of Section 4(a)(6) on ground of denial of equal protection is
baseless.
Section 4(b)(3) of the Cybercrime Law
Section 4(b)(3) provides:
Section 4. Cybercrime Offenses. – The following acts constitute the offense
of cybercrime punishable under this Act:
xxxx
b) Computer-related Offenses:
xxxx
(3) Computer-related Identity Theft. – The intentional acquisition, use,
misuse, transfer, possession, alteration, or deletion of identifying information
belonging to another, whether natural or juridical, without right: Provided: that
if no damage has yet been caused, the penalty imposable shall be one (1)
degree lower.
Petitioners claim that Section 4(b)(3) violates the constitutional rights to due
process and to privacy and correspondence, and transgresses the freedom
of the press.
The right to privacy, or the right to be let alone, was institutionalized in the
1987 Constitution as a facet of the right protected by the guarantee against
unreasonable searches and seizures.13 But the Court acknowledged its
existence as early as 1968 in Morfe v. Mutuc,14 it ruled that the right to
privacy exists independently of its identification with liberty; it is in itself fully
deserving of constitutional protection.
Relevant to any discussion of the right to privacy is the concept known as the
"Zones of Privacy." The Court explained in "In the Matter of the Petition for
Issuance of Writ of Habeas Corpus of Sabio v. Senator Gordon"15 the
relevance of these zones to the right to privacy:
Zones of privacy are recognized and protected in our laws. Within these
zones, any form of intrusion is impermissible unless excused by law and in
accordance with customary legal process. The meticulous regard we accord
to these zones arises not only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by civilized men," but also
from our adherence to the Universal Declaration of Human Rights which
mandates that, "no one shall be subjected to arbitrary interference with his
privacy" and "everyone has the right to the protection of the law against such
interference or attacks."
Two constitutional guarantees create these zones of privacy: (a) the right
against unreasonable searches16 and seizures, which is the basis of the
right to be let alone, and (b) the right to privacy of communication and
correspondence.17 In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, a court must determine
whether a person has exhibited a reasonable expectation of privacy and, if
so, whether that expectation has been violated by unreasonable government
intrusion.18
The usual identifying information regarding a person includes his name, his
citizenship, his residence address, his contact number, his place and date of
birth, the name of his spouse if any, his occupation, and similar data.19 The
law punishes those who acquire or use such identifying information without
right, implicitly to cause damage. Petitioners simply fail to show how
government effort to curb computer-related identity theft violates the right to
privacy and correspondence as well as the right to due process of law.
Also, the charge of invalidity of this section based on the overbreadth
doctrine will not hold water since the specific conducts proscribed do not
intrude into guaranteed freedoms like speech. Clearly, what this section
regulates are specific actions: the acquisition, use, misuse or deletion of
personal identifying data of another. There is no fundamental right to acquire
another’s personal data.
Further, petitioners fear that Section 4(b)(3) violates the freedom of the press
in that journalists would be hindered from accessing the unrestricted user
account of a person in the news to secure information about him that could
be published. But this is not the essence of identity theft that the law seeks to
prohibit and punish. Evidently, the theft of identity information must be
intended for an illegitimate purpose. Moreover, acquiring and disseminating
information made public by the user himself cannot be regarded as a form of
theft.
The Court has defined intent to gain as an internal act which can be
established through the overt acts of the offender, and it may be presumed
from the furtive taking of useful property pertaining to another, unless special
circumstances reveal a different intent on the part of the perpetrator.20 As
such, the press, whether in quest of news reporting or social investigation,
has nothing to fear since a special circumstance is present to negate intent to
gain which is required by this Section.
Section 4(c)(1) of the Cybercrime Law
Section 4(c)(1) provides:
Sec. 4. Cybercrime Offenses.– The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
(1) Cybersex.– The willful engagement, maintenance, control, or operation,
directly or indirectly, of any lascivious exhibition of sexual organs or sexual
activity, with the aid of a computer system, for favor or consideration.
Petitioners claim that the above violates the freedom of expression clause of
the Constitution.21 They express fear that private communications of sexual
character between husband and wife or consenting adults, which are not
regarded as crimes under the penal code, would now be regarded as crimes
when done "for favor" in cyberspace. In common usage, the term "favor"
includes "gracious kindness," "a special privilege or right granted or
conceded," or "a token of love (as a ribbon) usually worn conspicuously."22
This meaning given to the term "favor" embraces socially tolerated trysts.
The law as written would invite law enforcement agencies into the bedrooms
of married couples or consenting individuals.
But the deliberations of the Bicameral Committee of Congress on this section
of the Cybercrime Prevention Act give a proper perspective on the issue.
These deliberations show a lack of intent to penalize a "private showing x x x
between and among two private persons x x x although that may be a form of
obscenity to some."23 The understanding of those who drew up the
cybercrime law is that the element of "engaging in a business" is necessary
to constitute the illegal cybersex.24 The Act actually seeks to punish cyber
prostitution, white slave trade, and pornography for favor and consideration.
This includes interactive prostitution and pornography, i.e., by webcam.25

The subject of Section 4(c)(1)—lascivious exhibition of sexual organs or
sexual activity—is not novel. Article 201 of the RPC punishes "obscene
publications and exhibitions and indecent shows." The Anti-Trafficking in
Persons Act of 2003 penalizes those who "maintain or hire a person to
engage in prostitution or pornography."26 The law defines prostitution as any
act, transaction, scheme, or design involving the use of a person by another,
for sexual intercourse or lascivious conduct in exchange for money, profit, or
any other consideration.27
The case of Nogales v. People28 shows the extent to which the State can
regulate materials that serve no other purpose than satisfy the market for
violence, lust, or pornography.29 The Court weighed the property rights of
individuals against the public welfare. Private property, if containing
pornographic materials, may be forfeited and destroyed. Likewise, engaging
in sexual acts privately through internet connection, perceived by some as a
right, has to be balanced with the mandate of the State to eradicate white
slavery and the exploitation of women.
In any event, consenting adults are protected by the wealth of jurisprudence
delineating the bounds of obscenity.30 The Court will not declare Section
4(c)(1) unconstitutional where it stands a construction that makes it apply
only to persons engaged in the business of maintaining, controlling, or
operating, directly or indirectly, the lascivious exhibition of sexual organs or
sexual activity with the aid of a computer system as Congress has intended.
Section 4(c)(2) of the Cybercrime Law
Section 4(c)(2) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(2) Child Pornography. — The unlawful or prohibited acts defined and
punishable by Republic Act No. 9775 or the Anti-Child Pornography Act of
2009, committed through a computer system: Provided, That the penalty to
be imposed shall be (1) one degree higher than that provided for in Republic
Act No. 9775.
It seems that the above merely expands the scope of the Anti-Child
Pornography Act of 200931 (ACPA) to cover identical activities in
cyberspace. In theory, nothing prevents the government from invoking the
ACPA when prosecuting persons who commit child pornography using a
computer system. Actually, ACPA’s definition of child pornography already
embraces the use of "electronic, mechanical, digital, optical, magnetic or any
other means." Notably, no one has questioned this ACPA provision.
Of course, the law makes the penalty higher by one degree when the crime
is committed in cyberspace. But no one can complain since the intensity or
duration of penalty is a legislative prerogative and there is rational basis for
such higher penalty.32 The potential for uncontrolled proliferation of a
particular piece of child pornography when uploaded in the cyberspace is
incalculable.
Petitioners point out that the provision of ACPA that makes it unlawful for any
person to "produce, direct, manufacture or create any form of child
pornography"33 clearly relates to the prosecution of persons who aid and
abet the core offenses that ACPA seeks to punish.34 Petitioners are wary
that a person who merely doodles on paper and imagines a sexual abuse of
a 16-year-old is not criminally liable for producing child pornography but one
who formulates the idea on his laptop would be. Further, if the author
bounces off his ideas on Twitter, anyone who replies to the tweet could be
considered aiding and abetting a cybercrime.
The question of aiding and abetting the offense by simply commenting on it
will be discussed elsewhere below. For now the Court must hold that the
constitutionality of Section 4(c)(2) is not successfully challenged.
Section 4(c)(3) of the Cybercrime Law
Section 4(c)(3) provides:
Sec. 4. Cybercrime Offenses. – The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(3) Unsolicited Commercial Communications. – The transmission of
commercial electronic communication with the use of computer system which
seeks to advertise, sell, or offer for sale products and services are prohibited
unless:

(i) There is prior affirmative consent from the recipient; or
(ii) The primary intent of the communication is for service and/or
administrative announcements from the sender to its existing users,
subscribers or customers; or
(iii) The following conditions are present:
(aa) The commercial electronic communication contains a simple, valid, and
reliable way for the recipient to reject receipt of further commercial electronic
messages (opt-out) from the same source;
(bb) The commercial electronic communication does not purposely disguise
the source of the electronic message; and
(cc) The commercial electronic communication does not purposely include
misleading information in any part of the message in order to induce the
recipients to read the message.
The above penalizes the transmission of unsolicited commercial
communications, also known as "spam." The term "spam" surfaced in early
internet chat rooms and interactive fantasy games. One who repeats the
same sentence or comment was said to be making a "spam." The term
referred to a Monty Python’s Flying Circus scene in which actors would keep
saying "Spam, Spam, Spam, and Spam" when reading options from a
menu.35
The Government, represented by the Solicitor General, points out that
unsolicited commercial communications or spams are a nuisance that wastes
the storage and network capacities of internet service providers, reduces the
efficiency of commerce and technology, and interferes with the owner’s
peaceful enjoyment of his property. Transmitting spams amounts to trespass
to one’s privacy since the person sending out spams enters the recipient’s
domain without prior permission. The OSG contends that commercial speech
enjoys less protection in law.
But, firstly, the government presents no basis for holding that unsolicited
electronic ads reduce the "efficiency of computers." Secondly, people, before
the arrival of the age of computers, have already been receiving such
unsolicited ads by mail. These have never been outlawed as nuisance since
people might have interest in such ads. What matters is that the recipient has
the option of not opening or reading these mail ads. That is true with spams.
Their recipients always have the option to delete or not to read them.
To prohibit the transmission of unsolicited ads would deny a person the right
to read his emails, even unsolicited commercial ads addressed to him.
Commercial speech is a separate category of speech which is not accorded
the same level of protection as that given to other constitutionally guaranteed
forms of expression but is nonetheless entitled to protection.36 The State
cannot rob him of this right without violating the constitutionally guaranteed
freedom of expression. Unsolicited advertisements are legitimate forms of
expression.
Articles 353, 354, and 355 of the Penal Code
Section 4(c)(4) of the Cyber Crime Law
Petitioners dispute the constitutionality of both the penal code provisions on
libel as well as Section 4(c)(4) of the Cybercrime Prevention Act on
cyberlibel.
The RPC provisions on libel read:
Art. 353. Definition of libel. — A libel is public and malicious imputation of a
crime, or of a vice or defect, real or imaginary, or any act, omission,
condition, status, or circumstance tending to cause the dishonor, discredit, or
contempt of a natural or juridical person, or to blacken the memory of one
who is dead.
Art. 354. Requirement for publicity. — Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and
justifiable motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the
performance of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise
of their functions.
Art. 355. Libel means by writings or similar means. — A libel committed by
means of writing, printing, lithography, engraving, radio, phonograph,
painting, theatrical exhibition, cinematographic exhibition, or any similar
means, shall be punished by prision correccional in its minimum and medium
periods or a fine ranging from 200 to 6,000 pesos, or both, in addition to the
civil action which may be brought by the offended party.
The libel provision of the cybercrime law, on the other hand, merely
incorporates to form part of it the provisions of the RPC on libel. Thus
Section 4(c)(4) reads:
Sec. 4. Cybercrime Offenses. — The following acts constitute the offense of
cybercrime punishable under this Act:
xxxx
(c) Content-related Offenses:
xxxx
(4) Libel. — The unlawful or prohibited acts of libel as defined in Article 355
of the Revised Penal Code, as amended, committed through a computer
system or any other similar means which may be devised in the future.
Petitioners lament that libel provisions of the penal code37 and, in effect, the
libel provisions of the cybercrime law carry with them the requirement of
"presumed malice" even when the latest jurisprudence already replaces it
with the higher standard of "actual malice" as a basis for conviction.38
Petitioners argue that inferring "presumed malice" from the accused’s
defamatory statement by virtue of Article 354 of the penal code infringes on
his constitutionally guaranteed freedom of expression.
Petitioners would go further. They contend that the laws on libel should be
stricken down as unconstitutional for otherwise good jurisprudence requiring
"actual malice" could easily be overturned as the Court has done in Fermin v.
People39 even where the offended parties happened to be public figures.
The elements of libel are: (a) the allegation of a discreditable act or condition
concerning another; (b) publication of the charge; (c) identity of the person
defamed; and (d) existence of malice.40
There is "actual malice" or malice in fact41 when the offender makes the
defamatory statement with the knowledge that it is false or with reckless
disregard of whether it was false or not.42 The reckless disregard standard
used here requires a high degree of awareness of probable falsity. There
must be sufficient evidence to permit the conclusion that the accused in fact
entertained serious doubts as to the truth of the statement he published.
Gross or even extreme negligence is not sufficient to establish actual
malice.43
The prosecution bears the burden of proving the presence of actual malice in
instances where such element is required to establish guilt. The defense of
absence of actual malice, even when the statement turns out to be false, is
available where the offended party is a public official or a public figure, as in
the cases of Vasquez (a barangay official) and Borjal (the Executive Director,
First National Conference on Land Transportation). Since the penal code and
implicitly, the cybercrime law, mainly target libel against private persons, the
Court recognizes that these laws imply a stricter standard of "malice" to
convict the author of a defamatory statement where the offended party is a
public figure. Society’s interest and the maintenance of good government
demand a full discussion of public affairs.44
Parenthetically, the Court cannot accept the proposition that its ruling in
Fermin disregarded the higher standard of actual malice or malice in fact
when it found Cristinelli Fermin guilty of committing libel against
complainants who were public figures. Actually, the Court found the presence
of malice in fact in that case. Thus:
It can be gleaned from her testimony that petitioner had the motive to make
defamatory imputations against complainants. Thus, petitioner cannot, by
simply making a general denial, convince us that there was no malice on her
part. Verily, not only was there malice in law, the article being malicious in
itself, but there was also malice in fact, as there was motive to talk ill against
complainants during the electoral campaign. (Emphasis ours)
Indeed, the Court took into account the relatively wide leeway given to
utterances against public figures in the above case, cinema and television
personalities, when it modified the penalty of imprisonment to just a fine of
₱200.00 fine pursuant to Section 44 of Act6,000.00.
But, where the offended party is a private individual, the prosecution need
not prove the presence of malice. The law explicitly presumes its existence
(malice in law) from the defamatory character of the assailed statement.45
For his defense, the accused must show that he has a justifiable reason for
the defamatory statement even if it was in fact true.46
Petitioners peddle the view that both the penal code and the Cybercrime
Prevention Act violate the country’s obligations under the International
Covenant of Civil and Political Rights (ICCPR). They point out that in Adonis
v. Republic of the Philippines,47 the United Nations Human Rights
Committee (UNHRC) cited its General Comment 34 to the effect that penal
defamation laws should include the defense of truth.
But General Comment 34 does not say that the truth of the defamatory
statement should constitute an all-encompassing defense. As it happens,
Article 361 recognizes truth as a defense but under the condition that the
accused has been prompted in making the statement by good motives and
for justifiable ends. Thus:
Art. 361. Proof of the truth. — In every criminal prosecution for libel, the truth
may be given in evidence to the court and if it appears that the matter
charged as libelous is true, and, moreover, that it was published with good
motives and for justifiable ends, the defendants shall be acquitted.
Proof of the truth of an imputation of an act or omission not constituting a
crime shall not be admitted, unless the imputation shall have been made
against Government employees with respect to facts related to the discharge
of their official duties.
In such cases if the defendant proves the truth of the imputation made by
him, he shall be acquitted.
Besides, the UNHRC did not actually enjoin the Philippines, as petitioners
urge, to decriminalize libel. It simply suggested that defamation laws be
crafted with care to ensure that they do not stifle freedom of expression.48
Indeed, the ICCPR states that although everyone should enjoy freedom of
expression, its exercise carries with it special duties and responsibilities.
Free speech is not absolute. It is subject to certain restrictions, as may be
necessary and as may be provided by law.49
The Court agrees with the Solicitor General that libel is not a constitutionally
protected speech and that the government has an obligation to protect
private individuals from defamation. Indeed, cyberlibel is actually not a new
crime since Article 353, in relation to Article 355 of the penal code, already
punishes it. In effect, Section 4(c)(4) above merely affirms that online
defamation constitutes "similar means" for committing libel.
But the Court’s acquiescence goes only insofar as the cybercrime law
penalizes the author of the libelous statement or article. Cyberlibel brings
with it certain intricacies, unheard of when the penal code provisions on libel
were enacted. The culture associated with internet media is distinct from that
of print.
The internet is characterized as encouraging a freewheeling, anything-goes
writing style.50 In a sense, they are a world apart in terms of quickness of the
reader’s reaction to defamatory statements posted in cyberspace, facilitated
by one-click reply options offered by the networking site as well as by the
speed with which such reactions are disseminated down the line to other
internet users. Whether these reactions to defamatory statement posted on
the internet constitute aiding and abetting libel, acts that Section 5 of the
cybercrime law punishes, is another matter that the Court will deal with next
in relation to Section 5 of the law.
Section 5 of the Cybercrime Law
Section 5 provides:
Sec. 5. Other Offenses. — The following acts shall also constitute an
offense:
(a) Aiding or Abetting in the Commission of Cybercrime. – Any person who
willfully abets or aids in the commission of any of the offenses enumerated in
this Act shall be held liable.
(b) Attempt in the Commission of Cybercrime. — Any person who willfully
attempts to commit any of the offenses enumerated in this Act shall be held
liable.
Petitioners assail the constitutionality of Section 5 that renders criminally
liable any person who willfully abets or aids in the commission or attempts to
commit any of the offenses enumerated as cybercrimes. It suffers from
overbreadth, creating a chilling and deterrent effect on protected expression.
The Solicitor General contends, however, that the current body of
jurisprudence and laws on aiding and abetting sufficiently protects the
freedom of expression of "netizens," the multitude that avail themselves of
the services of the internet. He points out that existing laws and
jurisprudence sufficiently delineate the meaning of "aiding or abetting" a
crime as to protect the innocent. The Solicitor General argues that plain,
ordinary, and common usage is at times sufficient to guide law enforcement
agencies in enforcing the law.51 The legislature is not required to define
every single word contained in the laws they craft.
Aiding or abetting has of course well-defined meaning and application in
existing laws. When a person aids or abets another in destroying a forest,52
smuggling merchandise into the country,53 or interfering in the peaceful
picketing of laborers,54 his action is essentially physical and so is
susceptible to easy assessment as criminal in character. These forms of
aiding or abetting lend themselves to the tests of common sense and human
experience.
But, when it comes to certain cybercrimes, the waters are muddier and the
line of sight is somewhat blurred. The idea of "aiding or abetting"
wrongdoings online threatens the heretofore popular and unchallenged
dogmas of cyberspace use.
According to the 2011 Southeast Asia Digital Consumer Report, 33% of
Filipinos have accessed the internet within a year, translating to about 31
million users.55 Based on a recent survey, the Philippines ranks 6th in the
top 10 most engaged countries for social networking.56 Social networking
sites build social relations among people who, for example, share interests,
activities, backgrounds, or real-life connections.57
Two of the most popular of these sites are Facebook and Twitter. As of late
2012, 1.2 billion people with shared interests use Facebook to get in
touch.58 Users register at this site, create a personal profile or an open book
of who they are, add other users as friends, and exchange messages,
including automatic notifications when they update their profile.59 A user can
post a statement, a photo, or a video on Facebook, which can be made
visible to anyone, depending on the user’s privacy settings.
If the post is made available to the public, meaning to everyone and not only
to his friends, anyone on Facebook can react to the posting, clicking any of
several buttons of preferences on the program’s screen such as "Like,"
"Comment," or "Share." "Like" signifies that the reader likes the posting while
"Comment" enables him to post online his feelings or views about the same,
such as "This is great!" When a Facebook user "Shares" a posting, the
original "posting" will appear on his own Facebook profile, consequently
making it visible to his down-line Facebook Friends.
Twitter, on the other hand, is an internet social networking and microblogging
service that enables its users to send and read short text-based messages of
up to 140 characters. These are known as "Tweets." Microblogging is the
practice of posting small pieces of digital content—which could be in the form
of text, pictures, links, short videos, or other media—on the internet. Instead
of friends, a Twitter user has "Followers," those who subscribe to this
particular user’s posts, enabling them to read the same, and "Following,"
those whom this particular user is subscribed to, enabling him to read their
posts. Like Facebook, a Twitter user can make his tweets available only to
his Followers, or to the general public. If a post is available to the public, any
Twitter user can "Retweet" a given posting. Retweeting is just reposting or
republishing another person’s tweet without the need of copying and pasting
it.
In the cyberworld, there are many actors: a) the blogger who originates the
assailed statement; b) the blog service provider like Yahoo; c) the internet
service provider like PLDT, Smart, Globe, or Sun; d) the internet café that
may have provided the computer used for posting the blog; e) the person
who makes a favorable comment on the blog; and f) the person who posts a
link to the blog site.60 Now, suppose Maria (a blogger) maintains a blog on
WordPress.com (blog service provider). She needs the internet to access her
blog so she subscribes to Sun Broadband (Internet Service Provider).
One day, Maria posts on her internet account the statement that a certain
married public official has an illicit affair with a movie star. Linda, one of
Maria’s friends who sees this post, comments online, "Yes, this is so true!
They are so immoral." Maria’s original post is then multiplied by her friends
and the latter’s friends, and down the line to friends of friends almost ad
infinitum. Nena, who is a stranger to both Maria and Linda, comes across this
blog, finds it interesting and so shares the link to this apparently defamatory
blog on her Twitter account. Nena’s "Followers" then "Retweet" the link to
that blog site.
Pamela, a Twitter user, stumbles upon a random person’s "Retweet" of
Nena’s original tweet and posts this on her Facebook account. Immediately,
Pamela’s Facebook Friends start Liking and making Comments on the
assailed posting. A lot of them even press the Share button, resulting in the
further spread of the original posting into tens, hundreds, thousands, and
greater postings.
The question is: are online postings such as "Liking" an openly defamatory
statement, "Commenting" on it, or "Sharing" it with others, to be regarded as
"aiding or abetting?" In libel in the physical world, if Nestor places on the
office bulletin board a small poster that says, "Armand is a thief!," he could
certainly be charged with libel. If Roger, seeing the poster, writes on it, "I like
this!," that could not be libel since he did not author the poster. If Arthur,
passing by and noticing the poster, writes on it, "Correct!," would that be
libel? No, for he merely expresses agreement with the statement on the
poster. He still is not its author. Besides, it is not clear if aiding or abetting
libel in the physical world is a crime.
But suppose Nestor posts the blog, "Armand is a thief!" on a social
networking site. Would a reader and his Friends or Followers, availing
themselves of any of the "Like," "Comment," and "Share" reactions, be guilty
of aiding or abetting libel? And, in the complex world of cyberspace
expressions of thoughts, when will one be liable for aiding or abetting
cybercrimes? Where is the venue of the crime?
Except for the original author of the assailed statement, the rest (those who
pressed Like, Comment and Share) are essentially knee-jerk sentiments of
readers who may think little or haphazardly of their response to the original
posting. Will they be liable for aiding or abetting? And, considering the
inherent impossibility of joining hundreds or thousands of responding
"Friends" or "Followers" in the criminal charge to be filed in court, who will
make a choice as to who should go to jail for the outbreak of the challenged
posting?
The old parameters for enforcing the traditional form of libel would be a
square peg in a round hole when applied to cyberspace libel. Unless the
legislature crafts a cyber libel law that takes into account its unique
circumstances and culture, such law will tend to create a chilling effect on the
millions that use this new medium of communication in violation of their
constitutionally-guaranteed right to freedom of expression.
The United States Supreme Court faced the same issue in Reno v. American
Civil Liberties Union,61 a case involving the constitutionality of the
Communications Decency Act of 1996. The law prohibited (1) the knowing
transmission, by means of a telecommunications device, of
"obscene or indecent" communications to any recipient under 18 years of
age; and (2) the knowing use of an interactive computer service to send to a
specific person or persons under 18 years of age or to display in a manner
available to a person under 18 years of age communications that, in context,
depict or describe, in terms "patently offensive" as measured by
contemporary community standards, sexual or excretory activities or organs.
Those who challenged the Act claim that the law violated the First
Amendment’s guarantee of freedom of speech for being overbroad. The U.S.
Supreme Court agreed and ruled:
The vagueness of the Communications Decency Act of 1996 (CDA), 47
U.S.C.S. §223, is a matter of special concern for two reasons. First, the CDA
is a content-based regulation of speech. The vagueness of such a regulation
raises special U.S. Const. amend. I concerns because of its obvious chilling
effect on free speech. Second, the CDA is a criminal statute. In addition to
the opprobrium and stigma of a criminal conviction, the CDA threatens
violators with penalties including up to two years in prison for each act of
violation. The severity of criminal sanctions may well cause speakers to
remain silent rather than communicate even arguably unlawful words, ideas,
and images. As a practical matter, this increased deterrent effect, coupled
with the risk of discriminatory enforcement of vague regulations, poses
greater U.S. Const. amend. I concerns than those implicated by certain civil
regulations.
xxxx
The Communications Decency Act of 1996 (CDA), 47 U.S.C.S. § 223,
presents a great threat of censoring speech that, in fact, falls outside the
statute's scope. Given the vague contours of the coverage of the statute, it
unquestionably silences some speakers whose messages would be entitled
to constitutional protection. That danger provides further reason for insisting
that the statute not be overly broad. The CDA’s burden on protected speech
cannot be justified if it could be avoided by a more carefully drafted statute.
(Emphasis ours)
Libel in the cyberspace can of course stain a person’s image with just one
click of the mouse. Scurrilous statements can spread and travel fast across
the globe like bad news. Moreover, cyberlibel often goes hand in hand with
cyberbullying that oppresses the victim, his relatives, and friends, evoking
from mild to disastrous reactions. Still, a governmental purpose, which seeks
to regulate the use of this cyberspace communication technology to protect a
person’s reputation and peace of mind, cannot adopt means that will
unnecessarily and broadly sweep, invading the area of protected
freedoms.62
If such means are adopted, self-inhibition borne of fear of what sinister
predicaments await internet users will suppress otherwise robust discussion
of public issues. Democracy will be threatened and with it, all liberties. Penal
laws should provide reasonably clear guidelines for law enforcement officials
and triers of facts to prevent arbitrary and discriminatory enforcement.63 The
terms "aiding or abetting" constitute broad sweep that generates chilling
effect on those who express themselves through cyberspace posts,
comments, and other messages.64 Hence, Section 5 of the cybercrime law
that punishes "aiding or abetting" libel on the cyberspace is a nullity.
When a penal statute encroaches upon the freedom of speech, a facial
challenge grounded on the void-for-vagueness doctrine is acceptable. The
inapplicability of the doctrine must be carefully delineated. As Justice Antonio
T. Carpio explained in his dissent in Romualdez v. Commission on
Elections,65 "we must view these statements of the Court on the
inapplicability of the overbreadth and vagueness doctrines to penal statutes
as appropriate only insofar as these doctrines are used to mount ‘facial’
challenges to penal statutes not involving free speech."
In an "as applied" challenge, the petitioner who claims a violation of his
constitutional right can raise any constitutional ground – absence of due
process, lack of fair notice, lack of ascertainable standards, overbreadth, or
vagueness. Here, one can challenge the constitutionality of a statute only if
he asserts a violation of his own rights. It prohibits one from assailing the
constitutionality of the statute based solely on the violation of the rights of
third persons not before the court. This rule is also known as the prohibition
against third-party standing.66
But this rule admits of exceptions. A petitioner may for instance mount a
"facial" challenge to the constitutionality of a statute even if he claims no
violation of his own rights under the assailed statute where it involves free
speech on grounds of overbreadth or vagueness of the statute.
The rationale for this exception is to counter the "chilling effect" on protected
speech that comes from statutes violating free speech. A person who does
not know whether his speech constitutes a crime under an overbroad or
vague law may simply restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus chills him into
silence.67
As already stated, the cyberspace is an incomparable, pervasive medium of
communication. It is inevitable that any government threat of punishment
regarding certain uses of the medium creates a chilling effect on the
constitutionally-protected freedom of expression of the great masses that use
it. In this case, the particularly complex web of interaction on social media
websites would give law enforcers such latitude that they could arbitrarily or
selectively enforce the law.
Who is to decide when to prosecute persons who boost the visibility of a
posting on the internet by liking it? Netizens are not given "fair notice" or
warning as to what is criminal conduct and what is lawful conduct. When a
case is filed, how will the court ascertain whether or not one netizen’s
comment aided and abetted a cybercrime while another comment did not?
Of course, if the "Comment" does not merely react to the original posting but
creates an altogether new defamatory story against Armand like "He beats
his wife and children," then that should be considered an original posting
published on the internet. Both the penal code and the cybercrime law clearly
punish authors of defamatory publications. Make no mistake, libel destroys
reputations that society values. Allowed to cascade in the internet, it will
destroy relationships and, under certain circumstances, will generate enmity
and tension between social or economic groups, races, or religions,
exacerbating existing tension in their relationships.
In regard to the crime that targets child pornography, when "Google
procures, stores, and indexes child pornography and facilitates the
completion of transactions involving the dissemination of child pornography,"
does this make Google and its users aiders and abettors in the commission
of child pornography crimes?68 Byars highlights a feature in the American
law on child pornography that the Cybercrimes law lacks—the exemption of a
provider or notably a plain user of interactive computer service from civil
liability for child pornography as follows:
No provider or user of an interactive computer service shall be treated as the
publisher or speaker of any information provided by another information
content provider and cannot be held civilly liable for any action voluntarily
taken in good faith to restrict access to or availability of material that the
provider or user considers to be obscene...whether or not such material is
constitutionally protected.69
When a person replies to a Tweet containing child pornography, he
effectively republishes it whether wittingly or unwittingly. Does this make him
a willing accomplice to the distribution of child pornography? When a user
downloads the Facebook mobile application, the user may give consent to
Facebook to access his contact details. In this way, certain information is
forwarded to third parties and unsolicited commercial communication could
be disseminated on the basis of this information.70 As the source of this
information, is the user aiding the distribution of this communication? The
legislature needs to address this clearly to relieve users of annoying fear of
possible criminal prosecution.
Section 5 with respect to Section 4(c)(4) is unconstitutional. Its vagueness
raises apprehension on the part of internet users because of its obvious
chilling effect on the freedom of expression, especially since the crime of
aiding or abetting ensnares all the actors in the cyberspace front in a fuzzy
way. What is more, as the petitioners point out, formal crimes such as libel
are not punishable unless consummated.71 In the absence of legislation
tracing the interaction of netizens and their level of responsibility such as in
other countries, Section 5, in relation to Section 4(c)(4) on Libel, Section 4(c)
(3) on Unsolicited Commercial Communications, and Section 4(c)(2) on Child
Pornography, cannot stand scrutiny.
But the crime of aiding or abetting the commission of cybercrimes under
Section 5 should be permitted to apply to Section 4(a)(1) on Illegal Access,
Section 4(a)(2) on Illegal Interception, Section 4(a)(3) on Data Interference,
Section 4(a)(4) on System Interference, Section 4(a)(5) on Misuse of
Devices, Section 4(a)(6) on Cyber-squatting, Section 4(b)(1) on Computer-
related Forgery, Section 4(b)(2) on Computer-related Fraud, Section 4(b)(3)
on Computer-related Identity Theft, and Section 4(c)(1) on Cybersex. None
of these offenses borders on the exercise of the freedom of expression.
The crime of willfully attempting to commit any of these offenses is for the
same reason not objectionable. A hacker may for instance have done all that
is necessary to illegally access another party’s computer system but the
security employed by the system’s lawful owner could frustrate his effort.
Another hacker may have gained access to usernames and passwords of
others but fail to use these because the system supervisor is alerted.72 If
Section 5 that punishes any person who willfully attempts to commit this
specific offense is not upheld, the owner of the username and password
could not file a complaint against him for attempted hacking. But this is not
right. The hacker should not be freed from liability simply because of the
vigilance of a lawful owner or his supervisor.
Petitioners of course claim that Section 5 lacks positive limits and could
cover the innocent.73 While this may be true with respect to cybercrimes that
tend to sneak past the area of free expression, any attempt to commit the
other acts specified in Section 4(a)(1), Section 4(a)(2), Section 4(a)(3),
Section 4(a)(4), Section 4(a)(5), Section 4(a)(6), Section 4(b)(1), Section 4(b)
(2), Section 4(b)(3), and Section 4(c)(1) as well as the actors aiding and
abetting the commission of such acts can be identified with some reasonable
certainty through adroit tracking of their works. Absent concrete proof of the
same, the innocent will of course be spared.
Section 6 of the Cybercrime Law
Section 6 provides:
Sec. 6. All crimes defined and penalized by the Revised Penal Code, as
amended, and special laws, if committed by, through and with the use of
information and communications technologies shall be covered by the
relevant provisions of this Act: Provided, That the penalty to be imposed shall
be one (1) degree higher than that provided for by the Revised Penal Code,
as amended, and special laws, as the case may be.
Section 6 merely makes commission of existing crimes through the internet a
qualifying circumstance. As the Solicitor General points out, there exists a
substantial distinction between crimes committed through the use of
information and communications technology and similar crimes committed
using other means. In using the technology in question, the offender often
evades identification and is able to reach far more victims or cause greater
harm. The distinction, therefore, creates a basis for higher penalties for
cybercrimes.
Section 7 of the Cybercrime Law
Section 7 provides:
Sec. 7. Liability under Other Laws. — A prosecution under this Act shall be
without prejudice to any liability for violation of any provision of the Revised
Penal Code, as amended, or special laws.
The Solicitor General points out that Section 7 merely expresses the settled
doctrine that a single set of acts may be prosecuted and penalized
simultaneously under two laws, a special law and the Revised Penal Code.
When two different laws define two crimes, prior jeopardy as to one does not
bar prosecution of the other although both offenses arise from the same fact,
if each crime involves some important act which is not an essential element
of the other.74 With the exception of the crimes of online libel and online
child pornography, the Court would rather leave the determination of the
correct application of Section 7 to actual cases.
Online libel is different. There should be no question that if the published
material on print, said to be libelous, is again posted online or vice versa, that
identical material cannot be the subject of two separate libels. The two
offenses, one a violation of Article 353 of the Revised Penal Code and the
other a violation of Section 4(c)(4) of R.A. 10175 involve essentially the same
elements and are in fact one and the same offense. Indeed, the OSG itself
claims that online libel under Section 4(c)(4) is not a new crime but is one
already punished under Article 353. Section 4(c)(4) merely establishes the
computer system as another means of publication.75 Charging the offender
under both laws would be a blatant violation of the proscription against
double jeopardy.76
The same is true with child pornography committed online. Section 4(c)(2)
merely expands the ACPA’s scope so as to include identical activities in
cyberspace. As previously discussed, ACPA’s definition of child pornography
in fact already covers the use of "electronic, mechanical, digital, optical,
magnetic or any other means." Thus, charging the offender under both
Section 4(c)(2) and ACPA would likewise be tantamount to a violation of the
constitutional prohibition against double jeopardy.
Section 8 of the Cybercrime Law
Section 8 provides:
Sec. 8. Penalties. — Any person found guilty of any of the punishable acts
enumerated in Sections 4(a) and 4(b) of this Act shall be punished with
imprisonment of prision mayor or a fine of at least Two hundred thousand
pesos (Ph₱200.00 fine pursuant to Section 44 of Act200,000.00) up to a maximum amount commensurate to the
damage incurred or both.
Any person found guilty of the punishable act under Section 4(a)(5) shall be
punished with imprisonment of prision mayor or a fine of not more than Five
hundred thousand pesos (Ph₱200.00 fine pursuant to Section 44 of Act500,000.00) or both.
If punishable acts in Section 4(a) are committed against critical infrastructure,
the penalty of reclusion temporal or a fine of at least Five hundred thousand
pesos (Ph₱200.00 fine pursuant to Section 44 of Act500,000.00) up to maximum amount commensurate to the
damage incurred or both, shall be imposed.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(1) of this Act shall be punished with imprisonment of prision mayor or a
fine of at least Two hundred thousand pesos (Ph₱200.00 fine pursuant to Section 44 of Act200,000.00) but not
exceeding One million pesos (Ph₱200.00 fine pursuant to Section 44 of Act1,000,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
4(c)(2) of this Act shall be punished with the penalties as enumerated in
Republic Act No. 9775 or the "Anti-Child Pornography Act of 2009:"
Provided, That the penalty to be imposed shall be one (1) degree higher than
that provided for in Republic Act No. 9775, if committed through a computer
system.

Any person found guilty of any of the punishable acts enumerated in Section
4(c)(3) shall be punished with imprisonment of arresto mayor or a fine of at
least Fifty thousand pesos (Ph₱200.00 fine pursuant to Section 44 of Act50,000.00) but not exceeding Two hundred
fifty thousand pesos (Ph₱200.00 fine pursuant to Section 44 of Act250,000.00) or both.
Any person found guilty of any of the punishable acts enumerated in Section
5 shall be punished with imprisonment one (1) degree lower than that of the
prescribed penalty for the offense or a fine of at least One hundred thousand
pesos (Ph₱200.00 fine pursuant to Section 44 of Act100,000.00) but not exceeding Five hundred thousand pesos
(Ph₱200.00 fine pursuant to Section 44 of Act500,000.00) or both.
Section 8 provides for the penalties for the following crimes: Sections 4(a) on
Offenses Against the Confidentiality, Integrity and Availability of Computer
Data and Systems; 4(b) on Computer-related Offenses; 4(a)(5) on Misuse of
Devices; when the crime punishable under 4(a) is committed against critical
infrastructure; 4(c)(1) on Cybersex; 4(c)(2) on Child Pornography; 4(c)(3) on
Unsolicited Commercial Communications; and Section 5 on Aiding or
Abetting, and Attempt in the Commission of Cybercrime.
The matter of fixing penalties for the commission of crimes is as a rule a
legislative prerogative. Here the legislature prescribed a measure of severe
penalties for what it regards as deleterious cybercrimes. They appear
proportionate to the evil sought to be punished. The power to determine
penalties for offenses is not diluted or improperly wielded simply because at
some prior time the act or omission was but an element of another offense or
might just have been connected with another crime.77 Judges and
magistrates can only interpret and apply them and have no authority to
modify or revise their range as determined by the legislative department.
The courts should not encroach on this prerogative of the lawmaking body.78
Section 12 of the Cybercrime Law
Section 12 provides:
Sec. 12. Real-Time Collection of Traffic Data. — Law enforcement
authorities, with due cause, shall be authorized to collect or record by
technical or electronic means traffic data in real-time associated with
specified communications transmitted by means of a computer system.
Traffic data refer only to the communication’s origin, destination, route, time,
date, size, duration, or type of underlying service, but not content, nor
identities.
All other data to be collected or seized or disclosed will require a court
warrant.
Service providers are required to cooperate and assist law enforcement
authorities in the collection or recording of the above-stated information.
The court warrant required under this section shall only be issued or granted
upon written application and the examination under oath or affirmation of the
applicant and the witnesses he may produce and the showing: (1) that there
are reasonable grounds to believe that any of the crimes enumerated
hereinabove has been committed, or is being committed, or is about to be
committed; (2) that there are reasonable grounds to believe that evidence
that will be obtained is essential to the conviction of any person for, or to the
solution of, or to the prevention of, any such crimes; and (3) that there are no
other means readily available for obtaining such evidence.
Petitioners assail the grant to law enforcement agencies of the power to
collect or record traffic data in real time as tending to curtail civil liberties or
provide opportunities for official abuse. They claim that data showing where
digital messages come from, what kind they are, and where they are
destined need not be incriminating to their senders or recipients before they
are to be protected. Petitioners invoke the right of every individual to privacy
and to be protected from government snooping into the messages or
information that they send to one another.
The first question is whether or not Section 12 has a proper governmental
purpose since a law may require the disclosure of matters normally
considered private but then only upon showing that such requirement has a
rational relation to the purpose of the law,79 that there is a compelling State
interest behind the law, and that the provision itself is narrowly drawn.80 In
assessing regulations affecting privacy rights, courts should balance the
legitimate concerns of the State against constitutional guarantees.81
Undoubtedly, the State has a compelling interest in enacting the cybercrime
law for there is a need to put order to the tremendous activities in cyberspace
for public good.82 To do this, it is within the realm of reason that the
government should be able to monitor traffic data to enhance its ability to
combat all sorts of cybercrimes.
Chapter IV of the cybercrime law, of which the collection or recording of
traffic data is a part, aims to provide law enforcement authorities with the
power they need for spotting, preventing, and investigating crimes committed
in cyberspace. Crime-fighting is a state business. Indeed, as Chief Justice
Sereno points out, the Budapest Convention on Cybercrimes requires
signatory countries to adopt legislative measures to empower state
authorities to collect or record "traffic data, in real time, associated with
specified communications."83 And this is precisely what Section 12 does. It
empowers law enforcement agencies in this country to collect or record such
data.
But is not evidence of yesterday’s traffic data, like the scene of the crime
after it has been committed, adequate for fighting cybercrimes and, therefore,
real-time data is superfluous for that purpose? Evidently, it is not. Those who
commit the crimes of accessing a computer system without right,84
transmitting viruses,85 lasciviously exhibiting sexual organs or sexual activity
for favor or consideration;86 and producing child pornography87 could easily
evade detection and prosecution by simply moving the physical location of
their computers or laptops from day to day. In this digital age, the wicked can
commit cybercrimes from virtually anywhere: from internet cafés, from
kindred places that provide free internet services, and from unregistered
mobile internet connectors. Criminals using cellphones under pre-paid
arrangements and with unregistered SIM cards do not have listed addresses
and can neither be located nor identified. There are many ways the cyber
criminals can quickly erase their tracks. Those who peddle child pornography
could use relays of computers to mislead law enforcement authorities
regarding their places of operations. Evidently, it is only real-time traffic data
collection or recording and a subsequent recourse to court-issued search
and seizure warrant that can succeed in ferreting them out.
Petitioners of course point out that the provisions of Section 12 are too broad
and do not provide ample safeguards against crossing legal boundaries and
invading the people’s right to privacy. The concern is understandable.
Indeed, the Court recognizes in Morfe v. Mutuc88 that certain constitutional
guarantees work together to create zones of privacy wherein governmental
powers may not intrude, and that there exists an independent constitutional
right of privacy. Such right to be left alone has been regarded as the
beginning of all freedoms.89
But that right is not unqualified. In Whalen v. Roe,90 the United States
Supreme Court classified privacy into two categories: decisional privacy and
informational privacy. Decisional privacy involves the right to independence
in making certain important decisions, while informational privacy refers to
the interest in avoiding disclosure of personal matters. It is the latter right—
the right to informational privacy—that those who oppose government
collection or recording of traffic data in real-time seek to protect.
Informational privacy has two aspects: the right not to have private
information disclosed, and the right to live freely without surveillance and
intrusion.91 In determining whether or not a matter is entitled to the right to
privacy, this Court has laid down a two-fold test. The first is a subjective test,
where one claiming the right must have an actual or legitimate expectation of
privacy over a certain matter. The second is an objective test, where his or
her expectation of privacy must be one society is prepared to accept as
objectively reasonable.92
Since the validity of the cybercrime law is being challenged, not in relation to
its application to a particular person or group, petitioners’ challenge to
Section 12 applies to all information and communications technology (ICT)
users, meaning the large segment of the population who use all sorts of
electronic devices to communicate with one another. Consequently, the
expectation of privacy is to be measured from the general public’s point of
view. Without reasonable expectation of privacy, the right to it would have no
basis in fact.
As the Solicitor General points out, an ordinary ICT user who courses his
communication through a service provider, must of necessity disclose to the
latter, a third person, the traffic data needed for connecting him to the
recipient ICT user. For example, an ICT user who writes a text message
intended for another ICT user must furnish his service provider with his
cellphone number and the cellphone number of his recipient, accompanying
the message sent. It is this information that creates the traffic data.
Transmitting communications is akin to putting a letter in an envelope
properly addressed, sealing it closed, and sending it through the postal
service. Those who post letters have no expectations that no one will read
the information appearing outside the envelope.
Computer data—messages of all kinds—travel across the internet in packets
and in a way that may be likened to parcels of letters or things that are sent
through the posts. When data is sent from any one source, the content is
broken up into packets and around each of these packets is a wrapper or
header. This header contains the traffic data: information that tells computers
where the packet originated, what kind of data is in the packet (SMS, voice
call, video, internet chat messages, email, online browsing data, etc.), where
the packet is going, and how the packet fits together with other packets.93
The difference is that traffic data sent through the internet at times across the
ocean do not disclose the actual names and addresses (residential or office)
of the sender and the recipient, only their coded internet protocol (IP)
addresses. The packets travel from one computer system to another where
their contents are pieced back together.
Section 12 does not permit law enforcement authorities to look into the
contents of the messages and uncover the identities of the sender and the
recipient.
For example, when one calls to speak to another through his cellphone, the
service provider’s communication’s system will put his voice message into
packets and send them to the other person’s cellphone where they are
refitted together and heard. The latter’s spoken reply is sent to the caller in
the same way. To be connected by the service provider, the sender reveals
his cellphone number to the service provider when he puts his call through.
He also reveals the cellphone number to the person he calls. The other ways
of communicating electronically follow the same basic pattern.
In Smith v. Maryland,94 cited by the Solicitor General, the United States
Supreme Court reasoned that telephone users in the ‘70s must realize that
they necessarily convey phone numbers to the telephone company in order
to complete a call. That Court ruled that even if there is an expectation that
phone numbers one dials should remain private, such expectation is not one
that society is prepared to recognize as reasonable.
In much the same way, ICT users must know that they cannot communicate
or exchange data with one another over cyberspace except through some
service providers to whom they must submit certain traffic data that are
needed for a successful cyberspace communication. The conveyance of this
data takes them out of the private sphere, making the expectation to privacy
in regard to them an expectation that society is not prepared to recognize as
reasonable.
The Court, however, agrees with Justices Carpio and Brion that when
seemingly random bits of traffic data are gathered in bulk, pooled together,
and analyzed, they reveal patterns of activities which can then be used to
create profiles of the persons under surveillance. With enough traffic data,
analysts may be able to determine a person’s close associations, religious
views, political affiliations, even sexual preferences. Such information is likely
beyond what the public may expect to be disclosed, and clearly falls within
matters protected by the right to privacy. But has the procedure that Section
12 of the law provides been drawn narrowly enough to protect individual
rights?
Section 12 empowers law enforcement authorities, "with due cause," to
collect or record by technical or electronic means traffic data in real-time.
Petitioners point out that the phrase "due cause" has no precedent in law or
jurisprudence and that whether there is due cause or not is left to the
discretion of the police. Replying to this, the Solicitor General asserts that
Congress is not required to define the meaning of every word it uses in
drafting the law.
Indeed, courts are able to save vague provisions of law through statutory
construction. But the cybercrime law, dealing with a novel situation, fails to
hint at the meaning it intends for the phrase "due cause." The Solicitor
General suggests that "due cause" should mean "just reason or motive" and
"adherence to a lawful procedure." But the Court cannot draw this meaning
since Section 12 does not even bother to relate the collection of data to the
probable commission of a particular crime. It just says, "with due cause," thus
justifying a general gathering of data. It is akin to the use of a general search
warrant that the Constitution prohibits.
Due cause is also not descriptive of the purpose for which data collection will
be used. Will the law enforcement agencies use the traffic data to identify the
perpetrator of a cyber attack? Or will it be used to build up a case against an
identified suspect? Can the data be used to prevent cybercrimes from
happening?
The authority that Section 12 gives law enforcement agencies is too
sweeping and lacks restraint. While it says that traffic data collection should
not disclose identities or content data, such restraint is but an illusion.
Admittedly, nothing can prevent law enforcement agencies holding these
data in their hands from looking into the identity of their sender or receiver
and what the data contains. This will unnecessarily expose the citizenry to
leaked information or, worse, to extortion from certain bad elements in these
agencies.
Section 12, of course, limits the collection of traffic data to those "associated
with specified communications." But this supposed limitation is no limitation
at all since, evidently, it is the law enforcement agencies that would specify
the target communications. The power is virtually limitless, enabling law
enforcement authorities to engage in "fishing expedition," choosing whatever
specified communication they want. This evidently threatens the right of
individuals to privacy.
The Solicitor General points out that Section 12 needs to authorize collection
of traffic data "in real time" because it is not possible to get a court warrant
that would authorize the search of what is akin to a "moving vehicle." But
warrantless search is associated with a police officer’s determination of
probable cause that a crime has been committed, that there is no opportunity
for getting a warrant, and that unless the search is immediately carried out,
the thing to be searched stands to be removed. These preconditions are not
provided in Section 12.
The Solicitor General is honest enough to admit that Section 12 provides
minimal protection to internet users and that the procedure envisioned by the
law could be better served by providing for more robust safeguards. His bare
assurance that law enforcement authorities will not abuse the provisions of
Section 12 is of course not enough. The grant of the power to track
cyberspace communications in real time and determine their sources and
destinations must be narrowly drawn to preclude abuses.95
Petitioners also ask that the Court strike down Section 12 for being violative
of the void-for-vagueness doctrine and the overbreadth doctrine. These
doctrines however, have been consistently held by this Court to apply only to
free speech cases. But Section 12 on its own neither regulates nor punishes
any type of speech. Therefore, such analysis is unnecessary.
This Court is mindful that advances in technology allow the government and
kindred institutions to monitor individuals and place them under surveillance
in ways that have previously been impractical or even impossible. "All the
forces of a technological age x x x operate to narrow the area of privacy and
facilitate intrusions into it. In modern terms, the capacity to maintain and
support this enclave of private life marks the difference between a
democratic and a totalitarian society."96 The Court must ensure that laws
seeking to take advantage of these technologies be written with specificity
and definiteness as to ensure respect for the rights that the Constitution
guarantees.
Section 13 of the Cybercrime Law
Section 13 provides:
Sec. 13. Preservation of Computer Data. — The integrity of traffic data and
subscriber information relating to communication services provided by a
service provider shall be preserved for a minimum period of six (6) months
from the date of the transaction. Content data shall be similarly preserved for
six (6) months from the date of receipt of the order from law enforcement
authorities requiring its preservation.
Law enforcement authorities may order a one-time extension for another six
(6) months: Provided, That once computer data preserved, transmitted or
stored by a service provider is used as evidence in a case, the mere
furnishing to such service provider of the transmittal document to the Office
of the Prosecutor shall be deemed a notification to preserve the computer
data until the termination of the case.
The service provider ordered to preserve computer data shall keep
confidential the order and its compliance.
Petitioners in G.R. 20339197 claim that Section 13 constitutes an undue
deprivation of the right to property. They liken the data preservation order
that law enforcement authorities are to issue as a form of garnishment of
personal property in civil forfeiture proceedings. Such order prevents internet
users from accessing and disposing of traffic data that essentially belong to
them.
No doubt, the contents of materials sent or received through the internet
belong to their authors or recipients and are to be considered private
communications. But it is not clear that a service provider has an obligation
to indefinitely keep a copy of the same as they pass its system for the benefit
of users. By virtue of Section 13, however, the law now requires service
providers to keep traffic data and subscriber information relating to
communication services for at least six months from the date of the
transaction and those relating to content data for at least six months from
receipt of the order for their preservation.
Actually, the user ought to have kept a copy of that data when it crossed his
computer if he was so minded. The service provider has never assumed
responsibility for their loss or deletion while in its keep.
At any rate, as the Solicitor General correctly points out, the data that service
providers preserve on orders of law enforcement authorities are not made
inaccessible to users by reason of the issuance of such orders. The process
of preserving data will not unduly hamper the normal transmission or use of
the same.
Section 14 of the Cybercrime Law
Section 14 provides:
Sec. 14. Disclosure of Computer Data. — Law enforcement authorities, upon
securing a court warrant, shall issue an order requiring any person or service
provider to disclose or submit subscriber’s information, traffic data or relevant
data in his/its possession or control within seventy-two (72) hours from
receipt of the order in relation to a valid complaint officially docketed and
assigned for investigation and the disclosure is necessary and relevant for
the purpose of investigation.
The process envisioned in Section 14 is being likened to the issuance of a
subpoena. Petitioners’ objection is that the issuance of subpoenas is a
judicial function. But it is well-settled that the power to issue subpoenas is not
exclusively a judicial function. Executive agencies have the power to issue
subpoena as an adjunct of their investigatory powers.98
Besides, what Section 14 envisions is merely the enforcement of a duly
issued court warrant, a function usually lodged in the hands of law enforcers
to enable them to carry out their executive functions. The prescribed
procedure for disclosure would not constitute an unlawful search or seizure
nor would it violate the privacy of communications and correspondence.
Disclosure can be made only after judicial intervention.
Section 15 of the Cybercrime Law
Section 15 provides:
Sec. 15. Search, Seizure and Examination of Computer Data. — Where a
search and seizure warrant is properly issued, the law enforcement
authorities shall likewise have the following powers and duties.
Within the time period specified in the warrant, to conduct interception, as
defined in this Act, and:
(a) To secure a computer system or a computer data storage medium;
(b) To make and retain a copy of those computer data secured;
(c) To maintain the integrity of the relevant stored computer data;
(d) To conduct forensic analysis or examination of the computer data storage
medium; and
(e) To render inaccessible or remove those computer data in the accessed
computer or computer and communications network.
Pursuant thereof, the law enforcement authorities may order any person who
has knowledge about the functioning of the computer system and the
measures to protect and preserve the computer data therein to provide, as is
reasonable, the necessary information, to enable the undertaking of the
search, seizure and examination.
Law enforcement authorities may request for an extension of time to
complete the examination of the computer data storage medium and to make
a return thereon but in no case for a period longer than thirty (30) days from
date of approval by the court.
Petitioners challenge Section 15 on the assumption that it will supplant
established search and seizure procedures. On its face, however, Section 15
merely enumerates the duties of law enforcement authorities that would
ensure the proper collection, preservation, and use of computer system or
data that have been seized by virtue of a court warrant. The exercise of
these duties do not pose any threat on the rights of the person from whom
they were taken. Section 15 does not appear to supersede existing search
and seizure rules but merely supplements them.
Section 17 of the Cybercrime Law
Section 17 provides:
Sec. 17. Destruction of Computer Data. — Upon expiration of the periods as
provided in Sections 13 and 15, service providers and law enforcement
authorities, as the case may be, shall immediately and completely destroy
the computer data subject of a preservation and examination.
Section 17 would have the computer data, previous subject of preservation
or examination, destroyed or deleted upon the lapse of the prescribed period.
The Solicitor General justifies this as necessary to clear up the service
provider’s storage systems and prevent overload. It would also ensure that
investigations are quickly concluded.
Petitioners claim that such destruction of computer data subject of previous
preservation or examination violates the user’s right against deprivation of
property without due process of law. But, as already stated, it is unclear that
the user has a demandable right to require the service provider to have that
copy of the data saved indefinitely for him in its storage system. If he wanted
them preserved, he should have saved them in his computer when he
generated the data or received it. He could also request the service provider
for a copy before it is deleted.
Section 19 of the Cybercrime Law
Section 19 empowers the Department of Justice to restrict or block access to
computer data:
Sec. 19. Restricting or Blocking Access to Computer Data.— When a
computer data is prima facie found to be in violation of the provisions of this
Act, the DOJ shall issue an order to restrict or block access to such computer
data.
Petitioners contest Section 19 in that it stifles freedom of expression and
violates the right against unreasonable searches and seizures. The Solicitor
General concedes that this provision may be unconstitutional. But since laws
enjoy a presumption of constitutionality, the Court must satisfy itself that
Section 19 indeed violates the freedom and right mentioned.
Computer data99 may refer to entire programs or lines of code, including
malware, as well as files that contain texts, images, audio, or video
recordings. Without having to go into a lengthy discussion of property rights
in the digital space, it is indisputable that computer data, produced or created
by their writers or authors may constitute personal property. Consequently,
they are protected from unreasonable searches and seizures, whether while
stored in their personal computers or in the service provider’s systems.
Section 2, Article III of the 1987 Constitution provides that the right to be
secure in one’s papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable. Further,
it states that no search warrant shall issue except upon probable cause to be
determined personally by the judge. Here, the Government, in effect, seizes
and places the computer data under its control and disposition without a
warrant. The Department of Justice order cannot substitute for judicial search
warrant.
The content of the computer data can also constitute speech. In such a case,
Section 19 operates as a restriction on the freedom of expression over
cyberspace. Certainly not all forms of speech are protected. Legislature may,
within constitutional bounds, declare certain kinds of expression as illegal.
But for an executive officer to seize content alleged to be unprotected without
any judicial warrant, it is not enough for him to be of the opinion that such
content violates some law, for to do so would make him judge, jury, and
executioner all rolled into one.100
Not only does Section 19 preclude any judicial intervention, but it also
disregards jurisprudential guidelines established to determine the validity of
restrictions on speech. Restraints on free speech are generally evaluated on
one of or a combination of three tests: the dangerous tendency doctrine, the
balancing of interest test, and the clear and present danger rule.101 Section
19, however, merely requires that the data to be blocked be found prima
facie in violation of any provision of the cybercrime law. Taking Section 6 into
consideration, this can actually be made to apply in relation to any penal
provision. It does not take into consideration any of the three tests mentioned
above.
The Court is therefore compelled to strike down Section 19 for being violative
of the constitutional guarantees to freedom of expression and against
unreasonable searches and seizures.
Section 20 of the Cybercrime Law
Section 20 provides:
Sec. 20. Noncompliance. — Failure to comply with the provisions of Chapter
IV hereof specifically the orders from law enforcement authorities shall be
punished as a violation of Presidential Decree No. 1829 with imprisonment of
prision correctional in its maximum period or a fine of One hundred thousand
pesos (Php100,000.00) or both, for each and every noncompliance with an
order issued by law enforcement authorities.
Petitioners challenge Section 20, alleging that it is a bill of attainder. The
argument is that the mere failure to comply constitutes a legislative finding of
guilt, without regard to situations where non-compliance would be reasonable
or valid.
But since the non-compliance would be punished as a violation of
Presidential Decree (P.D.) 1829,102 Section 20 necessarily incorporates
elements of the offense which are defined therein. If Congress had intended
for Section 20 to constitute an offense in and of itself, it would not have had
to make reference to any other statue or provision.
P.D. 1829 states:
Section 1. The penalty of prision correccional in its maximum period, or a fine
ranging from 1,000 to 6,000 pesos, or both, shall be imposed upon any
person who knowingly or willfully obstructs, impedes, frustrates or delays the
apprehension of suspects and the investigation and prosecution of criminal
cases by committing any of the following acts:
x x x.
Thus, the act of non-compliance, for it to be punishable, must still be done
"knowingly or willfully." There must still be a judicial determination of guilt,
during which, as the Solicitor General assumes, defense and justifications for
non-compliance may be raised. Thus, Section 20 is valid insofar as it applies
to the provisions of Chapter IV which are not struck down by the Court.
Sections 24 and 26(a) of the Cybercrime Law
Sections 24 and 26(a) provide:
Sec. 24. Cybercrime Investigation and Coordinating Center.– There is hereby
created, within thirty (30) days from the effectivity of this Act, an inter-agency
body to be known as the Cybercrime Investigation and Coordinating Center
(CICC), under the administrative supervision of the Office of the President,
for policy coordination among concerned agencies and for the formulation
and enforcement of the national cybersecurity plan.
Sec. 26. Powers and Functions.– The CICC shall have the following powers
and functions:
(a) To formulate a national cybersecurity plan and extend immediate
assistance of real time commission of cybercrime offenses through a
computer emergency response team (CERT); x x x.
Petitioners mainly contend that Congress invalidly delegated its power when
it gave the Cybercrime Investigation and Coordinating Center (CICC) the
power to formulate a national cybersecurity plan without any sufficient
standards or parameters for it to follow.
In order to determine whether there is undue delegation of legislative power,
the Court has adopted two tests: the completeness test and the sufficient
standard test. Under the first test, the law must be complete in all its terms
and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.1avvphi1 The
second test mandates adequate guidelines or limitations in the law to
determine the boundaries of the delegate’s authority and prevent the
delegation from running riot.103
Here, the cybercrime law is complete in itself when it directed the CICC to
formulate and implement a national cybersecurity plan. Also, contrary to the
position of the petitioners, the law gave sufficient standards for the CICC to
follow when it provided a definition of cybersecurity.
Cybersecurity refers to the collection of tools, policies, risk management
approaches, actions, training, best practices, assurance and technologies
that can be used to protect cyber environment and organization and user’s
assets.104 This definition serves as the parameters within which CICC
should work in formulating the cybersecurity plan.
Further, the formulation of the cybersecurity plan is consistent with the policy
of the law to "prevent and combat such [cyber] offenses by facilitating their
detection, investigation, and prosecution at both the domestic and
international levels, and by providing arrangements for fast and reliable
international cooperation."105 This policy is clearly adopted in the interest of
law and order, which has been considered as sufficient standard.106 Hence,
Sections 24 and 26(a) are likewise valid.
WHEREFORE, the Court DECLARES:
1. VOID for being UNCONSTITUTIONAL:
a. Section 4(c)(3) of Republic Act 10175 that penalizes posting of unsolicited
commercial communications;
b. Section 12 that authorizes the collection or recording of traffic data in real-
time; and
c. Section 19 of the same Act that authorizes the Department of Justice to
restrict or block access to suspected Computer Data.
2. VALID and CONSTITUTIONAL:
a. Section 4(a)(1) that penalizes accessing a computer system without right;
b. Section 4(a)(3) that penalizes data interference, including transmission of
viruses;
c. Section 4(a)(6) that penalizes cyber-squatting or acquiring domain name
over the internet in bad faith to the prejudice of others;
d. Section 4(b)(3) that penalizes identity theft or the use or misuse of
identifying information belonging to another;
e. Section 4(c)(1) that penalizes cybersex or the lascivious exhibition of
sexual organs or sexual activity for favor or consideration;
f. Section 4(c)(2) that penalizes the production of child pornography;
g. Section 6 that imposes penalties one degree higher when crimes defined
under the Revised Penal Code are committed with the use of information and
communications technologies;
h. Section 8 that prescribes the penalties for cybercrimes;
i. Section 13 that permits law enforcement authorities to require service
providers to preserve traffic data and subscriber information as well as
specified content data for six months;
j. Section 14 that authorizes the disclosure of computer data under a court-
issued warrant;
k. Section 15 that authorizes the search, seizure, and examination of
computer data under a court-issued warrant;
l. Section 17 that authorizes the destruction of previously preserved
computer data after the expiration of the prescribed holding periods;
m. Section 20 that penalizes obstruction of justice in relation to cybercrime
investigations;
n. Section 24 that establishes a Cybercrime Investigation and Coordinating
Center (CICC);
o. Section 26(a) that defines the CICC’s Powers and Functions; and
p. Articles 353, 354, 361, and 362 of the Revised Penal Code that penalizes
libel.
Further, the Court DECLARES:
1. Section 4(c)(4) that penalizes online libel as VALID and
CONSTITUTIONAL with respect to the original author of the post; but VOID
and UNCONSTITUTIONAL with respect to others who simply receive the
post and react to it; and
2. Section 5 that penalizes aiding or abetting and attempt in the commission
of cybercrimes as VA L I D and CONSTITUTIONAL only in relation to
Section 4(a)(1) on Illegal Access, Section 4(a)(2) on Illegal Interception,
Section 4(a)(3) on Data Interference, Section 4(a)(4) on System
Interference, Section 4(a)(5) on Misuse of Devices, Section 4(a)(6) on Cyber-
squatting, Section 4(b)(1) on Computer-related Forgery, Section 4(b)(2) on
Computer-related Fraud, Section 4(b)(3) on Computer-related Identity Theft,
and Section 4(c)(1) on Cybersex; but VOID and UNCONSTITUTIONAL with
respect to Sections 4(c)(2) on Child Pornography, 4(c)(3) on Unsolicited
Commercial Communications, and 4(c)(4) on online Libel.1âwphi1
Lastly, the Court RESOLVES to LEAVE THE DETERMINATION of the
correct application of Section 7 that authorizes prosecution of the offender
under both the Revised Penal Code and Republic Act 10175 to actual cases,
WITH THE EXCEPTION of the crimes of:
1. Online libel as to which, charging the offender under both Section 4(c)(4)
of Republic Act 10175 and Article 353 of the Revised Penal Code constitutes
a violation of the proscription against double jeopardy; as well as
2. Child pornography committed online as to which, charging the offender
under both Section 4(c)(2) of Republic Act 10175 and Republic Act 9775 or
the Anti-Child Pornography Act of 2009 also constitutes a violation of the
same proscription, and, in respect to these, is VOID and
UNCONSTITUTIONAL.
SO ORDERED.
Ejercito vs. COMELEC (742 SCRA 210)
Contested in this petition for certiorari under Rule 64, in relation to Rule 65 of
the Rules of Court (Rules), is the May 21, 2014 Resolutio1 of the
Commission on Elections (COMELEC) En Banc in SPA No. 13-306 (DC),
which affirmed the September 26, 2013 Resolution2 of the COMELEC First
Division granting the petition for disqualification filed by private respondent
Edgar "Egay" S. San Luis (San Luis) against petitioner Emilio Ramon "E.R."
P. Ejercito (Ejercito). Three days prior to the May 13, 2013 National and
Local Elections, a petition for disqualification was filed by San Luis before the
Office of the COMELEC Clerk in Manila against Ejercito, who was a fellow
gubernatorial candidate and, at the time, the incumbent Governor of the
Province of Laguna.3 Alleged in his Petition are as follows:
FIRST CAUSE OF ACTION
5. [Ejercito], during the campaign period for 2013 local election, distributed to
the electorates of the province of Laguna the so-called "Orange Card" with
an intent to influence, induce or corrupt the voters in voting for his favor.
Copy thereof is hereto attached and marked as Annex "C" and made as an
integral part hereof;
6. In furtherance of his candidacy for the position of Provincial Governor of
Laguna, [Ejercito] and his cohorts claimed that the said "Orange Card" could
be used in any public hospital within the Province of Laguna for their medical
needs as declared by the statements of witnesses which are hereto attached
and marked as Annex "D" as integral part hereof;
7. The so-called "Orange Card" is considered a material consideration in
convincing the voters to cast their votes for [Ejercito’s] favor in clear violation
of the provision of the Omnibus Election Code which provides and I quote:
"Sec. 68. Disqualifications. – Any candidate who, in an action or protest in
which he is a party is declared by final decision by a competent court guilty
of, or found by the Commission of having (a) given money or other
materialconsideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a candidate, or if
hehas been elected, from holding the office. Any person who is a permanent
resident of or an immigrant to a foreign country shall not be qualified to run
for any elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in accordance
with the residence requirement provided for in the election laws." (emphasis
ours)
8. Thus, pursuant to the mandate of the aforesaid law, [Ejercito] should be
disqualified;
SECOND CAUSE OF ACTION
9. Based on the records of the Provincial COMELEC, the Province of Laguna
has a total of 1,525,522 registered electorate. A certification issued by the
Provincial Election Supervisor is hereto attached and marked as Annex "E" Box Office 11:18 p.m. 4 minutes
as an integral part hereof; (approximately) ₱200.00 fine pursuant to Section 44 of Act2,635,200
GMA April 28, 2013 Sunday Night
10. In this regard, par. (a), Section 5 of COMELEC Resolution No. 9615, Box Office 11:47 p.m. 4 minutes
otherwise known as the Rules and Regulations Implementing FAIR (approximately) ₱200.00 fine pursuant to Section 44 of Act2,635,200
ELECTION ACT provides and I quote: ABS-CBN May 4, 2013 TODA MAX 11:26 p.m. 4 minutes
(approximately) ₱200.00 fine pursuant to Section 44 of Act3,297,496
"Authorized Expenses of Candidates and Parties. –The aggregate amount ABS-CBN May 5, 2013 Rated K 8:06 p.m. 4 minutes
that a candidate or party may spent for election campaign shall be as follows: (approximately) ₱200.00 fine pursuant to Section 44 of Act3,297,496
Total ₱200.00 fine pursuant to Section 44 of Act23,730.784
a. For candidates – Three pesos (₱200.00 fine pursuant to Section 44 of Act3.00) for every voter currently registered * Total cost based on published rate card;
in the constituency where the candidate filed his certificate of candidacy.
13. Even assuming that [Ejercito] was given 30% discount as prescribed
b. For other candidates without any political party and without any support under the Fair Election Act, he still exceeded in the total allowable
from any political party – Five pesos (₱200.00 fine pursuant to Section 44 of Act5.00) for every voter currently expenditures for which he paid the sum of ₱200.00 fine pursuant to Section 44 of Act16,611,549;
registered in the constituency where the candidate filed his certificate of
candidacy. 14. In view of the foregoing disquisitions, it is evident that [Ejercito]
committed an election offense as provided for under Section 35 of
c. For Political Parties and party-list groups – Five pesos ( ₱200.00 fine pursuant to Section 44 of Act5.00) for every COMELEC Resolution No. 9615, which provides and I quote:
voter currently registered in the constituency or constituencies where it has
official candidates. (underscoring mine for emphasis) "Election Offense. – Any violation of R.A. No. 9006 and these Rules shall
constitute an election offense punishable under the first and second
11. Accordingly, a candidate for the position of Provincial Governor of paragraph of Section 264 of the Omnibus Election Code in addition to
Laguna is only authorized to incur an election expense amounting to FOUR administrative liability, whenever applicable. x x x"
MILLION FIVE HUNDRED SEVENTY-SIX THOUSAND FIVE HUNDRED
SIXTY-SIX (₱200.00 fine pursuant to Section 44 of Act4,576,566.00) PESOS. 15. Moreover, it is crystal clear that [Ejercito] violated Sec. 68 of the Omnibus
Election Code which provides and I quote:
12. However, in total disregard and violation of the afore-quoted provision of
law, [Ejercito] exceeded his expenditures in relation to his campaign for the "Sec. 68. Disqualifications. – Any candidate who, in an action or protest in
2013 election. For television campaign commercials alone, [Ejercito] already which he is a party is declared by final decision by a competent court guilty
spent the sum of Ph₱200.00 fine pursuant to Section 44 of Act23,730.784 based on our party’s official monitoring on of, or found by the Commission of having (a) given money or other material
the following dates[:] April 28, May 4 & May 5, 2013. consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
Network Date Program Time Duration Amount* candidacy; (c) spent in his election campaign an amount in excess of that
ABS-CBN April 28, 2013 TV Patrol 5:58 p.m. 4 minutes allowed by this Code; (d) solicited, received or made any contribution
(approximately) ₱200.00 fine pursuant to Section 44 of Act3,297,496 prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
ABS-CBN April 28, 2013 Sundays Best Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc,
(local specials) 10:40 p.m. 4 minutes subparagraph 6, shall be disqualified from continuing asa candidate, or if he
(approximately) ₱200.00 fine pursuant to Section 44 of Act3,297,496 has been elected, from holding the office. Any person who is a permanent
GMA April 28, 2013 Sunday Night resident of or an immigrant to a foreign country shall not be qualified to run
Box Office 10:46 p.m. 3 minutes for any elective office under this Code, unless said person has waived his
(approximately) ₱200.00 fine pursuant to Section 44 of Act2,635,200 status as permanent resident or immigrant of a foreign country in accordance
GMA April 28, 2013 Sunday Night with the residence requirement provided for in the election laws." (emphasis
Box Office 11:06 p.m. 4 minutes ours)
(approximately) ₱200.00 fine pursuant to Section 44 of Act2,635,200
GMA April 28, 2013 Sunday Night
16. On the other hand, the effect of disqualification is provided under Sec. 6
of Republic Act No. 6646, which states and I quote:
"Effect of Disqualification Case. – Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for
him shall not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of [his] guilt is strong." (emphasis mine)
PRAYER
WHEREFORE, premises considered, it is respectfully prayed that:
1. Upon filing of this petition, a declaration by the Honorable Commission of
the existence of probable cause be made against [Ejercito] for violating the
afore-quoted provisions of laws;
2. In the event that [Ejercito] will beable to get a majority vote of the
electorate of the Province of Laguna on May 13, 2013, his proclamation be
suspended until further order of the Honorable Commission pursuant to Sec.
6 of Republic Act No. 6646;
3. Lastly, a criminal case for VIOLATION OF ELECTION LAWS be filed
against [Ejercito] before the proper court[;] [and]
4. Other relief, just and equitable underthe premises, are also prayed for.4
Subsequently, on May 16, 2013, San Luis filed a Very Urgent ExParte Motion
to Issue Suspension of Possible Proclamation of Respondent and
Supplemental to the Very Urgent Ex-Parte Motion to Issue Suspension of
Possible Proclamation of Respondent.5 However, these were not acted upon
by the COMELEC. The next day, Ejercito and Ramil L. Hernandez were
proclaimed by the Provincial Board of Canvassers as the duly-elected
Governor and Vice-Governor, respectively, of Laguna.6 Based on the
Provincial/District Certificate of Canvass, Ejercito obtained 549,310 votes
compared with San Luis’ 471,209 votes.7
The COMELEC First Division issued a Summons with Notice of Conference
on June 4, 2013.8 Ejercito then filed his Verified Answeron June 13, 2013
that prayed for the dismissal of the petition due to procedural and substantive
irregularities and taking into account his proclamation as Provincial
Governor.9 He countered that the petition was improperly filed because,
based on the averments and relief prayed for, it is in reality a complaint for
election offenses; thus, the case should have been filed before the
COMELEC Law Department, or the election registrar, provincial election
supervisor or regional election director, or the state, provincial or city
prosecutor in accordance with Laurel v. Presiding Judge, RTC, Manila, Br.
10.10 Assuming that the petition could be given due course, Ejercito argued
that San Luis failed to show, conformably with Codilla, Sr. v. Hon. De
Venecia,11 that he (Ejercito) was previously convicted or declared by final
judgment of a competent court for being guilty of, or found by the COMELEC
of having committed, the punishable acts under Section 68 of Batas
Pambansa (B.P.) Bilang 881, or the Omnibus Election Code of the
Philippines, as amended (OEC).12
As to the acts he allegedly committed, Ejercito claimed that the same are
baseless, unfounded, and totally speculative. He stated that the Health
Access Program or the E.R. "Orange Card" was a priority project of his
administration as incumbent Governor of Laguna and was never intended to
influence the electorate during the May 2013 elections. He added that the
"Orange Card," which addressed the increasing need for and the high cost of
quality health services, provides the Laguneños not only access to medical
services but also the privilege to avail free livelihood seminars to help them
find alternative sources of income. With respect to the charge of having
exceeded the total allowable election expenditures, Ejercito submitted that
the accusation deserves no consideration for being speculative, self-serving,
and uncorroborated by any other substantial evidence.
Citing Sinaca v. Mula,13 Ejercito asserted that the petition questioning his
qualification was rendered moot and academic by his proclamation as the
duly-elected Provincial Governor ofLaguna for the term 2013-2016. He
perceived that his successful electoral bid substantiates the fact that he was
an eligible candidate and that his victory is a testament that he is more than
qualified and competent to hold public office.
Lastly, Ejercito considered San Luis’ petition for disqualification as purely
frivolous and with no plain and clear purpose but to harass and cause undue
hardship. According to him, the fact that it was filed only a few days before
the May 13, 2013 elections evidently shows that it was lodged as a last-ditch
effort to baselessly derail and obstruct his assumption of office and function
as the duly-elected Laguna Governor.
The scheduled case conference between the parties on June 13, 2013 was
reset to June 27, 2013.14 In the latter date, all the documentary exhibits
were marked in evidence and the parties agreed to file their respective
memorandum within ten (10) days.15
San Luis substantially reiterated the content of the Petitionin his
Memorandum.16 Additionally, he alleged that:
15. After the election, [San Luis] was able to secure documents from the
Information and Education Department of the Commission on Elections
showing that [Ejercito] have incurred advertising expenses with ABS-CBN in
the amount of [₱200.00 fine pursuant to Section 44 of Act20,197,170.25] not to mention his advertisement with GMA
7. Copies of the summary report, media purchase order, advertising
contract[,] and official receipt are marked as EXHS. "B-1", "B-2", "B-3",
and"B-4" (Annexes "A", "B", "C", and "D", supplemental to the very urgent ex-
parte motion)[.]17
It was stressed that the case is a "Special Action for Disqualification" seeking
to disqualify Ejercito as gubernatorial candidate for violation of Section 68 (a)
(c) of the OEC. He prayed that "[t]he Petition BE GRANTED [and] x x x
[Ejercito] BE DISQUALIFIED, and PREVENTED from further holding office
as Governor of Laguna."18 In refutation of Ejercito’s defenses, San Luis
argued that it is precisely because of the commission of the election offenses
under Section 68 of the OEC that he (Ejercito) should be disqualified. Also,
citing Section 6 of Republic Act (R.A.) No. 6646,19 San Luis contended that
Ejercito’s proclamation and assumption of office do not affect the
COMELEC’s jurisdiction to continue with the trial and hearing of the action
until it is finally resolved.
For his part, Ejercito filed a Manifestation (In Lieu of Memorandum)20
restating all the arguments set forth in his Verified Answer.
On September 26, 2013, the COMELEC First Division promulgated a
Resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, the Commission (First Division)
RESOLVED, as it hereby RESOLVES, to:
(1) GRANTthe Petition for Disqualification filed against respondent Emilio
Ramon "E.R." P. Ejercito;
(2) DISQUALIFY respondent Ejercito from holding the Office of the Provincial
Governor of Laguna, pursuant to Section 68 of the Omnibus Election Code;
(3) ORDER respondent Ejercito to CEASE and DESIST from performing the
functions of the Office of the Provincial Governor of Laguna;
(4) DECLARE a permanent VACANCY in the Office of the Provincial
Governor of Laguna;
(5) DIRECT the duly elected Vice Governor of Laguna to assume the Office
of the Provincial Governor by virtue of succession as provided in Section 44
of the Local Government Code; and
(6) DIRECT the Campaign Finance Unit to coordinate with the Law
Department of this Commission for the conduct of a preliminary investigation
into the alleged violations of campaign finance laws, rules and regulations
committed by respondent Ejercito.
SO ORDERED.21
On procedural matters, the COMELEC First Division held that the title of San
Luis’ petition and its reliance on Section 68 (a) (c) of the OEC as grounds for
his causes of action clearly show that the case was brought under Rule 25 of
the COMELEC Rules of Procedure,22 as amended by COMELEC Resolution
No. 9523,23 which allows petitions for disqualification to be filed "any day
after the last day for filing of certificates of candidacy, but not later than the
date of proclamation." No credence was given to Ejercito’s contention that
the petition was mooted by his proclamation as Governor of Laguna. The
COMELEC First Division opined that the case of Sinacais inapplicable,
because it was not about Sinaca’s eligibility or whether he committed any of
the acts enumerated in Section 68 of the OEC. Consistent with Maquiling v.
Commission on Elections,24 it was declared that Ejercito’s garnering of more
votes than San Luis in the May 2013 elections is not tantamount to
condonation of any act or acts that he committed which may be found to bea
ground for disqualification or election offense.
The COMELEC First Division settled the substantive issues put forth in the
petition for disqualification in this wise:
Anent [San Luis’] first cause of action, [San Luis] presented the Sworn
Statement dated [May 7, 2013]of a certain Mrs. Daisy A. Cornelio, together
with the "Orange Card" issued to Mrs. Cornelio, marked respectively as
Exhibits "A-4" and "A-3" as per [San Luis’] Summary of Exhibits– to prove
that [Ejercito] committed the act described in Section 68 (a) of the OEC. After
reviewing Mrs. Cornelio’s Sworn Statement, we do not find any averment to
the effect that the Orange Card was given to the affiant to influence or induce
her to vote for [Ejercito]. Affiant only stated that she was given the Orange
Card "last April of this year" and that she was "not able to use it during those
times when [she] or one of [her] family members got sick and needed
hospital assistance." Aside from Mrs. Cornelio’s Sworn Statement, there is
no other evidence to support [San Luis’] claim, leading us to reject[San Luis’]
first cause of action.
With respect to the second cause of action, [San Luis] presented Exhibits "B-
1" to "B-4", which are submissions made by the ABS-CBN Corporation as
mandated by Section 6 of Republic Act No. 9006 ("RA 9006" or the "Fair 1,525,522 registered
Election Act"), implemented through Section 9 (a) of Resolution No. 9615. voters in Laguna x PhP 3.00 per voter = PhP
Exhibit "B-3" is an Advertising Contractbetween ABS-CBN Corporation and 4,576,566.00
Scenema Concept International, Inc. ("SCI"). The details of the Contractare While not presented as evidence in this case, we cannot deny the existence
as follows: of another Advertising Contract dated [May 8, 2013]for one (1) spot of a 3.5-
minute advertisement scheduled for broadcast on [May 9, 2013], amounting
to PhP 3,366,195.05. This Contract also contains the signature of [Ejercito]
Payor/Advertiser Scenema Concept International, Inc. accepting the donation from SCI and is accompanied by an ABS-CBN-issued
Beneficiary Jeorge "ER" Ejercito Estregan Official Receipt No. 279513 dated [May 7, 2013] in SCI’s name for PhP
Broadcast Schedule April 27, 28, May 3, 4, 10 & 11, 2013 6,409,235.28. If we add the amounts from both contracts, we arrive at a total
Number of Spots 6 spots of 3.5 minutes each cost of PhP 23,563,365.29, which, coincidentally, is the product of:
Unit Cost per Spot PhP 3,366,195.04
Total Cost of Contract PhP 20,197,170.25 plus VAT Number of spots x Unit cost per spot = Total
The Contract contains the signature of [Ejercito] signifying his acceptance of contract cost
the donation by SCI, the latter represented by its Executive Vice President, Seven (7) spotsx PhP 3,366,195.04 = PhP 23,563,365.28
Ms. Maylyn Enriquez. In addition to the advertising contract, Exhibit "B-4" This matches the data gathered by the Commission’s EID from the reports
was submitted, which is a photocopy of an Official Receipt issued by ABS- and logs submitted by broadcast stations as required by the Fair Election
CBN for the contract, with the following details: Act. According to the 99-page Daily Operations Log for Channel 2 submitted
by ABS-CBN covering the period of [April 27, 2013] to [May 11, 2013],
Date of the Receipt [April 26, 2013] [Ejercito’s] 3.5-minute or 210-second advertisement was aired seven (7)
Received From Scenema Concept International, Inc. times. The specific details on the dates of airing, program or time slot when
Amount Received PhP 6,409,235.28 the advertisements were aired, and the time when the advertisements as
Official Receipt No. 278499 culled from the 99-page Daily Operations Logare summarized as thus:

Upon verification of the submitted Exhibits "B-1" to "B-4" with this
Commission’s Education and Information Department (EID), the latter having
custody of all advertising contracts submitted by broadcast stations and
entities in relation tothe [May 13, 2013] National and Local Elections, we find
the said Exhibits tobe faithful reproductions of our file copy of the same. A
comparison of [Ejercito’s] signature on the Advertising Contractand that on
his Certificate of Candidacy show them to be identical to each other, leading
us to the conclusion that [Ejercito] had indeed accepted the PhP
20,197,170.25 donation in the form of television advertisements to be aired
on ABS-CBN’s Channel 2. Even if we were to assume that only PhP
6,409,235.28 was actually paid out of PhP 20,197,170.25 advertising
contract, thisamount is still more than PhP 4,576,566.00, which is [Ejercito’s]
total authorized aggregate amount allowed for his election campaign,
computed as follows:
Number of registered
voters for the whole
Province of Laguna x Authorized expense
per voter registered
in the constituency = Total amount of
spending allowed
for election campaign
Date aired Program/Time Slot Airtime
28 Apr 2013 TV Patrol Linggo/5:20-5:30 pm 05:54:40 PM
28 Apr 2013 Harapan: Senatorial Debate/9:30-11:30 pm 10:40:13 PM
04 May 2013 TODA MAX/10:30-11:15 pm 11:26:43 PM
05 May 2013 Rated K-Handa Na Ba Kayo/7:15-8:15 pm 08:06:42 PM
09 May 2013 TV Patrol/6:30-7:45 pm 07:35:56 PM
10 May 2013 TV Patrol/6:30-7:45 pm 07:44:50 PM
11 May 2013 TV Patrol Sabado/5:30-6:00 pm 06:12:30 PM
Source: Pages 6, 8, 43, 47, 75, 84, and 93 of ABS-CBN Channel 2 Daily
Operations Log for [April 27, 2013] to [May 11, 2013].
Assuming arguendo, that the actual cost of both contracts only amounted to
PhP 12,818,470.56 as substantiated by the two (2) Official Receipt sissued
by the ABS-CBN on [April 26] and [May 7, 2013], or even if we were only to
consider Exhibit ["B-4"] or the Php 6,409,235.28 payment to ABS-CBN on
[April 26, 2013], it nevertheless supports our finding that [Ejercito] exceeded
his authorized expenditure limit of PhP 4,576,566.00 which is a ground for
disqualification under Section 68 (c) and concurrently an election offense
pursuant to Section 100 in relation to Section 262 of the Omnibus Election
Code.25
Only Ejercito filed a Verified Motion for Reconsideration before the
COMELEC En Banc.26 After the parties’ exchange of pleadings,27 the
Resolution of the COMELEC First Division was unanimously affirmed on May
21, 2014.
The COMELEC En Bancagreed with the findings of its First Division that San
Luis’ petition is an action to disqualify Ejercito, reasoning that:
x x x First, the title of the petition indicating that it is a petition for
disqualification clearly expresses the objective of the action. Second, it is
manifest from the language of the petition that the causes of action have
relied primarily on Section 68 (a) and (c) of the OEC[,] which are grounds for
disqualification x x x. Third, notwithstanding that the relief portion of the
petition sounded vague in its prayer for the disqualification of Ejercito, the
allegations and arguments set forth therein are obviously geared towards
seeking his disqualification for having committed acts listed as grounds for
disqualification in Section 68 of OEC. Lastly, as correctly observed by the
COMELEC First Division, San Luis’ Memorandum addresses and clarifies
the intention of the petition when it prayed for Ejercito to "be disqualified and
prevented from holding office as Governor of Laguna." While there is a
prayerseeking that Ejercito be held accountable for having committed
election offenses, there can be no doubt that the petition was primarily for his
disqualification.
Section 68 of the OEC expressly grants COMELEC the power to take
cognizance of an action or protest seeking the disqualification of a candidate
who has committed any of the acts listed therein from continuing as one, or if
he or she has been elected, from holding office. One ground for
disqualification listed in Section 68 is spending in an election campaign an
amount in excess of that allowed by law. It is exactly on said ground that San
Luis is seeking the disqualification of Ejercito. The jurisdiction of COMELEC
over the petition, therefore, is clear.28
The alleged violation of Ejercito’s constitutional right to due process was also
not sustained: Ejercito insists that he was deprived of his right to notice and
hearing and was not informed of the true nature of the case filed against him
when San Luis was allegedly allowed in his memorandum to make as
substantial amendment in the reliefs prayed for in his petition. San Luis was
allegedly allowed to seek for Ejercito’s disqualification instead of the filing of
an election offense against him.
As discussed above, the allegations in the petition, particularly the causes of
action, clearly show that it is not merely a complaint for an election offense
but a disqualification case against Ejercito as well. San Luis’ memorandum
merely amplified and clarified the allegations and arguments in his petition.
There was no change in the cause or causes of action. Ejercito[,] therefore,
cannot claim that he was not aware of the true nature of the petition filed
against him.
Likewise, Ejercito cannot complainthat he was deprived of his right to notice
and hearing. He cannot feign ignorance that the COMELEC First Division,
throughout the trial, was hearing the petition as a disqualification case and
not as an election offense case. He was served with Summons with Notice of
Conference on [June 4, 2013] and was given a copy of the petition. He
likewise submitted to the jurisdiction of the Commission when he filed his
Verified Answer. He also participated in the Preliminary Conference on [June
27, 2013] wherein he examined evidence on record and presented his own
documentary exhibits. Lastly, he filed a Manifestation (in lieu of
Memorandum) incorporating all his allegations and defenses.
Ejercito contends that amending the reliefs prayed for is prohibited under
Section 2, Rule 9 of the 1993 COMELEC Rules of Procedure. He asserts
that the relief prayed for in the memorandum is not the same as that in the
petition. However, a scrutiny of said amendment shows that no new issues
were introduced. Moreover, there was no departure from the causes of action
and no material alterations on the grounds of relief. The amendment[,]
therefore[,] is not substantial as it merely rectifies or corrects the true nature
of reliefs being prayed for as set forth in the petition. The records of the case
will show that Ejercito has been afforded the opportunity to contest and rebut
all the allegations against him. He was never deprived of his right to have
access to the evidence against him. He was adequately aware of the nature
and implication of the disqualification case against him. Thus, Ejercito cannot
say that he was denied of his constitutional right to due process.
It is important to note at this point that Ejercito, in his motion for
reconsideration, deliberately did not tackle the merit and substance of the
charges against him. He limited himself to raising procedural issues. This is
despite all the opportunity that he was given to confront the evidence lodged
against him. Therefore, there is no reason for the COMELEC En Bancto
disturb the findings of the COMELEC First Division on whether Ejercito
indeed over-spent in his campaign for governorship of Laguna in the [May
13, 2013] National and Local Elections.29
Anchoring on the case of Lanot v. Commission on Elections,30 the
COMELEC En Banclikewise debunked Ejercito’s assertion that the petition
was prematurely and improperly filed on the ground that the filing of an
election offense and the factual determination on the existence of probable
cause are required before a disqualification case based on Section 68 of the
OEC may proceed. It held:
As discussed in the case of Lanot vs. Comelec, each of the acts listed as
ground for disqualification under Section 68 of the OEC has two aspects –
electoral and criminal which may proceed independently from each other, to
wit:
x x x The electoral aspect of a disqualification case determines whether the
offender should be disqualified from being a candidate or from holding office.
Proceedings are summary in character and require only clear preponderance
of evidence. An erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation. The electoral
aspect may proceed independently of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is
probable cause to charge a candidate for an election offense. The prosecutor
is the COMELEC, through its Law Department, which determines whether
probable cause exists. If there is probable cause, the COMELEC, through its
Law Department, files the criminal information before the proper court.
Proceedings before the proper court demand a full-blown hearing and require
proof beyond reasonable doubt to convict. A criminal conviction shall result in
the disqualification of the offender, which may even include disqualification
from holding a future public office." (Emphasis supplied)31
The petition for disqualification against Ejercito for campaign over-spending
before the Commission isheard and resolved pursuant to the electoral aspect
of Section 68 of the OEC. It is an administrative proceeding separate and
distinct from the criminal proceeding through which Ejercito may be made to
undergo in order to determine whether he can be held criminally liable for the
same act of over-spending. It is through this administrative proceeding that
this Commission, initially through its divisions, makes a factual determination
on the veracity of the parties’ respective allegations in a disqualification case.
There is no need for a preliminary investigation finding on the criminal aspect
of the offenses in Section 68 before the Commission can act on the
administrative or electoral aspect of the offense. All that is needed is a
complaint or a petition. As enunciated in Lanot, "(a)n erring candidate may be
disqualified even without prior determination of probable cause in a
preliminary investigation. The electoral aspect may proceed independently of
the criminal aspect, and vice-versa."
Moreover, Ejercito’s reliance on Codilla is misplaced. The COMELEC En
Banc opined that the portion of the Codilla decision that referred to the
necessity of the conduct of preliminary investigation pertains to cases where
the offenders are charged with acts not covered by Section 68 of the OEC,
and are, therefore, beyond the ambit of the COMELEC’s jurisdiction. It said
that the decision refers to this type of cases as criminal (not administrative) in
nature, and,thus, should be handled through the criminal process.
Further rejected was Ejercito’s argument that the COMELEC lost its
jurisdiction over the petition for disqualification the moment he was
proclaimed as the duly-elected Governor of Laguna. For the COMELEC En
Banc, its First Division thoroughly and sufficiently addressed the matter when
it relied on Maquiling instead of Sinaca. It maintained that Section 5 of
COMELEC Resolution No. 9523, not COMELEC Resolution No. 2050,32 is
relevant to the instant case as it states that the COMELEC shall continue the
trial and hearing of a pending disqualification case despite the proclamation
of a winner. It was noted that the proper application of COMELEC Resolution
No. 2050 was already clarified in Sunga v. COMELEC.33
Finally, the COMELEC En Bancruled on one of San Luis’ contentions in his
Comment/Oppositionto Ejercito’s motion for reconsideration. He argued that
he becomes the winner in the gubernatorial election upon the disqualification
of Ejercito. Relying on Maquiling, San Luis declared that he was not the
second placer as he obtained the highest number of valid votes cast from
among the qualified candidates. In denying that Maquiling is on all fours with
this case, the COMELEC En Bancsaid:
In the instant case, Ejercito cannot be considered as a noncandidate by
reason of his disqualification under Section 68 of the OEC. He was a
candidate who filed a valid certificate of candidacy which was never
cancelled.
Ejercito was a bona fide candidate who was disqualified, not because of any
ineligibility existing at the time of the filing of the certificate of candidacy, but
because he violated the rules of candidacy. His disqualifying circumstance,
thatis, his having over-spent in his campaign, did not exist at the time of the
filing of his certificate of candidacy. It did not affect the validity of the votes
cast in his favor. Notwithstanding his disqualification, he remains the
candidate who garnered the highest number of votes.
Ejercito cannot be on the same footing with Arnado in the Maquiling case.
Arnado was disqualified from running for Mayor of Kauswagan, Lanao Del
Sur because he was a dual citizen not qualified to run for election. His
disqualification existed at the time of the filing of the certificate of candidacy.
The effect, pursuant to the Maquiling case, is that the votes he garnered are
void, which in turn resulted in having considered the "second placer" –
Maquiling – asthe candidate who obtained the highest number of valid votes
cast.
San Luis is in a different circumstance. The votes for the disqualified winning
candidate remained valid. Ergo, San Luis, being the second placer in the
vote count, remains the second placer. He cannot[,] thus[,] be named the
winner.
Section 6, Rule 25 of the COMELEC Resolution No. 9523, which governs
Section 68 petitions for disqualification, enunciates the rule succinctly, to wit:

Section 6. Effect of Granting of Petition.– In the event a Petition to disqualify
a candidate is granted by final judgment as defined under Section 8 of Rule
23 and the disqualified candidate obtains the highest number of votes, the
candidate with the second highest number of votes cannot be proclaimed
and the rule of succession, if allowed by law, shall be observed. In the event
the rule of succession is not allowed, a vacancy shall exist for such
position.34
On May 23, 2014, Ejercito filed before this Court a Petition for certiorari with
application for the issuance of a status quo ante order or temporary
restraining order (TRO)/writ of preliminary injunction (WPI).35 Without
issuing a TRO/WPI, the Honorable Chief Justice, Maria Lourdes P. A.
Sereno, issued on May 28, 2014 an order to respondents to comment on the
petition within a non-extendible period of ten (10) days from notice.36 Such
order was confirmed nunc pro tunc by the Court En Bancon June 3, 2014.37
Meantime, on May 26, 2014, Ejercito filed before the COMELEC En Bancan
Omnibus Motion to suspend proceedings and to defer the implementation of
the May 21, 2014 Resolution.38 On the same day, San Luis also filed an
Extremely Urgent Motion to Declare COMELEC En Banc Resolution of May
21, 2014 and First Division Resolution of September 26, 2013 Final and
Executory and to Issue Forthwith Writ of Execution or Implementing Order39
invoking Paragraph 2, Section 8 of COMELEC Resolution No. 9523, in
relation to Section 13 (b), Rule 18 of the COMELEC Rules of Procedure.40
On May 27, 2014, the COMELEC En Bancissued an Order denying Ejercito’s
omnibus motion, granted San Luis’ extremely urgent motion, and directedthe
Clerk of the Commission to issue the corresponding writ of execution.41 On
even date, Vice-Governor Hernandez was sworn in as the Governor of
Laguna at the COMELEC Main Office in Manila. The service of the writ was
deemed completed and validly served upon Ejercito on May 28, 2014.42
In his petition before Us, Ejercito raised the following issues for resolution:
THE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION IN
THAT:
(I) IT VIOLATED THE RIGHT OF PETITIONER TO DUE PROCESS WHEN
IT RULED FOR THE DISQUALIFICATION OF PETITIONER EVEN IF IT
WAS NEVER PRAYED FOR IN THE PETITION. WORSE, THERE IS YET
NO FINDING OFGUILT BY A COMPETENT COURT OR A FINDING OF
FACT STATING THAT PETITIONER ACTUALLY COMMITTED THE
ALLEGED ELECTION OFFENSE OF OVERSPENDING;
(II) IT RELIED ON A DOCUMENTARY EXHIBIT (ADVERTISING
CONTRACT) WHICH WAS NOT EVEN FORMALLY OFFERED AS
EVIDENCE; [AND]
(III) IT DISQUALIFIED PETITIONER FOR AN ACT DONE BY A THIRD
PARTY WHO SIMPLY EXERCISED ITS RIGHT TO FREE EXPRESSION
WITHOUT THE KNOWLEDGE AND CONSENT OF PETITIONER[.]43
The petition is unmeritorious.
A special civil action for certiorari under Rule 64, in relation to Rule 65, is an
independent action that is available only if there is no appeal or any other
plain, speedy, and adequate remedy in the ordinary course of law.44 It is a
legal remedy that is limited to the resolution of jurisdictional issues and is not
meant to correct simple errors of judgment.45 More importantly, it will only
prosper if grave abuse of discretion is alleged and isactually proved to
exist.46
Grave abuse of discretion arises when a lower court or tribunal violates the
Constitution, the law or existing jurisprudence. It means such capricious and
whimsical exercise of judgment as would amount to lack of jurisdiction; it
contemplates a situation where the power is exercised in an arbitrary or
despotic manner by reason of passion or personal hostility, so patent and
gross as to amount to an evasion of positive duty or a virtual refusal to
perform the duty enjoined by law. x x x.47
Ejercito failed to prove that the COMELEC rendered its assailed Resolution
with grave abuse of discretion.
We now explain.
The petition filed by San Luis
against Ejercito is for the
latter’s disqualification and
prosecution for election offense
Ejercito insists that his alleged acts of giving material consideration in the
form of "Orange Cards" and election overspending are considered as
election offenses under Section 35 of COMELEC Resolution No. 9615,48 in
relation to Section 1349 of R.A. No. 9006, and punishable under Section
26450 of the OEC. Considering that San Luis’ petition partakes of the nature
of a complaint for election offenses, the COMELEC First Division has no
jurisdiction over the same based on COMELEC Resolution No. 938651 and
Section 26552 of the OEC.
Still, Ejercito contends that the COMELEC erroneously sanctioned a change
in San Luis’ cause of action by the mere expedient of changing the prayer in
the latter’s Memorandum. According to him, San Luis’ additional prayer for
disqualification in the Memorandum is a substantial amendment to the
Petitionas it constitutes a material deviation from the original cause of action
– from a complaint for election offenses to a petition for disqualification.
Since such substantial amendment was effected after the case was set for
hearing, Ejercito maintains that the same should have been allowed only with
prior leave of the COMELEC First Division pursuant to Section 2, Rule 953 of
the COMELEC Rules of Procedure, which San Luis never did.
The arguments are untenable.
The purpose of a disqualification proceeding is to prevent the candidate from
running or, if elected, from serving, or to prosecute him for violation of the
election laws.54 A petition to disqualifya candidate may be filed pursuant to
Section 68 of the OEC, which states:
SEC. 68. Disqualifications.-- Any candidate who, in an action or protest in
which he is a party is declared by final decision of a competent court guilty of,
or found by the Commission of having: (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials
performing electoral functions; (b) committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing as a candidate, or if he has
been elected, from holding the office. Any person who is a permanent
resident of or animmigrant to a foreign country shall not be qualified to run for
any elective office under this Code, unless said person has waived his status
as permanent resident or immigrant of a foreign country in accordance with
the residence requirement provided for in the election laws.
The prohibited acts covered by Section 68 (e) refer to election campaign or
partisan political activityoutside the campaign period (Section 80); removal,
destruction or defacement of lawful election propaganda (Section 83); certain
forms of election propaganda (Section 85); violation of rules and regulations
on election propaganda through mass media; coercion of subordinates
(Section 261 [d]); threats, intimidation, terrorism, use of fraudulent device or
other forms of coercion (Section 261 [e]); unlawful electioneering (Section
261 [k]); release, disbursement or expenditure of public funds (Section 261
[v]); solicitation of votes or undertaking any propaganda on the day of the
election within the restricted areas (Section 261 [cc], sub-par.6). All the
offenses mentioned in Section 68 refer to election offenses under the OEC,
not toviolations of other penal laws. In other words, offenses that are
punished in laws other than in the OEC cannot be a ground for a Section 68
petition. Thus, We have held:
x x x [T]he jurisdiction of the COMELEC to disqualify candidates is limited to
those enumerated in Section 68 of the [OEC]. All other election offenses are
beyond the ambit of COMELEC jurisdiction. They are criminal and not
administrative in nature. Pursuant to Sections 265 and 268 of the [OEC], the
power of the COMELEC is confined to the conduct of preliminary
investigation on the alleged election offenses for the purpose of prosecuting
the alleged offenders before the regular courts of justice, viz:
"Section 265. Prosecution. – The Commission shall, through its duly
authorized legal officers, have the exclusive power to conduct preliminary
investigation of all election offenses punishable under this Code, and to
prosecute the same. The Commission may avail of the assistance of other
prosecuting arms of the government: Provided, however, That in the event
that the Commission fails to act on any complaint within four months from its
filing, the complainant may file the complaint with the office of the fiscal or
with the Ministry of Justice for proper investigation and prosecution, if
warranted.
xxx xxx xxx
Section 268. Jurisdiction. – The regional trial court shall have the exclusive
original jurisdiction to try and decide any criminal action orproceeding for
violation of this Code, except those relating to the offense of failure to
register or failure to vote which shall be under the jurisdictions of
metropolitan or municipal trial courts. From the decision of the courts, appeal
will lie as in other criminal cases."55
In the case at bar, the COMELEC First Division and COMELEC En Banc
correctly ruled that the petition filed by San Luis against Ejercito is not just for
prosecution of election offense but for disqualification as well. Indeed, the
following are clear indications:
1. The title of San Luis’ petition shows that the case was brought under Rule
25 of the COMELEC Rules of Procedure, as amended by COMELEC
Resolution No. 9523.56 This expresses the objective of the action since Rule
25 is the specific rule governing the disqualification of candidates.
2. The averments of San Luis’ petition rely on Section 68 (a) and (c) of the
OEC as grounds for its causes of action. Section 68 of the OEC precisely
enumerates the grounds for the disqualification of a candidate for elective
position and provides, as penalty, that the candidate shall be disqualified
from continuing as such, or if he or she has been elected, from holding the
office.
3. Paragraph 2 of San Luis’ prayer in the petition states that "[in the event
that [Ejercito] will be ableto get a majority vote of the electorate of the
Province of Laguna on May 13, 2013, his proclamation be suspended until
further order of the Honorable Commission." San Luis reiterated this plea
when he later filed a Very Urgent Ex-Parte Motion toIssue Suspension of
Possible Proclamation of Respondent and Supplemental to the Very Urgent
Ex-Parte Motion to Issue Suspension of Possible Proclamation of
Respondent. The relief sought is actually pursuant to Section 657 of R.A. No.
6646 and Section 5 Rule 2558 of COMELEC Resolution No. 9523, both of
which pertain to the effect of a disqualification case when the petition is
unresolved by final judgment come election day.
4. San Luis’ Memorandum emphasized that the case is a "Special Action for
Disqualification," praying that "[t]he Petition BE GRANTED [and] x x x
[Ejercito] BE DISQUALIFIED, and PREVENTED from further holding office
as Governor of Laguna."
With the foregoing, Ejercito cannot feign ignorance of the true nature and
intent of San Luis’ petition. This considering, it is unnecessary for Us to
discuss the applicability of Section 2,Rule 9 of the COMELEC Rules of
Procedure, there being no substantial amendment to San Luis’ petition that
constitutes a material deviation from his original causes of action. Likewise,
COMELEC Resolution No. 9386 and Section 265 of the OEC do not apply
since both refer solely to the prosecution of election offenses. Specifically,
COMELEC Resolution No. 9386 is an amendment to Rule 34 of the
COMELEC Rules of Procedure on the prosecution of election offenses, while
Section 265 of the OEC is found under Article XXII of said law pertaining also
to election offenses.
The conduct of preliminary
investigation is not required in
the resolution of the electoral
aspect of a disqualification case
Assuming, arguendo, that San Luis’ petition was properly instituted as an
action for disqualification, Ejercito asserts that the conduct of preliminary
investigation to determine whether the acts enumerated under Section 68 of
the OEC were indeed committed is a requirement prior to actual
disqualification. He posits that Section 5, Rule 25 of COMELEC Resolution
No. 9523 is silent on the matter of preliminary investigation; hence, the clear
import of this is that the necessity of preliminary investigation provided for in
COMELEC Resolution No. 2050 remains undisturbed and continues to bein
full force and effect.
We are not persuaded.
Section 5, Rule 25 of COMELEC Resolution No. 9523 states:
Section 5. Effect of Petition if Unresolved Before Completion of Canvass.– If
a Petition for Disqualification is unresolved by final judgment on the day of
elections, the petitioner may file a motion with the Division or Commission En
Banc where the case is pending, to suspend the proclamation of the
candidate concerned, provided that the evidence for the grounds to disqualify
is strong. For this purpose, atleast three (3) days prior to any election, the
Clerk of the Commission shall prepare a list of pending cases and furnish all
Commissioners copies of said the list.
In the event that a candidate with an existing and pending Petition to
disqualify is proclaimed winner, the Commission shall continue to resolve the
said Petition.
It is expected that COMELEC Resolution No. 9523 is silent on the conduct of
preliminary investigation because it merely amended, among others, Rule 25
of the COMELEC Rules of Procedure, which deals with disqualification of
candidates. In disqualification cases, the COMELEC may designate any of its
officials, who are members of the Philippine Bar, to hear the case and to
receive evidence only in cases involving barangay officials.59 As
aforementioned, the present rules of procedure in the investigation and
prosecution of election offenses in the COMELEC, which requires preliminary
investigation, is governed by COMELEC Resolution No. 9386. Under said
Resolution, all lawyers in the COMELEC who are Election Officers in the
National Capital Region ("NCR"), Provincial Election Supervisors, Regional
Election Attorneys, Assistant Regional Election Directors, Regional Election
Directors and lawyers of the Law Department are authorized to conduct
preliminary investigation of complaints involving election offenses under the
election lawswhich may be filed directly with them, or which may be indorsed
to them by the COMELEC.60
Similarly, Ejercito’s reliance on COMELEC Resolution No. 2050 is misplaced.
COMELEC Resolution No. 2050, which was adopted on November 3, 1988,
reads:
WHEREAS, there remain pending before the Commission, a number of
cases of disqualification filed by virtue of the provisions of Section 68 of the
Omnibus Election Codein relation to Section 6 of R.A. 6646, otherwise
known as the Electoral Reforms Law of 1987;
WHEREAS, opinions of the members of the Commission on matters of
procedure in dealing with cases of this nature and the manner of disposing of
the same have not been uniform;
WHEREAS, in order to avoid conflicts of opinion in the disposition [of]
disqualification cases contemplated under Section 68 of the Omnibus
Election Code in relation to Section 6 of Rep. Act 6646, there is a strongly felt
need to lay down a definite policy in the disposition of this specific class of
disqualification cases;
NOW, THEREFORE, on motion duly seconded, the Commission en banc:
RESOLVED, as it hereby resolves, to formulate the following rules governing
the disposition of cases of disqualification filed by virtue of Section 68 of the
Omnibus Election Code in relation to Section 6 of R.A. No. 6646, otherwise
known as the Electoral Reforms Law of 1987:
1. Any complaint for the disqualification of a duly registered candidate based
upon any of the grounds specifically enumerated under Section 68 of the
Omnibus Election Code, filed directly with the Commission before an election
in which the respondent is a candidate, shall be inquired into by the
Commission for the purpose of determining whether the acts complained of
have in fact been committed. Where the inquiry by the Commission results in
a finding before election, that the respondent candidate did in factcommit the
acts complained, the Commission shall order the disqualification of the
respondent candidate from continuing as such candidate.
In case such complaint was not resolved before the election, the Commission
may motu proprio, or [on] motion of any of the parties, refer the complaint to
the [Law] Department of the Commission as the instrument of the latter in the
exercise of its exclusive power to conduct a preliminary investigation of all
cases involving criminal infractions of the election laws. Such recourse may
be availed of irrespective of whether the respondent has been elected orhas
lost in the election.
2. Any complaint for disqualification based on Section 68 of the Omnibus
Election Code in relation to Section 6 of Rep. Act No. 6646 filed after the
election against a candidate who has already been proclaimed as winner
shall be dismissed as a disqualification case. However, the complaint shall
be referred for preliminary investigation to the Law Department of the
Commission.
Where a similar complaint is filed after election but before proclamation of the
respondent candidate, the complaint shall, nevertheless, be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department. If, before proclamation, the Law
Department makes a prima faciefinding of guilt and the corresponding
information has been filed with the appropriate trial court, the complainant
may file a petition for suspension of the proclamation of the respondent with
the court before which the criminal case is pending and the said court may
order the suspension of the proclamation ifthe evidence of guilt is strong.
3. The Law Department shall terminate the preliminary investigation within
thirty(30) days from receipt of the referral and shall submit its study, report
and recommendation to the Commission en banc within five (5) days from
the conclusion of the preliminary investigation. If it makes a prima
faciefinding of guilt, it shall submit with such study the Information for filing
with the appropriate court.61
In Bagatsing v. COMELEC,62 the Court stated that the above-quoted
resolution covers two (2) different scenarios:
First, as contemplated in paragraph 1, a complaint for disqualification filed
before the election which must be inquired into by the COMELEC for the
purpose of determining whether the acts complained of have in fact been
committed. Where the inquiry results in a finding before the election, the
COMELEC shall order the candidate's disqualification. In case the complaint
was not resolved before the election, the COMELEC may motu propioor on
motion of any of the parties, refer the said complaint to the Law Department
of the COMELEC for preliminary investigation.
Second, as laid down in paragraph 2, a complaint for disqualification filed
after the election against a candidate (a) who has not yet been proclaimed as
winner, or (b) who has already been proclaimed as winner. In both cases, the
complaint shall be dismissed as a disqualification case but shall be referred
to the Law Department of the COMELEC for preliminary investigation.
However, if before proclamation, the Law Department makes a prima facie
finding of guilt and the corresponding information has been filed with the
appropriate trial court, the complainant may file a petition for suspension of
the proclamation of the respondent with the court before which the criminal
case is pending and the said court may order the suspension of the
proclamation if the evidence of guilt is strong.63
However, with respect to Paragraph 1 of COMELEC Resolution No. 2050,
which is the situation in this case, We held in Sunga:
x x x Resolution No. 2050 as interpreted in Silvestre v. Duavitinfringes on
Sec. 6 of RA No. 6646, which provides:
SEC. 6. Effects of Disqualification Case. - Any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action,
inquiry or protestand, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of
such candidate whenever the evidence of his guilt is strong (italics supplied).
Clearly, the legislative intentis that the COMELEC should continue the trial
and hearing of the disqualification case to its conclusion, i.e.,until judgment is
rendered thereon. The word "shall" signifies that this requirement of the law
is mandatory, operating to impose a positive duty which must be enforced.
The implication is that the COMELEC is left with no discretion but to proceed
with the disqualification case even after the election. Thus, in providing for
the outright dismissal of the disqualification case which remains unresolved
after the election, Silvestre v. Duavitin effect disallows what RA No. 6646
imperatively requires. This amounts to a quasi-judicial legislation by the
COMELEC which cannot be countenanced and is invalid for having been
issued beyond the scope of its authority. Interpretative rulings of quasi-
judicial bodies or administrative agencies must always be in perfect harmony
with statutes and should be for the sole purpose of carrying their general
provisions into effect. By such interpretative or administrative rulings, of
course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial
body or an administrative agency for that matter cannot amend an act of
Congress. Hence, in case of a discrepancy between the basic law and an
interpretative or administrative ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee.
A candidate guilty of election offenses would be undeservedly rewarded,
instead of punished, by the dismissal of the disqualification case against him
simply because the investigating body was unable, for any reason caused
upon it, to determine before the election if the offenses were indeed
committed by the candidate sought to be disqualified. All that the erring
aspirant would need to do is toemploy delaying tactics so that the
disqualification case based on the commission of election offenses would not
be decided before the election. This scenario is productive of more fraud
which certainly is not the main intent and purpose of the law.64
The "exclusive power [of the COMELEC] to conduct a preliminary
investigation of all cases involving criminal infractions of the election laws"
stated in Par. 1 of COMELEC Resolution No. 2050 pertains to the criminal
aspect of a disqualification case. It has been repeatedly underscored that an
election offense has its criminal and electoral aspects. While its criminal
aspect to determine the guilt or innocence of the accused cannot be the
subject of summary hearing, its electoral aspect to ascertain whether the
offender should be disqualified from office can be determined in an
administrative proceeding that is summaryin character. This Court said in
Sunga:
It is worth to note that an election offense has criminal as well as electoral
aspects. Its criminal aspect involves the ascertainment of the guilt or
innocence of the accused candidate. Like in any other criminal case, it
usually entails a full-blown hearing and the quantum of proof required to
secure a conviction is beyond reasonable doubt. Its electoral aspect, on the
other hand, is a determination of whether the offender should be disqualified
from office. This is done through an administrative proceeding which is
summary in character and requires only a clear preponderance of evidence.
Thus, under Sec. 4 of the COMELEC Rules of Procedure, petitions for
disqualification "shall be heard summarily after due notice." It is the electoral
aspect that we are more concerned with, under which an erring candidate
may be disqualified even without prior criminal conviction.65
and equally in Lanot:
x x x The electoral aspect of a disqualification case determines whether the
offender should be disqualified from being a candidate or from holding office.
Proceedings are summary in character and require only clear preponderance
of evidence. An erring candidate may be disqualified even without prior
determination of probable cause in a preliminary investigation. The electoral
aspect may proceed independently of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is
probable cause to charge a candidate for an election offense. The prosecutor
is the COMELEC, through its Law Department, which determines whether
probable cause exists. If there is probable cause, the COMELEC, through its
Law Department, files the criminal information before the proper court.
Proceedings before the proper court demand a full-blown hearing and require
proof beyond reasonable doubt to convict. A criminal conviction shall result in
the disqualification of the offender, which may even include disqualification
from holding a future public office.
The two aspects account for the variance of the rules on disposition and
resolution of disqualification cases filed before or after an election. When the
disqualification case is filed before the elections, the question of
disqualification is raised before the voting public. If the candidate is
disqualified after the election, those who voted for him assume the risk that
their votes may be declared stray or invalid. There isno such risk if the
petition is filed after the elections. x x x.66
We cannot accept Ejercito’s argument that Lanot did not categorically
pronounce that the conduct of a preliminary investigation exclusively pertains
to the criminal aspect of anaction for disqualification or that a factual finding
by the authorized legal officers of the COMELEC may be dispensed with in
the proceedings for the administrative aspect of a disqualification case.
According to him,a close reading of said case would reveal that upon filing of
the petition for disqualification with the COMELEC Division, the latter referred
the matter to the Regional Election Director for the purpose of preliminary
investigation; therefore, Lanot contemplates two referrals for the conduct of
investigation – first, to the Regional Election Director, prior to the issuance of
the COMELEC First Division’s resolution, and second, to the Law
Department, following the reversal by the COMELEC En Banc.
For easy reference, the factual antecedents of Lanot are as follows:
On March 19, 2004, a little less than two months before the May 10, 2004
elections, Henry P. Lanot, et al. filed a Petition for Disqualification under
Sections 68 and 80 of the OEC against then incumbent Pasig City Mayor
Vicente P. Eusebio. National Capital Region Director Esmeralda Amora-
Ladra conducted hearings on the petition. On May 4, 2004, she
recommended Eusebio’s disqualification and the referral of the case to the
COMELEC Law Department for the conduct of a preliminary investigation on
the possible violation of Section 261 (a) of the OEC. When the COMELEC
First Division issued a resolution adopting Director Ladra’s recommendations
on May 5, 2004, then COMELEC Chairman Benjamin S. Abalos informed the
pertinent election officers through an Advisory dated May 8, 2004. Eusebio
filed a Motion for Reconsideration on May 9, 2004. On election day,
Chairman Abalos issued a memorandum to Director Ladra enjoining her from
implementing the May 5, 2004 COMELEC First Division resolution. The
petition for disqualification was not yet finally resolved at the time of the
elections. Eusebio's votes were counted and canvassed. After which,
Eusebio was proclaimed as the winning candidate for city mayor. On August
20, 2004, the COMELEC En Banc annulled the COMELEC First Division's
order to disqualify Eusebio and referred the case to the COMELEC Law
Department for preliminary investigation.
When the issue was elevated to Us, the Court agreed with Lanot that the
COMELEC En Banc committed grave abuse of discretion when it ordered the
dismissal of the disqualification case pending preliminary investigation of the
COMELEC Law Department. Error was made when it ignored the electoral
aspect of the disqualification case by setting aside the COMELEC First
Division's resolution and referring the entire case to the COMELEC Law
Department for the criminal aspect. We noted that COMELEC Resolution No.
2050, upon which the COMELEC En Banc based its ruling, is procedurally
inconsistent with COMELEC Resolution No. 6452, which was the governing
rule at the time. The latter resolution delegated to the COMELEC Field
Officials the hearing and reception of evidence of the administrative aspect of
disqualification cases in the May 10, 2004 National and Local Elections. In
marked contrast, in the May 2013 elections, it was only in cases involving
barangay officials that the COMELEC may designate any of its officials, who
are members of the Philippine Bar, to hear the case and to receive
evidence.67
The COMELEC En Banc
properly considered as
evidence the Advertising
Contract dated May 8, 2013
Ejercito likewise asserts that the Advertising Contract dated May 8, 2013
should not have been relied upon by the COMELEC. First, it was not formally
offered in evidence pursuant to Section 34, Rule 13268 of the Rules and he
was not even furnished with a copy thereof, depriving him of the opportunity
to examine its authenticity and due execution and object to its admissibility.
Second, even if Section 34, Rule 132 does not apply, administrative bodies
exercising quasi-judicial functions are nonetheless proscribed from rendering
judgment based on evidence that was never presented and could not be
controverted. There is a need to balance the relaxation of the rules of
procedure with the demands of administrative due process, the tenets of
which are laid down in the seminal case of Ang Tibay v. Court of Industrial
Relations.69 And third,the presentation of the advertising contracts, which
are highly disputable and on which no hearing was held for the purpose of
taking judicial notice in accordance with Section 3, Rule 12970 of the Rules,
cannot be dispensed with by COMELEC’s claim that it could take judicial
notice. Contrary to Ejercito’s claim, Section 34, Rule 132 of the Rules is
inapplicable. Section 4, Rule 171 of the Rules of Court is clear enough in
stating that it shall not apply to election cases except by analogy or in a
suppletory character and whenever practicable and convenient. In fact,
nowhere from COMELEC Resolution No. 9523 requires that documentary
evidence should be formally offered in evidence.72 We remind again that the
electoral aspect of a disqualification case is done through an administrative
proceeding which is summary in character.
Granting, for argument’s sake, that Section 4, Rule 1 of the Rules of Court
applies, there have been instances when We suspended the strict application
of the rule in the interest of substantial justice, fairness, and equity.73 Since
rules of procedure are mere tools designed to facilitate the attainment of
justice, it is well recognized that the Court is empowered to suspend its rules
or to exempt a particular case from the application of a general rule, when
the rigid application thereof tends to frustrate rather than promote the ends of
justice.74 The fact is, even Sections 3 and 4, Rule 1 of the COMELEC Rules
of Procedure fittingly declare that "[the] rules shall be liberally construed in
order to promote the effective and efficient implementation of the objectives
of ensuring the holding of free, orderly, honest, peaceful and credible
elections and to achieve just, expeditious and inexpensive determination and
disposition of every action and proceeding brought before the Commission"
and that "[in] the interest of justice and in order to obtain speedy disposition
ofall matters pending before the Commission, these rules or any portion
thereof may be suspended by the Commission." This Court said in Hayudini
v. Commission on Elections:75
Settled is the rule that the COMELEC Rules of Procedure are subject to
liberal construction. The COMELEC has the power to liberally interpret or
even suspend its rules of procedure in the interest of justice, including
obtaining a speedy disposition of all matters pending before it. This liberality
is for the purpose of promoting the effective and efficient implementation of
its objectives – ensuring the holding of free, orderly, honest, peaceful, and
credible elections, as well as achieving just, expeditious, and inexpensive
determination and disposition of every action and proceeding brought before
the COMELEC. Unlike an ordinary civil action, an election contest is imbued
with public interest. It involves not only the adjudication of private and
pecuniary interests of rival candidates, but also the paramount need of
dispelling the uncertainty which beclouds the real choice of the electorate.
And the tribunal has the corresponding duty to ascertain, by all means
withinits command, whom the people truly chose as their rightful leader.76
Further, Ejercito’s dependence on Ang Tibay is weak. The essence of due
process is simply an opportunity to be heard, or, as applied to administrative
proceedings, an opportunity to explain one's side or an opportunity to seek
for a reconsideration of the action or ruling complained of.77 Any seeming
defect in its observance is cured by the filing of a motion for reconsideration
and denial of due process cannot be successfully invoked by a party who
had the opportunity to be heard thereon.78 In this case, it is undisputed that
Ejercito filed a motion for reconsideration before the COMELEC En Banc.
Despite this, he did not rebut the authenticity and due execution of the
advertising contracts when he decided not to discuss the factual findings of
the COMELEC First Division on the alleged ground that it may be construed
as a waiver of the jurisdictional issues that he raised.79
We agree with San Luis and the Office of the Solicitor General that, pursuant
to Section 2, Rule 129,80 the COMELEC has the discretion to properly take
judicial notice of the Advertising Contract dated May 8, 2013. In accordance
with R.A. No. 9006, the COMELEC, through its Campaign Finance Unit, is
empowered to:
a. Monitor fund raising and spending activities;
b. Receive and keep reports and statements of candidates, parties,
contributors and election contractors, and advertising contracts of mass
media entities;
c. Compile and analyze the reports and statements as soon as they are
received and make an initial determination of compliance;
d. Develop and manage a recording system for all reports, statements, and
contracts received by it and todigitize information contained therein;
e. Publish the digitized information gathered from the reports, statements and
contracts and make themavailable to the public;
f. Develop a reportorial and monitoring system;
g. Audit all reports, statements and contracts and determine compliance by
the candidates, parties, contributors, and election contractors, including the
inspection of Books and records of candidates, parties and mass media
entities and issue subpoenas in relation thereto and submit its findings to the
Commission En Banc;
h. Coordinate with and/or assist other departments/offices of the Commission
receiving related reports on Campaign Finance including prosecution of
violators and collection of fines and/or imposition of perpetual disqualification;
and
i. Perform other functions as ordered by the Commission.81
The COMELEC may properly takeand act on the advertising contracts
without further proof from the parties herein. Aside from being considered as
an admission82 and presumed to be proper submissions from them, the
COMELEC already has knowledge of the contracts for being ascertainable
from its very own records. Said contracts are ought to be known by the
COMELEC because of its statutory function as the legal custodian of all
advertising contracts promoting or opposing any candidate during the
campaign period. As what transpired in this case, the COMELEC has the
authority and discretion to compare the submitted advertising contracts with
the certified true copies of the broadcast logs, certificates of performance or
other analogous records which a broadcast station or entity is required to
submit for the review and verification of the frequency, date, time and
duration of advertisements aired.
To be precise, R.A. No. 9006 provides:
Sec. 4. Requirements for Published or Printed and Broadcast Election
Propaganda. –
xxxx
4.3 Print, broadcast or outdoor advertisements donated to the candidate or
political party shall not be printed, published, broadcast or exhibited without
the written acceptance by the said candidate or political party. Such written
acceptance shall be attached to the advertising contract and shall be
submitted to the COMELEC as provided in Subsection 6.3 hereof.
Sec. 6. Equal Access to Media Time and Space. – All registered parties and
bona fidecandidates shall have equal access to media time and space. The
following guidelines may be amplified on by the COMELEC:
xxxx
6.2
xxxx
(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.
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.
x x x.
The implementing guidelines of the above-quoted provisions are found in
Rule 5 of COMELEC Resolution No. 9476 –
Section 2. Submission of Copies of Advertising Contracts. – All media
entities shall submit a copy of its advertising and or broadcast contracts,
media purchase orders, booking orders, or other similar documents to the
Commission through its Campaign Finance Unit, accompanied by a
summary report in the prescribed form (Annex "E") together with official
receipts issued for advertising, promoting or opposing a party, or the
candidacy of any person for public office, within five (5) days after its signing,
through:
a. For Media Entities in the NCR The Education and Information Department
(EID), which shall furnish copies thereof to the Campaign Finance Unit of the
Commission.
b. For Media Entities outside of the NCR The City/Municipal Election Officer
(EO) concerned who shall furnish copies thereof to the Education and
Information Department of the Commission within five (5) days after the
campaign periods. The EID shall furnish copies thereof to the Campaign
Finance Unit of the Commission.
xxxx
It shall be the duty of the EID to formally inform media entities that the latter’s
failure to comply with the mandatory provisions of this Section shall be
considered an election offense punishable pursuant to Section 13 of
Republic Act No. 9006. [RA 9006, Secs. 6.3 and 13] and in COMELEC
Resolution No. 9615 –
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
xxx
Provided, further, that a copy of the broadcast advertisement contract be
furnished to the Commission, thru the Education and Information
Department, within five (5) days from contract signing.
xxx
d. Common requirements/limitations:
xxx
(3) For the above purpose, each broadcast entity and website owner or
administrator shall submit to the Commission a certified true copy of its
broadcast logs, certificates of performance, or other analogous record,
including certificates of acceptance as required in Section 7(b) of these
Guidelines,for the review and verification of the frequency, date, time and
duration of advertisements aired for any candidate or party through:
For Broadcast Entities in the NCR – The Education and Information
Department (EID) which in turn shall furnish copies thereof to the Campaign
Finance Unit (CFU) of the Commission within five days from receipt thereof.
For Broadcast Entities outside of the NCR – The City/Municipal Election
Officer (EO) concerned, who in turn, shall furnish copies thereof to the
Education and Information Department (EID) of the Commission which in
turn shall furnish copies thereof to the Campaign Finance Unit (CFU) of the
Commission within five (5) days from the receipt thereof.
For website owners or administrators – The City/Municipal Election Officer
(EO) concerned, who in turn, shall furnish copies thereof to the Education
and Information Department (EID) of the Commission which in turn shall
furnish copies thereof to the Campaign Finance Unit (CFU) of the
Commission within five (5) days from the receipt thereof.
All broadcast entities shall preserve their broadcast logs for a period of five
(5) years from the date of broadcast for submission to the Commission
whenever required.
Constitution.84 He believes that an advertising contract paid for by a third
party without the candidate’s knowledge and consent must be considered a
form of political speech that must prevail against the laws suppressing it,
whether by design or inadvertence. Further, Ejercito advances the view that
COMELEC Resolution No. 947685 distinguishes between "contribution" and
"expenditure" and makes no proscription on the medium or amount of
contribution.86 He also stresses that it is clear from COMELEC Resolution
No. 9615 that the limit set by law applies only to election expenditures of
candidates and not to contributions made by third parties. For Ejercito, the
fact that the legislature imposes no legal limitation on campaign donations is
presumably because discussion of public issues and debate on the
qualifications of candidates are integral to the operation of the government.

Certified true copies of broadcast logs, certificates of performance, and We refuse to believe that the advertising contracts between ABS-CBN
certificates of acceptance, or other analogous record shall be submitted, as Corporation and Scenema Concept International, Inc. were executed without
follows: Ejercito’s knowledge and consent. As found by the COMELEC First Division,
the advertising contracts submitted in evidence by San Luis as well as those
in legal custody of the COMELEC belie his hollow assertion. His express
Candidates for National Positions 1st Report 3 weeks after start of conformity to the advertising contracts is actually a must because non-
campaign period March 4 - 11 compliance is consideredas an election offense.87
Candidates for Local Positions 2nd Report 3 weeks after 1st filing week
April 3 - 10 Notably, R.A. No. 9006 explicitly directs that broadcast advertisements
3rd Report 1 week before election day May 2 - 9 donated to the candidate shall not be broadcasted without the written
Last Report Election week May 14 - 17 acceptance of the candidate, which shall be attached to the advertising
1st Report 1 week after start of campaign period April 15 - 22 contract and shall be submitted to the COMELEC, and that, in every case,
2nd Report 1 week after 1st filing week April 30 - May 8 advertising contracts shall be signed by the donor, the candidate concerned
3rd Report Election week May 9 - 15 or by the duly-authorized representative of the political party.88 Conformably
Last Report 1 week after election day May 16 - 22 with the mandate of the law, COMELEC Resolution No. 9476 requires that
For subsequent elections, the schedule for the submission of reports shall be election propaganda materials donated toa candidate shall not be
prescribed by the Commission. broadcasted unless it is accompanied by the written acceptance of said
candidate, which shall be in the form of an official receipt in the name of the
Ejercito should be disqualified candidate and must specify the description of the items donated, their
for spending in his election quantity and value, and that, in every case, the advertising contracts, media
campaign an amount in excess purchase orders or booking orders shall be signed by the candidate
of what is allowed by the OEC concerned or by the duly authorized representative of the party and, in case
of a donation, should be accompanied by a written acceptance of the
Ejercito claims that the advertising contracts between ABS-CBN Corporation candidate, party or their authorized representatives.89 COMELEC Resolution
and Scenema Concept International, Inc. were executed by an identified No. 9615 also unambiguously states thatit shall be unlawful to broadcast any
supporter without his knowledge and consent as, in fact, his signature election propaganda donated or given free of charge by any person or
thereon was obviously forged. Even assuming that such contract benefited broadcast entity to a candidate withoutthe written acceptance of the said
him, Ejercito alleges that he should not be penalized for the conduct of third candidate and unless they bear and be identified by the words "airtime for
parties who acted on their own without his consent. Citing Citizens United v. this broadcast was provided free of charge by" followed by the true and
Federal Election Commission83 decided by the US Supreme Court, he correct name and address of the donor.90
argues that every voter has the right to support a particular candidate in
accordance with the free exercise of his or her rights of speech and of This Court cannot give weight to Ejercito’s representation that his signature
expression, which is guaranteed in Section 4, Article III of the 1987 on the advertising contracts was a forgery. The issue is a belated claim,
raised only for the first time in this petition for certiorari. It is a rudimentary
principle of law that matters neither alleged in the pleadings nor raised during
the proceedings below cannot be ventilated for the first time on appeal before
the Supreme Court.91 It would be offensive to the basic rules of fair play and
justice to allow Ejercito to raise an issue that was not brought up before the
COMELEC.92 While it is true that litigation is not a game of technicalities, it
is equally truethat elementary considerations of due process require that a
party be duly apprised of a claim against him before judgment may be
rendered.93
Likewise, whether the advertising contracts were executed without Ejercito’s
knowledge and consent, and whether his signatures thereto were fraudulent,
are issues of fact. Any factual challenge has no place in a Rule 65 petition.
This Court is nota trier of facts and is not equipped to receive evidence and
determine the truth of factual allegations.94
Instead, the findings of fact made by the COMELEC, or by any other
administrative agency exercising expertise in its particular field of
competence, are binding on the Court. As enunciated in Juan v. Commission
on Election:95
Findings of facts of administrative bodies charged with their specific field of
expertise, are afforded great weight by the courts, and in the absence of
substantial showing that such findings are made from an erroneous
estimation of the evidence presented, they are conclusive, and in the interest
of stability of the governmental structure, should not be disturbed. The
COMELEC, as an administrative agency and a specialized constitutional
body charged with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall, has more than enough expertise in its field that its
findings orconclusions are generally respected and even given finality. x x
x.96
Having determined that the subject TV advertisements were done and
broadcasted with Ejercito’s consent, it follows that Citizens United does not
apply. In said US case, a non-profit corporation sued the Federal Election
Commission, assailing, among others, the constitutionality of a ban on
corporate independ entexpenditures for electioneering communications
under 2 U.S.C.S. § 441b. The corporation released a documentary film
unfavorable of then-Senator Hillary Clinton, who was a candidate for the
Democratic Party's Presidential nomination. It wanted to make the film
available through video-on-demand withinthirty (30) days of the primary
elections, and it produced advertisements to promote the film. However,
federal law prohibits all corporations – including non-profit advocacy
corporations – from using their general treasury funds to make independent
expenditures for speech that is an "electioneering communication"97 or for
speech that expressly advocates the election or defeat of a candidate within
thirty (30) days of a primary election and sixty (60) days of a general election.
The US Supreme Court held that the ban imposed under § 441b on
corporate independent expenditures violated the First Amendment98
because the Government could not suppress political speech on the basis of
the speaker's identity as a non-profit or for-profit corporation. It was opined:
Section 441b's prohibition on corporate independent expenditures is thus a
ban on speech. As a "restriction on the amount of money a person or group
can spend on political communication during a campaign," that statute
"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." Buckley v. Valeo, 424 U.S. 1, 19, 96 S. Ct. 612, 46 L. Ed. 2d 659
(1976) (per curiam).Were the Court to uphold these restrictions, the
Government could repress speech by silencing certain voices at any of the
various points in the speech process. See McConnell, supra, at 251, 124 S.
Ct. 619, 517 L. Ed. 2d 491 (opinion of Scalia, J.) (Government could repress
speech by "attacking all levels of the production and dissemination of ideas,"
for "effective public communication requires the speaker to make use of the
services of others"). If §441 be applied to individuals, no one would believe
that it is merely a time, place, or manner restriction on speech. Its purpose
and effect are to silence entities whose voices the Government deems to be
suspect.
Speech is an essential mechanism of democracy, for it is the means to hold
officials accountable to the people. See Buckley, supra, at 14-15, 96 S. Ct.
612, 46 L. Ed. 2d 659 ("In a republic where the people are sovereign, the
ability of the citizenry to make informed choices among candidates for office
is essential"). The right of citizens to inquire, to hear, to speak, and to use
information to reach consensus is a precondition to enlightened self-
government and a necessary means to protect it. The First Amendment "'has
its fullest and most urgent application' to speech uttered during a campaign
for political office." Eu v. San Francisco County Democratic Central Comm.,
489 U.S. 214, 223, 109 S. Ct. 1013, 103 L. Ed. 2d 271 (1989)(quoting
Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S. Ct. 621, 28 L. Ed. 2d 35
(1971)); see Buckley, supra, at 14, 96 S. Ct. 612, 46 L. Ed. 2d 659
("Discussion of public issues and debate on the qualifications of candidates
are integral to the operation of the system of government established by our
Constitution").
For these reasons, political speech must prevail against laws that would
suppress it, whether by design orinadvertence. Laws that burden political
speech are "subject to strict scrutiny," which requires the Government to
prove that the restriction "furthers a compelling interest and is narrowly
tailored to achieve that interest." WRTL, 551 U.S., at 464, 127 S. Ct. 2652,
168 L. Ed. 2d 329(opinion of Roberts, C. J.). While it might be maintained
that political speech simply cannot be banned or restricted as a categorical
matter, see Simon & Schuster, 502 U.S., at 124, 112 S. Ct. 501, 116 L. Ed.
2d 476(Kennedy, J., concurring in judgment), the quoted language from
WRTL provides a sufficient framework for protecting the relevant First
Amendment interests in this case. We shall employ it here.
Premised on mistrust of governmental power, the First Amendment stands
against attempts to disfavor certain subjects or viewpoints. See, e.g., United
States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S. Ct.
1878, 146 L. Ed. 2d 865 (2000) (striking down content based restriction).
Prohibited, too, are restrictions distinguishing among different speakers,
allowing speech by some but not others. See First Nat. Bank of Boston v.
Bellotti, 435 U.S. 765, 784, 98 S. Ct. 1407, 55 L. Ed. 2d 707 (1978). As
instruments to censor, these categories are interrelated: Speech restrictions
based on the identity of the speaker are all too often simply a means to
control content.
Quite apart from the purpose or effect of regulating content, moreover, the
Government may commit a constitutional wrong when by law it identifies
certain preferred speakers. By taking the right to speak from some and giving
it to others, the Government deprives the disadvantaged person or class of
the right to use speech to strive to establish worth, standing, and respect for
the speaker's voice. The Government may not by these means deprive the
public of the right and privilege to determine for itself what speech and
speakers are worthy of consideration. The First Amendment protects speech
and speaker, and the ideas that flow from each.
The Court has upheld a narrow class of speech restrictions that operate to
the disadvantage of certain persons, but these rulings were based on an
interest in allowing governmental entities to perform their functions. See, e.g.,
Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 683, 106 S. Ct. 3159,
92 L. Ed. 2d 549 (1986) (protecting the "function of public school education");
Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129, 97
S. Ct. 2532, 53 L. Ed. 2d 629 (1977) (furthering "the legitimate penological
objectives of the corrections system" (internal quotation marks omitted));
Parker v. Levy, 417 U.S. 733, 759, 94 S. Ct. 2547, 41 L. Ed. 2d 439 (1974)
(ensuring "the capacity of the Government to discharge its [military]
responsibilities" (internal quotation marks omitted)); Civil Service Comm'n v.
Letter Carriers, 413 U.S. 548, 557, 93 S. Ct. 2880, 37 L. Ed. 2d 796 (1973)
("[F]ederal service should depend upon meritorious performance rather than
political service"). The corporate independent expenditures at issue in this
case, however, would not interfere with governmental functions, so these
cases are inapposite. These precedents stand only for the proposition that
there are certain governmental functions that cannot operate without some
restrictions on particular kinds of speech. By contrast, it is inherent in the
nature of the political process that voters must be free to obtain information
from diverse sources in order to determine how to cast their votes. At least
before Austin, the Court had not allowed the exclusion of a class of speakers
from the general public dialogue.
We find no basis for the proposition that, in the context of political speech,
the Government may impose restrictions on certain disfavored speakers.
Both history and logic lead us to this conclusion.
The previous decisions of the US Supreme Court in Austin v. Michigan
Chamber of Commerce99 (which ruled that political speech may be banned
based on the speaker's corporate identity) and the relevant portion of
McConnell v. Federal Election Commission100 (which upheld the limits on
electioneering communications in a facial challenge) were, in effect,
overruled by Citizens United.
Like Citizens Unitedis the 1976 case of Buckley v. Valeo.101 In this much
earlier case, the US Supreme Court ruled, among other issues elevated to it
for resolution, on a provision of the Federal Election Campaign Act of 1971,
as amended, (FECA)102 which limits independent political expenditures by
an individual or group advocating the election or defeat of a clearly identified
candidate for federal office to $1,000 per year. Majority of the US Supreme
Court expressed the view that the challenged provision is unconstitutional as
it impermissibly burdens the right of free expression under the First
Amendment, and could not be sustained on the basis of governmental
interests in preventing the actuality or appearance of corruption or in
equalizing the resources of candidates.103
Even so, the rulings in Citizens United and Buckley find bearing only on
matters related to "independent expenditures," an election law concept which
has no application in this jurisdiction. In the US context, independent
expenditures for or against a particular candidate enjoy constitutional
protection. They refer to those expenses made by an individual, a group or a
legal entity which are not authorized or requested by the candidate, an
authorized committee of the candidate, oran agent of the candidate; they are
expenditures that are not placed in cooperation with or with the consent of a
candidate, his agents, or an authorized committee of the candidate.104 In
contrast, there is no similar provision here in the Philippines. In fact, R.A. No.
9006105 and its implementing rules and regulations106 specifically make it
unlawful to print, publish, broadcast or exhibit any print, broadcast or outdoor
advertisements donated to the candidate without the written acceptance of
said candidate.
If at all, another portion of the Buckley decision is significant to this case.
One of the issues resolved therein is the validity of a provision of the FECA
which imposes $1,000 limitation on political contributions by individuals and
groups to candidates and authorized campaign committees.107 Five justices
of the nine-member US Supreme Court sustained the challenged provision
on the grounds that it does not violate First Amendment speech and
association rights or invidiously discriminate against non-incumbent
candidates and minority party candidates but is supported by substantial
governmental interests in limiting corruption and the appearance of
corruption. It was held:
As the general discussion in Part I-A, supra, indicated, the primary First
Amendment problem raised by the Act's contribution limitations is their
restriction of one aspect of the contributor's freedom of political association.
The Court's decisions involving associational freedoms establish that the
right of association is a "basic constitutional freedom," Kusper v. Pontikes,
414 U.S. at 57, that is "closely allied to freedom of speech and a right which,
like free speech, lies at the foundation of a free society." Shelton v. Tucker,
364 U.S. 479, 486 (1960). See, e.g., Bates v. Little Rock, 361 U.S. 516, 522-
523 (1960); NAACP v. Alabama, supra at 460-461; NAACP v. Button, supra,
at 452(Harlan, J., dissenting). In view of the fundamental nature of the rightto
associate, governmental "action which may have the effect of curtailing the
freedom to associate is subject to the closest scrutiny." NAACP v. Alabama,
supra, at 460-461. Yet, it is clear that "[n]either the right to associate nor the
right to participate in political activities is absolute." CSC v. Letter Carriers,
413 U.S. 548, 567 (1973). Even a "significant interference' with protected
rights of political association" may be sustained if the State demonstrates a
sufficiently important interest and employs means closely drawn to avoid
unnecessary abridgment of associational freedoms. Cousins v. Wigoda,
supra, at 488; NAACP v. Button, supra, at 438; Shelton v. Tucker, supra, at
488.
Appellees argue that the Act's restrictions on large campaign contributions
are justified by three governmental interests. According to the parties and
amici, the primary interest served by the limitations and, indeed, by the Act
as a whole, is the prevention of corruption and the appearance of corruption
spawned by the real or imagined coercive influence of large financial
contributions on candidates' positions and on their actions if elected to office.
Two "ancillary" interests underlying the Act are also allegedly furthered by
the $ 1,000 limits on contributions. First, the limits serve to mute the voices of
affluent persons and groups in the election process and thereby to equalize
the relative ability of all citizens to affect the outcome of elections. Second, it
is argued, the ceilings may to some extent act as a brake on the skyrocketing
cost of political campaigns and thereby serve to open the political
systemmore widely to candidates without access to sources of large amounts
of money.
It is unnecessary to look beyond the Act's primary purpose -- to limit the
actuality and appearance of corruption resulting from large individual
financial contributions -- in order to find a constitutionally sufficient
justification for the $ 1,000 contribution limitation. Under a system of private
financing of elections, a candidate lacking immense personal or family wealth
must depend on financial contributions from others to provide the resources
necessary to conduct a successful campaign. The increasing importance of
the communications media and sophisticated mass-mailing and polling
operations to effective campaigning make the raising of large sums of money
an ever more essential ingredient of an effective candidacy. To the extent
that large contributions are given to secure political quid pro quo's from
current and potential office holders, the integrity of our system of
representative democracy is undermined. Although the scope of such
pernicious practices can never be reliably ascertained, the deeply disturbing
examples surfacing after the 1972 election demonstrate that the problem is
not an illusory one. Of almost equal concern as the danger of actual quid pro
quo arrangements is the impact of the appearance of corruption stemming
from public awareness of the opportunities for abuse inherent in a regime of
large individual financial contributions. In CSC v. Letter Carriers, supra, the
Court found that the danger to "fair and effective government" posed by
partisan political conduct on the part of federal employees charged with
administering the law was a sufficiently important concern to justify broad
restrictions on the employees' right of partisan political association. Here, as
there, Congress could legitimately conclude that the avoidance of the
appearance of improper influence "is also critical... if confidence in the
system of representative Government is not to be eroded to a disastrous
extent." 413 U.S. at 565.
Appellants contend that the contribution limitations must be invalidated
because bribery laws and narrowly drawn disclosure requirements constitute
a less restrictive means of dealing with "proven and suspected quid pro quo
arrangements." But laws making criminal the giving and taking of bribes deal
withonly the most blatant and specific attempts of those with money to
influence governmental action. And while disclosure requirements serve the
many salutary purposes discussed elsewhere in this opinion, Congress was
surely entitled to conclude that disclosure was only a partial measure,and
that contribution ceilings were a necessary legislative concomitant to deal
with the reality or appearance of corruption inherent in a system permitting
unlimited financial contributions, even when the identities of the contributors
and the amounts of their contributions are fully disclosed.
The Act's $ 1,000 contribution limitation focuses precisely on the problem of
large campaign contributions-- the narrow aspect of political association
where the actuality and potential for corruption have been identified -- while
leaving persons free to engage in independent political expression, to
associate actively through volunteering their services, and to assist to a
limited but nonetheless substantial extent in supporting candidates and
committees with financial resources. Significantly, the Act's contribution
limitations in themselves do not undermine to any material degree the
potential for robust and effective discussion of candidates and campaign
issues by individual citizens, associations, the institutional press, candidates,
and political parties.
We find that, under the rigorous standard of review established by our prior
decisions, the weighty interests served by restricting the size of financial
contributions to political candidates are sufficient to justify the limited effect
upon First Amendment freedoms caused by the $ 1,000 contribution ceiling.
(Emphasis supplied)
Until now, the US Supreme Court has not overturned the ruling that, with
respect to limiting political contributions by individuals and groups, the
Government’s interest in preventing quid pro quo corruption or its
appearance was "sufficiently important" or "compelling" so that the interest
would satisfy even strict scrutiny.108
In any event, this Court should accentuate that resort to foreign jurisprudence
would be proper only if no law or jurisprudence is available locally to settle a
controversy and that even in the absence of local statute and case law,
foreign jurisprudence are merely persuasive authority at best since they
furnish an uncertain guide.109 We prompted in Republic of the Philippines v.
Manila Electric Company:110
x x x American decisions and authorities are not per se controlling in this
jurisdiction. At best, they are persuasive for no court holds a patent on
correct decisions.Our laws must be construed in accordance with the
intention of our own lawmakers and such intent may be deduced from the
language of each law and the context of other local legislation related
thereto. More importantly, they must be construed to serve our own public
interest which is the be-all and the end-all of all our laws. And it need not be
stressed that our public interest is distinct and different from others.111
and once more in Central Bank Employees Assoc., Inc. v. Bangko Sentral Ng
Pilipinas:112
x x x [A]merican jurisprudence and authorities, much less the American
Constitution, are of dubious application for these are no longer controlling
within our jurisdiction and have only limited persuasive merit insofar as
Philippine constitutional law is concerned.... [I]n resolving constitutional
disputes, [this Court] should not be beguiled by foreign jurisprudence some
of which are hardly applicable because they have been dictated by different
constitutional settings and needs." Indeed, although the Philippine
Constitution can trace its origins to that of the United States, their paths of
development have long since diverged.113
Indeed, in Osmeña v. COMELEC,114 this Court, in reaffirming its ruling in
National Press Club v. Commission on Elections115 that Section 11 (b) of
R.A. No. 6646116 does not invade and violate the constitutional guarantees
comprising freedom of expression, remarked in response to the dissent of
Justice Flerida Ruth P. Romero:
On the other hand, the dissent of Justice Romero in the present case, in
batting for an "uninhibited market place of ideas," quotes the following from
Buckley v. Valeo:
[T]he concept that the government may restrict the speech of some elements
in our society in order to enhance the relative voice of the others is wholly
foreign to the First Amendment which was designed to "secure the widest
possible dissemination ofinformation from diverse and antagonistic sources"
and "to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people."
But do we really believe in that? That statement was made to justify striking
down a limit on campaign expenditure on the theory that money is speech.
Do those who endorse the view that government may not restrict the speech
of some in order to enhance the relative voice of others also think that the
campaign expenditure limitation found in our election laws is
unconstitutional? How about the principle of one person, one vote, is this not
based on the political equality of voters? Voting after all is speech. We speak
of it as the voiceof the people – even of God. The notion that the government
may restrictthe speech of some in order to enhance the relative voice of
othersmay be foreign to the American Constitution. It is not to the Philippine
Constitution, being in fact an animating principle of that document.
Indeed, Art. IX-C, §4 is not the only provision in the Constitution mandating
political equality. Art. XIII, §1 requires Congress to give the "highest priority"
to the enactment of measures designed to reduce political inequalities, while
Art. II, §26 declaresas a fundamental principle of our government "equal
access to opportunities for public service." Access to public office will be
deniedto poor candidates if they cannot even have access to mass media in
order to reach the electorate. What fortress principle trumps or overrides
these provisions for political equality? Unless the idealism and hopes which
fired the imagination of those who framed the Constitution now appeardim to
us, how can the electoral reforms adopted by them to implement the
Constitution, of which §11(b) of R.A. No. 6646, in relation to §§90 and 92 are
part, be considered infringements on freedom of speech? That the framers
contemplated regulation of political propaganda similar to §11(b) is clear from
the following portion of the sponsorship speech of Commissioner Vicente B.
Foz:
MR. FOZ. . . . Regarding the regulation by the Commission of the enjoyment
or utilization of 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, there is a
provision that during the election period, the Commission may regulate,
among other things, the rates, reasonable free space, and time allotments for
public information campaigns and forums among candidates for the purpose
of ensuring free, orderly, honest and peaceful elections. This has to do with
the media of communication or information.117 Proceeding from the above,
the Court shall now rule on Ejercito’s proposition that the legislature imposes
no legal limitation on campaign donations. He vigorously asserts that
COMELEC Resolution No. 9476 distinguishes between "contribution" and
"expenditure" and makes no proscription on the medium or amount of
contribution madeby third parties in favor of the candidates, while the limit set
by law, as appearing in COMELEC Resolution No. 9615, applies only to
election expenditures of candidates.
We deny.
Section 13 of R.A. No. 7166118 sets the current allowable limit on expenses
of candidates and political parties for election campaign, thus:
SEC. 13. Authorized Expenses of Candidates and Political Parties. – The
aggregate amount that a candidate or registered politicalparty may spend for
election campaign shall be as follows:
(a) For candidates – Ten pesos (₱200.00 fine pursuant to Section 44 of Act10.00) for President and Vice President;
and for other candidates, Three pesos (₱200.00 fine pursuant to Section 44 of Act3.00) for every voter currently
registered in the constituency where he filed his certificate of candidacy:
Provided, That, a candidate without any political party and without support
from any political party may be allowed to spend Five pesos (₱200.00 fine pursuant to Section 44 of Act5.00) for every
such voter; and
(b) For political parties - Five pesos (₱200.00 fine pursuant to Section 44 of Act5.00) for every voter currently
registered in the constituency or constituencies where it has official
candidates.
Any provision of law to the contrary notwithstanding, any contribution in cash
or in kind to any candidate or political party or coalition of parties for
campaign purposes, duly reported to the Commission, shall not be subject to
the payment of any gift tax.119
Sections 100, 101, and 103 of the OEC are not repealed by R.A. No.
7166.120 These provisions, which are merely amended insofar as the
allowable amount is concerned, read:
SECTION 100. Limitations upon expenses of candidates.– No candidate
shall spend for his election campaign an aggregate amount exceeding one
peso and fifty centavos for every voter currently registered in the
constituency where he filed his candidacy: Provided, That the expenses
herein referred to shall include those incurred or caused to be incurred by the
candidate, whether in cash or in kind, including the use, rental or hire of land,
water or aircraft, equipment, facilities, apparatus and paraphernalia used in
the campaign: Provided, further, That where the land, water or aircraft,
equipment, facilities, apparatus and paraphernalia used is owned by the
candidate, his contributor or supporter, the Commission is hereby
empowered toassess the amount commensurate with the expenses for the
use thereof, based on the prevailing rates in the locality and shall be included
in the total expenses incurred by the candidate.
SECTION 101. Limitations upon expenses of political parties.– A duly
accredited political party may spend for the election of its candidates in the
constituency or constituencies where it has official candidates an aggregate
amount not exceeding the equivalent of one peso and fifty centavos for every
voter currently registered therein. Expenses incurred by branches, chapters,
or committees of such political party shall be included in the computation of
the total expenditures of the political party.
Expenses incurred by other political parties shall be considered as expenses
of their respective individual candidates and subject to limitation under
Section 100 of this Code.
SECTION 103. Persons authorized to incur election expenditures.– No
person, except the candidate, the treasurer of a political party or any person
authorized by such candidate or treasurer, shall make any expenditure in
support of or in opposition to any candidate or political party. Expenditures
duly authorized by the candidate or the treasurer of the party shall be
considered as expenditures of such candidate or political party.
The authority to incur expenditures shall be in writing, copy of which shall be
furnished the Commission signed by the candidate or the treasurer of the
party and showing the expenditures so authorized, and shall state the full
name and exact address of the person so designated. (Emphasis
supplied)121
The focal query is: How shall We interpret "the expenses herein referred to
shall include those incurred or caused to be incurred by the candidate"and
"except the candidate, the treasurer of a political party or any person
authorized by such candidate or treasurer"found in Sections 100 and 103,
respectively, of the OEC? Do these provisions exclude from the allowable
election expenditures the contributions of third parties made with the consent
of the candidate? The Court holds not.
When the intent of the law is not apparent as worded, or when the application
of the law would lead to absurdity, impossibility or injustice, extrinsic aids of
statutory construction may be resorted to such as the legislative history of the
law for the purpose of solving doubt, and that courts may take judicial notice
of the origin and history of the law, the deliberations during the enactment, as
well as prior laws on the same subject matter in order to ascertain the true
intent or spirit of the law.122
Looking back, it could be found that Sections 100, 101, and 103 of the OEC
are substantially lifted from P.D. No. 1296,123 as amended. Sections 51, 52
and 54 of which specifically provide:
Section 51. Limitations upon expenses of candidates. No candidate shall
spend for his election campaign an amount more than the salary or the
equivalent of the total emoluments for one year attached to the office for
which he is a candidate: Provided, That the expenses herein referred to shall
include those incurred by the candidate, his contributors and
supporters,whether in cash or in kind, including the use, rental or hire of land,
water or air craft, equipment, facilities, apparatus and paraphernalia used in
the campaign: Provided, further,That, where the land, water or air craft,
equipment, facilities, apparatus and paraphernalia used is owned by the
candidate, his contributor or supporter, the Commission is hereby
empowered to assess the amount commensurate with the expenses for the
use thereof, based on the prevailing rates in the locality and shall be included
in the total expenses incurred by the candidate.
In the case of candidates for the interim Batasang Pambansa, they shall not
spend more than sixty thousand pesos for their election campaign.
Section 52. Limitation upon expenses of political parties, groups or
aggrupations.A political party, group or aggrupation may not spend for the
election of its candidates in the constituency or constituencies where it has
official candidates anaggregate amount more than the equivalent of fifty
centavos for every voter currently registered therein: Provided, That
expenses incurred by such political party, group or aggrupation not duly
registered with the Commission and/or not presenting or supporting a
complete list of candidates shall be considered as expenses of its candidates
and subject to the limitation under Section 51 of this Code. Expenses
incurred by branches, chapters or committees of a political party, group or
aggrupation shall be included in the computation of the total expenditures of
the political party, group or aggrupation. (Emphasis supplied)
Section 54. Persons authorized to incur election expenditures.No person,
except the candidate or any person authorized by him or the treasurer of a
political party, group or aggrupation, shall make any expenditure in support
of, or in opposition to any candidate or political party, group or aggrupation.
Expenditures duly authorized by the candidate of the treasurer of the party,
group or aggrupation shall be considered as expenditure of such candidate
or political party, group or aggrupation.
The authority to incur expenditures shall be in writing, copy of which shall be
furnished the Commission, signed by the candidate or the treasurer of the
party, group or aggrupation and showing the expenditure so authorized, and
shall state the full nameand exact address of the person so designated.
(Emphasis supplied)
Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as the "Election
Code of 1971") was enacted.124 Sections 41 and 42 of which are relevant,
to quote:
Section 41. Limitation Upon Expenses of Candidates.– No candidate shall
spend for his election campaign more than the total amount of salary for the
full term attached to the office for which he is a candidate.
Section 42. Limitation Upon Expenses of Political Parties and Other
Nonpolitical Organizations.– No political party as defined in this Code shall
spend for the election of its candidates an aggregate amount more than the
equivalent of one peso for every voter currently registered throughout the
country in case of a regular election, orin the constituency in which the
election shall be held in case of a special election which is not held in
conjunction with a regular election. Any other organization not connected
with any political party, campaigning for or against a candidate, or for or
against a political party shall not spend more than a total amount of five
thousand pesos. (Emphasis supplied)
Much earlier, Section 12 (G) of R.A. No. 6132,125 which implemented the
resolution of both Houses ofCongress calling for a constitutional convention,
explicitly stated:
Section 12. Regulations of Election Spending and Propaganda. The following
provisions shall govern election spending and propaganda in the election
provided for in this Act:
xxx
(G) All candidates and all other persons making or receiving expenditures,
contributions or donations which in their totality exceed fifty pesos, in order to
further or oppose the candidacy of any candidate, shall file a statement of all
such expenditures and contributions made or received on such dates and
withsuch details as the Commission on Elections shall prescribe by rules.
The total expenditures made by a candidate, or by any other person with the
knowledge and consent of the candidate, shall not exceed thirty-two
thousand pesos. (Emphasis supplied)

In tracing the legislative history of Sections 100, 101, and 103 of the OEC, it
can be said, therefore, that the intent of our lawmakers has been consistent
through the years: to regulate not just the election expenses of the candidate
but also of his or her contributor/supporter/donor as well as by including in
the aggregate limit of the former’s election expenses those incurred by the
latter.1awp++i1 The phrase "those incurred or caused to be incurred by the
candidate"is sufficiently adequate to cover those expenses which are
contributed or donated in the candidate’s behalf. By virtue of the legal
requirement that a contribution or donation should bear the written conformity
of the candidate, a contributor/supporter/donor certainly qualifies as "any
person authorized by such candidate or treasurer." Ubi lex non distinguit, nec
nos distinguere debemus.126 (Where the law does not distinguish, neither
should We.) There should be no distinction in the application of a law where
none is indicated.
The inclusion of the amount contributed by a donor to the candidate’s
allowable limit of election expenses does not trample upon the free exercise
of the voters’ rights of speech and of expression under Section 4, Artticle III
of the Constitution. As a content-neutral regulation,127 the law’s concern is
not to curtail the message or content of the advertisement promoting a
particular candidate but to ensure equality between and among aspirants
with "deep pockets" and those with less financial resources. Any restriction
on speech or expression is only incidentaland is no more than necessary to
achieve the substantial governmental interest of promoting equality of
opportunity in political advertising. It bears a clear and reasonable connection
with the constitutional objectives set out in Section 26, Article II, Section 4,
Article IX-C, and Section 1, Art. XIII of the Constitution.128
Indeed, to rule otherwise would practically result in an unlimited expenditure
for political advertising, which skews the political process and subverts the
essence of a truly democratic form of government.
WHEREFORE, the Petition is DENIED. The May 21, 2014 Resolution of the
COMELEC En Banc in SPA No. 13-306 (DC), which upheld the September
26, 2013 Resolution of the COMELEC First Division, granting the petition for
disqualification filed by private respondent Edgar "Egay" S. San Luis against
petitioner Emilio Ramon "E.R." P. Ejercito, is hereby AFFIRMED.
SO ORDERED.
GMA Network Inc. vs. COMELEC (G.R. No. 205357, September 2, 2014)
"The clash of rights demands a delicate balancing of interests approach
which is a 'fundamental postulate of constitutional law.'"1
Once again the Court is asked to draw a carefully drawn balance in the
incessant conflicts between rights and regulations, liberties and limitations,
and competing demands of the different segments of society. Here, we are
confronted with the need to strike a workable and viable equilibrium between
a constitutional mandate to maintain free, orderly, honest, peaceful and
credible elections, together with the aim of ensuring equal opportunity, time
and space, and the right to reply, including reasonable, equal rates therefor,
for public information campaigns and forums among candidates,2 on one
hand, and the imperatives of a republican and democratic state,3 together
with its guaranteed rights of suffrage,4 freedom of speech and of the press,5
and the people's right to information,6 on the other.
In a nutshell, the present petitions may be seen as in search of the answer to
the question - how does the Charter of a republican and democratic State
achieve a viable and acceptable balance between liberty, without which,
government becomes an unbearable tyrant, and authority, without which,
society becomes an intolerable and dangerous arrangement?
Assailed in these petitions are certain regulations promulgated by the
Commission on Elections (COMELEC) relative to the conduct of the 2013
national and local elections dealing with political advertisements. Specifically,
the petitions question the constitutionality of the limitations placed on
aggregate airtime allowed to candidates and political parties, as well as the
requirements incident thereto, such as the need to report the same, and the
sanctions imposed for violations.
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."7 For the May 2013 elections,
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),8 which provides for a penalty of 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),9 which provides for an "aggregate 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 14,10 which provides for a candidate's "right 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, 12 which 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 Opposition13
dated March 8, 2013, that the petition 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,14 where 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"16 as 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 Opposition17
where it 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 Order20 (TRO)
in view of the urgency 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/Comment22 to the said Motion. Not long after, ABC followed suit
and filed its own Opposition to the Motion23 filed by the respondent.
In the interim, respondent filed a Second Supplemental Comment and
Opposition24 dated April 8, 2013.
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 Resolution25 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.26 Therein, 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 Manila29 may dispose of the
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."30 The Court then went 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])32 - one hundred (120) minutes
of television advertisement and one-hundred· eighty (180) minutes for radio
advertisement. For the 2004 elections, the respondent COMELEC
promulgated Resolution No. 652033 implementing the airtime limits by
applying said limitation on a per station basis.34 Such manner of determining
airtime limits was likewise adopted for the 2007 elections, through Resolution
No. 7767.35 In the 2010 elections, under Resolution No. 8758,36 the same
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 Candidates/Registered Political parties for a National Elective Position
Not more than an 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.
x x x x37
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 particularizing the empirical data upon
which such a sweeping statement was based. This was evident in the public
hearing held on 31 January 2013 where petitioner GMA, 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. 6646,44 which prohibited direct political advertisements -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.
xxx xxx xxx
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.
xxx xxx xxx
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."54 If
that be so, then drastically 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 x56 It has 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,58
should also 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 x x
(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;
xxx xxx xxx
(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. 9631,62 the
respondent revised the third 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.1awp++i1 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."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.66 Given that express constitutional 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 x68
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 afford a right to reply. If there was
no such mandate, then the submissions of petitioners may more easily
commend themselves for this Court's acceptance. But as noted above, this is
not the case. Their arguments simplistically provide minimal importance to
that constitutional command to the point of marginalizing its importance in the
equation.
In fine, when it comes to election and the exercise of freedom of speech, of
expression and of the press, the latter must be properly viewed in context as
being necessarily made to accommodate the imperatives of fairness by
giving teeth and substance to the right to reply requirement.
WHEREFORE, premises considered, the petitions are PARTIALLY
GRANTED, Section 9 (a) of Resolution No. 9615, as amended by Resolution
No. 9631, is declared UNCONSTITUTIONAL and, therefore, NULL and
VOID. The constitutionality of the remaining provisions of Resolution No.
9615, as amended by Resolution No. 9631, is upheld and remain in full force
and effect.
In view of this Decision, the Temporary Restraining Order issued by the
Court on April 16, 2013 is hereby made PERMANENT.
SO ORDERED.
I-UTAK vs. COMELEC (G.R. No. 206020, April 14, 2015)
The right to participate in electoral processes is a basic and fundamental
right in any democracy. It includes not only the right to vote, but also the right
to urge others to vote for a particular candidate. The right to express one's
preference for a candidate is likewise part of the fundamental right to free
speech. Thus, any governmental restriction on the right to convince others to
vote for a candidate carries with it a heavy presumption of invalidity.
This is a petition for certiorari1 under Rule 64 and Rule 65 of the Rules of
Court filed by 1-United Transport Koalisyon (petitioner), a party-list
organization, assailing Section 7(g) items (5) and (6), in relation to Section
7(f), of Resolution No. 96152 of the Commission on Elections (COMELEC).
The Facts
On February 12, 2001, Republic Act (R.A.) No. 9006, otherwise known as the
"Fair Elections Act", was passed. Section 9 thereof provides:
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize
political parties and party-list groups to erect common poster areas for their
candidates in not more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided that the size of the poster areas shall
not exceed twelve (12) by sixteen (16) feet or its equivalent.
Independent candidates with no political parties may likewise be authorized
to erect common poster areas in not more than ten (10) public places, the
size of which shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in private places with
the consent of the owner thereof, and in public places or property which shall
be allocated equitably and impartially among the candidates.
On January 15, 2013, the COMELEC promulgated Resolution No. 9615,
which provided for the rules implementing R.A. No. 9006 in connection with
the May 13, 2013 national and local elections and subsequent elections.
Section 7 thereof, which enumerates the prohibited forms of election
propaganda, pertinently provides:
SEC. 7. Prohibited Forms of Election Propaganda. - During the campaign
period, it is unlawful:
xxxx
(f) To post, display or exhibit any election campaign or propaganda material
outside of authorized common poster areas, in public places, or in private
properties without the consent of the owner thereof.
(g) Public places referred to in the previous subsection (f) include any of the
following:
xxxx
5. Public utility vehicles such as buses, jeepneys, trains, taxi cabs, ferries,
pedicabs and tricycles, whether motorized or not;
6. Within the premises of public transport terminals, such as bus terminals,
airports, seaports, docks, piers, train stations, and the like.
The violation of items [5 and 6] under subsection (g) shall be a cause for the
revocation of the public utility franchise and will make the owner and/or
operator of the transportation service and/or terminal liable for an election
offense under Section 9 of Republic Act No. 9006 as implemented by Section
18 (n) of these Rules.3
In its letter4 dated January 30, 2013, the petitioner, through its president,
Melencio F. Vargas, sought clarification from the COMELEC as regards the
application of Resolution No. 9615, particularly Section 7(g) items (5) and (6),
in relation to Section 7(f), vis-a-vis privately owned public utility vehicles
(PUVs) and transport terminals. The petitioner explained that the prohibition
stated in the aforementioned provisions impedes the right to free speech of
the private owners of PUVs and transport terminals. The petitioner then
requested the COMELEC to reconsider the implementation of the assailed
provisions and allow private owners of PUVs and transport terminals to post
election campaign materials on their vehicles and transport terminals.
On February 5, 2013, the COMELEC en banc issued Minute Resolution No.
13-0214,5 which denied the petitioner's request to reconsider the
implementation of Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615. The COMELEC en banc, adopting the recommendation
of Commissioner Christian Robert S. Lim, opined that:
From the foregoing, x x x the primary fact in consideration here is actually
whether 1 -UTAK or any other [PUV] owners in the same position do in fact
possess a franchise and/or certificate of public convenience and operate as a
public utility. If it does not, then the ruling in Adiong applies squarely. If it
does, then its operations, pursuant to Section 4, Article IX-C of the
Constitution, will be placed directly under the supervision and regulation of
the Commission for the duration of the election period so as to ensure
equality of opportunity, time, and space for all candidates in the placement of
political advertisements. Having placed their property for use by the general
public and having secured a license or permit to do so, 1-UTAK and other
PUV owners, as well as transport terminal owners, cannot now complain that
their property is subject to regulation by the State. Securing a franchise or a
certificate of public convenience in their favor does not exempt them from the
burdens imposed by the Constitution, Republic Act No. 9006 x x x, and other
related statutes. It must be stressed that the Constitution itself, under Section
6, Article XII, commands that the use of property bears a social function and
all economic agents shall contribute to the common good; and there is no
higher Common good than that as espoused in R.A. No. 9006 - the
equalization of opportunities for all candidates for political office during
elections - a policy which Res. No. 9615 merely implements.
As required in Adiong, and in compliance with the O'Brien standards, the
prohibition furthers two important and substantial governmental interests -
equalizing opportunity, time, and space for all candidates, and putting to a
stop excessive campaign spending. The regulation bears a clear and
reasonable nexus with these Constitutionally- and statutorily-sanctioned
objectives, and the infringement of freedom is merely incidental and limited
as to time. The Commission has not taken away all avenues of expression
available to PUV and transport terminal owners. They may express their
political preferences elsewhere.
The exact purpose for placing political advertisements on a PUV or in
transport terminals is exactly because it is public and can be seen by all; and
although it is true that private vehicles ply the same route as public vehicles,
the exposure of a [PUV] servicing the general, riding public is much more
compared to private vehicles. Categorizing PUVs and transport terminals as
'public places' under Section 7 (f) of Reso. No. 9615 is therefore logical. The
same reasoning for limiting political advertisements in print media, in radio,
and in television therefore holds true for political advertisements in PUVs and
transport terminals.6
Hence, the instant petition.
Arguments of the Petitioner
The petitioner maintains that Section 7(g) items (5) and (6), in relation to
Section 7(f), of Resolution No. 9615 violate the right to free speech of the
owners of PUVs and transport terminals; that the prohibition curtails their
ideas of who should be voted by the public. The petitioner also claims that
there is no substantial public interest threatened by the posting of political
advertisements on PUVs and transport terminals to warrant the prohibition
imposed by the COMELEC. Further, the petitioner posits that the ownership
of the PUVs per se, as well as the transport terminals, remains private and,
hence, the owners thereof could not be prohibited by the COMELEC from
expressing their political opinion lest their property rights be unduly intruded
upon.

Further, assuming that substantial public interest exists in the said prohibition
imposed under Resolution No. 9615, the petitioner claims that the curtailment
of the right to free speech of the owners of PUVs and transport terminals is
much greater than is necessary to achieve the desired governmental
purpose, i.e., ensuring equality of opportunity to all candidates in elective
office.
Arguments of COMELEC
On the other hand, the COMELEC posits that privately-owned PUVs and
transport terminals are public spaces that are subject to its regulation. It
explains that under the Constitution, the COMELEC has the power to enforce
and administer all laws and regulations relative to the conduct of an election,
including the power to regulate the enjoyment or utilization of all franchises
and permits for the operation of transportation utilities.
The COMELEC points out that PUVs and private transport terminals hold a
captive audience - the commuters, who have no choice but be subjected to
the blare of political propaganda. Thus, the COMELEC avers, it is within its
constitutional authority to prevent privately-owned PUVs and transport
terminals from concurrently serving campaign materials to the captive
audience that they transport.
The COMELEC further claims that Resolution No. 9615 is a valid content-
neutral regulation and, thus, does not impinge on the constitutional right to
freedom of speech. It avers that the assailed regulation is within the
constitutional power of the COMELEC pursuant to Section 4, Article IX-C of
the Constitution. The COMELEC alleges that the regulation simply aims to
ensure equal campaign opportunity, time, and space for all candidates - an
important and substantial governmental interest, which is totally unrelated to
the suppression of free expression; that any restriction on free speech is
merely incidental and is no greater than is essential to the furtherance of the
said governmental interest.
The Issue
The petitioner presents the following issues for the Court's resolution:
I. [WHETHER] RESOLUTION NO. 9615 VIOLATES THE RIGHT TO FREE
SPEECH OF THE OWNERS OF [PUVs] AND TRANSPORT TERMINALS.
II. [WHETHER] RESOLUTION NO. 9615 IS VOID AS A RESTRAINT TO
FREE SPEECH AND EXPRESSION FOR FAILURE TO SATISFY THE
O'BRIEN TEST.
III. [WHETHER] THE CONSTITUTIONAL OBJECTIVE TO GIVE AN EQUAL
OPPORTUNITY TO INFORM THE ELECTORATE IS NOT IMPAIRED BY
POSTING POLITICAL ADVERTISEMENTS ON PUVs AND TRANSPORT
TERMINALS.
IV. [WHETHER] THE OWNERSHIP OF FACILITIES IS DIFFERENT AND
INDEPENDENT FROM THE FRANCHISE OR OPERATION OF THE
PUBLIC UTILITY, THE FORMER BEING BEYOND THE POWER OF
REGULATION BY THE COMELEC.7
In sum, the issue presented for the Court's resolution is whether Section 7(g)
items (5) and (6), in relation to Section 7(f), of Resolution No. 9615, which
prohibits the posting of any election campaign or propaganda material, inter
alia, in PUVs and public transport terminals are valid regulations.
Ruling of the Court
The petition is meritorious.
Resolution No. 9615, which was promulgated pursuant to Section 4, Article
IX-C of the Constitution and the provisions of R.A. No. 9006, lays down the
administrative rules relative to the COMELEC's exercise of its supervisory
and regulatory powers over all franchises and permits for the operation of
transportation and other public utilities, media of communication or
information, and all grants, special privileges, or concessions granted by the
Government.
Like any other administrative regulations, Resolution No. 9615, or any part
thereof, must not run counter to the Constitution. It is basic that if a law or an
administrative rule violates any norm of the Constitution, that issuance is null
and void and has no effect. The Constitution is the basic law to which all laws
must conform; no act shall be valid if it conflicts with the Constitution.8 In this
regard, an administrative regulation, even if it purports to advance a
legitimate governmental interest, may not be permitted to run roughshod over
the cherished rights of the people enshrined in the Constitution.
Section 7(g) items (5) and (6), in
relation to Section 7(f), of Resolution No.
9615 are prior restraints on speech.

Free speech may be identified with the liberty to discuss publicly and
truthfully any matter of public concern without prior restraint or censorship
and subsequent punishment.9 Prior restraint refers to official governmental
restrictions on the press or other forms of expression in advance of actual
publication or dissemination. Freedom from prior restraint is largely freedom
from government censorship of publications, whatever the form of
censorship, and regardless of whether it is wielded by the executive,
legislative or judicial branch of the government.10 Any system of prior
restraints of expression comes to this Court bearing a heavy presumption
against its validity.11
Section 7(g) items (5) and (6), in relation to Section 7(f), of Resolution No.
9615 unduly infringe on the fundamental right of the people to freedom of
speech. Central to the prohibition is the freedom of individuals, i.e., the
owners of PUVs and private transport terminals, to express their preference,
through the posting of election campaign material in their property, and
convince others to agree with them.
Pursuant to the assailed provisions of Resolution No. 9615, posting an
election campaign material during an election period in PUVs and transport
terminals carries with it the penalty of revocation of the public utility franchise
and shall make the owner thereof liable for an election offense.
The prohibition constitutes a clear prior restraint on the right to free
expression of the owners of PUVs and transport terminals. As a result of the
prohibition, owners of PUVs and transport terminals are forcefully and
effectively inhibited from expressing their preferences under the pain of
indictment for an election offense and the revocation of their franchise or
permit to operate.
It is now deeply embedded in our jurisprudence that freedom of speech and
of the press enjoys a preferred status in our hierarchy of rights. The rationale
is that the preservation of other rights depends on how well we protect our
freedom of speech and of the press.12 It has been our constant holding that
this preferred freedom calls all the more for utmost respect when what may
be curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage.13
Thus, in Adiong v. COMELEC,14 the Court struck down the COMELEC's
prohibition against the posting of decals and stickers on "mobile places." The
Court ratiocinated that:
Significantly, the freedom of expression curtailed by the questioned
prohibition is not so much that of the candidate or the political party. The
regulation strikes at the freedom of an individual to express his preference
and, by displaying it on his car, to convince others to agree with him. A
sticker may be furnished by a candidate but once the car owner agrees to
have it placed on his private vehicle, the expression becomes a statement by
the owner, primarily his own and not of anybody else. If, in the National Press
Club case, the Court was careful to rule out restrictions on reporting by
newspaper or radio and television stations and commentators or columnists
as long as these are not correctly paid-for advertisements or purchased
opinions with less reason can we sanction the prohibition against a sincere
manifestation of support and a proclamation of belief by an individual person
who pastes a sticker or decal on his private property.15 (Emphases ours)
The assailed prohibition on posting
election campaign materials is an
invalid content-neutral regulation
repugnant to the free speech clause.
The COMELEC claims that while Section 7(g) items (5) and (6) of Resolution
No. 9615 may incidentally restrict the right to free speech of owners of PUVs
and transport terminals, the same is nevertheless constitutionally permissible
since it is a valid content-neutral regulation. The Court does not agree.
A content-neutral regulation, i.e., which is merely concerned with the
incidents of the speech, or one that merely controls the time, place or
manner, and under well-defined standards,16 is constitutionally permissible,
even if it restricts the right to free speech, provided that the following
requisites concur: first, the government regulation is within the constitutional
power of the Government; second, it furthers an important or substantial
governmental interest; third, the governmental interest is unrelated to the
suppression of free expression; and fourth, the incidental restriction on
freedom of expression is no greater than is essential to the furtherance of
that interest.17
Section 7(g) items (5) and (6) of Resolution No. 9615 are content-neutral
regulations since they merely control the place where election campaign
materials may be posted. However, the prohibition is still repugnant to the
free speech clause as it fails to satisfy all of the requisites for a valid content-
neutral regulation.
It is conceded that Resolution No. 9615, including the herein assailed
provisions, furthers an important and substantial governmental interest, i.e.,
ensuring equal opportunity, time and space among candidates aimed at the
holding of free, orderly, honest, peaceful, and credible elections. It is further
conceded that the governmental interest in imposing the said prohibition is
unrelated to the suppression of free expression. However, Section 7(g) items
(5) and (6), in relation to Section 7(f), of Resolution No. 9615, are not within
the constitutionally delegated power of the COMELEC under Section 4,
Article IX-C of the Constitution. Also, there is absolutely no necessity to
restrict the right to free speech of the owners of PUVs and transport
terminals.
The COMELEC may only regulate
the franchise or permit to operate and
not the ownership per se of PUVs
and transport terminals.
The prohibition under Section 7(g) items (5) and (6), in relation to Section
7(f), of Resolution No. 9615 is not within the COMELEC's constitutionally
delegated power of supervision or regulation. It is not disputed that the
COMELEC has the power to supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation
utilities during an election period. Section 4, Article IX-C of the Constitution,
thus provides:
Section 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, 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.
Nevertheless, the constitutional grant of supervisory and regulatory powers
to the COMELEC over franchises and permits to operate, though seemingly
unrestrained, has its limits. Notwithstanding the ostensibly broad supervisory
and regulatory powers granted to the COMELEC during an election period
under Section 4, Article IX-C of the Constitution, the Court had previously set
out the limitations thereon. In Adiong, the Court, while recognizing that the
COMELEC has supervisory power vis-a-vis the conduct and manner of
elections under Section 4, Article IX-C of the Constitution, nevertheless held
that such supervisory power does not extend to the very freedom of an
individual to express his preference of candidates in an election by placing
election campaign stickers on his vehicle.
In National Press Club v. COMELEC,18 while the Court upheld the
constitutionality of a prohibition on the selling or giving free of charge, except
to the COMELEC, of advertising space and commercial time during an
election period, it was emphasized that the grant of supervisory and
regulatory powers to the COMELEC under Section 4, Article IX-C of the
Constitution, is limited to ensuring equal opportunity, time, space, and the
right to reply among candidates.
Further, in Social Weather Stations, Inc. v. COMELEC,19 the Court,
notwithstanding the grant of supervisory and regulatory powers to the
COMELEC under Section 4, Article IX-C of the Constitution, declared
unconstitutional a regulation prohibiting the release of election surveys prior
to the election since it "actually suppresses a whole class of expression,
while allowing the expression of opinion concerning the same subject matter
by newspaper columnists, radio and [television (TV)] commentators,
armchair theorists, and other opinion makers."20
In the instant case, the Court further delineates the constitutional grant of
supervisory and regulatory powers to the COMELEC during an election
period. As worded, Section 4, Article IX-C of the Constitution only grants
COMELEC supervisory and regulatory powers over the enjoyment or
utilization "of all franchises or permits for the operation," inter alia, of
transportation and other public utilities. The COMELEC's constitutionally
delegated powers of supervision and regulation do not extend to the
ownership per se of PUVs and transport terminals, but only to the franchise
or permit to operate the same.
There is a marked difference between the franchise or permit to operate
transportation for the use of the public and the ownership per se of the
vehicles used for public transport. Thus, in Tatad v. Garcia, Jr.,21 the Court
explained that:
What private respondent owns are the rail tracks, rolling stocks like the
coaches, rail stations, terminals and the power plant, not a public utility.
While a franchise is needed to operate these facilities to serve the public,
they do not by themselves constitute a public utility. What constitutes a public
utility is not their ownership but their use to serve the public x x x.
The Constitution, in no uncertain terms, requires a franchise for the operation
of a public utility. However, it does not require a franchise before one can
own the facilities needed to operate a public utility so long as it does not
operate them to serve the public.
xxxx
In law, there is a clear distinction between the "operation" of a public utility
and the ownership of the facilities and equipment used to serve the public.
xxxx
The right to operate a public utility may exist independently and separately
from the ownership of the facilities thereof. One can own said facilities
without operating them as a public utility, or conversely, one may operate a
public utility without owning the facilities used to serve the public. The
devotion of property to serve the public may be done by the owner or by the
person in control thereof who may not necessarily be the owner thereof.
This dichotomy between the operation of a public utility and the ownership of
the facilities used to serve the public can be very well appreciated when we
consider the transportation industry. Enfranchised airline and shipping
companies may lease their aircraft and vessels instead of owning them
themselves.22 (Emphases ours)
The franchise or permit to operate transportation utilities is a privilege
granted to certain persons to engage in the business of transporting people
or goods; it does not refer to the ownership of the vehicle per se. Ownership
is a relation in private law by virtue of which a thing pertaining to one person
is completely subjected to his will in everything not prohibited by public law or
the concurrence with the rights of another.23 Thus, the owner of a thing has
the right to enjoy and dispose of a thing, without other limitations than those
established by law.24
One such limitation established by law, as regards PUVs, is the franchise or
permit to operate. However, a franchise or permit to operate a PUV is a
limitation only on certain aspects of the ownership of the vehicle pertinent to
the franchise or permit granted, but not on the totality of the rights of the
owner over the vehicle. Otherwise stated, a restriction on the franchise or
permit to operate transportation utilities is necessarily a limitation on
ownership, but a limitation on the rights of ownership over the PUV is not
necessarily a regulation on the franchise or permit to operate the same.
A franchise or permit to operate transportation utilities pertains to
considerations affecting the operation of the PUV as such, e.g., safety of the
passengers, routes or zones of operation, maintenance of the vehicle, of
reasonable fares, rates, and other charges, or, in certain cases,
nationality.25 Thus, a government issuance, which purports to regulate a
franchise or permit to operate PUVs, must pertain to the considerations
affecting its operation as such. Otherwise, it becomes a regulation or
supervision not on the franchise or permit to operate, but on the very
ownership of the vehicle used for public transport.
The expression of ideas or opinion of an owner of a PUV, through the posting
of election campaign materials on the vehicle, does not affect considerations
pertinent to the operation of the PUV. Surely, posting a decal expressing
support for a certain candidate in an election will not in any manner affect the
operation of the PUV as such. Regulating the expression of ideas or opinion
in a PUV, through the posting of an election campaign material thereon, is
not a regulation of the franchise or permit to operate, but a regulation on the
very ownership of the vehicle.
The dichotomy between the regulation of the franchise or permit to operate of
a PUV and that of the very ownership thereof is better exemplified in the
case of commercial advertisements posted on the vehicle. A prohibition on
the posting of commercial advertisements on a PUV is considered a
regulation on the ownership of the vehicle per se; the restriction on the
enjoyment of the ownership of the vehicle does not have any relation to its
operation as a PUV.
On the other hand, prohibitions on the posting of commercial advertisements
on windows of buses, because it hinders police authorities from seeing
whether the passengers inside are safe, is a regulation on the franchise or
permit to operate. It has a direct relation to the operation of the vehicle as a
PUV, i.e., the safety of the passengers.
In the same manner, the COMELEC does not have the constitutional power
to regulate public transport terminals owned by private persons. The
ownership of transport terminals, even if made available for use by the public
commuters, likewise remains private. Although owners of public transport
terminals may be required by local governments to obtain permits in order to
operate, the permit only pertains to circumstances affecting the operation of
the transport terminal as such. The regulation of such permit to operate
should similarly be limited to circumstances affecting the operation of the
transport terminal. A regulation of public transport terminals based on
extraneous circumstances, such as prohibiting the posting of election
campaign materials thereon, amounts to regulating the ownership of the
transport terminal and not merely the permit to operate the same.
Accordingly, Section 7(g) items (5) and (6) of Resolution No. 9615 are not
within the constitutionally delegated power of the COMELEC to supervise or
regulate the franchise or permit to operate of transportation utilities. The
posting of election campaign material on vehicles used for public transport or
on transport terminals is not only a form of political expression, but also an
act of ownership - it has nothing to do with the franchise or permit to operate
the PUV or transport terminal.
The rulings in National Press Club
and Osmena v. COMELEC26
find no application to this case.
The COMELEC pointed out that the issue presented in the instant case is
akin to the Court's rulings in National Press Club and Osmeña. It explained
that in both cases, the Court sustained Section II(b) of R.A. No. 6646 or the
Electoral Reforms Law of 1997, which prohibits newspapers, radio
broadcasting or TV stations, and other mass media from selling or giving
print space or airtime for campaign or other political purposes, except to the
COMELEC, during the election campaign. The COMELEC averred that if the
legislature can empower it to impose an advertising ban on mass media, it
could likewise empower it to impose a similar ban on PUVs and transport
terminals.
The Court does not agree.
The restriction imposed under Section ll(b) of R.A. No. 6646 has a direct
relation to the enjoyment and utilization of the franchise or permit to operate
of newspapers, radio broadcasting and TV stations, and other mass media,
which the COMELEC has the power to regulate pursuant to Section 4, Article
IX-C of the Constitution. The print space or airtime is an integral part of the
franchise or permit to operate of mass media utilities. Thus, the restriction
under Section ll(b) of R.A. No. 6646 is within the confines of the
constitutionally delegated power of the COMELEC under Section 4, Article
IX-C of the Constitution.
On the other hand, the prohibition on the posting of election campaign
materials under Section 7(g) items (5) and (6) of Resolution No. 9615, as
already explained, does not have any relation to the franchise or permit of
PUVs and transport terminals to operate as such and, hence, is beyond the
power of the COMELEC under Section 4, Article IX-C of the Constitution.
The restriction on free speech of
owners of PUVs and transport
terminals is not necessary to
further the stated governmental
interest.
Section 7(g) items (5) and (6) of Resolution No. 9615 likewise failed to satisfy
the fourth requisite of a valid content-neutral regulation, i.e., the incidental
restriction on freedom of expression is no greater than is essential to the
furtherance of that interest. There is absolutely no necessity to restrict the
right of the owners of PUVs and transport terminals to free speech to further
the governmental interest. While ensuring equality of time, space, and
opportunity to candidates is an important and substantial governmental
interest and is essential to the conduct of an orderly election, this lofty aim
may be achieved sans any intrusion on the fundamental right of expression.
First, while Resolution No. 9615 was promulgated by the COMELEC to
implement the provisions of R.A. No. 9006, the prohibition on posting of
election campaign materials on PUVs and transport terminals was not
provided for therein.
Second, there are more than sufficient provisions in our present election laws
that would ensure equal time, space, and opportunity to candidates in
elections. Section 6 of R.A. No. 9006 mandates that "all registered parties
and bona fide candidates shall have equal access to media time and space"
and outlines the guidelines to be observed in the implementation thereof, viz:
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:
6.1 Print advertisements shall not exceed one-fourth (1/4) page in
broadsheet and one-half (1/2) page in tabloids thrice a week per newspaper,
magazine or other publications, during the campaign period.
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.
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 station 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.
The COMELEC shall ensure that radio or television or cable television
broadcasting entities shall not allow the scheduling of any program or permit
any sponsor to manifestly favor or oppose any candidate or political party by
unduly or repeatedly referring to or including said candidate and/or political
party in such program respecting, however, in all instances the right of said
broadcast entities to air accounts of significant news or news worthy events
and views on matters of public interest.
6.5 All members of media, television, radio or print, shall scrupulously report
and interpret the news, taking care not to suppress essential facts nor to
distort the truth by omission or improper emphasis. They shall recognize the
duty to air the other side and the duty to correct substantive errors promptly.
6.6 Any mass media columnist, commentator, announcer, reporter, on-air
correspondent or personality who is a candidate for any elective public office
or is a campaign volunteer for or employed or retained in any capacity by any
candidate or political party shall be deemed resigned, if so required by their
employer, or shall take a leave of absence from his/her work as such during
the campaign period: Provided, That any media practitioner who is an official
of a political party or a member of the campaign staff of a candidate or
political party shall not use his/her time or space to favor any candidate or
political party.
6.7 No movie, cinematograph or documentary portraying the life or biography
of a candidate shall be publicly exhibited in a theater, television station or any
public forum during the campaign period.
6.8 No movie, cinematograph or documentary portrayed by an actor or media
personality who is himself a candidate shall likewise be publicly exhibited in a
theater or any public forum during the campaign period.
Section 9 of R.A. No. 9006 authorizes political parties and party-list groups
and independent candidates to erect common poster areas and candidates
to post lawful election campaign materials in private places, with the consent
of the owner thereof, and in public places or property, which are allocated
equitably and impartially.
Further, Section 1327 of R.A. No. 716628 provides for the authorized
expenses of registered political parties and candidates for every voter; it
affords candidates equal opportunity in their election campaign by regulating
the amount that should be spent for each voter. Likewise, Section 1429 of
R.A. No. 7166 requires all candidates and treasurers of registered political
parties to submit a statement of all contributions and expenditures in
connection with the election. Section 14 is a post-audit measure that aims to
ensure that the candidates did not overspend in their election campaign,
thereby enforcing the grant of equal opportunity to candidates under Section
13.
A strict implementation of the foregoing provisions of law would suffice to
achieve the governmental interest of ensuring equal time, space, and
opportunity for candidates in elections. There is thus no necessity of still
curtailing the right to free speech of the owners of PUVs and transport
terminals by prohibiting them from posting election campaign materials on
their properties.
Section 7(g) items (5) and (6) of
Resolution No. 9615 are not justified under
the captive-audience doctrine.
The COMELEC further points out that PUVs and transport terminals hold a
"captive audience" - commuters who have no choice but be subjected to the
blare of political propaganda. The COMELEC further claims that while
owners of privately owned PUVs and transport terminals have a right to
express their views to those who wish to listen, they have no right to force
their message upon an audience incapable of declining to receive it.
The COMELEC's claim is untenable.
The captive-audience doctrine states that when a listener cannot, as a
practical matter, escape from intrusive speech, the speech can be
restricted.30 The "captive-audience" doctrine recognizes that a listener has a
right not to be exposed to an unwanted message in circumstances in which
the communication cannot be avoided.31
A regulation based on the captive-audience doctrine is in the guise of
censorship, which undertakes selectively to shield the public from some
kinds of speech on the ground that they are more offensive than others. Such
selective restrictions have been upheld only when the speaker intrudes on
the privacy of the home or the degree of captivity makes it either impossible
or impractical for the unwilling viewer or auditor to avoid exposure.32
In Consolidated Edison Co. v. Public Service Commission,33 the Supreme
Court of the United States of America (U.S. Supreme Court) struck down the
order of New York Public Service Commission, which prohibits public utility
companies from including inserts in monthly bills discussing controversial
issues of public policy. The U.S. Supreme Court held that "[t]he prohibition
cannot be justified as being necessary to avoid forcing appellant's views on a
captive audience, since customers may escape exposure to objectionable
material simply by throwing the bill insert into a wastebasket."34
Similarly, in Erznoznik v. City of Jacksonville,35 the U.S. Supreme Court
nullified a city ordinance, which made it a public nuisance and a punishable
offense for a drive-in movie theater to exhibit films containing nudity, when
the screen is visible from a public street or place. The U.S. Supreme Court
opined that the degree of captivity is not so great as to make it impracticable
for an unwilling viewer to avoid exposure, thus:
The Jacksonville ordinance discriminates among movies solely on the basis
of content. Its effect is to deter drive-in theaters from showing movies
containing any nudity, however innocent or even educational. This
discrimination cannot be justified as a means of preventing significant
intrusions on privacy. The ordinance seeks only to keep these films from
being seen from public streets and places where the offended viewer readily
can avert his eyes. In short, the screen of a drive-in theater is not "so
obtrusive as to make it impossible for an unwilling individual to avoid
exposure to it." x x x Thus, we conclude that the limited privacy interest of
persons on the public streets cannot justify this censorship of otherwise
protected speech on the basis of its content.36 (Emphasis ours)
Thus, a government regulation based on the captive-audience doctrine may
not be justified if the supposed "captive audience" may avoid exposure to the
otherwise intrusive speech. The prohibition under Section 7(g) items (5) and
(6) of Resolution No. 9615 is not justified under the captive-audience
doctrine; the commuters are not forced or compelled to read the election
campaign materials posted on PUVs and transport terminals. Nor are they
incapable of declining to receive the messages contained in the posted
election campaign materials since they may simply avert their eyes if they
find the same unbearably intrusive.
The COMELEC, in insisting that it has the right to restrict the posting of
election campaign materials on PUVs and transport terminals, cites Lehman
v. City of Shaker Heights,37 a case decided by the U.S. Supreme Court. In
Lehman, a policy of the city government, which prohibits political
advertisements on government-run buses, was upheld by the U.S. Supreme
Court. The U.S. Supreme Court held that the advertising space on the buses
was not a public forum, pointing out that advertisement space on
government-run buses, "although incidental to the provision of public
transportation, is a part of commercial venture."38 In the same way that other
commercial ventures need not accept every proffer of advertising from the
general public, the city's transit system has the discretion on the type of
advertising that may be displayed on its vehicles.
Concurring in the judgment, Justice Douglas opined that while Lehman, a
candidate for state office who sought to avail himself of advertising space on
government-run buses, "clearly has a right to express his views to those who
wish to listen, he has no right to force his message upon an audience
incapable of declining to receive it."39 Justice Douglas concluded: "the right
of the commuters to be free from forced intrusions on their privacy precludes
the city from transforming its vehicles of public transportation into forums for
the dissemination of ideas upon this captive audience."40
The COMELEC's reliance on Lehman is utterly misplaced.
In Lehman, the political advertisement was intended for PUVs owned by the
city government; the city government, as owner of the buses, had the right to
decide which type of advertisements would be placed on its buses. The U.S.
Supreme Court gave primacy to the city government's exercise of its
managerial decision, viz:
Revenue earned from long-term commercial advertising could be jeopardized
by a requirement that short-term candidacy or issue-oriented advertisements
be displayed on car cards. Users would be subjected to the blare of political
propaganda. There could be lurking doubts about favoritism, and sticky
administrative problems might arise in parceling out limited space to eager
politicians. In these circumstances, the managerial decision to limit car card
space to innocuous and less controversial commercial and service-oriented
advertising does not rise to the dignity of First Amendment violation. Were
we to hold to the contrary, display cases in public hospitals, libraries, office
buildings, military compounds, and other public facilities immediately would
become Hyde Parks open to every would be pamphleteer and politician. This
the Constitution does not require.41 (Emphasis ours)
Lehman actually upholds the freedom of the owner of the utility vehicles, i.e.,
the city government, in choosing the types of advertisements that would be
placed on its properties. In stark contrast, Section 7(g) items (5) and (6) of
Resolution No. 9615 curtail the choice of the owners of PUVs and transport
terminals on the advertisements that may be posted on their properties.
Also, the city government in Lehman had the right, nay the duty, to refuse
political advertisements on their buses. Considering that what were involved
were facilities owned by the city government, impartiality, or the appearance
thereof, was a necessity. In the instant case, the ownership of PUVs and
transport terminals remains private; there exists no valid reason to suppress
their political views by proscribing the posting of election campaign materials
on their properties.
Prohibiting owners of PUVs and transport
terminals from posting election campaign
materials violates the equal protection
clause.
Section 7(g) items (5) and (6) of Resolution No. 9615 do not only run afoul of
the free speech clause, but also of the equal protection clause. One of the
basic principles on which this government was founded is that of the equality
of right, which is embodied in Section 1, Article III of the 1987 Constitution.42
"Equal protection requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and responsibilities imposed.
Similar subjects, in other words, should not be treated differently, so as to
give undue favor to some and unjustly discriminate against others."43
"The equal protection clause is aimed at all official state actions, not just
those of the legislature. Its inhibitions cover all the departments of the
government including the political and executive departments, and extend to
all actions of a state denying equal protection of the laws, through whatever
agency or whatever guise is taken."44
Nevertheless, the guaranty of equal protection of the laws is not a guaranty
of equality in the application of the laws to all citizens of the state. Equality of
operation of statutes does not mean their indiscriminate operation on
persons merely as such, but on persons according to the circumstances
surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things, which are different in fact, be
treated in law as though they were the same. The equal protection clause
does not forbid discrimination as to things that are different.45
In order that there can be valid classification so that a discriminatory
governmental act may pass the constitutional norm of equal protection, it is
necessary that the four requisites of valid classification be complied with,
namely: (1) it must be based upon substantial distinctions; (2) it must be
germane to the purposes of the law; (3) it must not be limited to existing
conditions only; and (4) it must apply equally to all members of the class.46
It is conceded that the classification under Section 7(g) items (5) and (6) of
Resolution No. 9615 is not limited to existing conditions and applies equally
to the members of the purported class. However, the classification remains
constitutionally impermissible since it is not based on substantial distinction
and is not germane to the purpose of the law.
A distinction exists between PUVs and transport terminals and private
vehicles and other properties in that the former, to be considered as such,
needs to secure from the government either a franchise or a permit to
operate. Nevertheless, as pointed out earlier, the prohibition imposed under
Section 7(g) items (5) and (6) of Resolution No. 9615 regulates the
ownership per se of the PUV and transport terminals; the prohibition does not
in any manner affect the franchise or permit to operate of the PUV and
transport terminals.
As regards ownership, there is no substantial distinction between owners of
PUVs and transport terminals and owners of private vehicles and other
properties. As already explained, the ownership of PUVs and transport
terminals, though made available for use by the public, remains private. If
owners of private vehicles and other properties are allowed to express their
political ideas and opinion by posting election campaign materials on their
properties, there is no cogent reason to deny the same preferred right to
owners of PUVs and transport terminals. In terms of ownership, the
distinction between owners of PUVs and transport terminals and owners of
private vehicles and properties is merely superficial. Superficial differences
do not make for a valid classification.47
The fact that PUVs and transport terminals are made available for use by the
public is likewise not substantial justification to set them apart from private
vehicles and other properties. Admittedly, any election campaign material
that would be posted on PUVs and transport terminals would be seen by
many people. However, election campaign materials posted on private
vehicles and other places frequented by the public, e.g., commercial
establishments, would also be seen by many people. Thus, there is no
reason to single out owners of PUVs and transport terminals in the
prohibition against posting of election campaign materials.
Further, classifying owners of PUVs and transport terminals apart from
owners of private vehicles and other properties bears no relation to the
stated purpose of Section 7(g) items (5) and (6) of Resolution No. 9615, i.e.,
to provide equal time, space and opportunity to candidates in elections. To
stress, PUVs and transport terminals are private properties. Indeed, the
nexus between the restriction on the freedom of expression of owners of
PUVs and transport terminals and the government's interest in ensuring
equal time, space, and opportunity for candidates in elections was not
established by the COMELEC.
In sum, Section 7(g) items (5) and (6), in relation to Section 7(f), of
Resolution No. 9615 violate the free speech clause; they are content-neutral
regulations, which are not within the constitutional power of the COMELEC
issue and are not necessary to further the objective of ensuring equal time,
space and opportunity to the candidates. They are not only repugnant to the
free speech clause, but are also violative of the equal protection clause, as
there is
no substantial distinction between owners of PUVs and transport terminals
and owners of private vehicles and other properties.
On a final note, it bears stressing that the freedom to advertise one's political
candidacy is clearly a significant part of our freedom of expression. A
restriction on this freedom without rhyme or reason is a violation of the most
valuable feature of the democratic way of life.48
WHEREFORE, in light of the foregoing disquisitions, the instant petition is
hereby GRANTED. Section 7(g) items (5) and (6), in relation to Section 7(f),
of Resolution No. 9615 issued by the Commission on Elections are hereby
declared NULL and VOID for being repugnant to Sections 1 and 4, Article III
of the 1987 Constitution.
SO ORDERED.
Diocese of Bacolod vs. COMELEC (G.R. No. 205728, January 21, 2015)
"The Philippines is a democratic and republican State. Sovereignty resides in
the people and all government authority emanates from them." – Article II,
Section 1, Constitution
All governmental authority emanates from our people. No unreasonable
restrictions of the fundamental and preferred right to expression of the
electorate during political contests no matter how seemingly benign will be
tolerated.
This case defines the extent that our people may shape the debates during
elections. It is significant and of first impression. We are asked to decide
whether the Commission on Elections (COMELEC) has the competence to
limit expressions made by the citizens — who are not candidates — during
elections.
Before us is a special civil action for certiorari and prohibition with application
for preliminary injunction and temporary restraining order1 under Rule 65 of
the Rules of Court seeking to nullify COMELEC’s Notice to Remove
Campaign Materials2 dated February 22, 2013 and letter3 issued on
February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private
compound housing the San Sebastian Cathedral of Bacolod. Each tarpaulin
was approximately six feet (6') by ten feet (10') in size. They were posted on
the front walls of the cathedral within public view. The first tarpaulin contains
the message "IBASURA RH Law" referring to the Reproductive Health Law
of 2012 or Republic Act No. 10354. The second tarpaulin is the subject of the
present case.4 This tarpaulin contains the heading "Conscience Vote" and
lists candidates as either "(Anti-RH) Team Buhay" with a check mark, or
"(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates were
classified according to their vote on the adoption of Republic Act No. 10354,
otherwise known as the RH Law.6 Those who voted for the passing of the
law were classified by petitioners as comprising "Team Patay," while those
who voted against it form "Team Buhay":7
TEAM BUHAY TEAM PATAY
Estrada, JV Angara, Juan Edgardo
Honasan, Gregorio Casiño, Teddy
Magsaysay, Mitos Cayetano, Alan Peter
Pimentel, Koko Enrile, Jackie
Trillanes, Antonio Escudero, Francis
Villar, Cynthia Hontiveros, Risa
Party List Buhay Legarda, Loren
Party List Ang Pamilya Party List Gabriela
Party List Akbayan
Party List Bayan Muna
Party List Anak Pawis
During oral arguments, respondents conceded that the tarpaulin was neither
sponsored nor paid for by any candidate. Petitioners also conceded that the
tarpaulin contains names ofcandidates for the 2013 elections, but not of
politicians who helped in the passage of the RH Law but were not candidates
for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity
as Election Officer of Bacolod City, issued a Notice to Remove Campaign
Materials8 addressed to petitioner Most Rev. Bishop Vicente M. Navarra.
The election officer ordered the tarpaulin’s removal within three (3) days from
receipt for being oversized. COMELEC Resolution No. 9615 provides for the
size requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that
(1) petitioner Bishop be given a definite ruling by COMELEC Law
Department regarding the tarpaulin; and (2) pending this opinion and the
availment of legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12
ordering the immediate removal of the tarpaulin; otherwise, it will be
constrained to file an election offense against petitioners. The letter of
COMELEC Law Department was silenton the remedies available to
petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil
Majarucon, had already given you notice on February 22, 2013 as regards
the election propaganda material posted on the church vicinity promoting for
or against the candidates and party-list groups with the following names and
messages, particularly described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of
Comelec Resolution No. 9615 promulgated on January 15, 2013 particularly
on the size (even with the subsequent division of the said tarpaulin into two),
as the lawful size for election propaganda material is only two feet (2’) by
three feet (3’), please order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained to file an election
offense case against you.
We pray that the Catholic Church will be the first institution to help the
Commission on Elections inensuring the conduct of peaceful, orderly, honest
and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free
speech, petitioners initiated this case through this petition for certiorari and
prohibition with application for preliminary injunction and temporary
restraining order.14 They question respondents’ notice dated February 22,
2013 and letter issued on February 27, 2013. They pray that: (1) the petition
be given due course; (2) a temporary restraining order (TRO) and/or a writ of
preliminary injunction be issued restraining respondents from further
proceeding in enforcing their orders for the removal of the Team Patay
tarpaulin; and (3) after notice and hearing, a decision be rendered declaring
the questioned orders of respondents as unconstitutional and void, and
permanently restraining respondents from enforcing them or any other similar
order.15
After due deliberation, this court, on March 5, 2013, issued a temporary
restraining order enjoining respondents from enforcing the assailed notice
and letter, and set oral arguments on March 19, 2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a
petition for certiorari and prohibition under Rule 65 of the Rules of Court filed
before this court is not the proper remedy to question the notice and letter of
respondents; and (2) the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate under Article IX-C, Section
4 of the Constitution. Hence, respondents claim that the issuances ordering
its removal for being oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file
their respective memoranda within 10 days or by April 1, 2013, taking into
consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT ARE CONSIDERED JUDGMENTS/FINAL
ORDERS/RESOLUTIONS OF THE COMELEC WHICH WOULD WARRANT
A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS
FROM COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS
ARE NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS
OF THE COMELEC, WHETHER THERE ARE EXCEPTIONAL
CIRCUMSTANCES WHICH WOULD ALLOW THIS COURT TO TAKE
COGNIZANCE OF THE CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE
TARPAULINS ARE "POLITICAL ADVERTISEMENT" OR "ELECTION
PROPAGANDA" CONSIDERING THAT PETITIONER IS NOT A POLITICAL
CANDIDATE[;]

III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION
(PROTECTED SPEECH), OR ELECTION PROPAGANDA/POLITICAL
ADVERTISEMENT[;]
A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF
EXPRESSION, WHETHER THE COMELEC POSSESSES THE
AUTHORITY TO REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION
OFFICER MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE
COMELEC LAW DEPARTMENT VIOLATES THE PRINCIPLE OF
SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS
TARPAULIN VIOLATES THE CONSTITUTIONAL PRINCIPLE OF
SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice
and letter are not final orders, decisions, rulings, or judgments of the
COMELEC En Banc issued in the exercise of its adjudicatory powers,
reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is
applicable especially to raise objections relating to a grave abuse of
discretion resulting in the ouster of jurisdiction.22 As a special civil action,
there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to
review by this court, whose power to review is "limited only to final decisions,
rulings and orders of the COMELEC En Banc rendered in the exercise of its
adjudicatory or quasi-judicial power."23 Instead, respondents claim that the
assailed notice and letter are reviewable only by COMELEC itself pursuant to
Article IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to
decide all questions affecting elections.25 Respondents invoke the cases of
Ambil, Jr. v. COMELEC,26 Repol v. COMELEC,27 Soriano, Jr. v.
COMELEC,28 Blanco v. COMELEC,29 and Cayetano v. COMELEC,30 to
illustrate how judicialintervention is limited to final decisions, orders, rulings
and judgments of the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of
Eastern Samar filed the election protest.32 At issue was the validity of the
promulgation of a COMELEC Division resolution.33 No motion for
reconsideration was filed to raise this issue before the COMELEC En Banc.
This court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean
final orders, rulings and decisionsof the COMELEC rendered in the exercise
of its adjudicatory or quasi-judicial powers." This decision must be a final
decision or resolution of the Comelec en banc, not of a division, certainly not
an interlocutory order of a division.The Supreme Court has no power to
review viacertiorari, an interlocutory order or even a final resolution of a
Division of the Commission on Elections.35 (Emphasis in the original,
citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this
court provided exceptions to this general rule. Repolwas another election
protest case, involving the mayoralty elections in Pagsanghan, Samar.36
This time, the case was brought to this court because the COMELEC First
Division issued a status quo ante order against the Regional Trial Court
executing its decision pending appeal.37 This court’s ponencia discussed the
general rule enunciated in Ambil, Jr. that it cannot take jurisdiction to review
interlocutory orders of a COMELEC Division.38 However, consistent with
ABS-CBN Broadcasting Corporation v. COMELEC,39 it clarified the
exception:
This Court, however, has ruled in the past that this procedural requirement
[of filing a motion for reconsideration] may be glossed over to prevent
miscarriage of justice, when the issue involves the principle of social justice
or the protection of labor, when the decision or resolution sought to be set
aside is a nullity, or when the need for relief is extremely urgent and certiorari
is the only adequate and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of
COMELEC — in electoral contests — despite not being reviewed by the
COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo
anteorder issued by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an
election protest case involving candidates for the city council of Muntinlupa
City.41 Petitioners in Soriano, Jr.filed before this court a petition for certiorari
against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First
Division dismissed the main election protest case.43 Sorianoapplied the
general rule that only final orders should be questioned with this court. The
ponencia for this court, however, acknowledged the exceptions to the
general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a
disqualification case of one of the mayoralty candidates of Meycauayan,
Bulacan.45 The COMELEC Second Division ruled that petitioner could not
qualify for the 2007 elections due to the findings in an administrative case
that he engaged in vote buying in the 1995 elections.46 No motion for
reconsideration was filed before the COMELEC En Banc. This court,
however, took cognizance of this case applying one of the exceptions in
ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest
case involving the mayoralty candidates of Taguig City.48 Petitioner assailed
a resolution of the COMELEC denying her motion for reconsideration to
dismiss the election protest petition for lack of form and substance.49 This
court clarified the general rule and refused to take cognizance of the review
of the COMELEC order. While recognizing the exceptions in ABS-CBN, this
court ruled that these exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents
do not operate as precedents to oust this court from taking jurisdiction over
this case. All these cases cited involve election protests or disqualification
cases filed by the losing candidate against the winning candidate.
In the present case, petitioners are not candidates seeking for public office.
Their petition is filed to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s
exercise of its adjudicatory or quasi-judicial power. This case pertains to acts
of COMELEC in the implementation of its regulatory powers. When it issued
the notice and letter, the COMELEC was allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the
infringement on speech and the "chilling effect" caused by respondent
COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the notice51 dated
February 22,2013 and letter52 dated February 27, 2013 ordering the removal
of the tarpaulin.53 It is their position that these infringe on their fundamental
right to freedom of expression and violate the principle of separation of
church and state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the
allegations in the petition. Subject matter jurisdiction is defined as the
authority "to hear and determine cases of the general class to which the
proceedings in question belong and is conferred by the sovereign authority
which organizes the court and defines its powers."55 Definitely, the subject
matter in this case is different from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by the
restrictions imposed by COMELEC. Political speech is motivated by the
desire to be heard and understood, to move people to action. It is concerned
with the sovereign right to change the contours of power whether through the
election of representatives in a republican government or the revision of the
basic text of the Constitution. The zeal with which we protect this kind of
speech does not depend on our evaluation of the cogency of the message.
Neither do we assess whether we should protect speech based on the
motives of COMELEC. We evaluate restrictions on freedom of expression
from their effects. We protect both speech and medium because the quality
of this freedom in practice will define the quality of deliberation in our
democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are
capable of repetition. Under the conditions in which it was issued and in view
of the novelty of this case,it could result in a "chilling effect" that would affect
other citizens who want their voices heard on issues during the elections.
Other citizens who wish to express their views regarding the election and
other related issues may choose not to, for fear of reprisal or sanction by the
COMELEC. Direct resort to this court is allowed to avoid such proscribed
conditions. Rule 65 is also the procedural platform for raising grave abuse of
discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it
referred to this court’s expanded exercise of certiorari as provided by the
Constitution as follows:
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 ornot 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.56 (Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide
all questions affectingelections. Article IX-C, Section 2(3) of the Constitution,
provides:
Sec. 2. The Commission on Elections shall exercise the following powers
and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling
places, appointment of election officials and inspectors, and registration of
voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in
its exercise of jurisdiction, gravely abused it. We are confronted with the
question as to whether the COMELEC had any jurisdiction at all with its acts
threatening imminent criminal action effectively abridging meaningful political
speech.
It is clear that the subject matter of the controversy is the effect of
COMELEC’s notice and letter on free speech. This does not fall under Article
IX-C, Section 2(3) of the Constitution. The use of the word "affecting" in this
provision cannot be interpreted to mean that COMELEC has the exclusive
power to decide any and allquestions that arise during elections.
COMELEC’s constitutional competencies during elections should not operate
to divest this court of its own jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section
5(1) of the Constitution.This provision provides for this court’s original
jurisdiction over petitions for certiorari and prohibition. This should be read
alongside the expanded jurisdiction of the court in Article VIII, Section 1 of
the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is
grave abuse of discretion. Thus, the constitutionality of the notice and letter
coming from COMELEC is within this court’s power to review.
During elections, we have the power and the duty to correct any grave abuse
of discretion or any act tainted with unconstitutionality on the part of any
government branch or instrumentality. This includes actions by the
COMELEC. Furthermore, it is this court’s constitutional mandate to protect
the people against government’s infringement of their fundamental rights.
This constitutional mandate out weighs the jurisdiction vested with the
COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over
this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of
hierarchy of courts in directly filing their petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a
lower court of concurrent jurisdiction is sufficient ground for the dismissal of
their petition.57 They add that observation of the hierarchy of courts is
compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While respondents
claim that while there are exceptions to the general rule on hierarchy of
courts, none of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s
discretionary power to take cognizance of a petition filed directly to it if
warranted by "compelling reasons, or [by] the nature and importance of the
issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application
of the hierarchy of courts:
The Court must enjoin the observance of the policy on the hierarchy of
courts, and now affirms that the policy is not to be ignored without serious
consequences. The strictness of the policy is designed to shield the Court
from having to deal with causes that are also well within the competence of
the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to
it. The Court may act on petitions for the extraordinary writs of certiorari,
prohibition and mandamus only when absolutely necessary or when serious
and important reasons exist to justify an exception to the policy.64
In Bañez, we also elaborated on the reasons why lower courts are allowed to
issue writs of certiorari, prohibition, and mandamus, citing Vergara v.
Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to
satisfactorily perform the functions assigned to it by the fundamental charter
and immemorial tradition. It cannot and should not be burdened with the task
of dealing with causes in the first instance. Its original jurisdiction to issue the
so-called extraordinary writs should be exercised only where absolutely
necessary or where serious and important reasons exist therefore. Hence,
that jurisdiction should generally be exercised relative to actions or
proceedings before the Court of Appeals, or before constitutional or other
tribunals, bodies or agencies whose acts for some reason or another are not
controllable by the Court of Appeals. Where the issuance of an extraordinary
writ is also within the competence of the Court of Appeals or a Regional Trial
Court, it is in either of these courts that the specific action for the writ’s
procurement must be presented. This is and should continue to be the policy
in this regard, a policy that courts and lawyers must strictly observe.66
(Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by
this court to ensure that every level of the judiciary performs its designated
roles in an effective and efficient manner. Trial courts do not only determine
the facts from the evaluation of the evidence presented before them. They
are likewise competent to determine issues of law which may include the
validity of an ordinance, statute, or even an executive issuance in relation to
the Constitution.67 To effectively perform these functions, they are
territorially organized into regions and then into branches. Their writs
generally reach within those territorial boundaries. Necessarily, they mostly
perform the all-important task of inferring the facts from the evidence as
these are physically presented before them. In many instances, the facts
occur within their territorial jurisdiction, which properly present the ‘actual
case’ that makes ripe a determination of the constitutionality of such action.
The consequences, of course, would be national in scope. There are,
however, some cases where resort to courts at their level would not be
practical considering their decisions could still be appealed before the higher
courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews
the determination of facts and law made by the trial courts. It is collegiate in
nature. This nature ensures more standpoints in the review of the actions of
the trial court. But the Court of Appeals also has original jurisdiction over
most special civil actions. Unlike the trial courts, its writs can have a
nationwide scope. It is competent to determine facts and, ideally, should act
on constitutional issues thatmay not necessarily be novel unless there are
factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or
further reiterating — in the light of new circumstances or in the light of some
confusions of bench or bar — existing precedents. Rather than a court of first
instance or as a repetition of the actions of the Court of Appeals, this court
promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act
in order to protect constitutional rights when these become exigent should
not be emasculated by the doctrine in respect of the hierarchy of courts. That
has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court
has "full discretionary power to take cognizance and assume jurisdiction
[over] special civil actions for certiorari . . .filed directly with it for exceptionally
compelling reasons69 or if warranted by the nature of the issues clearly and
specifically raised in the petition."70 As correctly pointed out by petitioners,71
we have provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of
constitutionality that must be addressed at the most immediate time. A direct
resort to this court includes availing of the remedies of certiorari and
prohibition toassail the constitutionality of actions of both legislative and
executive branches of the government.72
In this case, the assailed issuances of respondents prejudice not only
petitioners’ right to freedom of expression in the present case, but also of
others in future similar cases. The case before this court involves an active
effort on the part of the electorate to reform the political landscape. This has
become a rare occasion when private citizens actively engage the public in
political discourse. To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for
arriving at better social judgments through democratic procedures. It
comprehends a vision of society, a faith and a whole way of life. The theory
grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers
of reason, and his prospects of creating a rational and enlightened civilization
virtually unlimited. It is put forward as a prescription for attaining a creative,
progressive, exciting and intellectually robust community. It contemplates a
mode of life that, through encouraging toleration, skepticism, reason and
initiative, will allow man to realize his full potentialities.It spurns the
alternative of a society that is tyrannical, conformist, irrational and
stagnant.73
In a democracy, the citizen’s right tofreely participate in the exchange of
ideas in furtherance of political decision-making is recognized. It deserves
the highest protection the courts may provide, as public participation in
nation-building isa fundamental principle in our Constitution. As such, their
right to engage in free expression of ideas must be given immediate
protection by this court.
A second exception is when the issuesinvolved are of transcendental
importance.74 In these cases, the imminence and clarity of the threat to
fundamental constitutional rights outweigh the necessity for prudence. The
doctrine relating to constitutional issues of transcendental importance
prevents courts from the paralysis of procedural niceties when clearly faced
with the need for substantial protection.
In the case before this court, there is a clear threat to the paramount right of
freedom of speech and freedom of expression which warrants invocation of
relief from this court. The principles laid down in this decision will likely
influence the discourse of freedom of speech in the future, especially in the
context of elections. The right to suffrage not only includes the right to vote
for one’s chosen candidate, but also the right to vocalize that choice to the
public in general, in the hope of influencing their votes. It may be said that in
an election year, the right to vote necessarily includes the right to free
speech and expression. The protection of these fundamental constitutional
rights, therefore, allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In
cases of first impression, no jurisprudence yet exists that will guide the lower
courts on this matter. In Government of the United States v. Purganan,76 this
court took cognizance of the case as a matter of first impression that may
guide the lower courts:
In the interest of justice and to settle once and for all the important issue of
bail in extradition proceedings, we deem it best to take cognizance of the
present case. Such proceedings constitute a matter of first impression over
which there is, as yet, no local jurisprudence to guide lower courts.77
This court finds that this is indeed a case of first impression involving as it
does the issue of whether the right of suffrage includes the right of freedom
of expression. This is a question which this court has yet to provide
substantial answers to, through jurisprudence. Thus, direct resort to this court
is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In
Drilon v. Lim,78 this court held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to
defer to the higher judgmentof this Court in the consideration of its validity,
which is better determined after a thorough deliberation by a collegiate body
and with the concurrence of the majority of those who participated in its
discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power,
that can rule with finality on whether COMELEC committed grave abuse of
discretion or performed acts contrary to the Constitution through the assailed
issuances.
Fifth, the time element presented in this case cannot be ignored. This case
was filed during the 2013 election period. Although the elections have
already been concluded, future cases may be filed that necessitate urgency
in its resolution. Exigency in certain situations would qualify as an exception
for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is
a constitutional body. In Albano v. Arranz,80 cited by petitioners, this court
held that "[i]t is easy to realize the chaos that would ensue if the Court of First
Instance ofeach and every province were [to] arrogate itself the power to
disregard, suspend, or contradict any order of the Commission on Elections:
that constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through
pursuing remedies with the lower courts, any ruling on their part would not
have been binding for other citizens whom respondents may place in the
same situation. Besides, thiscourt affords great respect to the Constitution
and the powers and duties imposed upon COMELEC. Hence, a ruling by this
court would be in the best interest of respondents, in order that their actions
may be guided accordingly in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and
adequate remedy in the ordinary course of law that could free them from the
injurious effects of respondents’ acts in violation of their right to freedom of
expression.
In this case, the repercussions of the assailed issuances on this basic right
constitute an exceptionally compelling reason to justify the direct resort to
this court. The lack of other sufficient remedies in the course of law alone is
sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and
the advancement of public policy, or demanded by the broader interest of
justice, or the orders complained of were found to be patent nullities, or the
appeal was consideredas clearly an inappropriate remedy."82 In the past,
questions similar to these which this court ruled on immediately despite the
doctrine of hierarchy of courts included citizens’ right to bear arms,83
government contracts involving modernization of voters’ registration lists,84
and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a
direct action to this court is permitted.
It is not, however, necessary that all of these exceptions must occur at the
same time to justify a direct resort to this court. While generally, the hierarchy
of courts is respected, the present case falls under the recognized
exceptions and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a
political question, hence not within the ambit of this court’s power of review.
They cite Justice Vitug’s separate opinion in Osmeña v. COMELEC86 to
support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution
also states that the "State shall guarantee equal access to opportunities for
public service, and prohibit political dynasties as may be defined by law." I
see neither Article IX (C)(4) nor Section 26, Article II, of the Constitution to be
all that adversarial or irreconcilably inconsistent with the right of free
expression. In any event, the latter, being one of general application, must
yield to the specific demands of the Constitution. The freedom of expression
concededly holds, it is true, a vantage point in hierarchy of constitutionally-
enshrined rights but, like all fundamental rights, it is not without limitations.
The case is not about a fight between the "rich" and the "poor" or between
the "powerful" and the "weak" in our society but it is to me a genuine attempt
on the part of Congress and the Commission on Elections to ensure that all
candidates are given an equal chance to media coverage and thereby be
equally perceived as giving real life to the candidates’ right of free expression
rather than being viewed as an undue restriction of that freedom. The
wisdom in the enactment of the law, i.e., that which the legislature deems to
be best in giving life to the Constitutional mandate, is not for the Court to
question; it is a matter that lies beyond the normal prerogatives of the Court
to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in
point in this case.
The present petition does not involve a dispute between the rich and poor, or
the powerful and weak, on their equal opportunities for media coverage of
candidates and their right to freedom of expression. This case concerns the
right of petitioners, who are non-candidates, to post the tarpaulin in their
private property, asan exercise of their right of free expression. Despite the
invocation of the political question doctrine by respondents, this court is not
proscribed from deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of
what constitutes a political question:
What is generally meant, when it is said that a question is political, and not
judicial, is that it is a matter which is to be exercised by the people in their
primary political capacity, or that it has been specifically delegated to some
other department or particular officer of the government, withdiscretionary
power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the
text of the law should be. In political forums, particularly the legislature, the
creation of the textof the law is based on a general discussion of factual
circumstances, broadly construed in order to allow for general application by
the executive branch. Thus, the creation of the law is not limited by particular
and specific facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing
facts established on a specific case-to-case basis, where parties affected by
the legal provision seek the courts’ understanding of the law.
The complementary nature of the political and judicial branches of
government is essential in order to ensure that the rights of the general
public are upheld at all times. In order to preserve this balance, branches of
government must afford due respectand deference for the duties and
functions constitutionally delegated to the other. Courts cannot rush to
invalidate a law or rule. Prudence dictates that we are careful not to veto
political acts unless we can craft doctrine narrowly tailored to the
circumstances of the case.
The case before this court does not call for the exercise of prudence or
modesty. There is no political question. It can be acted upon by this court
through the expanded jurisdiction granted to this court through Article VIII,
Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or
competence of different agencies and departments of the executive or those
of the legislature. The political question doctrine is used as a defense when
the petition asks this court to nullify certain acts that are exclusively within the
domain of their respective competencies, as provided by the Constitution or
the law. In such situation, presumptively, this court should act with deference.
It will decline to void an act unless the exercise of that power was so
capricious and arbitrary so as to amount to grave abuse of discretion.
The concept of a political question, however, never precludes judicial review
when the act of a constitutional organ infringes upon a fundamental individual
or collective right. Even assuming arguendo that the COMELEC did have the
discretion to choose the manner of regulation of the tarpaulin in question, it
cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the
determination to whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the official whose
action is being questioned. If grave abuse is not established, the Court will
not substitute its judgment for that of the official concerned and decide a
matter which by its nature or by law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has
undergone an evolution since the timethat it had been first invoked in Marcos
v. Manglapus. Increasingly, this court has taken the historical and social
context of the case and the relevance of pronouncements of carefully and
narrowly tailored constitutional doctrines. This trend was followed in cases
such as Daza v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI,
Section 18 of the 1987 Constitution involving the removal of petitioners from
the Commission on Appointments. In times past, this would have involved a
quint essentially political question as it related to the dominance of political
parties in Congress. However, in these cases, this court exercised its power
of judicial review noting that the requirement of interpreting the constitutional
provision involved the legality and not the wisdom of a manner by which a
constitutional duty or power was exercised. This approach was again
reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again
that the possible existence ofa political question did not bar an examination
of whether the exercise of discretion was done with grave abuse of
discretion. In that case, this court ruled on the question of whether there was
grave abuse of discretion in the President’s use of his power to call out the
armed forces to prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether
a former President resigned was not a political question even if the
consequences would be to ascertain the political legitimacy of a successor
President.
Many constitutional cases arise from political crises. The actors in such
crises may use the resolution of constitutional issues as leverage. But the
expanded jurisdiction of this court now mandates a duty for it to exercise its
power of judicial review expanding on principles that may avert catastrophe
or resolve social conflict.
This court’s understanding of the political question has not been static or
unbending. In Llamas v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the
President's discretionary powers are exercised or into the wisdom for its
exercise, it is also a settled rule that when the issue involved concerns the
validity of such discretionary powers or whether said powers are within the
limits prescribed by the Constitution, We will not decline to exercise our
power of judicial review. And such review does not constitute a modification
or correction of the act of the President, nor does it constitute interference
with the functions of the President.98
The concept of judicial power in relation to the concept of the political
question was discussed most extensively in Francisco v. HRET.99 In this
case, the House of Representatives arguedthat the question of the validity of
the second impeachment complaint that was filed against former Chief
Justice Hilario Davide was a political question beyond the ambit of this court.
Former Chief Justice Reynato Puno elaborated on this concept in his
concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more
feeble in light of the new Constitution which expanded the definition of
judicial power as including "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." As well observed by retired Justice
Isagani Cruz, this expanded definition of judicial power considerably
constricted the scope of political question. He opined that the language
luminously suggests that this duty (and power) is available even against the
executive and legislative departments including the President and the
Congress, in the exercise of their discretionary powers.100 (Emphasis in the
original, citations omitted)
Francisco also provides the cases which show the evolution of the political
question, as applied in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene
Cortes, held: The present Constitution limits resort to the political question
doctrine and broadens the scope of judicial inquiry into areas which the
Court,under previous constitutions, would have normally left to the political
departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro
Padilla, this Court declared:
The "allocation of constitutional boundaries" is a task that this Court must
perform under the Constitution. Moreover, as held in a recent case, "(t)he
political question doctrine neither interposes an obstacle to judicial
determination of the rival claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means
does away with the applicability of the principle in appropriate cases."
(Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court
ruled:
In the case now before us, the jurisdictional objection becomes even less
tenable and decisive. The reason is that, even if we were to assume that the
issue presented before us was political in nature, we would still not be
precluded from resolving it under the expanded jurisdiction conferred upon
us that now covers, in proper cases, even the political question.x x x
(Emphasis and italics supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly
political and non-justiciable question lies in the answer to the question of
whether there are constitutionally imposed limits on powers or functions
conferred upon political bodies. If there are, then our courts are duty-bound
to examine whether the branch or instrumentality of the government properly
acted within such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if
there are no constitutionally imposed limits on powers or functions conferred
upon political bodies. Hence, the existence of constitutionally imposed limits
justifies subjecting the official actions of the body to the scrutiny and review
of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free
speech. Any instance that this right may be abridged demands judicial
scrutiny. It does not fall squarely into any doubt that a political question
brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of
administrative remedies. Respondents insist that petitioners should have first
brought the matter to the COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement
in Rule 65 that "there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law."103 They add that the proper venue to
assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that
an election offense is filed against petitioners for posting the tarpaulin, they
claim that petitioners should resort to the remedies prescribed in Rule 34 of
the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this
case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that
the controversy is already ripe for adjudication. Ripeness is the "prerequisite
that something had by then been accomplished or performed by either
branch [or in this case, organ of government] before a court may come into
the picture."106
Petitioners’ exercise of their rightto speech, given the message and their
medium, had understandable relevance especially during the elections.
COMELEC’s letter threatening the filing of the election offense against
petitioners is already an actionable infringement of this right. The impending
threat of criminal litigation is enough to curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative remedies as
COMELEC suggested in their pleadings prolongs the violation of their
freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In
Chavez v. Gonzales,107 Justice Carpio in a separate opinion emphasized:
"[i]f everthere is a hierarchy of protected expressions, political expression
would occupy the highest rank, and among different kinds of political
expression, the subject of fair and honest elections would be at the top."108
Sovereignty resides in the people.109 Political speech is a direct exercise of
the sovereignty. The principle of exhaustion of administrative remedies yields
in order to protect this fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is
applicable, the current controversy is within the exceptions to the principle. In
Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly resorted to immediately: (a)
when there is a violation of due process; (b) when the issue involved is
purely a legal question; (c) when the administrative action is patently illegal
amounting to lack or excess of jurisdiction; (d) when there is estoppel on the
part ofthe administrative agency concerned; (e) when there is irreparable
injury; (f) when the respondent is a department secretary whose acts as
analter ego of the President bear the implied and assumed approval of the
latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when
the subject matter is a private land in land case proceedings; (j) whenthe rule
does not provide a plain, speedy and adequate remedy; or (k) when there
are circumstances indicating the urgency of judicial intervention."111
(Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present
case. First, petitioners allegethat the assailed issuances violated their right to
freedom of expression and the principle of separation of church and state.
This is a purely legal question. Second, the circumstances of the present
case indicate the urgency of judicial intervention considering the issue then
on the RH Law as well as the upcoming elections. Thus, to require the
exhaustion of administrative remedies in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or
suspend the rules or to except a case from their operation when compelling
reasons so warrant, or whenthe purpose of justice requires it, [and when]
[w]hat constitutes [as] good and sufficient cause that will merit suspension of
the rules is discretionary upon the court".112 Certainly, this case of first
impression where COMELEC has threatenedto prosecute private parties who
seek to participate in the elections by calling attention to issues they want
debated by the publicin the manner they feel would be effective is one of
those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private
citizens
Respondents cite the Constitution, laws, and jurisprudence to support their
position that they had the power to regulate the tarpaulin.113 However, all of
these provisions pertain to candidates and political parties. Petitioners are
not candidates. Neither do theybelong to any political party. COMELEC does
not have the authority to regulate the enjoyment of the preferred right to
freedom of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which
provides:
Section 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, 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.114 (Emphasis supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC
during the plebiscite for the creation of the Cordillera Autonomous
Region.116 Columnist Pablito V. Sanidad questioned the provision
prohibiting journalists from covering plebiscite issues on the day before and
on plebiscite day.117 Sanidad argued that the prohibition was a violation of
the "constitutional guarantees of the freedom of expression and of the
press. . . ."118 We held that the "evil sought to be prevented by this provision
is the possibility that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or radio or television
time."119 This court found that "[m]edia practitioners exercising their freedom
of expression during plebiscite periods are neither the franchise holders nor
the candidates[,]"120 thus, their right to expression during this period may
not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise
holders nor candidates. II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as
follows:122
Sec. 2. The Commission on Elections shall exercise the following powers
and functions:
....
(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. (Emphasis supplied) Based on the
enumeration made on actsthat may be penalized, it will be inferred that this
provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by
COMELEC. This was followed bythe assailed letter regarding the "election
propaganda material posted on the church vicinity promoting for or against
the candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials
only mentions "parties" and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize
political parties and party-list groups to erect common poster areas for their
candidates in not more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can post, display or
exhibit election propaganda: Provided, That the size ofthe poster areas shall
not exceed twelve (12) by sixteen (16) feet or its equivalent. Independent
candidates with no political parties may likewise be authorized to erect
common poster areas in not more than ten (10) public places, the size of
which shall not exceed four (4) by six (6) feet or its equivalent. Candidates
may post any lawful propaganda material in private places with the consent
of the owner thereof, and in public places or property which shall be allocated
equitably and impartially among the candidates. (Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and
regulations implementing the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may
post any lawful campaign material in:
a. Authorized common poster areasin public places subject to the
requirements and/or limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated
common poster areas and those enumerated under Section 7 (g) of these
Rules and the like is prohibited. Persons posting the same shall be liable
together with the candidates and other persons who caused the posting. It
will be presumed that the candidates and parties caused the posting of
campaign materials outside the common poster areas if they do not remove
the same within three (3) days from notice which shall be issued by the
Election Officer of the city or municipality where the unlawful election
propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the
Election Officeror other officials of the COMELEC shall apprehend the
violators caught in the act, and file the appropriate charges against them.
(Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their
issuances. The above provisions regulating the posting of campaign
materials only apply to candidates and political parties, and petitioners are
neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also
states that these are "allowed for all registered political parties, national,
regional, sectoral parties or organizations participating under the party-list
elections and for all bona fide candidates seeking national and local elective
positions subject to the limitation on authorized expenses of candidates and
political parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides
for a similar wording. These provisions show that election propaganda refers
to matter done by or on behalf of and in coordination with candidates and
political parties. Some level of coordination with the candidates and political
parties for whom the election propaganda are released would ensure that
these candidates and political parties maintain within the authorized
expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125 There
was no allegation that petitioners coordinated with any of the persons named
in the tarpaulin regarding its posting. On the other hand, petitioners posted
the tarpaulin as part of their advocacy against the RH Law. Respondents
also cite National Press Club v. COMELEC126 in arguing that its regulatory
power under the Constitution, to some extent, set a limit on the right to free
speech during election period.127
National Press Club involved the prohibition on the sale and donation of
space and time for political advertisements, limiting political advertisements
to COMELEC-designated space and time. This case was brought by
representatives of mass media and two candidates for office in the 1992
elections. They argued that the prohibition on the sale and donation of space
and time for political advertisements is tantamount to censorship, which
necessarily infringes on the freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in
National Press Club. However, this case does not apply as most of the
petitioners were electoral candidates, unlike petitioners in the instant case.
Moreover, the subject matter of National Press Club, Section 11(b) of
Republic Act No. 6646,129 only refers to a particular kind of media such as
newspapers, radio broadcasting, or television.130 Justice Feliciano
emphasized that the provision did not infringe upon the right of reporters or
broadcasters to air their commentaries and opinions regarding the
candidates, their qualifications, and program for government. Compared to
Sanidadwherein the columnists lost their ability to give their commentary on
the issues involving the plebiscite, National Press Clubdoes not involve the
same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the
candidates for the 2013 national elections because of the COMELEC notice
and letter. It was not merelya regulation on the campaigns of candidates
vying for public office. Thus, National Press Clubdoes not apply to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign
for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or
other similar assemblies, for the purpose of soliciting votes and/or
undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding
interviews for or against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to
support or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the
chances of aspirants for nomination for candidacy to a public office by a
political party, aggroupment, or coalition of parties shall not be considered as
election campaign or partisan election activity. Public expressions or opinions
or discussions of probable issues in a forthcoming electionor on attributes of
or criticisms against probable candidates proposed to be nominated in a
forthcoming political party convention shall not be construed as part of any
election campaign or partisan political activity contemplated under this
Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the
candidates and political parties themselves. The focus of the definition is that
the act must be "designed to promote the election or defeat of a particular
candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that
is, a statement of either appreciation or criticism on votes made in the
passing of the RH law. Thus, petitioners invoke their right to freedom of
expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the
tarpaulin violate their fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election
propaganda subject to their regulation pursuant to their mandate under
Article IX-C, Section 4 of the Constitution. Thus, the assailed notice and letter
ordering itsremoval for being oversized are valid and constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the
Constitution:
Section 4. 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.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the
COMELEC Law Department, this court has applied Article III, Section 4 of
the Constitution even to governmental acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section
1119 of the Revised Ordinances of 1927 of Manila for the public meeting and
assembly organized by petitioner Primicias.134 Section 1119 requires a
Mayor’s permit for the use of streets and public places for purposes such as
athletic games, sports, or celebration of national holidays.135 What was
questioned was not a law but the Mayor’s refusal to issue a permit for the
holding of petitioner’s public meeting.136 Nevertheless, this court recognized
the constitutional right to freedom of speech, to peaceful assembly and to
petition for redress of grievances, albeit not absolute,137 and the petition for
mandamus to compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC
En Banc Resolution No. 98-1419 where the COMELEC resolved to approve
the issuance of a restraining order to stop ABS-CBN from conducting exit
surveys.139 The right to freedom of expression was similarly upheld in this
case and, consequently, the assailed resolution was nullified and set
aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The
prohibition against the abridgment of speech should not mean an absolute
prohibition against regulation. The primary and incidental burden on speech
must be weighed against a compelling state interest clearly allowed in the
Constitution. The test depends on the relevant theory of speech implicit in the
kind of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression,
separate and in addition to the freedom of speech and of the press provided
in the US Constitution. The word "expression" was added in the 1987
Constitution by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On
Section 9, page 2, line 29, it says: "No law shall be passed abridging the
freedom of speech." I would like to recommend to the Committee the change
of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has
a wider scope, and it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence)
The Chair hears none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed
abridging the freedom of speech, expression or of the press . . . ."141
Speech may be said to be inextricably linked to freedom itself as "[t]he right
to think is the beginning of freedom, and speech must be protected from the
government because speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143
Communication exists when "(1) a speaker, seeking to signal others, uses
conventional actions because he orshe reasonably believes that such actions
will be taken by the audience in the manner intended; and (2) the audience
so takes the actions."144 "[I]n communicative action[,] the hearer may
respond to the claims by . . . either accepting the speech act’s claims or
opposing them with criticism or requests for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form
of speech sometimes referred to as ‘symbolic speech[,]’"146 such that
"‘when ‘speech’ and ‘nonspeech’ elements are combined in the same course
of conduct,’ the ‘communicative element’ of the conduct may be ‘sufficient to
bring into play the [right to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire continuum of
speech from utterances made to conduct enacted, and even to inaction itself
as a symbolic manner of communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students
who were members of the religious sect Jehovah’s Witnesses were to be
expelled from school for refusing to salute the flag, sing the national anthem,
and recite the patriotic pledge.149 In his concurring opinion, Justice Cruz
discussed how the salute is a symbolic manner of communication and a valid
form of expression.150 He adds that freedom of speech includes even the
right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that
the Bill of Rights that guarantees to the individual the liberty to utter what is in
his mind also guarantees to him the liberty not to utter what is not in his mind.
The salute is a symbolic manner of communication that conveys its
messageas clearly as the written or spoken word. As a valid form of
expression, it cannot be compelled any more than it can be prohibited in the
face of valid religious objections like those raised in this petition. To impose it
on the petitioners is to deny them the right not to speak when their religion
bids them to be silent. This coercion of conscience has no place in the free
society.
The democratic system provides for the accommodation of diverse ideas,
including the unconventional and even the bizarre or eccentric. The will of the
majority prevails, but it cannot regiment thought by prescribing the recitation
by rote of its opinions or proscribing the assertion of unorthodox or unpopular
views as inthis case. The conscientious objections of the petitioners, no less
than the impatience of those who disagree with them, are protected by the
Constitution. The State cannot make the individual speak when the soul
within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of
the present Constitution,this court has applied its precedent version to
expressions other than verbal utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected
to the classification of the motion picture "Kapit sa Patalim" as "For Adults
Only." They contend that the classification "is without legal and factual basis
and is exercised as impermissible restraint of artistic expression."153 This
court recognized that "[m]otion pictures are important both as a medium for
the communication of ideas and the expression of the artistic impulse."154 It
adds that "every writer,actor, or producer, no matter what medium of
expression he may use, should be freed from the censor."155 This court
found that "[the Board’s] perception of what constitutes obscenity appears to
be unduly restrictive."156 However, the petition was dismissed solely on the
ground that there were not enough votes for a ruling of grave abuse of
discretion in the classification made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that
it forms part of the expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger
fonts which make it easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for passengers inside moving
vehicles to read its content. Compared with the pedestrians, the passengers
inside moving vehicles have lesser time to view the content of a tarpaulin.
The larger the fonts and images, the greater the probability that it will catch
their attention and, thus, the greater the possibility that they will understand
its message.
Second, the size of the tarpaulin may underscore the importance of the
message to the reader. From an ordinary person’s perspective, those who
post their messages in larger fonts care more about their message than
those who carry their messages in smaller media. The perceived importance
given by the speakers, in this case petitioners, to their cause is also part of
the message. The effectivity of communication sometimes relies on the
emphasis put by the speakers and onthe credibility of the speakers
themselves. Certainly, larger segments of the public may tend to be more
convinced of the point made by authoritative figures when they make the
effort to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may
translate to more opportunities to amplify, explain, and argue points which
the speakers might want to communicate. Rather than simply placing the
names and images of political candidates and an expression of support,
larger spaces can allow for brief but memorable presentations of the
candidates’ platforms for governance. Larger spaces allow for more precise
inceptions of ideas, catalyze reactions to advocacies, and contribute more to
a more educated and reasoned electorate. A more educated electorate will
increase the possibilities of both good governance and accountability in our
government.
These points become more salient when it is the electorate, not the
candidates or the political parties, that speaks. Too often, the terms of public
discussion during elections are framed and kept hostage by brief and catchy
but meaningless sound bites extolling the character of the candidate. Worse,
elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government
should in fact encourage it. Between the candidates and the electorate, the
latter have the better incentive to demand discussion of the more important
issues. Between the candidates and the electorate, the former have better
incentives to avoid difficult political standpoints and instead focus on
appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They
are fundamentally part of expression protected under Article III, Section 4 of
the Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need
to protect the basic right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs,
including the right to criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that
"substantial, open, [and] ethical dialogue isa critical, and indeed defining,
feature of a good polity."159 This theory may be considered broad, but it
definitely "includes [a] collective decision making with the participation of all
who will beaffected by the decision."160 It anchors on the principle that the
cornerstone of every democracy is that sovereignty resides in the people.161
To ensure order in running the state’s affairs, sovereign powers were
delegated and individuals would be elected or nominated in key government
positions to represent the people. On this note, the theory on deliberative
democracy may evolve to the right of the people to make government
accountable. Necessarily, this includes the right of the people to criticize acts
made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and
political discontent, should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage
thought, hope and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path of safety
lies in the opportunity to discuss freely supposed grievances and proposed
remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the
maintenance of good government demand a full discussion of public
affairs."163 This court has, thus, adopted the principle that "debate on public
issues should be uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market
place of ideas. This theory was articulated by Justice Holmes in that "the
ultimate good desired is better reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may
come to believe even more than they believe the very foundations of their
own conduct that the ultimate good desired is better reached by free trade in
ideas - that the best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the only ground
upon which their wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider,
test, and develop their own conclusions."167 A free, open, and dynamic
market place of ideas is constantly shaping new ones. This promotes both
stability and change where recurring points may crystallize and weak ones
may develop. Of course, free speech is more than the right to approve
existing political beliefs and economic arrangements as it includes, "[t]o
paraphrase Justice Holmes, [the] freedom for the thought that we hate, no
less than for the thought that agrees with us."168 In fact, free speech may
"best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger."169
It is in this context that we should guard against any curtailment of the
people’s right to participate in the free trade of ideas.
Third, free speech involves self-expression that enhances human dignity.
This right is "a means of assuring individual self-fulfillment,"170 among
others. In Philippine Blooming Mills Employees Organization v. Philippine
Blooming Mills Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil
rights but also political rights essential to man's enjoyment of his life, to his
happiness and to his full and complete fulfillment.Thru these freedoms the
citizens can participate not merely in the periodic establishment of the
government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is
accorded these rights so that he can appeal to the appropriate governmental
officers or agencies for redress and protection as well as for the imposition of
the lawful sanctions on erring public officers and employees.172 (Emphasis
supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary
associations perform [an] important democratic role [in providing] forums for
the development of civil skills, for deliberation, and for the formation of
identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between
individuals and the state - a free space for the development of individual
personality, distinct group identity, and dissident ideas - and a potential
source of opposition to the state."174 Free speech must be protected as the
vehicle to find those who have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect
individuals and minorities against majoritarian abuses perpetrated through
[the] framework [of democratic governance]."175 Federalist framers led by
James Madison were concerned about two potentially vulnerable groups:
"the citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by
"dominant factions of the electorate [that] capture [the] government for their
own selfish ends[.]"177 According to Madison, "[i]t is of great importance in a
republic not only to guard the society against the oppression of its rulers, but
to guard one part of the society against the injustice of the other part."178
We should strive to ensure that free speech is protected especially in light of
any potential oppression against those who find themselves in the fringes on
public issues.
Lastly, free speech must be protected under the safety valve theory.179 This
provides that "nonviolent manifestations of dissent reduce the likelihood of
violence[.]"180 "[A] dam about to burst . . . resulting in the ‘banking up of a
menacing flood of sullen anger behind the walls of restriction’"181 has been
used to describe the effect of repressing nonviolent outlets.182 In order to
avoid this situation and prevent people from resorting to violence, there is a
need for peaceful methods in making passionate dissent. This includes "free
expression and political participation"183 in that they can "vote for
candidates who share their views, petition their legislatures to [make or]
change laws, . . . distribute literature alerting other citizens of their
concerns[,]"184 and conduct peaceful rallies and other similar acts.185 Free
speech must, thus, be protected as a peaceful means of achieving one’s
goal, considering the possibility that repression of nonviolent dissent may
spill over to violent means just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys a high degree
of protection. Respondents argue that the tarpaulinis election propaganda,
being petitioners’ way of endorsing candidates who voted against the RH
Law and rejecting those who voted for it.186 As such, it is subject to
regulation by COMELEC under its constitutional mandate.187 Election
propaganda is defined under Section 1(4) of COMELEC Resolution No. 9615
as follows: SECTION 1. Definitions . . .
....
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.
On the other hand, petitioners invoke their "constitutional right to
communicate their opinions, views and beliefs about issues and
candidates."188 They argue that the tarpaulin was their statement of
approval and appreciation of the named public officials’ act of voting against
the RH Law, and their criticism toward those who voted in its favor.189 It was
"part of their advocacy campaign against the RH Law,"190 which was not
paid for by any candidate or political party.191 Thus, "the questioned orders
which . . . effectively restrain[ed] and curtail[ed] [their] freedom of expression
should be declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly
ranked in our scheme of constitutional values."193 These rights enjoy
precedence and primacy.194 In Philippine Blooming Mills, this court
discussed the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights
are imprescriptible. If human rights are extinguished by the passage of time,
then the Bill of Rights is a useless attempt to limit the power of government
and ceases to be an efficacious shield against the tyranny of officials, of
majorities, ofthe influential and powerful, and of oligarchs - political,
economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly
occupy a preferred position as they are essential to the preservation and
vitality of our civil and political institutions; and such priority "gives these
liberties the sanctity and the sanction not permitting dubious intrusions."195
(Citations omitted)
This primordial right calls for utmost respect, more so "when what may be
curtailed is the dissemination of information to make more meaningful the
equally vital right of suffrage."196 A similar idea appeared in our
jurisprudence as early as 1969, which was Justice Barredo’s concurring and
dissenting opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point
others miss, that genuine democracy thrives only where the power and right
of the people toelect the men to whom they would entrust the privilege to run
the affairs of the state exist. In the language of the declaration of principles of
our Constitution, "The Philippines is a republican state. Sovereignty resides
in the people and all government authority emanates from them" (Section 1,
Article II). Translating this declaration into actuality, the Philippines is a
republic because and solely because the people in it can be governed only
by officials whom they themselves have placed in office by their votes. And in
it is on this cornerstone that I hold it tobe self-evident that when the freedoms
of speech, press and peaceful assembly and redress of grievances are being
exercised in relation to suffrage or asa means to enjoy the inalienable right of
the qualified citizen to vote, they are absolute and timeless. If our democracy
and republicanism are to be worthwhile, the conduct of public affairs by our
officials must be allowed to suffer incessant and unabating scrutiny,
favorable or unfavorable, everyday and at all times. Every holder of power in
our government must be ready to undergo exposure any moment of the day
or night, from January to December every year, as it is only in this way that
he can rightfully gain the confidence of the people. I have no patience for
those who would regard public dissection of the establishment as an attribute
to be indulged by the people only at certain periods of time. I consider the
freedoms of speech, press and peaceful assembly and redress of
grievances, when exercised in the name of suffrage, as the very means by
which the right itself to vote can only be properly enjoyed.It stands to reason
therefore, that suffrage itself would be next to useless if these liberties cannot
be untrammelled [sic] whether as to degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court
discussed that some types of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State
under its pervasive police power, in order that it may not be injurious to the
equal right of others or those of the community or society. The difference in
treatment is expected because the relevant interests of one type of speech,
e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and
evaluation ofthe permissible scope of restrictions on various categories of
speech. We have ruled, for example, that in our jurisdiction slander or libel,
lewd and obscene speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech
refers to speech "both intended and received as a contribution to public
deliberation about some issue,"200 "foster[ing] informed and civicminded
deliberation."201 On the other hand, commercial speech has been defined
as speech that does "no more than propose a commercial transaction."202
The expression resulting from the content of the tarpaulin is, however,
definitely political speech. In Justice Brion’s dissenting opinion, he discussed
that "[t]he content of the tarpaulin, as well as the timing of its posting, makes
it subject of the regulations in RA 9006 and Comelec Resolution No.
9615."203 He adds that "[w]hile indeed the RH issue, by itself,is not an
electoralmatter, the slant that the petitioners gave the issue converted the
non-election issue into a live election one hence, Team Buhay and Team
Patay and the plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of the named
candidates and political parties, this does not necessarily mean it is election
propaganda. The tarpaulin was not paid for or posted "in return for
consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or
the rules and regulations implementing Republic Act No. 9006 as an aid to
interpret the law insofar as the facts of this case requires, states:
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. (Emphasis supplied)
It is clear that this paragraph suggests that personal opinions are not
included, while sponsored messages are covered.

Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615
states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or
candidates to a public office, and shall include any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs
shall not be considered acts of election campaigning or partisan
politicalactivity unless expressed by government officials in the Executive
Department, the Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects
and parameters should be deemed narrowly tailored only in relation to the
facts and issues in this case. It also appears that such wording in COMELEC
Resolution No. 9615 does not similarly appear in Republic Act No. 9006, the
law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the
need for full discussion of public affairs. We acknowledged that free speech
includes the right to criticize the conduct of public men:
The interest of society and the maintenance of good government demand a
full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of official dom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the government for
redress of grievances, allowing for criticism, save for some exceptions.207 In
the 1951 case of Espuelas v. People,208 this court noted every citizen’s
privilege to criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the
Election Law provision "penaliz[ing] the anonymous criticism of a candidate
by means of posters or circulars."211 This court explained that it is the
poster’s anonymous character that is being penalized.212 The ponente adds
that he would "dislike very muchto see this decision made the vehicle for the
suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing
individuals to vent their views. According to this court, "[i]ts value may lie in
the fact that there may be something worth hearing from the dissenter [and]
[t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against
their government contributes to every society’s goal for development. It puts
forward matters that may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also makes the
government accountable for acts that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No.
6646, which prohibits mass media from selling print space and air time for
campaign except to the COMELEC, to be a democracy-enhancing
measure.216 This court mentioned how "discussion of public issues and
debate on the qualifications of candidates in an election are essential to the
proper functioning of the government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public
purposes in the context of elections when the free exercise thereof informs
the people what the issues are, and who are supporting what issues."218 At
the heart of democracy is every advocate’s right to make known what the
people need to know,219 while the meaningful exercise of one’s right of
suffrage includes the right of every voter to know what they need to know in
order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of
debate on public issues, and the freedom of expression especially in relation
to information that ensures the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be
uninhibited, robust, and wide open and that it may well include vehement,
caustic and sometimes unpleasantly sharp attacks on government and public
officials. Too many restrictions will deny to people the robust, uninhibited,
and wide open debate, the generating of interest essential if our elections will
truly be free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the
more for the utmost respect when what may be curtailed is the dissemination
of information to make more meaningful the equally vital right of suffrage.221
(Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of
expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights
to which all other rights and even government protection of state interest
must bow."222
The right to freedom of expression isindeed not absolute. Even some forms
of protected speech are still subjectto some restrictions. The degree of
restriction may depend on whether the regulation is content-based or
content-neutral.223 Content-based regulations can either be based on the
viewpoint of the speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-
neutral regulation. The order was made simply because petitioners failed to
comply with the maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation is
content-based as it applies only to political speech and not to other forms of
speech such as commercial speech.225 "[A]ssuming arguendo that the size
restriction sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and reasonable nexus
with a constitutionally sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or
content-based.227 Regardless, the disposition of this case will be the same.
Generally, compared with other forms of speech, the proposed speech is
content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in
the questioned order applies only to posters and tarpaulins that may affect
the elections because they deliver opinions that shape both their choices. It
does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of
expression of non-candidates will be adjudged as "election paraphernalia."
There are no existing bright lines to categorize speech as election-related
and those that are not. This is especially true when citizens will want to use
their resources to be able to raise public issues that should be tackled by the
candidates as what has happened in this case. COMELEC’s discretion to
limit speech in this case is fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content
of the tarpaulin is not easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this
court has used the clear and present danger rule as measure.228 Thus, in
Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity
and is measured against the clear and present danger rule. The latter will
pass constitutional muster only if justified by a compelling reason, and the
restrictions imposedare neither overbroad nor vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be
substantive, ‘extremely serious and the degree of imminence extremely
high.’"230 "Only when the challenged act has overcome the clear and
present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the
regulation. There is no compelling and substantial state interest endangered
by the posting of the tarpaulinas to justify curtailment of the right of freedom
of expression. There is no reason for the state to minimize the right of non-
candidate petitioners to post the tarpaulin in their private property. The size
of the tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the
subject matter of the utterance or speech."232 In contrast, content-neutral
regulation includes controls merely on the incidents of the speech such as
time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with
the 1948 case of Primicias v. Fugoso.234 The ordinance in this case was
construed to grant the Mayor discretion only to determine the public places
that may be used for the procession ormeeting, but not the power to refuse
the issuance of a permit for such procession or meeting.235 This court
explained that free speech and peaceful assembly are "not absolute for it
may be so regulated that it shall not beinjurious to the equal enjoyment of
others having equal rights, nor injurious to the rights of the community or
society."236
The earlier case of Calalang v. Williams237 involved the National Traffic
Commission resolution that prohibited the passing of animal-drawn vehicles
along certain roads at specific hours.238 This court similarly discussed police
power in that the assailed rules carry outthe legislative policy that "aims to
promote safe transit upon and avoid obstructions on national roads, in the
interest and convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less
disorder will mark the public assembly of the people to protest against
grievances whether real or imaginary, because on such occasions feeling is
always wrought to a high pitch of excitement. . . ."241 It is with this backdrop
that the state is justified in imposing restrictions on incidental matters as time,
place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps
that permit applicants must follow which include informing the licensing
authority ahead of time as regards the date, public place, and time of the
assembly.242 This would afford the public official time to inform applicants if
there would be valid objections, provided that the clear and present danger
test is the standard used for his decision and the applicants are given the
opportunity to be heard.243 This ruling was practically codified in Batas
Pambansa No. 880, otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid
content-neutral regulation. In the 2006 case of Bayan v. Ermita,244 this court
discussed how Batas Pambansa No. 880 does not prohibit assemblies but
simply regulates their time, place, and manner.245 In 2010, this court found
in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor
Atienza committed grave abuse of discretion when he modified the rally
permit by changing the venue from Mendiola Bridge to Plaza Miranda without
first affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-based. The
tarpaulin content is not easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions
imposing a size limit for tarpaulins are content-neutral regulations as these
"restrict the mannerby which speech is relayed but not the content of what is
conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of
COMELEC will not pass the three requirements for evaluating such restraints
on freedom of speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental interest is
required for its validity,"250 and it is subject only to the intermediate
approach.251
This intermediate approach is based on the test that we have prescribed in
several cases.252 A content-neutral government regulation is sufficiently
justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an
important or substantial governmental interest; [3] if the governmental
interest is unrelated to the suppression of free expression; and [4] if the
incident restriction on alleged [freedom of speech & expression] is no greater
than is essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the
COMELEC to regulate the tarpaulin. As discussed earlier, this is protected
speech by petitioners who are non-candidates. On the second requirement,
not only must the governmental interest be important or substantial, it must
also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared
principles. We have held, for example, that "the welfare of children and the
State’s mandate to protect and care for them, as parens patriae,254
constitute a substantial and compelling government interest in regulating . . .
utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity
for public information campaigns among candidates in connection with the
holding of a free, orderly, honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters
are necessary to ensure equality of public information campaigns among
candidates, as allowing posters with different sizes gives candidates and
their supporters the incentive to post larger posters[,] [and] [t]his places
candidates with more money and/or with deep-pocket supporters at an
undue advantage against candidates with more humble financial
capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as
the right of [a private citizen] to freely express his choice and exercise his
right of free speech."258 In any case, faced with both rights to freedom of
speech and equality, a prudent course would be to "try to resolve the tension
in a way that protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require
that the private property owner’s consent be obtained when posting election
propaganda in the property.260 This is consistent with the fundamental right
against deprivation of property without due process of law.261 The present
facts do not involve such posting of election propaganda absent consent
from the property owner. Thus, this regulation does not apply in this case.

Respondents likewise cite the Constitution262 on their authority to
recommend effective measures to minimize election spending. Specifically,
Article IX-C, Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers
and functions:
....
(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. (Emphasis supplied) This does not
qualify as a compelling and substantial government interest to justify
regulation of the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two
feet (2’) by three feet (3’) size limitation under Section 6(c) of COMELEC
Resolution No. 9615. This resolution implements the Fair Election Act that
provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount
interest of the State in guaranteeing freedom of expression, any financial
considerations behind the regulation are of marginal significance."264 In fact,
speech with political consequences, as in this case, should be encouraged
and not curtailed. As petitioners pointed out, the size limitation will not serve
the objective of minimizing election spending considering there is no limit on
the number of tarpaulins that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative
intent or motive in imposing the restriction, but more so at the effects of such
restriction, if implemented. The restriction must not be narrowly tailored to
achieve the purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech.
Limiting the maximum sizeof the tarpaulin would render ineffective
petitioners’ message and violate their right to exercise freedom of
expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect
of dissuading expressions with political consequences. These should be
encouraged, more so when exercised to make more meaningful the equally
important right to suffrage.
The restriction in the present case does not pass even the lower test of
intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further
speech by the electorate. Given the stature of petitioners and their message,
there are indicators that this will cause a "chilling effect" on robust discussion
during elections.
The form of expression is just as important as the message itself. In the
words of Marshall McLuhan, "the medium is the message."266 McLuhan’s
colleague and mentor Harold Innis has earlier asserted that "the materials on
which words were written down have often counted for more than the words
themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private
individuals for the endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement
materials in the form of tarpaulins, posters, or media advertisements are
made ostensibly by "friends" but in reality are really paid for by the candidate
or political party. This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case,
this is not the situation that confronts us. In such cases, it will simply be a
matter for investigation and proof of fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without any
relationship to any political candidate should not be held hostage by the
possibility of abuse by those seeking to be elected. It is true that there can be
underhanded, covert, or illicit dealings so as to hide the candidate’s real
levels of expenditures. However, labelling all expressions of private parties
that tend to have an effect on the debate in the elections as election
paraphernalia would be too broad a remedy that can stifle genuine speech
like in this case. Instead, to address this evil, better and more effective
enforcement will be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a
candidate, others will spend their own resources in order to lend support for
the campaigns. This may be without agreement between the speaker and the
candidate or his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a way that the
candidate or political party would have doneso. This may effectively skirt the
constitutional and statutory limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates
and political parties will carry in their election posters or media ads. The
message of petitioner, taken as a whole, is an advocacy of a social issue that
it deeply believes. Through rhetorical devices, it communicates the desire of
Diocese that the positions of those who run for a political position on this
social issue be determinative of how the public will vote. It primarily
advocates a stand on a social issue; only secondarily — even almost
incidentally — will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary
form that employs such devices as sarcasm, irony and ridicule to deride
prevailing vices or follies,"268 and this may target any individual or group in
society, private and government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social criticism"269 "because it
tears down facades, deflates stuffed shirts, and unmasks hypocrisy. . . .
Nothing is more thoroughly democratic than to have the high-and-mighty
lampooned and spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or humor founded on
fantasy or a sense of the grotesque and absurd, the other is an object of
attack."271 Thus, satire frequently uses exaggeration, analogy, and other
rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of
dead individuals nor could the Archbishop of the Diocese of Bacolod have
intended it to mean that the entire plan of the candidates in his list was to
cause death intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list of "Team
Patay" is juxtaposed with the list of "Team Buhay" that further emphasizes
the theme of its author: Reproductive health is an important marker for the
church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of
candidates. Election paraphernalia from candidates and political parties are
more declarative and descriptive and contain no sophisticated literary
allusion to any social objective. Thus, they usually simply exhort the public to
vote for a person with a brief description of the attributes of the candidate.
For example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or
"Vote for [z], Iba kami sa Makati."
This court’s construction of the guarantee of freedom of expression has
always been wary of censorship or subsequent punishment that entails
evaluation of the speaker’s viewpoint or the content of one’s speech. This is
especially true when the expression involved has political consequences. In
this case, it hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human institution no matter
how endowed with the secular ability to decide legal controversies with
finality entails that we are not the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides space for
the weakest dissent. Tolerance has always been a libertarian virtue whose
version is embedded in our Billof Rights. There are occasional heretics of
yesterday that have become our visionaries. Heterodoxies have always given
us pause. The unforgiving but insistent nuance that the majority surely and
comfortably disregards provides us with the checks upon reality that may
soon evolve into creative solutions to grave social problems. This is the
utilitarian version. It could also be that it is just part of human necessity to
evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It
contains other provisions which, taken together with the guarantee of free
expression, enhances each other’s value. Among these are the provisions
that acknowledge the idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise extraordinary prudence
and produce narrowly tailored guidance fit to the facts as given so as not to
unwittingly cause the undesired effect of diluting freedoms as exercised in
reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free
speech that separate at the point of giving priority to equality vis-à-vis
liberty.272
In an equality-based approach, "politically disadvantaged speech prevails
over regulation[,] but regulation promoting political equality prevails over
speech."273 This view allows the government leeway to redistribute or
equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s
ideological ladder.274 This view acknowledges that there are dominant
political actors who, through authority, power, resources, identity, or status,
have capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is part of the
majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s
authentic self or to participate in the self determination of one’s communities
is not new only to law. It has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist
Herbert Marcuse recognized how institutionalized inequality exists as a
background limitation, rendering freedoms exercised within such limitation as
merely "protect[ing] the already established machinery of discrimination."275
In his view, any improvement "in the normal course of events" within an
unequal society, without subversion, only strengthens existing interests of
those in power and control.276
In other words, abstract guarantees of fundamental rights like freedom of
expression may become meaningless if not taken in a real context. This
tendency to tackle rights in the abstract compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology, but a
tautology which results from a whole series of synthetic judgments. It
stipulates the ability to determine one’s own life: to be able to determine what
to do and what not to do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that which he actually
is or happens to be; it is rather the individual as a human being who is
capable of being free with the others. And the problem of making possible
such a harmony between every individual liberty and the other is not that of
finding a compromise between competitors, or between freedom and law,
between general and individual interest, common and private welfare in an
established society, but of creating the society in which man is no longer
enslaved by institutions which vitiate self-determination from the beginning.
In other words, freedom is still to be created even for the freest of the existing
societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument — with all opinions
presented to and deliberated by the people — "implies a necessary
condition, namely, that the people must be capable of deliberating and
choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of
autonomous thought."278 He submits that "[d]ifferent opinions and
‘philosophies’ can no longer compete peacefully for adherence and
persuasion on rational grounds: the ‘marketplace of ideas’ is organized and
delimited by those who determine the national and the individual
interest."279 A slant toward left manifests from his belief that "there is a
‘natural right’ of resistance for oppressed and overpowered minorities to use
extralegal means if the legal ones have proved to be inadequate."280
Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance
of libertarian society he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for
"stringent protections of expressive liberty,"281 especially by political
egalitarians. Considerations such as "expressive, deliberative, and
informational interests,"282 costs or the price of expression, and background
facts, when taken together, produce bases for a system of stringent
protections for expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties.
Justice Brandeis proposed that "public discussion is a political duty."284
Cass Sustein placed political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent protection.285 He defined
political speech as "both intended and received as a contribution to public
deliberation about some issue."286
But this is usually related also tofair access to opportunities for such
liberties.287 Fair access to opportunity is suggested to mean substantive
equality and not mere formal equalitysince "favorable conditions for realizing
the expressive interest will include some assurance of the resources required
for expression and some guarantee that efforts to express views on matters
of common concern will not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the harms of speech
with more speech."289 This view moves away from playing down the danger
as merely exaggerated, toward "tak[ing] the costs seriously and embrac[ing]
expression as the preferred strategy for addressing them."290 However, in
some cases, the idea of more speech may not be enough. Professor
Laurence Tribe observed the need for context and "the specification of
substantive values before [equality] has full meaning."291 Professor
Catherine A. MacKinnon adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus, more speech can only
mean more speech from the few who are dominant rather than those who
are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the
validity of Section 11(b) ofthe Electoral Reforms Law of 1987.293 This
section "prohibits mass media from selling or giving free of charge print
space or air time for campaign or other political purposes, except to the
Commission on Elections."294 This court explained that this provision only
regulates the time and manner of advertising in order to ensure media
equality among candidates.295 This court grounded this measure on
constitutional provisions mandating political equality:296 Article IX-C, Section
4
Section 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, 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)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of
measures that protect and enhance the right of all the people to human
dignity, reducesocial, economic, and political inequalities, and remove
cultural inequities by equitably diffusing wealth and political power for the
common good.
To this end, the State shall regulate the acquisition, ownership, use, and
disposition of property and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for
public service, and prohibit political dynasties as may be defined by law.
(Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee
for more substantive expressive freedoms that take equality of opportunities
into consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality
of opportunity or equality inthe ability of citizens as speakers should not have
a bearing in free speech doctrine. Under this view, "members of the public
are trusted to make their own individual evaluations of speech, and
government is forbidden to intervene for paternalistic or redistributive
reasons . . . [thus,] ideas are best left to a freely competitive ideological
market."297 This is consistent with the libertarian suspicion on the use of
viewpoint as well as content to evaluate the constitutional validity or invalidity
of speech.
The textual basis of this view is that the constitutional provision uses
negative rather than affirmative language. It uses ‘speech’ as its subject and
not ‘speakers’.298 Consequently, the Constitution protects free speech per
se, indifferent to the types, status, or associations of its speakers.299
Pursuant to this, "government must leave speakers and listeners in the
private order to their own devices in sorting out the relative influence of
speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this
view that freedom of speech includes "not only the right to express one’s
views, but also other cognate rights relevant to the free communication [of]
ideas, not excluding the right to be informed on matters of public
concern."301 She adds:
And since so many imponderables may affect the outcome of elections —
qualifications of voters and candidates, education, means of transportation,
health, public discussion, private animosities, the weather, the threshold of a
voter’s resistance to pressure — the utmost ventilation of opinion of men and
issues, through assembly, association and organizations, both by the
candidate and the voter, becomes a sine qua non for elections to truly reflect
the will of the electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only to
emphasize free speech primacy such that"courts, as a rule are wary to
impose greater restrictions as to any attempt to curtail speeches with political
content,"303 thus:
the concept that the government may restrict the speech of some elements in
our society in order to enhance the relative voice of the others is wholly
foreign to the First Amendment which was designed to "secure the widest
possible dissemination of information from diverse and antagonistic sources"
and "to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the market
place of ideas is still the best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the
majority of the US Supreme Court in the campaign expenditures case of
Buckley v. Valeo "condemned restrictions (even if content-neutral) on
expressive liberty imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political arena."306 The
majority did not use the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the
amount which a person can speak, which takes out of his exclusive judgment
the decision of when enough is enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning
inherently constricts the sum of public information and runs counter to our
‘profound national commitment that debate on public issues should be
uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been able to raise funds
does not ease the plight of those without funds in the first place . . . [and]
even if one’s main concern isslowing the increase in political costs, it may be
more effective torely on market forces toachieve that result than on active
legal intervention."309 According to Herbert Alexander, "[t]o oppose
limitations is not necessarily to argue that the sky’s the limit [because in] any
campaign there are saturation levels and a point where spending no longer
pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the
constitutional respect for human potentiality and the effect of speech. It
valorizes the ability of human beings to express and their necessity to relate.
On the other hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed distribution of
resources as well as the cultural hegemony of the majority may have the
effect of drowning out the speech and the messages of those in the minority.
In a sense, social inequality does have its effect on the exercise and effect of
the guarantee of free speech. Those who have more will have better access
to media that reaches a wider audience than those who have less. Those
who espouse the more popular ideas will have better reception than the
subversive and the dissenters of society.To be really heard and understood,
the marginalized view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the
content of his or her expression. This view, thus, restricts laws or regulation
that allows public officials to make judgments of the value of such viewpoint
or message content. This should still be the principal approach.
However, the requirements of the Constitution regarding equality in
opportunity must provide limits to some expression during electoral
campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns
made by candidates or the members of their political parties or their political
parties may be regulated as to time, place, and manner. This is the effect of
our rulings in Osmeña v. COMELEC and National Press Club v. COMELEC.
Regulation of speech in the context of electoral campaigns made by persons
who are not candidates or who do not speak as members of a political party
which are, taken as a whole, principally advocacies of a social issue that the
public must consider during elections is unconstitutional. Such regulation is
inconsistent with the guarantee of according the fullest possible range of
opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private
citizen which will not amount toan election paraphernalia to be validly
regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it
reaches into speech of persons who are not candidates or who do not speak
as members of a political party if they are not candidates, only if what is
regulated is declarative speech that, taken as a whole, has for its principal
object the endorsement of a candidate only. The regulation (a) should be
provided by law, (b) reasonable, (c) narrowly tailored to meet the objective of
enhancing the opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and (d) demonstrably the least
restrictive means to achieve that object. The regulation must only be with
respect to the time, place, and manner of the rendition of the message. In no
situation may the speech be prohibited or censored onthe basis of its
content. For this purpose, it will notmatter whether the speech is made with
or on private property.
This is not the situation, however, in this case for two reasons. First, as
discussed, the principal message in the twin tarpaulins of petitioners consists
of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio,
the present law — Section 3.3 of Republic Act No. 9006 and Section 6(c) of
COMELEC Resolution No. 9615 — if applied to this case, will not pass the
test of reasonability. A fixed size for election posters or tarpaulins without any
relation to the distance from the intended average audience will be arbitrary.
At certain distances, posters measuring 2 by 3 feet could no longer be read
by the general public and, hence, would render speech meaningless. It will
amount to the abridgement of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful
exercise of the right to suffrage,312 the present case also involves one’s
right to property.313
Respondents argue that it is the right of the state to prevent the
circumvention of regulations relating to election propaganda by applying such
regulations to private individuals.314 Certainly, any provision or regulation
can be circumvented. But we are not confronted with this possibility.
Respondents agree that the tarpaulin in question belongs to petitioners.
Respondents have also agreed, during the oral arguments, that petitioners
were neither commissioned nor paid by any candidate or political party to
post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains
the private property of petitioners. Their right to use their property is likewise
protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of
private property or constitutes an arbitrary or unreasonable infringement of
property rights is void, because it is repugnant to the constitutional
guaranties of due process and equal protection of the laws.316 (Citation
omitted)
This court in Adiong held that a restriction that regulates where decals and
stickers should be posted is "so broad that it encompasses even the citizen’s
private property."317 Consequently, it violates Article III, Section 1 of the
Constitution which provides thatno person shall be deprived of his property
without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the
right to acquire, use, and dispose of it; and the Constitution, in the 14th
Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary
that it includes the right to acquire, use, and dispose of it. The Constitution
protects these essential attributes of property. Holden v. Hardy, 169 U.S.
366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the
free use, enjoyment, and disposal of a person’s acquisitions without control
or diminution save by the law of the land. 1 Cooley’s Bl. Com. 127.
(Buchanan v. Warley 245 US 60 [1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but
when this right is joined by a "liberty" interest, the burden of justification on
the part of the Government must be exceptionally convincing and irrefutable.
The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits
the posting or display of election propaganda in any place, whether public or
private, except inthe common poster areas sanctioned by COMELEC. This
means that a private person cannot post his own crudely prepared personal
poster on his own front dooror on a post in his yard. While the COMELEC will
certainly never require the absurd, there are no limits to what overzealous
and partisan police officers, armed with a copy of the statute or regulation,
may do.319 Respondents ordered petitioners, who are private citizens, to
remove the tarpaulin from their own property. The absurdity of the situation is
in itself an indication of the unconstitutionality of COMELEC’s interpretation
of its powers.
Freedom of expression can be intimately related with the right to property.
There may be no expression when there is no place where the expression
may be made. COMELEC’s infringement upon petitioners’ property rights as
in the present case also reaches out to infringement on their fundamental
right to speech.
Respondents have not demonstrated thatthe present state interest they seek
to promote justifies the intrusion into petitioners’ property rights. Election laws
and regulations must be reasonable. It must also acknowledge a private
individual’s right to exercise property rights. Otherwise, the due process
clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent
the posting of election propaganda in private property without the consent of
the owners of such private property. COMELEC has incorrectly implemented
these regulations. Consistent with our ruling in Adiong, we find that the act of
respondents in seeking to restrain petitioners from posting the tarpaulin in
their own private property is an impermissible encroachments on the right to
property.
V
Tarpaulin and its message are not religious speech

We proceed to the last issues pertaining to whether the COMELEC in issuing
the questioned notice and letter violated the right of petitioners to the free
exercise of their religion.
At the outset, the Constitution mandates the separation of church and
state.320 This takes many forms. Article III, Section 5 of the Constitution, for
instance provides:
Section 5. No law shall be made respecting an establishment of 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. Noreligious test shall be required for the exercise of civil
or political rights.
There are two aspects of this provision.321 The first is the none stablishment
clause.322 Second is the free exercise and enjoyment of religious profession
and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams,
or any other religious make such act immune from any secular regulation.324
The religious also have a secular existence. They exist within a society that
is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of
a bishop amounts to religious expression. This notwithstanding petitioners’
claim that "the views and position of the petitioners, the Bishop and the
Diocese of Bacolod, on the RH Bill is inextricably connected to its Catholic
dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality
that every act can be motivated by moral, ethical, and religious
considerations. In terms of their effect on the corporeal world, these acts
range from belief, to expressions of these faiths, to religious ceremonies, and
then to acts of a secular character that may, from the point of view of others
who do not share the same faith or may not subscribe to any religion, may
not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive
on this court. Certainly, our powers of adjudication cannot be blinded by bare
claims that acts are religious in nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division
Superintendent of Schools of Cebu326 in claiming that the court
"emphatically" held that the adherents ofa particular religion shall be the ones
to determine whether a particular matter shall be considered ecclesiastical in
nature.327 This court in Ebralinagexempted Jehovah’s Witnesses from
participating in the flag ceremony "out of respect for their religious beliefs, [no
matter how] "bizarre" those beliefsmay seem to others."328 This court found
a balance between the assertion of a religious practice and the compelling
necessities of a secular command. It was an early attempt at accommodation
of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent
neutrality allows accommodation of religion under certain circumstances.
Accommodations are government policies that take religion specifically
intoaccount not to promote the government’s favored form of religion, but to
allow individuals and groups to exercise their religion without hindrance.
Their purpose or effect therefore is to remove a burden on, or facilitate the
exercise of, a person’s or institution’s religion. As Justice Brennan explained,
the "government [may] take religion into account . . . to exempt, when
possible, from generally applicable governmental regulation individuals
whose religious beliefs and practices would otherwise thereby be infringed,
or to create without state involvement an atmosphere in which voluntary
religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a regulation
is constitutional when: (1) it has a secular legislative purpose; (2) it neither
advances nor inhibits religion; and (3) it does not foster an excessive
entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not
convey any religious doctrine of the Catholic church."332 That the position of
the Catholic church appears to coincide with the message of the tarpaulin
regarding the RH Law does not, by itself, bring the expression within the
ambit of religious speech. On the contrary, the tarpaulin clearly refers to
candidates classified under "Team Patay" and "Team Buhay" according to
their respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal encyclicals to support
their claim that the expression onthe tarpaulin is an ecclesiastical matter.
With all due respect to the Catholic faithful, the church doctrines relied upon
by petitioners are not binding upon this court. The position of the Catholic
religion in the Philippines as regards the RH Law does not suffice to qualify
the posting by one of its members of a tarpaulin as religious speech solely on
such basis. The enumeration of candidates on the face of the tarpaulin
precludes any doubtas to its nature as speech with political consequences
and not religious speech.

Furthermore, the definition of an "ecclesiastical affair" in Austria v. National
Labor Relations Commission333 cited by petitioners finds no application in
the present case. The posting of the tarpaulin does not fall within the
category of matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for excommunication,
ordinations of religious ministers, administration of sacraments and other
activities withattached religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it
thought was its duty in this case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities
and reduce spending among candidates and their registered political parties.
It is not to regulate or limit the speech of the electorate as it strives to
participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those
who are running for public office.Their message may be construed
generalizations of very complex individuals and party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or
"Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on
the basis of a single issue — and a complex piece of legislation at that —
can easily be interpreted as anattempt to stereo type the candidates and
party-list organizations. Not all may agree to the way their thoughts were
expressed, as in fact there are other Catholic dioceses that chose not to
follow the example of petitioners.
Some may have thought that there should be more room to consider being
more broad-minded and non-judgmental. Some may have expected that the
authors would give more space to practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of
our fundamental liberties. It is not a detailed code that prescribes good
conduct. It provides space for all to be guided by their conscience, not only in
the act that they do to others but also in judgment of the acts of others.
Freedom for the thought we can disagree with can be wielded not only by
those in the minority. This can often be expressed by dominant institutions,
even religious ones. That they made their point dramatically and in a large
way does not necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners.
It is a specie of expression protected by our fundamental law. It is an
expression designed to invite attention, cause debate, and hopefully,
persuade. It may be motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have very real secular
consequences. Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression
by the electorate that tends to rouse the public to debate contemporary
issues. This is not speechby candidates or political parties to entice votes. It
is a portion of the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all
deserve. It is protected as a fundamental and primordial right by our
Constitution. The expression in the medium chosen by petitioners deserves
our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining
order previously issued is hereby made permanent. The act of the
COMELEC in issuing the assailed notice dated February 22, 2013 and letter
dated February 27, 2013 is declared unconstitutional.
SO ORDERED.
Gonzales vs. Kalaw Katikbak [137 SCRA 356 (1985)]
In this case of first impression, a certiorari proceeding filed on January 10,
1985, there is a persuasive ring to the invocation of the constitutional right to
freedom of expression 1 of an artist—and for that matter a man of letters too
—as the basis for a ruling on the scope of the power of respondent Board of
Review for Motion Pictures and Television and how it should be exercised.
The dispute between the parties has been narrowed down. The motion
picture in question, Kapit sa Patalim was classified "For Adults Only." There
is the further issue then, also one of first impression, as to the proper test of
what constitutes obscenity in view of the objections raised. Thus the
relevance of this constitutional command: "Arts and letters shall be under the
patronage of the State.2
The principal petitioner is Jose Antonio U. Gonzalez, 3 President of the
Malaya Films, a movie production outfit duly registered as a single
proprietorship with the Bureau of Domestic Trade. The respondent is the
Board of Review for Motion Pictures and Television, with Maria Kalaw
Katigbak as its Chairman and Brig. Gen. Wilfredo C. Estrada as its Vice-
Chairman, also named respondents.
In a resolution of a sub-committee of respondent Board of October 23, 1984,
a permit to exhibit the film Kapit sa Patalim under the classification "For
Adults Only," with certain changes and deletions enumerated was granted. A
motion for reconsideration was filed by petitioners stating that the
classification of the film "For Adults Only" was without basis. 4 Then on
November 12, 1984, respondent Board released its decision: "Acting on the
applicant's Motion for Reconsideration dated 29 October 1984, the Board,
after a review of the resolution of the sub-committee and an examination of
the film, Resolves to affirm in toto the ruling of the sub-committee.
Considering, however, certain vital deficiencies in the application, the Board
further Resolves to direct the Chairman of the Board to Withheld the
issuance of the Permit to exhibit until these deficiencies are supplied. 5
Hence this petition.
This Court, in a resolution of January 12, 1985, required respondent to
answer. In such pleading submitted on January 21, 1985, as one of its
special and affirmative defenses, it was alleged that the petition is moot as
"respondent Board has revoked its questioned resolution, replacing it with
one immediately granting petitioner company a permit to exhibit the film Kapit
without any deletion or cut [thus an] adjudication of the questions presented
above would be academic on the case." 6 Further: "The modified resolution
of the Board, of course, classifies Kapit as for-adults-only, but the petition
does not raise any issue as to the validity of this classification. All that
petitioners assail as arbitrary on the part of the Board's action are the
deletions ordered in the film. 7 The prayer was for the dismissal of the
petition.
An amended petition was then filed on January 25, 1985. The main objection
was the classification of the film as "For Adults Only." For petitioners, such
classification "is without legal and factual basis and is exercised as
impermissible restraint of artistic expression. The film is an integral whole
and all its portions, including those to which the Board now offers belated
objection, are essential for the integrity of the film. Viewed as a whole, there
is no basis even for the vague speculations advanced by the Board as basis
for its classification. 8 There was an answer to the amended petition filed on
February 18, 1985. It was therein asserted that the issue presented as to the
previous deletions ordered by the Board as well as the statutory provisions
for review of films and as to the requirement to submit the master negative
have been all rendered moot. It was also submitted that the standard of the
law for classifying films afford a practical and determinative yardstick for the
exercise of judgment. For respondents, the question of the sufficiency of the
standards remains the only question at issue.
It would be unduly restrictive under the circumstances to limit the issue to
one of the sufficiency of standards to guide respondent Board in the exercise
of its power. Even if such were the case, there is justification for an inquiry
into the controlling standard to warrant the classification of "For Adults Only."
This is especially so, when obscenity is the basis for any alleged invasion of
the right to the freedom of artistic and literary expression embraced in the
free speech and free press guarantees of the Constitution.
1. Motion pictures are important both as a medium for the communication of
Ideas and the expression of the artistic impulse. Their effects on the
perception by our people of issues and public officials or public figures as
well as the prevailing cultural traits is considerable. Nor as pointed out in
Burstyn v. Wilson9 is the "importance of motion pictures as an organ of
public opinion lessened by the fact that they are designed to entertain as well
as to inform. 10 There is no clear dividing line between what involves
knowledge and what affords pleasure. If such a distinction were sustained,
there is a diminution of the basic right to free expression. Our recent decision
in Reyes v. Bagatsing11 cautions against such a move. Press freedom, as
stated in the opinion of the Court, "may be Identified with the liberty to
discuss publicly and truthfully any matter of public concern without
censorship or punishment. 12 This is not to say that such freedom, as is the
freedom of speech, absolute. It can be limited if "there be a 'clear and
present danger of a substantive evil that [the State] has a right to prevent. 13
2. Censorship or previous restraint certainly is not all there is to free speech
or free press. If it were so, then such basic rights are emasculated. It is
however, except in exceptional circumstances a sine qua non for the
meaningful exercise of such right. This is not to deny that equally basic is the
other important aspect of freedom from liability. Nonetheless, for the
purposes of this litigation, the emphasis should rightly be on freedom from
censorship. It is, beyond question, a well-settled principle in our jurisdiction.
As early as 1909, in the case of United States v. Sedano, 14 a prosecution
for libel, the Supreme Court of the Philippines already made clear that
freedom of the press consists in the right to print what one chooses without
any previous license. There is reaffirmation of such a view in Mutuc v.
Commission on Elections, 15 where an order of respondent Commission on
Elections giving due course to the certificate of candidacy of petitioner but
prohibiting him from using jingles in his mobile units equipped with sound
systems and loud speakers was considered an abridgment of the right of the
freedom of expression amounting as it does to censorship. It is the opinion of
this Court, therefore, that to avoid an unconstitutional taint on its creation, the
power of respondent Board is limited to the classification of films. It can, to
safeguard other constitutional objections, determine what motion pictures are
for general patronage and what may require either parental guidance or be
limited to adults only. That is to abide by the principle that freedom of
expression is the rule and restrictions the exemption. The power to exercise
prior restraint is not to be presumed, rather the presumption is against its
validity.16
3. The test, to repeat, to determine whether freedom of excession may be
limited is the clear and present danger of an evil of a substantive character
that the State has a right to prevent. Such danger must not only be clear but
also present. There should be no doubt that what is feared may be traced to
the expression complained of. The causal connection must be evident. Also,
there must be reasonable apprehension about its imminence. The time
element cannot be ignored. Nor does it suffice if such danger be only
probable. There is the require of its being well-nigh inevitable. The basic
postulate, wherefore, as noted earlier, is that where the movies, theatrical
productions radio scripts, television programs, and other such media of
expression are concerned — included as they are in freedom of expression
— censorship, especially so if an entire production is banned, is allowable
only under the clearest proof of a clear and present danger of a substantive
evil to public public morals, public health or any other legitimate public
interest. 17 There is merit to the observation of Justice Douglas that "every
writer, actor, or producer, no matter what medium of expression he may use,
should be freed from the censor. 18
4. The law, however, frowns on obscenity and rightly so. As categorically
stated by Justice Brennan in Roth v. United States 19 speaking of the free
speech and press guarantee of the United States Constitution: "All Ideas
having even the slightest redeeming social importance — unorthodox Ideas,
controversial Ideas, even Ideas hateful to the prevailing climate of opinion —
have the full protection of the guaranties, unless excludable because they
encroach upon the limited area of the First Amendment is the rejection of
obscenity as utterly without redeeming social importance. 20 Such a view
commends itself for approval.
5. There is, however, some difficulty in determining what is obscene. There is
persuasiveness to the approach followed in Roth: "The early leading
standard of obscenity allowed material to be judged merely by the effect of
an isolated excerpt upon particularly susceptible persons. Regina v. Hicklin
[1868] LR 3 QB 360. Some American courts adopted this standard but later
decisions have rejected it and substituted this test: whether to the average
person, applying contemporary community standards, the dominant theme of
the material taken as a whole appeals to prurient interest. The Hicklin test,
judging obscenity by the effect of isolated passages upon the most
susceptible persons, might well encompass material legitimately treating with
sex, and so it must be rejected as unconstitutionally restrictive of the
freedoms of speech and press. On the other hand, the substituted standard
provides safeguards adequate to withstand the charge of constitutional
infirmity. 21
6. The above excerpt which imposes on the judiciary the duty to be ever on
guard against any impermissible infringement on the freedom of artistic
expression calls to mind the landmark ponencia of Justice Malcolm in United
States v. Bustos, 22 decided in 1918. While recognizing the principle that
libel is beyond the pale of constitutional protection, it left no doubt that in
determining what constitutes such an offense, a court should ever be mindful
that no violation of the right to freedom of expression is allowable. It is a
matter of pride for the Philippines that it was not until 1984 in New York
Timer v. Sullivan, 23 thirty-years later, that the United States Supreme Court
enunciated a similar doctrine.
7. It is quite understandable then why in the Roth opinion, Justice Brennan
took pains to emphasize that "sex and obscenity are not synonymous. 24
Further: "Obscene material is material which deals with sex in a manner
appealing to prurient interest. The portrayal of sex, e.g., in art, literature and
scientific works, is not itself sufficient reason to deny material the
constitutional protection of freedom of speech and press. Sex, a great and
mysterious motive force in human life has indisputably been a subject of
absorbing interest to mankind through the ages; it is one of the vital problems
of human interest and public concern. 25
8. In the applicable law, Executive Order No. 876, reference was made to
respondent Board "applying contemporary Filipino cultural values as
standard, 26 words which can be construed in an analogous manner.
Moreover, as far as the question of sex and obscenity are concerned, it
cannot be stressed strongly that the arts and letters "shall be under the
patronage of the State. 27 That is a constitutional mandate. It will be less
than true to its function if any government office or agency would invade the
sphere of autonomy that an artist enjoys. There is no orthodoxy in what
passes for beauty or for reality. It is for the artist to determine what for him is
a true representation. It is not to be forgotten that art and belleslettres deal
primarily with imagination, not so much with ideas in a strict sense. What is
seen or perceived by an artist is entitled to respect, unless there is a showing
that the product of his talent rightfully may be considered obscene. As so
wen put by Justice Frankfurter in a concurring opinion, "the widest scope of
freedom is to be given to the adventurous and imaginative exercise of the
human spirit" 28 in this sensitive area of a man's personality. On the question
of obscenity, therefore, and in the light of the facts of this case, such
standard set forth in Executive Order No. 878 is to be construed in such a
fashion to avoid any taint of unconstitutionality. To repeat, what was stated in
a recent decision 29 citing the language of Justice Malcolm in Yu Cong Eng
v. Trinidad, 30 it is "an elementary, a fundamental, and a universal role of
construction, applied when considering constitutional questions, that when a
law is susceptible of two constructions' one of which will maintain and the
other destroy it, the courts will always adopt the former. 31 As thus
construed, there can be no valid objection to the sufficiency of the controlling
standard and its conformity to what the Constitution ordains.
9. This being a certiorari petition, the question before the Court is whether or
not there was a grave abuse of discretion. That there was an abuse of
discretion by respondent Board is evident in the light of the difficulty and
travail undergone by petitioners before Kapit sa Patalim was classified as
"For Adults Only," without any deletion or cut. Moreover its perception of
what constitutes obscenity appears to be unduly restrictive. This Court
concludes then that there was an abuse of discretion. Nonetheless, there are
not enough votes to maintain that such an abuse can be considered grave.
Accordingly, certiorari does not lie. This conclusion finds support in this
explanation of respondents in its Answer to the amended petition: "The adult
classification given the film serves as a warning to theater operators and
viewers that some contents of Kapit are not fit for the young. Some of the
scenes in the picture were taken in a theater-club and a good portion of the
film shots concentrated on some women erotically dancing naked, or at least
nearly naked, on the theater stage. Another scene on that stage depicted the
women kissing and caressing as lesbians. And toward the end of the picture,
there exists scenes of excessive violence attending the battle between a
group of robbers and the police. The vulnerable and imitative in the young
audience will misunderstand these scenes." 32 Further: "Respondents
further stated in its answer that petitioner company has an option to have the
film reclassified to For-General-Patronage if it would agree to remove the
obscene scenes and pare down the violence in the film." 33 Petitioners,
however, refused the "For Adults Only" classification and instead, as noted at
the outset, filed this suit for certiorari.
10. All that remains to be said is that the ruling is to be limited to the concept
of obscenity applicable to motion pictures. It is the consensus of this Court
that where television is concerned: a less liberal approach calls for
observance. This is so because unlike motion pictures where the patrons
have to pay their way, television reaches every home where there is a set.
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. 34 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.
WHEREFORE, this Court, in the light of the principles of law enunciated in
the opinion, dismisses this petition for certiorari solely on the ground that
there are not enough votes for a ruling that there was a grave abuse of
discretion in the classification of Kapit sa Patalim as "For-Adults-Only."
Lagunzad vs. Sotto Vda. De Gonzales [92 SCRA 476 (1979)]
Before us is a Petition for Review by certiorari of the Decision of the Court of
Appeals in CA-G.R. No. 34703, promulgated on January 13, 1970, affirming
the Decision of the Court of First Instance of Negros Occidental, dated June
30, 1964, in Civil Case No. 6414 entitled "Maria Soto Vda. de Gonzales vs.
Manuel Lagunzad," for a Sum of Money and Attachment.
The present controversy stems from a "Licensing Agreement" entered into by
and between petitioner Manuel M. Lagunzad and private respondent Maria
Soto Vda. de Gonzales on October 5, 1961, which contract petitioner claims
to be null and void for having been entered into by him under duress,
intimidation and undue influence.
The antecedental facts follow: Sometime in August, 1961, petitioner Manuel
Lagunzad, a newspaperman, began the production of a movie entitled "The
Moises Padilla Story" under the name of his own business outfit, the "MML
Productions." It was based mainly on the copyrighted but unpublished book
of Atty. Ernesto Rodriguez, Jr., entitled "The Long Dark Night in Negros"
subtitled "The Moises Padilla Story," 1 the rights to which petitioner had
purchased from Atty. Rodriguez in the amount of P2,000.00. 2
The book narrates the events which culminated in the murder of Moises
Padilla sometime between November 11 and November 17, 1951. Padilla
was then a mayoralty candidate of the Nacionalista Party (then the minority
party) for the Municipality of Magallon, Negros Occidental, during the
November, 1951 elections. Governor Rafael Lacson, a member of the Liberal
Party then in power and his men were tried and convicted for that murder in
People vs. Lacson, et al. 3 In the book, Moises Padilla is portrayed as "a
martyr in contemporary political history."
Although the emphasis of the movie was on the public life of Moises Padilla,
there were portions which dealt with his private and family life including the
portrayal in some scenes, of his mother, Maria Soto Vda. de Gonzales,
private respondent herein, and of one "Auring" as his girl friend. 4
The movie was scheduled for a premiere showing on October 16, 1961, or at
the very latest, before the November, 1961 elections.
On October 3, 1961, petitioner received a telephone call from one Mrs. Nelly
Amante, half-sister of Moises Padilla, objecting to the filming of the movie
and the "exploitation" of his life. Shown the early "rushes" of the picture, Mrs.
Amante and her sister, Mrs. Gavieres, objected to many portions thereof
notwithstanding petitioner's explanation that the movie had been supervised
by Ernesto Rodriguez, Jr., based on his book "The Long Dark Night in
Negros." On October 5, 1961, Mrs. Amante, for and in behalf of her mother,
private respondent, demanded in writing for certain changes, corrections and
deletions in the movie. 5 Petitioner contends that he acceded to the demands
because he had already invested heavily in the picture to the extent of
mortgaging his properties, 6 in addition to the fact that he had to meet the
scheduled target date of the premiere showing.
On the same date, October 5, 1961, after some bargaining as to the amount
to be paid, which was P50,000.00 at first, then reduced to P20,000.00, 7
petitioner and private respondent, represented by her daughters and Atty.
Ernesto Rodriguez, at the law office of Jalandoni and Jamir, executed a
"Licensing Agreement" reading as follows:
LICENSING AGREEMENT
KNOW ALL MEN BY THESE PRESENTS:
This Agreement, made and executed at the City of Manila, Philippines, this
5th day of October, 1961, by and between:
MANUEL M. LAGUNZAD, of legal age, married, presently engaged in the
business of producing motion pictures under the style of "MML Productions"
with residence at 76 Central Boulevard, Quezon City and with offices at 301
Cu Unjieng Bldg., Escolta, Manila and hereinafter referred to as LICENSEE,
— and —
MARIA SOTO VDA. DE GONZALES, of legal age, widow, resident of the
Municipality of Moises Padilla, Province of Negros Occidental, represented in
this Act by her Attorneys-in-fact Atty. Ernesto Rodriguez, Jr. of legal age and
resident of 393F-Buencamino St., San Miguel, Manila; Maria Nelly G.
Amazite, of legal age and resident of 121 South 13, Quezon City; and
Dolores G, Gavieres, of legal age, and resident of 511 San Rafael Street,
Quiapo, Manila, also duly authorized and hereinafter referred to as
LICENSOR,
WITNESSETH:
That, the LICENSEE is currently producing a motion picture entitled "The
Moises Padilla Story" (hereinafter referred to as the PICTURE, for short)
based on certain episodes in the life of Moises Padilla, now deceased:
That the LICENSOR is the legitimate mother and only surviving compulsory
heir of Moises Padilla, the latter not having married during his lifetime and
having died without any descendants, legitimate or illegitimate;
That, in the PICTURE and in all incidents thereof, such as scenarios,
advertisements, etc., the LICENSEE has, without the prior consent and
authority of LICENSOR, exploited the life story of Moises Padilla for
pecuniary gain and other profit motives, and has, furthermore encroached
upon the privacy of Moises Padilla's immediate family, and has in fact,
included in the PICTURE'S cast, persons portraying some of MOISES
PADILLA's kin, including LICENSOR herself;
That, for and in consideration of the foregoing premises and the other
covenants and conditions hereunder stated, the LICENSOR hereby grants
authority and permission to LICENSEE to exploit, use, and develop the life
story of Moises Padilla for purposes of producing the PICTURE, and in
connection with matters incidental to said production, such as advertising
and the like, as well as authority and permission for the use of LICENSOR's
name in the PICTURE and have herself portrayed therein, the authority and
permission hereby granted, to retroact to the date when LICENSEE first
committed any of the acts herein authorized.
THE CONDITIONS AND OTHER COVENANTS OF THIS AGREEMENT
ARE AS FOLLOWS:
1. For and in consideration of the authority and permission hereby granted by
LICENSOR to LICENSEE, LICENSEE shall pay LICENSOR, through Atty.
Lope E. Adriano at the Pelaez and Jalandoni Law Office, 6th Floor,
Magsaysay Bldg., San Luis, Ermita, Manila, the following:
a) The sum of TWENTY THOUSAND PESOS (P20,000.00), Philippine
Currency, payable without need of further demand, as follows: P5,000.00 on
or before Oct. 10, 1961; P10,000.00 on or before Oct. 31, 1961; and
P5,000.00 on or before November 30, 1961. In default of the payment of any
of these amounts as they fall due, the others become immediately due and
demandable.
b) A royalty in such amount corresponding to TWO AND A HALF PER
CENTUM (2-½ %) of all gross income or receipts derived by, and/or for and
in behalf of, LICENSEE as rentals and or percentage of box office receipts
from exhibitors and others for the right to exploit, use, distribute and/or
exhibit the picture anywhere here in the Philippines or abroad.
2) The LICENSEE agrees to keep complete, true and accurate books of
accounts, contracts and vouchers relating to the exploitation, distribution and
exhibition of the PICTURE, the bookings thereof and the rentals and gross
receipts therefrom, and to give to LICENSOR and/or her accredited
representatives, full access at all reasonable times to all of the said books,
accounts, records, vouchers and all other papers.
3) The LICENSEE shall furnish LICENSOR monthly statements in duplicate,
showing in detail the gross receipts accruing from the picture, which monthly
statements shall be delivered to the LICENSOR with reasonable promptness,
and upon verification and approval of said statements by LICENSOR, the
LICENSEE shall pay the corresponding royalties due to the LICENSOR.
4) The authority and permission herein granted is subject to the condition
that LICENSEE shall change, delete, and/or correct such portions in the
PICTURE as the LICENSOR may require, in writing before final printing of
the PICTURE, and shall, furthermore, not be understood as a consent to
anything in the picture that is, or tends to be, derogatory to the deceased
MOISES PADILLA or to LICENSOR.
5) The LICENSOR shall not in any way be liable on any claim from third
persons as a result of, or arising from, the manner by which the PICTURE is
put together, nor on any claim arising from the production, distribution and
exhibition of the PICTURE, and in the event of any such claim being asserted
against LICENSOR, the LICENSEE undertakes to hold LICENSOR harmless
thereon.
6) This agreement shall be binding upon the parties hereto, their
representatives, administrators, successors and assigns.
IN WITNESS WHEREOF, the parties have hereunto set their hands on the
date and at the place first above stated.
MARIA SOTO VDA. DE GONZALES MANUEL M. LAGUNZAD
Licensor Licensee
By:
(Sgd.) ERNESTO R. RODRIGUEZ, Jr.
(Sgd.) MARIA NELLY G. AMANTE
(Sgd.) DOLORES G. GAVIERES
Attorneys-in-fact
SIGNED IN THE PRESENCE OF:
LOPE E. ADRIANO ILLEGIBLE
ACKNOWLEDGMENT
Petitioner takes the position that he was pressured into signing the
Agreement because of private respondent's demand, through Mrs. Amante,
for payment for the "exploitation" of the life story of Moises Padilla, otherwise,
she would "call a press conference declaring the whole picture as a fake,
fraud and a hoax and would denounce the whole thing in the press, radio,
television and that they were going to Court to stop the picture." 8
On October 10, 1961, petitioner paid private respondent the amount of
P5,000.00 but contends that he did so not pursuant to their Agreement but
just to placate private respondent.9
On October 14, 1961, the filming of the movie was completed. On October
16, 1961, a premiere showing was held at the Hollywood Theatre, Manila,
with the Moises Padilla Society as its sponsor. 10 Subsequently, the movie
was shown in different theaters all over the country.
Because petitioner refused to pay any additional amounts pursuant to the
Agreement, on December 22, 1961, private respondent instituted the present
suit against him praying for judgment in her favor ordering petitioner 1) to pay
her the amount of P15,000.00, with legal interest from the filing of the
Complaint; 2) to render an accounting of the proceeds from the picture and to
pay the corresponding 2-1/2% royalty therefrom; 3) to pay attorney's fees
equivalent to 20% of the amounts claimed; and 4) to pay the costs.
Traversing the Complaint, petitioner contended in his Answer that the
episodes in the life of Moises Padilla depicted in the movie were matters of
public knowledge and occurred at or about the same time that the deceased
became and was a public figure; that private respondent has no property
right over those incidents; that the Licensing Agreement was without valid
cause or consideration and that he signed the same only because private
respondent threatened him with unfounded and harassing action which
would have delayed production; and that he paid private respondent the
amount of P5,000.00 in October, 1961, only because of the coercion and
threat employed upon him. By way of counterclaim, petitioner demanded that
the Licensing Agreement be declared null and void for being without any
valid cause; that private respondent be ordered to return to him the amount
of P5,000.00; and that he be paid P50,000.00 by way of moral damages, and
P7,500.00 as attorney's fees.
Private respondent duly filed her Answer to Counterclaim alleging that the
transaction between her and petitioner was entered into freely and
voluntarily.
On June 30, 1964, the trial Court rendered a Decision, and decreed in its
dispositive portion:
WHEREFORE, judgment is hereby rendered ordering the defendant Manuel
Lagunzad to pay the plaintiff the sum of P15,000.00 with interest at the rate
of 6% per annum from December 22, 1961 up to its complete payment; to
order the defendant to render an accounting of the gross income or proceeds
derived from the exhibition, use and/or rental of the motion picture of "The
Moises Padilla Story" and to pay the plaintiff 2- 1/2% of said gross income; to
pay the plaintiff the amount equivalent to 20% of the amount due the plaintiff
under the first cause of action as attorney's fees; and to pay the costs.
On appeal to the Court of Appeals, the latter Court affirmed the judgment.
Reconsideration having been denied by the Court, petitioner filed the instant
Petition for Review on Certiorari.
Initially, or on June 16, 1970, this Court denied the Petition for lack of merit,
but resolved subsequently to give it due course after petitioner moved for
reconsideration on the additional argument that the movie production was in
exercise of the constitutional right of freedom of expression, and that the
Licensing cement is a form of restraint on the freedom of speech and of the
press.
In his Brief, petitioner assigns the following errors to the appellate Court:
I. THE COURT OF APPEALS ERRED IN EXERCISING JURISDICTION IN
THE CASE BECAUSE THE JUDGMENT APPEALED FROM WAS
INTERLOCUTORY IN NATURE AND CHARACTER;
II. THE COURT OF APPEALS ERRED IN ITS FAILURE TO MAKE
COMPLETE FINDINGS OF FACTS ON ALL ISSUES BEFORE IT;
III. THE COURT OF APPEALS ERRED IN NOT DECLARING THE
LICENSING AGREEMENT, EXHIBIT "A", NULL AND VOID FOR LACK OF,
OR FOR HAVING AN ILLEGAL CAUSE OR CONSIDERATION OF
CONTRACT, PETITIONER HAVING PREVIOUSLY OBTAINED THE
AUTHORITY AND/OR PERMISSION PURPOSELY GRANTED TO HIM BY
RESPONDENT UNDER SAID LICENSING AGREEMENT;
IV. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
LICENSING AGREEMENT, EXHIBIT "A", IS NULL AND VOID;
RESPONDENT NOT HAVING HAD ANY PROPERTY NIGHTS OVER THE
INCIDENTS IN THE LIFE OF MOISES PADILLA WHO WAS A PUBLIC
FIGURE.
V. THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE
LICENSING AGREEMENT, EXHIBIT "A", WAS NULL AND VOID,
PETITIONER'S CONSENT HAVING BEEN PROCURED BY MEANS OF
DURESS, INTIMIDATION AND UNDUE INFLUENCE;
VI. THE COURT OF APPEALS, IN UPHOLDING THE RIGHT TO PRIVACY
OF RESPONDENT AS DEFINED IN ART. 26 OF THE NEW CIVIL CODE
OVER THE RIGHT OF PETITIONER TO FILM THE PUBLIC LIFE OF A
PUBLIC FIGURE, INFRINGED UPON THE CONSTITUTIONAL RIGHT OF
PETITIONER TO FREE SPEECH AND FREE PRESS.
We find the assigned errors bereft of merit.
Petitioner's contention that because an accounting had been ordered,
respondent Court of Appeals did not have jurisdiction over the case as the
Decision of the lower Court was not yet final and appealable, is untenable.
The doctrine enunciated in Fuentebella vs. Carrascoso 11 relied upon by
petitioner, which held that whether or not the action for accounting is the
principal action or is merely incidental to another, the judgment requiring
such accounting cannot be final, has been abandoned in Miranda vs. Court
of Appeals 12 which ruled:
For the guidance of bench and bar, the Court declares as abandoned the
doctrine of Fuentebella vs. Carrascoso and adopts the opposite rule that
judgments for recovery with accounting are final and appealable (without
need of awaiting the accounting) and would become final and executory if not
appealed within the reglementary period.
In other words, where there is complete adjudication and determination of the
rights and obligations of the parties, as in the instant case, an order for
accounting in that judgment does not affect its final character, said
accounting being merely incidental to the judgment.
Petitioner's contention that respondent Court failed to make complete
findings of fact on all issues raised before it is without basis. A careful study
of the Decision reveals that respondent Court has substantially and
sufficiently complied with the injunction that a decision must state clearly and
distinctly the facts and the law on which it is based. The rule remains that the
ultimate test as to the sufficiency of a Court's findings of fact is "whether they
are comprehensive enough and pertinent to the issues raised to provide a
basis for decision." 13 The judgment sought to be reviewed sufficiently
complies with this requirement.
Neither do we agree with petitioner's submission that the Licensing
Agreement is null and void for lack of, or for having an illegal cause or
consideration. While it is true that petitioner had purchased the rights to the
book entitled "The Moises Padilla Story," that did not dispense with the need
for prior consent and authority from the deceased heirs to portray publicly
episodes in said deceased's life and in that of his mother and the members of
his family. As held in Schuyler v. Curtis,14 "a privilege may be given the
surviving relatives of a deceased person to protect his memory, but the
privilege exists for the benefit of the living, to protect their feelings and to
prevent a violation of their own rights in the character and memory of the
deceased."
Petitioner's averment that private respondent did not have any property right
over the life of Moises Padilla since the latter was a public figure, is neither
well taken. Being a public figure ipso facto does not automatically destroy in
toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized
representation of a person, no matter how public a figure he or she may be.
15 In the case at bar, while it is true that petitioner exerted efforts to present
a true-to-life story of Moises Padilla, petitioner admits that he included a little
romance in the film because without it, it would be a drab story of torture and
brutality. 16
We also find it difficult to sustain petitioner's posture that his consent to the
Licensing Agreement was procured thru duress, intimidation and undue
influence exerted on him by private respondent and her daughters at a time
when he had exhausted his financial resources, the premiere showing of the
picture was imminent, and "time was of the essence." As held in Martinez vs.
Hongkong & Shanghai Bank, 17 it is necessary to distinguish between real
duress and the motive which is present when one gives his consent
reluctantly. A contract is valid even though one of the parties entered into it
against his own wish and desires, or even against his better judgment. In
legal effect, there is no difference between a contract wherein one of the
contracting parties exchanges one condition for another because he looks for
greater profit or gain by reason of such change, and an agreement wherein
one of the contracting parties agrees to accept the lesser of two
disadvantages. In either case, he makes a choice free and untramelled and
must accordingly abide by it. The Licensing Agreement has the force of law
between the contracting parties and since its provisions are not contrary to
law, morals, good customs, public order or public policy (Art. 1306, Civil
Code), petitioner Should comply with it in good faith.
Lastly, neither do we find merit in petitioner's contention that the Licensing
Agreement infringes on the constitutional right of freedom of speech and of
the press, in that, as a citizen and as a newspaperman, he had the right to
express his thoughts in film on the public life of Moises Padilla without prior
restraint. The right of freedom of expression, indeed, occupies a preferred
position in the "hierarchy of civil liberties." 18 It is not, however, without
limitations. As held in Gonzales vs. Commission on Elections, 27 SCRA 835,
858 (1969):
From the language of the specific constitutional provision, it would appear
that the right is not susceptible of any limitation. No law may be passed
abridging the freedom of speech and of the press. The realities of life in a
complex society preclude however, a literal interpretation. Freedom of
expression is not an absolute. It would be too much to insist that at all times
and under all circumstances it should remain unfettered and unrestrained.
There are other societal values that press for recognition.
The prevailing doctrine is that the clear and present danger rule is such a
limitation. Another criterion for permissible limitation on freedom of speech
and of the press, which includes such vehicles of the mass media as radio,
television and the movies, is the "balancing-of-interests test." 19 The
principle i requires a court to take conscious and detailed consideration of the
interplay of interests observable in a given situation or type of situation."20
In the case at bar, the interests observable are the right to privacy asserted
by respondent and the right of -freedom of expression invoked by petitioner.
Taking into account the interplay of those interests, we hold that under the
particular circumstances presented, and considering the obligations assumed
in the Licensing Agreement entered into by petitioner, the validity of such
agreement will have to be upheld particularly because the limits of freedom
of expression are reached when expression touches upon matters of
essentially private concern.
WHEREFORE, the Petition for Review is denied and the judgment appealed
from hereby affirmed. Costs against petitioner.
SO ORDERED.
Ayer Productions vs. Judge Capulong [160 SCRA 861 (1988)]
Petitioner Hal McElroy an Australian film maker, and his movie production
company, Petitioner Ayer Productions pty Ltd. (Ayer Productions), 1
envisioned, sometime in 1987, the for commercial viewing and for Philippine
and international release, the histolic peaceful struggle of the Filipinos at
EDSA (Epifanio de los Santos Avenue). Petitioners discussed this Project
with local movie producer Lope V. Juban who suggested th they consult with
the appropriate government agencies and also with General Fidel V. Ramos
and Senator Juan Ponce Enrile, who had played major roles in the events
proposed to be filmed.
The proposed motion picture entitled "The Four Day Revolution" was
endorsed by the Movie Television Review and Classification Board as wel as
the other government agencies consulted. General Fidel Ramos also
signified his approval of the intended film production.
In a letter dated 16 December 1987, petitioner Hal McElroy informed private
respondent Juan Ponce Enrile about the projected motion picture enclosing a
synopsis of it, the full text of which is set out below:
The Four Day Revolution is a six hour mini-series about People Power—a
unique event in modern history that-made possible the Peaceful revolution in
the Philippines in 1986.

Faced with the task of dramatising these rerkble events, screenwriter David
Williamson and history Prof Al McCoy have chosen a "docu-drama" style and
created [four] fictitious characters to trace the revolution from the death of
Senator Aquino, to the Feb revolution and the fleeing of Marcos from the
country.
These character stories have been woven through the real events to help our
huge international audience understand this ordinary period inFilipino history.
First, there's Tony O'Neil, an American television journalist working for major
network. Tony reflects the average American attitude to the Phihppinence —
once a colony, now the home of crucially important military bases. Although
Tony is aware of the corruption and of Marcos' megalomania, for him, there
appears to be no alternative to Marcos except the Communists.
Next, Angie Fox a fiery Australian photo-journalist. A 'new girl in town,' she is
quickly caught up in the events as it becomes dear that the time has come
for a change. Through Angle and her relationship with one of the Reform
Army Movement Colonels (a fictitious character), we follow the developing
discontent in the armed forces. Their dislike for General Ver, their strong
loyalty to Defense Minister Enrile, and ultimately their defection from Marcos.
The fourth fictitious character is Ben Balano, a middle-aged editor of a Manila
newspaper who despises the Marcos regime and is a supporter an promoter
of Cory Aquino. Ben has two daughters, Cehea left wing lawyer who is a
secret member of the New People's Army, and Eva--a -P.R. girl, politically
moderate and very much in love with Tony. Ultimately, she must choose
between her love and the revolution.
Through the interviews and experiences of these central characters, we
show the complex nature of Filipino society, and thintertwining series of
events and characters that triggered these remarkable changes. Through
them also, we meet all of the principal characters and experience directly
dramatic recreation of the revolution. The story incorporates actual
documentary footage filmed during the period which we hope will capture the
unique atmosphere and forces that combined to overthrow President Marcos.
David Williamson is Australia's leading playwright with some 14 hugely
successful plays to his credit(Don's Party,' 'The Club,' Travelling North) and
11 feature films (The Year of Living Dangerously,' Gallipoli,' 'Phar Lap').
Professor McCoy (University of New South Wales) is an American historian
with a deep understanding of the Philippines, who has worked on the
research for this project for some 18 months. Together with Davi Wilhamgon
they have developed a script we believe accurately depicts the complex
issues and events that occurred during th period .
The six hour series is a McElroy and McElroy co-production with Home Box
Office in American, the Australian Broadcast Corporation in Australia and
Zenith Productions in the United Kingdom
The proposed motion picture would be essentially a re-enact. ment of the
events that made possible the EDSA revolution; it is designed to be viewed
in a six-hour mini-series television play, presented in a "docu-drama" style,
creating four (4) fictional characters interwoven with real events, and utilizing
actual documentary footage as background.
On 21 December 1987, private respondent Enrile replied that "[he] would not
and will not approve of the use, appropriation, reproduction and/or exhibition
of his name, or picture, or that of any member of his family in any cinema or
television production, film or other medium for advertising or commercial
exploitation" and further advised petitioners that 'in the production, airing,
showing, distribution or exhibition of said or similar film, no reference
whatsoever (whether written, verbal or visual) should not be made to [him] or
any member of his family, much less to any matter purely personal to them.
It appears that petitioners acceded to this demand and the name of private
respondent Enrile was deleted from the movie script, and petitioners
proceeded to film the projected motion picture.
On 23 February 1988, private respondent filed a Complaint with application
for Temporary Restraining Order and Wilt of Pretion with the Regional Trial
Court of Makati, docketed as Civil Case No. 88-151 in Branch 134 thereof,
seeking to enjoin petitioners from producing the movie "The Four Day
Revolution". The complaint alleged that petitioners' production of the mini-
series without private respondent's consent and over his objection,
constitutes an obvious violation of his right of privacy. On 24 February 1988,
the trial court issued ex-parte a Temporary Restraining Order and set for
hearing the application for preliminary injunction.
On 9 March 1988, Hal McElroy flied a Motion to Dismiss with Opposition to
the Petition for Preliminary Injunction contending that the mini-series fim
would not involve the private life of Juan Ponce Enrile nor that of his family
and that a preliminary injunction would amount to a prior restraint on their
right of free expression. Petitioner Ayer Productions also filed its own Motion
to Dismiss alleging lack of cause of action as the mini-series had not yet
been completed.
In an Order 2 dated 16 March 1988, respondent court issued a writ of
Preliminary Injunction against the petitioners, the dispositive portion of which
reads thus:
WHEREFORE, let a writ of preliminary injunction be issued, ordering
defendants, and all persons and entities employed or under contract with
them, including actors, actresses and members of the production staff and
crew as well as all persons and entities acting on defendants' behalf, to
cease and desist from producing and filming the mini-series entitled 'The
Four Day Revolution" and from making any reference whatsoever to plaintiff
or his family and from creating any fictitious character in lieu of plaintiff which
nevertheless is based on, or bears rent substantial or marked resemblance
or similarity to, or is otherwise Identifiable with, plaintiff in the production and
any similar film or photoplay, until further orders from this Court, upon
plaintiff's filing of a bond in the amount of P 2,000,000.00, to answer for
whatever damages defendants may suffer by reason of the injunction if the
Court should finally decide that plaintiff was not entitled thereto.
xxx xxx xxx
(Emphasis supplied)
On 22 March 1988, petitioner Ayer Productions came to this Court by a
Petition for certiorari dated 21 March 1988 with an urgent prayer for
Preliminary Injunction or Restraining Order, which petition was docketed as
G.R. No. L-82380.
A day later, or on 23 March 1988, petitiioner Hal McElroy also filed separate
Petition for certiorari with Urgent Prayer for a Restraining Order or
Preliminary Injunction, dated 22 March 1988, docketed as G.R. No. L-82398.
By a Resolution dated 24 March 1988, the petitions were consolidated and
private respondent was required to file a consolidated Answer. Further, in the
same Resolution, the Court granted a Temporary Restraining Order partially
enjoining the implementation of the respondent Judge's Order of 16 March
1988 and the Writ of Preliminary Injunction issued therein, and allowing the
petitioners to resume producing and filming those portions of the projected
mini-series which do not make any reference to private respondent or his
family or to any fictitious character based on or respondent.
Private respondent seasonably filed his Consolidated Answer on 6 April 1988
invoking in the main a right of privacy.
I The counter-balancing of private respondent is to a right of privacy. It was
The constitutional and legal issues raised by the present Petitions are
sharply drawn. Petitioners' claim that in producing and "The Four Day
Revolution," they are exercising their freedom of speech and of expression
protected under our Constitution. Private respondent, upon the other hand,
asserts a right of privacy and claims that the production and filming of the
projected mini-series would constitute an unlawful intrusion into his privacy
which he is entitled to enjoy.
Considering first petitioners' claim to freedom of speech and of expression
the Court would once more stress that this freedom includes the freedom to
film and produce motion pictures and to exhibit such motion pictures in
theaters or to diffuse them through television. In our day and age, motion
pictures are a univesally utilized vehicle of communication and medium Of
expression. Along with the press, radio and television, motion pictures
constitute a principal medium of mass communication for information,
education and entertainment. In Gonzales v. Katigbak, 3 former Chief Justice
Fernando, speaking for the Court, explained:
1. Motion pictures are important both as a medium for the communication of
Ideas and the expression of the artistic impulse. Their effect on the
perception by our people of issues and public officials or public figures as
well as the pre cultural traits is considerable. Nor as pointed out in Burstyn v.
Wilson (343 US 495 [19421) is the Importance of motion pictures as an
organ of public opinion lessened by the fact that they are designed to
entertain as well as to inform' (Ibid, 501). There is no clear dividing line
between what involves knowledge and what affords pleasure. If such a
distinction were sustained, there is a diminution of the basic right to free
expression. ...4
This freedom is available in our country both to locally-owned and to foreign-
owned motion picture companies. Furthermore the circumstance that the
production of motion picture films is a commercial activity expected to yield
monetary profit, is not a disqualification for availing of freedom of speech and
of expression. In our community as in many other countries, media facilities
are owned either by the government or the private sector but the private
sector-owned media facilities commonly require to be sustained by being
devoted in whole or in pailt to revenue producing activities. Indeed,
commercial media constitute the bulk of such facilities available in our
country and hence to exclude commercially owned and operated media from
the exerciseof constitutionally protected om of speech and of expression can
only result in the drastic contraction of such constitutional liberties in our
country.
demonstrated sometime ago by the then Dean Irene R. Cortes that our law,
constitutional and statutory, does include a right of privacy. 5 It is left to case
law, however, to mark out the precise scope and content of this right in
differing types of particular situations. The right of privacy or "the right to be
let alone," 6 like the right of free expression, is not an absolute right. A limited
intrusion into a person's privacy has long been regarded as permissible
where that person is a public figure and the information sought to be elicited
from him or to be published about him constitute of apublic character. 7
Succinctly put, the right of privacy cannot be invoked resist publication and
dissemination of matters of public interest. 8 The interest sought to be
protected by the right of privacy is the right to be free from unwarranted
publicity, from the wrongful publicizing of the private affairs and activities of
an individual which are outside the realm of legitimate public concern. 9
Lagunzad v. Vda. de Gonzales, 10 on which private respondent relies
heavily, recognized a right to privacy in a context which included a claim to
freedom of speech and of expression. Lagunzad involved a suit fortion
picture producer as licensee and the widow and family of the late Moises
Padilla as licensors. This agreement gave the licensee the right to produce a
motion Picture Portraying the life of Moises Padilla, a mayoralty candidate of
the Nacionalista Party for the Municipality of Magallon, Negros Occidental
during the November 1951 elections and for whose murder, Governor Rafael
Lacson, a member of the Liberal Party then in power and his men were tried
and convicted. 11 In the judgment of the lower court enforcing the licensing
agreement against the licensee who had produced the motion picture and
exhibited it but refused to pay the stipulated royalties, the Court, through
Justice Melencio-Herrera, said:
Neither do we agree with petitioner's subon that the Licensing Agreement is
null and void for lack of, or for having an illegal cause or consideration, while
it is true that petitioner bad pled the rights to the book entitled "The Moises
Padilla Story," that did not dispense with the need for prior consent and
authority from the deceased heirs to portray publicly episodes in said
deceased's life and in that of his mother and the member of his family. As
held in Schuyler v. Curtis, ([1895],147 NY 434,42 NE 31 LRA 286.49 Am St
Rep 671), 'a privilege may be given the surviving relatives of a deperson to
protect his memory, but the privilege wts for the benefit of the living, to
protect their feelings and to preventa violation of their own rights in the
character and memory of the deceased.'
Petitioners averment that private respondent did not have any property right
over the life of Moises Padilla since the latter was a public figure, is neither
well taken. Being a public figure ipso facto does not automatically destroy in
toto a person's right to privacy. The right to invade a person's privacy to
disseminate public information does not extend to a fictional or novelized
representation of a person, no matter how public a he or she may be (Garner
v. Triangle Publications, DCNY 97 F. Supp., SU 549 [1951]). In the case at
bar, while it is true that petitioner exerted efforts to present a true-to-life Story
Of Moises Padilla, petitioner admits that he included a little romance in the
film because without it, it would be a drab story of torture and brutality. 12
In Lagunzad, the Court had need, as we have in the instant case, to deal with
contraposed claims to freedom of speech and of expression and to privacy.
Lagunzad the licensee in effect claimed, in the name of freedom of speech
and expression, a right to produce a motion picture biography at least partly
"fictionalized" of Moises Padilla without the consent of and without paying
pre-agreed royalties to the widow and family of Padilla. In rejecting the
licensee's claim, the Court said:
Lastly, neither do we find merit in petitioners contention that the Licensing
Agreement infringes on the constitutional right of freedom of speech and of
the press, in that, as a citizen and as a newspaperman, he had the right to
express his thoughts in film on the public life of Moises Padilla without prior
restraint.The right freedom of expression, indeed, occupies a preferred
position in the "hierarchy of civil liberties" (Philippine Blooming Mills
Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191
[1963]). It is not, however, without limitations. As held in Gonzales v.
Commission on Elections, 27 SCRA 835, 858 [1960]:
xxx xxx xxx
The prevailing doctine is that the clear and present danger rule is such a
limitation. Another criterion for permissible limitation on freedom of speech
and the press, which includes such vehicles of the mass media as radio,
television and the movies, is the "balancing of interest test" (Chief Justice
Enrique M. Fernando on the Bill of Rights, 1970 ed. p. 79). The principle
"requires a court to take conscious and detailed consideration of the interplay
of interests observable in given situation or type of situation" (Separation
Opinion of the late Chief Justice Castro in Gonzales v. Commission on
Elections, supra, p. 899).
In the case at bar, the interests observable are the right to privacy asserted
by respondent and the right of freedom of expression invoked by petitioner.
taking into account the interplay of those interests, we hold that under the
particular circumstances presented, and considering the obligations assumed
in the Licensing Agreement entered into by petitioner, the validity of such
agreement will have to be upheld particularly because the limits of freedom
of expression are reached when expression touches upon matters of
essentially private concern." 13
Whether the "balancing of interests test" or the clear and present danger
test" be applied in respect of the instant Petitions, the Court believes that a
different conclusion must here be reached: The production and filming by
petitioners of the projected motion picture "The Four Day Revolution" does
not, in the circumstances of this case, constitute an unlawful intrusion upon
private respondent's "right of privacy."
1. It may be observed at the outset that what is involved in the instant case is
a prior and direct restraint on the part of the respondent Judge upon the
exercise of speech and of expression by petitioners. The respondent Judge
has restrained petitioners from filming and producing the entire proposed
motion picture. It is important to note that in Lagunzad, there was no prior
restrain of any kind imposed upon the movie producer who in fact completed
and exhibited the film biography of Moises Padilla. Because of the speech
and of expression, a weighty presumption of invalidity vitiates. 14 The
invalidity of a measure of prior restraint doesnot, of course, mean that no
subsequent liability may lawfully be imposed upon a person claiming to
exercise such constitutional freedoms. The respondent Judge should have
stayed his hand, instead of issuing an ex-parte Temporary Restraining Order
one day after filing of a complaint by the private respondent and issuing a
Preliminary Injunction twenty (20) days later; for the projected motion picture
was as yet uncompleted and hence not exhibited to any audience. Neither
private respondent nor the respondent trial Judge knew what the completed
film would precisely look like. There was, in other words, no "clear and
present danger" of any violation of any right to privacy that private
respondent could lawfully assert.
2. The subject matter of "The Four Day Revolution" relates to the non-bloody
change of government that took place at Epifanio de los Santos Avenue in
February 1986, and the trian of events which led up to that denouement.
Clearly, such subject matter is one of public interest and concern. Indeed, it
is, petitioners' argue, of international interest. The subject thus relates to a
highly critical stage in the history of this countryand as such, must be
regarded as having passed into the public domain and as an appropriate
subject for speech and expression and coverage by any form of mass media.
The subject mater, as set out in the synopsis provided by the petitioners and
quoted above, does not relate to the individual life and certainly not to the
private life of private respondent Ponce Enrile. Unlike in Lagunzad, which
concerned the life story of Moises Padilla necessarily including at least his
immediate family, what we have here is not a film biography, more or less
fictionalized, of private respondent Ponce Enrile. "The Four Day Revolution"
is not principally about, nor is it focused upon, the man Juan Ponce Enrile'
but it is compelled, if it is to be historical, to refer to the role played by Juan
Ponce Enrile in the precipitating and the constituent events of the change of
government in February 1986.
3. The extent of the instrusion upon the life of private respondent Juan Ponce
Enrile that would be entailed by the production and exhibition of "The Four
Day Revolution" would, therefore, be limited in character. The extent of that
intrusion, as this Court understands the synopsis of the proposed film, may
be generally described as such intrusion as is reasonably necessary to keep
that film a truthful historical account. Private respondent does not claim that
petitioners threatened to depict in "The Four Day Revolution" any part of the
private life of private respondent or that of any member of his family.
4. At all relevant times, during which the momentous events, clearly of public
concern, that petitioners propose to film were taking place, private
respondent was what Profs. Prosser and Keeton have referred to as a "public
figure:"
A public figure has been defined as a person who, by his accomplishments,
fame, or mode of living, or by adopting a profession or calling which gives the
public a legitimate interest in his doings, his affairs, and his character, has
become a 'public personage.' He is, in other words, a celebrity. Obviously to
be included in this category are those who have achieved some degree of
reputation by appearing before the public, as in the case of an actor, a
professional baseball player, a pugilist, or any other entertainment. The list
is, however, broader than this. It includes public officers, famous inventors
and explorers, war heroes and even ordinary soldiers, an infant prodigy, and
no less a personage than the Grand Exalted Ruler of a lodge. It includes, in
short, anyone who has arrived at a position where public attention is focused
upon him as a person.
Such public figures were held to have lost, to some extent at least, their tight
to privacy. Three reasons were given, more or less indiscrimately, in the
decisions" that they had sought publicity and consented to it, and so could
not complaint when they received it; that their personalities and their affairs
has already public, and could no longer be regarded as their own private
business; and that the press had a privilege, under the Constitution, to inform
the public about those who have become legitimate matters of public interest.
On one or another of these grounds, and sometimes all, it was held that
there was no liability when they were given additional publicity, as to matters
legitimately within the scope of the public interest they had aroused.
The privilege of giving publicity to news, and other matters of public interest,
was held to arise out of the desire and the right of the public to know what is
going on in the world, and the freedom of the press and other agencies of
information to tell it. "News" includes all events and items of information
which are out of the ordinary hum-drum routine, and which have 'that
indefinable quality of information which arouses public attention.' To a very
great extent the press, with its experience or instinct as to what its readers
will want, has succeeded in making its own definination of news, as a glance
at any morning newspaper will sufficiently indicate. It includes homicide and
othe crimes, arrests and police raides, suicides, marriages and divorces,
accidents, a death from the use of narcotics, a woman with a rare disease,
the birth of a child to a twelve year old girl, the reappearance of one
supposed to have been murdered years ago, and undoubtedly many other
similar matters of genuine, if more or less deplorable, popular appeal.
The privilege of enlightening the public was not, however, limited, to the
dissemination of news in the scene of current events. It extended also to
information or education, or even entertainment and amusement, by books,
articles, pictures, films and broadcasts concerning interesting phases of
human activity in general, as well as the reproduction of the public scene in
newsreels and travelogues. In determining where to draw the line, the courts
were invited to exercise a species of censorship over what the public may be
permitted to read; and they were understandably liberal in allowing the
benefit of the doubt. 15
Private respondent is a "public figure" precisely because, inter alia, of his
participation as a principal actor in the culminating events of the change of
government in February 1986. Because his participation therein was major in
character, a film reenactment of the peaceful revolution that fails to make
reference to the role played by private respondent would be grossly
unhistorical. The right of privacy of a "public figure" is necessarily narrower
than that of an ordinary citizen. Private respondent has not retired into the
seclusion of simple private citizenship. he continues to be a "public figure."
After a successful political campaign during which his participation in the
EDSA Revolution was directly or indirectly referred to in the press, radio and
television, he sits in a very public place, the Senate of the Philippines.
5. The line of equilibrium in the specific context of the instant case between
the constitutional freedom of speech and of expression and the right of
privacy, may be marked out in terms of a requirement that the proposed
motion picture must be fairly truthful and historical in its presentation of
events. There must, in other words, be no knowing or reckless disregard of
truth in depicting the participation of private respondent in the EDSA
Revolution. 16 There must, further, be no presentation of the private life of
the unwilling private respondent and certainly no revelation of intimate or
embarrassing personal facts. 17 The proposed motion picture should not
enter into what Mme. Justice Melencio-Herrera in Lagunzad referred to as
"matters of essentially private concern." 18 To the extent that "The Four Day
Revolution" limits itself in portraying the participation of private respondent in
the EDSA Revolution to those events which are directly and reasonably
related to the public facts of the EDSA Revolution, the intrusion into private
respondent's privacy cannot be regarded as unreasonable and actionable.
Such portrayal may be carried out even without a license from private
respondent.
II
In a Manifestation dated 30 March 1988, petitioner Hal McElroy informed this
Court that a Temporary Restraining Order dated 25 March 1988, was issued
by Judge Teofilo Guadiz of the Regional Trial Court of Makati, Branch 147, in
Civil Case No. 88-413, entitled "Gregorio B. Honasan vs. Ayer Productions
Pty. Ltd., McElroy Film Productions, Hal McElroy, Lope Juban and PMP
Motion for Pictures Production" enjoining him and his production company
from further filimg any scene of the projected mini-series film. Petitioner
alleged that Honasan's complaint was a "scissors and paste" pleading, cut
out straight grom the complaint of private respondent Ponce Enrile in Civil
Case No. 88-151. Petitioner Ayer Productions, in a separate Manifestation
dated 4 April 1988, brought to the attention of the Court the same information
given by petitoner Hal McElroy, reiterating that the complaint of Gregorio B.
Honasan was substantially identical to that filed by private respondent herein
and stating that in refusing to join Honasan in Civil Case No. 88-151, counsel
for private respondent, with whom counsel for Gregorio Honasan are
apparently associated, deliberately engaged in "forum shopping."
Private respondent filed a Counter-Manifestation on 13 April 1988 stating that
the "slight similarity" between private respondent's complaint and that on
Honasan in the construction of their legal basis of the right to privacy as a
component of the cause of action is understandable considering that court
pleadings are public records; that private respondent's cause of action for
invasion of privacy is separate and distinct from that of Honasan's although
they arose from the same tortious act of petitioners' that the rule on
permissive joinder of parties is not mandatory and that, the cited cases on
"forum shopping" were not in point because the parties here and those in
Civil Case No. 88-413 are not identical.
For reasons that by now have become clear, it is not necessary for the Court
to deal with the question of whether or not the lawyers of private respondent
Ponce Enrile have engaged in "forum shopping." It is, however, important to
dispose to the complaint filed by former Colonel Honasan who, having
refused to subject himself to the legal processes of the Republic and having
become once again in fugitive from justice, must be deemed to have forfeited
any right the might have had to protect his privacy through court processes.
WHEREFORE,
a) the Petitions for Certiorari are GRANTED DUE COURSE, and the Order
dated 16 March 1988 of respondent trial court granting a Writ of Preliminary
Injunction is hereby SET ASIDE. The limited Temporary Restraining Order
granted by this Court on 24 March 1988 is hereby MODIFIED by enjoining
unqualifiedly the implementation of respondent Judge's Order of 16 March
1988 and made PERMANENT, and
b) Treating the Manifestations of petitioners dated 30 March 1988 and 4 April
1988 as separate Petitions for Certiorari with Prayer for Preliminary
Injunction or Restraining Order, the Court, in the exercise of its plenary and
supervisory jurisdiction, hereby REQUIRES Judge Teofilo Guadiz of the
Regional Trial Court of Makati, Branch 147, forthwith to DISMISS Civil Case
No. 88-413 and accordingly to SET ASIDE and DISSOLVE his Temporary
Restraining Order dated 25 March 1988 and any Preliminary Injunction that
may have been issued by him.
No pronouncement as to costs.
SO ORDERED.
KMU vs. Director General (G.R. No. 167798, April 19, 2006)
This case involves two consolidated petitions for certiorari, prohibition, and
mandamus under Rule 65 of the Rules of Court, seeking the nullification of
Executive Order No. 420 (EO 420) on the ground that it is unconstitutional.
EO 420, issued by President Gloria Macapagal-Arroyo on 13 April 2005,
reads:
REQUIRING ALL GOVERNMENT AGENCIES AND GOVERNMENT-
OWNED AND CONTROLLED CORPORATIONS TO STREAMLINE AND
HARMONIZE THEIR IDENTIFICATION (ID) SYSTEMS, AND
AUTHORIZING FOR SUCH PURPOSE THE DIRECTOR-GENERAL,
NATIONAL ECONOMIC AND DEVELOPMENT AUTHORITY TO
IMPLEMENT THE SAME, AND FOR OTHER PURPOSES
WHEREAS, good governance is a major thrust of this Administration;
WHEREAS, the existing multiple identification systems in government have
created unnecessary and costly redundancies and higher costs to
government, while making it inconvenient for individuals to be holding several
identification cards;
WHEREAS, there is urgent need to streamline and integrate the processes
and issuance of identification cards in government to reduce costs and to
provide greater convenience for those transacting business with government;
WHEREAS, a unified identification system will facilitate private businesses,
enhance the integrity and reliability of government-issued identification cards
in private transactions, and prevent violations of laws involving false names
and identities.
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the
Republic of the Philippines by virtue of the powers vested in me by law, do
hereby direct the following:
Section 1. Adoption of a unified multi-purpose identification (ID) system for
government.1avvphil.net – All government agencies, including government-
owned and controlled corporations, are hereby directed to adopt a unified
multi-purpose ID system to ensure the attainment of the following objectives:
a. To reduce costs and thereby lessen the financial burden on both the
government and the public brought about by the use of multiple ID cards and
the maintenance of redundant database containing the same or related
information;
b. To ensure greater convenience for those transacting business with the
government and those availing of government services;
c. To facilitate private businesses and promote the wider use of the unified ID
card as provided under this executive order;
d. To enhance the integrity and reliability of government-issued ID cards; and
e. To facilitate access to and delivery of quality and effective government
service.
Section 2. Coverage – All government agencies and government-owned and
controlled corporations issuing ID cards to their members or constituents
shall be covered by this executive order.
Section 3. Data requirement for the unified ID system – The data to be
collected and recorded by the participating agencies shall be limited to the
following:
Name
Home Address
Sex
Picture
Signature
Date of Birth
Place of Birth
Marital Status
Names of Parents
Height
Weight
Two index fingers and two thumbmarks
Any prominent distinguishing features like moles and others
Tax Identification Number (TIN)
Provided that a corresponding ID number issued by the participating agency
and a common reference number shall form part of the stored ID data and,
together with at least the first five items listed above, including the print of the
right thumbmark, or any of the fingerprints as collected and stored, shall
appear on the face or back of the ID card for visual verification purposes.
Section 4. Authorizing the Director-General, National Economic and
Development Authority, to Harmonize All Government Identification Systems.
– The Director-General, National Economic Development Authority, is hereby
authorized to streamline and harmonize all government ID systems.
Section 5. Functions and responsibilities of the Director-General, National
Economic and Development Authority. – In addition to his organic functions
and responsibilities, the Director-General, National Economic and
Development Authority, shall have the following functions and
responsibilities:
a. Adopt within sixty (60) days from the effectivity of this executive order a
unified government ID system containing only such data and features, as
indicated in Section 3 above, to validly establish the identity of the card
holder:
b. Enter into agreements with local governments, through their respective
leagues of governors or mayors, the Commission on Elections (COMELEC),
and with other branches or instrumentalities of the government, for the
purpose of ensuring government-wide adoption of and support to this effort to
streamline the ID systems in government;
b. Call on any other government agency or institution, or create sub–
committees or technical working groups, to provide such assistance as may
be necessary or required for the effective performance of its functions; and
d. Promulgate such rules or regulations as may be necessary in pursuance
of the objectives of this executive order.
Section 6. Safeguards. – The Director-General, National Economic and
Development Authority, and the pertinent agencies shall adopt such
safeguard as may be necessary and adequate to ensure that the right to
privacy of an individual takes precedence over efficient public service
delivery. Such safeguards shall, as a minimum, include the following:
a. The data to be recorded and stored, which shall be used only for purposes
of establishing the identity of a person, shall be limited to those specified in
Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in violation of a
person’s right to privacy shall be allowed or tolerated under this order;
c. Stringent systems of access control to data in the identification system
shall be instituted;
d. Data collected and stored for this purpose shall be kept and treated as
strictly confidential and a personal or written authorization of the Owner shall
be required for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced
security features and cryptographic technology; and
f. A written request by the Owner of the identification card shall be required
for any correction or revision of relevant data, or under such conditions as
the participating agency issuing the identification card shall prescribe.
Section 7. Funding. – Such funds as may be recommended by the
Department of Budget and Management shall be provided to carry out the
objectives of this executive order.
Section 8. Repealing clause. – All executive orders or issuances, or portions
thereof, which are inconsistent with this executive order, are hereby revoked,
amended or modified accordingly.
Section 9. Effectivity. – This executive order shall take effect fifteen (15) days
after its publication in two (2) newspapers of general circulation.
DONE in the City of Manila, this 13th day of April, in the year of Our Lord,
Two Thousand and Five.
Thus, under EO 420, the President directs all government agencies and
government-owned and controlled corporations to adopt a uniform data
collection and format for their existing identification (ID) systems.
Petitioners in G.R. No. 167798 allege that EO 420 is unconstitutional
because it constitutes usurpation of legislative functions by the executive
branch of the government. Furthermore, they allege that EO 420 infringes on
the citizen’s right to privacy.1
Petitioners in G.R. No. 167930 allege that EO 420 is void based on the
following grounds:
1. EO 420 is contrary to law. It completely disregards and violates the
decision of this Honorable Court in Ople v. Torres et al., G.R. No. 127685,
July 23, 1998. It also violates RA 8282 otherwise known as the Social
Security Act of 1997.
2. The Executive has usurped the legislative power of Congress as she has
no power to issue EO 420. Furthermore, the implementation of the EO will
use public funds not appropriated by Congress for that purpose.
3. EO 420 violates the constitutional provisions on the right to privacy
(i) It allows access to personal confidential data without the owner’s consent.
(ii) EO 420 is vague and without adequate safeguards or penalties for any
violation of its provisions.
(iii) There are no compelling reasons that will legitimize the necessity of EO
420.
4. Granting without conceding that the President may issue EO 420, the
Executive Order was issued without public hearing.
5. EO 420 violates the Constitutional provision on equal protection of laws
and results in the discriminatory treatment of and penalizes those without
ID.2
Issues
Essentially, the petitions raise two issues. First, petitioners claim that EO 420
is a usurpation of legislative power by the President. Second, petitioners
claim that EO 420 infringes on the citizen’s right to privacy.
Respondents question the legal standing of petitioners and the ripeness of
the petitions. Even assuming that petitioners are bereft of legal standing, the
Court considers the issues raised under the circumstances of paramount
public concern or of transcendental significance to the people. The petitions
also present a justiciable controversy ripe for judicial determination because
all government entities currently issuing identification cards are mandated to
implement EO 420, which petitioners claim is patently unconstitutional.
Hence, the Court takes cognizance of the petitions.
The Court’s Ruling
The petitions are without merit.
On the Alleged Usurpation of Legislative Power
Section 2 of EO 420 provides, "Coverage. – All government agencies and
government-owned and controlled corporations issuing ID cards to their
members or constituents shall be covered by this executive order." EO 420
applies only to government entities that issue ID cards as part of their
functions under existing laws. These government entities have already been
issuing ID cards even prior to EO 420. Examples of these government
entities are the GSIS,3 SSS,4 Philhealth,5 Mayor’s Office,6 LTO,7 PRC,8
and similar government entities.
Section 1 of EO 420 directs these government entities to "adopt a unified
multi-purpose ID system." Thus, all government entities that issue IDs as part
of their functions under existing laws are required to adopt a uniform data
collection and format for their IDs. Section 1 of EO 420 enumerates the
purposes of the uniform data collection and format, namely:
a. To reduce costs and thereby lessen the financial burden on both the
government and the public brought about by the use of multiple ID cards and
the maintenance of redundant database containing the same or related
information;
b. To ensure greater convenience for those transacting business with the
government and those availing of government services;
c. To facilitate private businesses and promote the wider use of the unified ID
card as provided under this executive order;
d. To enhance the integrity and reliability of government-issued ID cards; and
e. To facilitate access to and delivery of quality and effective government
service.
In short, the purposes of the uniform ID data collection and ID format are to
reduce costs, achieve efficiency and reliability, insure compatibility, and
provide convenience to the people served by government entities.
Section 3 of EO 420 limits the data to be collected and recorded under the
uniform ID system to only 14 specific items, namely: (1) Name; (2) Home
Address; (3) Sex; (4) Picture; (5) Signature; (6) Date of Birth; (7) Place of
Birth; (8) Marital Status; (9) Name of Parents; (10) Height; (11) Weight; (12)
Two index fingers and two thumbmarks; (13) Any prominent distinguishing
features like moles or others; and (14) Tax Identification Number.
These limited and specific data are the usual data required for personal
identification by government entities, and even by the private sector. Any one
who applies for or renews a driver’s license provides to the LTO all these 14
specific data.
At present, government entities like LTO require considerably more data from
applicants for identification purposes. EO 420 will reduce the data required to
be collected and recorded in the ID databases of the government entities.
Government entities cannot collect or record data, for identification purposes,
other than the 14 specific data.
Various laws allow several government entities to collect and record data for
their ID systems, either expressly or impliedly by the nature of the functions
of these government entities. Under their existing ID systems, some
government entities collect and record more data than what EO 420 allows.
At present, the data collected and recorded by government entities are
disparate, and the IDs they issue are dissimilar.
In the case of the Supreme Court,9 the IDs that the Court issues to all its
employees, including the Justices, contain 15 specific data, namely: (1)
Name; (2) Picture; (3) Position; (4) Office Code Number; (5) ID Number; (6)
Height; (7) Weight; (8) Complexion; (9) Color of Hair; (10) Blood Type; (11)
Right Thumbmark; (12) Tax Identification Number; (13) GSIS Policy Number;
(14) Name and Address of Person to be Notified in Case of Emergency; and
(15) Signature. If we consider that the picture in the ID can generally also
show the sex of the employee, the Court’s ID actually contains 16 data.
In contrast, the uniform ID format under Section 3 of EO 420 requires only
"the first five items listed" in Section 3, plus the fingerprint, agency number
and the common reference number, or only eight specific data. Thus, at
present, the Supreme Court’s ID contains far more data than the proposed
uniform ID for government entities under EO 420. The nature of the data
contained in the Supreme Court ID is also far more financially sensitive,
specifically the Tax Identification Number.
Making the data collection and recording of government entities unified, and
making their ID formats uniform, will admittedly achieve substantial benefits.
These benefits are savings in terms of procurement of equipment and
supplies, compatibility in systems as to hardware and software, ease of
verification and thus increased reliability of data, and the user-friendliness of
a single ID format for all government entities.
There is no dispute that government entities can individually limit the
collection and recording of their data to the 14 specific items in Section 3 of
EO 420. There is also no dispute that these government entities can
individually adopt the ID format as specified in Section 3 of EO 420. Such an
act is certainly within the authority of the heads or governing boards of the
government entities that are already authorized under existing laws to issue
IDs.
A unified ID system for all these government entities can be achieved in
either of two ways. First, the heads of these existing government entities can
enter into a memorandum of agreement making their systems uniform. If the
government entities can individually adopt a format for their own ID pursuant
to their regular functions under existing laws, they can also adopt by mutual
agreement a uniform ID format, especially if the uniform format will result in
substantial savings, greater efficiency, and optimum compatibility. This is
purely an administrative matter, and does not involve the exercise of
legislative power.
Second, the President may by executive or administrative order direct the
government entities under the Executive department to adopt a uniform ID
data collection and format. Section 17, Article VII of the 1987 Constitution
provides that the "President shall have control of all executive departments,
bureaus and offices." The same Section also mandates the President to
"ensure that the laws be faithfully executed."
Certainly, under this constitutional power of control the President can direct
all government entities, in the exercise of their functions under existing laws,
to adopt a uniform ID data collection and ID format to achieve savings,
efficiency, reliability, compatibility, and convenience to the public. The
President’s constitutional power of control is self-executing and does not
need any implementing legislation.
Of course, the President’s power of control is limited to the Executive branch
of government and does not extend to the Judiciary or to the independent
constitutional commissions. Thus, EO 420 does not apply to the Judiciary, or
to the COMELEC which under existing laws is also authorized to issue
voter’s ID cards.10 This only shows that EO 420 does not establish a
national ID system because legislation is needed to establish a single ID
system that is compulsory for all branches of government.

The Constitution also mandates the President to ensure that the laws are
faithfully executed. There are several laws mandating government entities to
reduce costs, increase efficiency, and in general, improve public services.11
The adoption of a uniform ID data collection and format under EO 420 is
designed to reduce costs, increase efficiency, and in general, improve public
services. Thus, in issuing EO 420, the President is simply performing the
constitutional duty to ensure that the laws are faithfully executed.
Clearly, EO 420 is well within the constitutional power of the President to
promulgate. The President has not usurped legislative power in issuing EO
420. EO 420 is an exercise of Executive power – the President’s
constitutional power of control over the Executive department. EO 420 is also
compliance by the President of the constitutional duty to ensure that the laws
are faithfully executed.
Legislative power is the authority to make laws and to alter or repeal them. In
issuing EO 420, the President did not make, alter or repeal any law but
merely implemented and executed existing laws. EO 420 reduces costs, as
well as insures efficiency, reliability, compatibility and user-friendliness in the
implementation of current ID systems of government entities under existing
laws. Thus, EO 420 is simply an executive issuance and not an act of
legislation.
The act of issuing ID cards and collecting the necessary personal data for
imprinting on the ID card does not require legislation. Private employers
routinely issue ID cards to their employees. Private and public schools also
routinely issue ID cards to their students. Even private clubs and
associations issue ID cards to their members. The purpose of all these ID
cards is simply to insure the proper identification of a person as an
employee, student, or member of a club. These ID cards, although imposed
as a condition for exercising a privilege, are voluntary because a person is
not compelled to be an employee, student or member of a club.
What require legislation are three aspects of a government maintained ID
card system. First, when the implementation of an ID card system requires a
special appropriation because there is no existing appropriation for such
purpose. Second, when the ID card system is compulsory on all branches of
government, including the independent constitutional commissions, as well
as compulsory on all citizens whether they have a use for the ID card or not.
Third, when the ID card system requires the collection and recording of
personal data beyond what is routinely or usually required for such purpose,
such that the citizen’s right to privacy is infringed.
In the present case, EO 420 does not require any special appropriation
because the existing ID card systems of government entities covered by EO
420 have the proper appropriation or funding. EO 420 is not compulsory on
all branches of government and is not compulsory on all citizens. EO 420
requires a very narrow and focused collection and recording of personal data
while safeguarding the confidentiality of such data. In fact, the data collected
and recorded under EO 420 are far less than the data collected and recorded
under the ID systems existing prior to EO 420.
EO 420 does not establish a national ID card system. EO 420 does not
compel all citizens to have an ID card. EO 420 applies only to government
entities that under existing laws are already collecting data and issuing ID
cards as part of their governmental functions. Every government entity that
presently issues an ID card will still issue its own ID card under its own
name. The only difference is that the ID card will contain only the five data
specified in Section 3 of EO 420, plus the fingerprint, the agency ID number,
and the common reference number which is needed for cross-verification to
ensure integrity and reliability of identification.
This Court should not interfere how government entities under the Executive
department should undertake cost savings, achieve efficiency in operations,
insure compatibility of equipment and systems, and provide user-friendly
service to the public. The collection of ID data and issuance of ID cards are
day-to-day functions of many government entities under existing laws. Even
the Supreme Court has its own ID system for employees of the Court and all
first and second level courts. The Court is even trying to unify its ID system
with those of the appellate courts, namely the Court of Appeals,
Sandiganbayan and Court of Tax Appeals.
There is nothing legislative about unifying existing ID systems of all courts
within the Judiciary. The same is true for government entities under the
Executive department. If government entities under the Executive
department decide to unify their existing ID data collection and ID card
issuance systems to achieve savings, efficiency, compatibility and
convenience, such act does not involve the exercise of any legislative power.
Thus, the issuance of EO 420 does not constitute usurpation of legislative
power.
On the Alleged Infringement of the Right to Privacy
All these years, the GSIS, SSS, LTO, Philhealth and other government
entities have been issuing ID cards in the performance of their governmental
functions. There have been no complaints from citizens that the ID cards of
these government entities violate their right to privacy. There have also been
no complaints of abuse by these government entities in the collection and
recording of personal identification data.
In fact, petitioners in the present cases do not claim that the ID systems of
government entities prior to EO 420 violate their right to privacy. Since
petitioners do not make such claim, they even have less basis to complain
against the unified ID system under EO 420. The data collected and stored
for the unified ID system under EO 420 will be limited to only 14 specific
data, and the ID card itself will show only eight specific data. The data
collection, recording and ID card system under EO 420 will even require less
data collected, stored and revealed than under the disparate systems prior to
EO 420.
Prior to EO 420, government entities had a free hand in determining the kind,
nature and extent of data to be collected and stored for their ID systems.
Under EO 420, government entities can collect and record only the 14
specific data mentioned in Section 3 of EO 420. In addition, government
entities can show in their ID cards only eight of these specific data, seven
less data than what the Supreme Court’s ID shows.
Also, prior to EO 420, there was no executive issuance to government
entities prescribing safeguards on the collection, recording, and disclosure of
personal identification data to protect the right to privacy. Now, under Section
5 of EO 420, the following safeguards are instituted:
a. The data to be recorded and stored, which shall be used only for purposes
of establishing the identity of a person, shall be limited to those specified in
Section 3 of this executive order;
b. In no case shall the collection or compilation of other data in violation of a
person’s right to privacy be allowed or tolerated under this order;
c. Stringent systems of access control to data in the identification system
shall be instituted;
d. Data collected and stored for this purpose shall be kept and treated as
strictly confidential and a personal or written authorization of the Owner shall
be required for access and disclosure of data;
e. The identification card to be issued shall be protected by advanced
security features and cryptographic technology;
f. A written request by the Owner of the identification card shall be required
for any correction or revision of relevant data, or under such conditions as
the participating agency issuing the identification card shall prescribe.
On its face, EO 420 shows no constitutional infirmity because it even
narrowly limits the data that can be collected, recorded and shown compared
to the existing ID systems of government entities. EO 420 further provides
strict safeguards to protect the confidentiality of the data collected, in contrast
to the prior ID systems which are bereft of strict administrative safeguards.
The right to privacy does not bar the adoption of reasonable ID systems by
government entities. Some one hundred countries have compulsory national
ID systems, including democracies such as Spain, France, Germany,
Belgium, Greece, Luxembourg, and Portugal. Other countries which do not
have national ID systems, like the United States, Canada, Australia, New
Zealand, Ireland, the Nordic Countries and Sweden, have sectoral cards for
health, social or other public services.12 Even with EO 420, the Philippines
will still fall under the countries that do not have compulsory national ID
systems but allow only sectoral cards for social security, health services, and
other specific purposes.
Without a reliable ID system, government entities like GSIS, SSS, Philhealth,
and LTO cannot perform effectively and efficiently their mandated functions
under existing laws. Without a reliable ID system, GSIS, SSS, Philhealth and
similar government entities stand to suffer substantial losses arising from
false names and identities. The integrity of the LTO’s licensing system will
suffer in the absence of a reliable ID system.
The dissenting opinion cites three American decisions on the right to privacy,
namely, Griswold v. Connecticut,13 U.S. Justice Department v. Reporters
Committee for Freedom of the Press,14 and Whalen v. Roe.15 The last two
decisions actually support the validity of EO 420, while the first is inapplicable
to the present case.
In Griswold, the U.S. Supreme Court declared unconstitutional a state law
that prohibited the use and distribution of contraceptives because
enforcement of the law would allow the police entry into the bedrooms of
married couples. Declared the U.S. Supreme Court: "Would we allow the
police to search the sacred precincts of the marital bedrooms for telltale
signs of the use of contraceptives? The very idea is repulsive to the notions
of privacy surrounding the marriage relationship." Because the facts and the
issue involved in Griswold are materially different from the present case,
Griswold has no persuasive bearing on the present case.
In U.S. Justice Department, the issue was not whether the State could collect
and store information on individuals from public records nationwide but
whether the State could withhold such information from the press. The
premise of the issue in U.S. Justice Department is that the State can collect
and store in a central database information on citizens gathered from public
records across the country. In fact, the law authorized the Department of
Justice to collect and preserve fingerprints and other criminal identification
records nationwide. The law also authorized the Department of Justice to
exchange such information with "officials of States, cities and other
institutions." The Department of Justice treated such information as
confidential. A CBS news correspondent and the Reporters Committee
demanded the criminal records of four members of a family pursuant to the
Freedom of Information Act. The U.S. Supreme Court ruled that the Freedom
of Information Act expressly exempts release of information that would
"constitute an unwarranted invasion of personal privacy," and the information
demanded falls under that category of exempt information.
With the exception of the 8 specific data shown on the ID card, the personal
data collected and recorded under EO 420 are treated as "strictly
confidential" under Section 6(d) of EO 420. These data are not only strictly
confidential but also personal matters. Section 7, Article III of the 1987
Constitution grants the "right of the people to information on matters of public
concern." Personal matters are exempt or outside the coverage of the
people’s right to information on matters of public concern. The data treated
as "strictly confidential" under EO 420 being private matters and not matters
of public concern, these data cannot be released to the public or the press.
Thus, the ruling in U.S. Justice Department does not collide with EO 420 but
actually supports the validity EO 420.
Whalen v. Roe is the leading American case on the constitutional protection
for control over information. In Whalen, the U.S. Supreme Court upheld the
validity of a New York law that required doctors to furnish the government
reports identifying patients who received prescription drugs that have a
potential for abuse. The government maintained a central computerized
database containing the names and addresses of the patients, as well as the
identity of the prescribing doctors. The law was assailed because the
database allegedly infringed the right to privacy of individuals who want to
keep their personal matters confidential. The U.S. Supreme Court rejected
the privacy claim, and declared:
Disclosures of private medical information to doctors, to hospital personnel,
to insurance companies, and to public health agencies are often an essential
part of modern medical practice even when the disclosure may reflect
unfavorably on the character of the patient. Requiring such disclosures to
representatives of the State having responsibility for the health of the
community does not automatically amount to an impermissible invasion of
privacy. (Emphasis supplied)
Compared to the personal medical data required for disclosure to the New
York State in Whalen, the 14 specific data required for disclosure to the
Philippine government under EO 420 are far less sensitive and far less
personal. In fact, the 14 specific data required under EO 420 are routine data
for ID systems, unlike the sensitive and potentially embarrassing medical
records of patients taking prescription drugs. Whalen, therefore, carries
persuasive force for upholding the constitutionality of EO 420 as non-violative
of the right to privacy.
Subsequent U.S. Supreme Court decisions have reiterated Whalen. In
Planned Parenthood of Central Missouri v. Danforth,16 the U.S. Supreme
Court upheld the validity of a law that required doctors performing abortions
to fill up forms, maintain records for seven years, and allow the inspection of
such records by public health officials. The U.S. Supreme Court ruled that
"recordkeeping and reporting requirements that are reasonably directed to
the preservation of maternal health and that properly respect a patient’s
confidentiality and privacy are permissible."
Again, in Planned Parenthood of Southeastern Pennsylvania v. Casey,17 the
U.S. Supreme Court upheld a law that required doctors performing an
abortion to file a report to the government that included the doctor’s name,
the woman’s age, the number of prior pregnancies and abortions that the
woman had, the medical complications from the abortion, the weight of the
fetus, and the marital status of the woman. In case of state-funded
institutions, the law made such information publicly available. In Casey, the
U.S. Supreme Court stated: "The collection of information with respect to
actual patients is a vital element of medical research, and so it cannot be
said that the requirements serve no purpose other than to make abortion
more difficult."
Compared to the disclosure requirements of personal data that the U.S.
Supreme Court have upheld in Whalen, Danforth and Casey as not violative
of the right to privacy, the disclosure requirements under EO 420 are far
benign and cannot therefore constitute violation of the right to privacy. EO
420 requires disclosure of 14 personal data that are routine for ID purposes,
data that cannot possibly embarrass or humiliate anyone.
Petitioners have not shown how EO 420 will violate their right to privacy.
Petitioners cannot show such violation by a mere facial examination of EO
420 because EO 420 narrowly draws the data collection, recording and
exhibition while prescribing comprehensive safeguards. Ople v. Torres18 is
not authority to hold that EO 420 violates the right to privacy because in that
case the assailed executive issuance, broadly drawn and devoid of
safeguards, was annulled solely on the ground that the subject matter
required legislation. As then Associate Justice, now Chief Justice Artemio V.
Panganiban noted in his concurring opinion in Ople v. Torres, "The voting is
decisive only on the need for appropriate legislation, and it is only on this
ground that the petition is granted by this Court."
EO 420 applies only to government entities that already maintain ID systems
and issue ID cards pursuant to their regular functions under existing laws.
EO 420 does not grant such government entities any power that they do not
already possess under existing laws. In contrast, the assailed executive
issuance in Ople v. Torres sought to establish a "National Computerized
Identification Reference System,"19 a national ID system that did not exist
prior to the assailed executive issuance. Obviously, a national ID card
system requires legislation because it creates a new national data collection
and card issuance system where none existed before.
In the present case, EO 420 does not establish a national ID system but
makes the existing sectoral card systems of government entities like GSIS,
SSS, Philhealth and LTO less costly, more efficient, reliable and user-friendly
to the public. Hence, EO 420 is a proper subject of executive issuance under
the President’s constitutional power of control over government entities in the
Executive department, as well as under the President’s constitutional duty to
ensure that laws are faithfully executed.
WHEREFORE, the petitions are DISMISSED. Executive Order No. 420 is
declared VALID.
SO ORDERED.
MTRCB vs. ABS-CBN (G.R. No. 155282, January 17, 2005)
For our resolution is the petition for review on certiorari under Rule 45 of the
1997 Rules of Court, as amended, filed by petitioner Movie and Television
Review and Classification Board (MTRCB) against ABS-CBN Broadcasting
Corporation (ABS-CBN) and former Senator Loren Legarda, respondents,
assailing the (a) Decision dated November 18, 1997,1 and (b) Order dated
August 26, 20022 of the Regional Trial Court, Branch 77, Quezon City, in
Civil Case No. Q-93-16052.
The facts are undisputed.
On October 15, 1991, at 10:45 in the evening, respondent ABS-CBN aired
"Prosti-tuition," an episode of the television (TV) program "The Inside Story"
produced and hosted by respondent Legarda. It depicted female students
moonlighting as prostitutes to enable them to pay for their tuition fees. In the
course of the program, student prostitutes, pimps, customers, and some
faculty members were interviewed. The Philippine Women’s University
(PWU) was named as the school of some of the students involved and the
facade of PWU Building at Taft Avenue, Manila conspicuously served as the
background of the episode.
The showing of "The Inside Story" caused uproar in the PWU community. Dr.
Leticia P. de Guzman, Chancellor and Trustee of the PWU, and the PWU
Parents and Teachers Association filed letter-complaints3 with petitioner
MTRCB. Both complainants alleged that the episode besmirched the name
of the PWU and resulted in the harassment of some of its female students.
Acting on the letter-complaints, the MTRCB Legal Counsel initiated a formal
complaint with the MTRCB Investigating Committee, alleging among others,
that respondents (1) did not submit "The Inside Story" to petitioner for its
review and (2) exhibited the same without its permission, thus, violating
Section 74 of Presidential Decree (P.D.) No. 19865 and Section 3,6 Chapter
III and Section 7,7 Chapter IV of the MTRCB Rules and Regulations.8
In their answer,9 respondents explained that the "The Inside Story" is a
"public affairs program, news documentary and socio-political editorial," the
airing of which is protected by the constitutional provision on freedom of
expression and of the press. Accordingly, petitioner has no power, authority
and jurisdiction to impose any form of prior restraint upon respondents.
On February 5, 1993, after hearing and submission of the parties’
memoranda, the MTRCB Investigating Committee rendered a Decision, the
decretal portion of which reads:
"WHEREFORE, the aforementioned premises, the respondents are ordered
to pay the sum of TWENTY THOUSAND PESOS (₱200.00 fine pursuant to Section 44 of Act20,000.00) for non-
submission of the program, subject of this case for review and approval of
the MTRCB.
Heretofore, all subsequent programs of the ‘The Inside Story’ and all other
programs of the ABS-CBN Channel 2 of the same category shall be
submitted to the Board of Review and Approval before showing; otherwise
the Board will act accordingly."101awphi1.nét
On appeal, the Office of Atty. Henrietta S. Mendez, Chairman of the MTRCB,
issued a Decision dated March 12, 1993 affirming the above ruling of its
Investigating Committee.11 Respondents filed a motion for reconsideration
but was denied in a Resolution dated April 14, 1993.12
Respondents then filed a special civil action for certiorari with the Regional
Trial Court (RTC), Branch 77, Quezon City. It seeks to: (1) declare as
unconstitutional Sections 3(b),13 3(c),14 3(d),15 4,16 7,17 and 1118 of P. D.
No. 1986 and Sections 3,19 7,20 and 2821 (a) of the MTRCB Rules and
Regulations;22 (2) (in the alternative) exclude the "The Inside Story" from the
coverage of the above cited provisions; and (3) annul and set aside the
MTRCB Decision dated March 12, 1993 and Resolution dated April 14, 1993.
Respondents averred that the above-cited provisions constitute "prior
restraint" on respondents’ exercise of freedom of expression and of the
press, and, therefore, unconstitutional. Furthermore, the above cited
provisions do not apply to the "The Inside Story" because it falls under the
category of "public affairs program, news documentary, or socio-political
editorials" governed by standards similar to those governing newspapers.
On November 18, 1997, the RTC rendered a Decision23 in favor of
respondents, the dispositive portion of which reads:
"WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered:
1. ANNULLING AND SETTING ASIDE the assailed Decision and Resolution
of MTRCB dated March 12, 1993;
2. DECLARING AND DECREEING that Sections 3 (b), (c), and (d), 4, 7, and
11 of P.D. No. 1986 and Sections 3, 7, 28 (a) of its Implementing Rules do
not cover the TV Program "The Inside Story" and other similar programs,
they being public affairs programs which can be equated to newspapers; and
3. MAKING PERMANENT the Injunction against Respondents or all persons
acting in their behalf.
SO ORDERED."
Petitioner filed a motion for reconsideration but was denied.24
Hence, this petition for review on certiorari.
Petitioner MTRCB through the Solicitor General, contends inter alia: first, all
television programs, including "public affairs programs, news documentaries,
or socio-political editorials," are subject to petitioner’s power of review under
Section 3 (b) of P.D. No. 1986 and pursuant to this Court’s ruling in Iglesia ni
Cristo vs. Court of Appeals ;25 second, television programs are more
accessible to the public than newspapers, thus, the liberal regulation of the
latter cannot apply to the former; third, petitioner’s power to review television
programs under Section 3(b) of P. D. No. 1986 does not amount to "prior
restraint;" and fourth, Section 3(b) of P. D. No. 1986 does not violate
respondents’ constitutional freedom of expression and of the press.
Respondents take the opposite stance.
The issue for our resolution is whether the MTRCB has the power or
authority to review the "The Inside Story" prior to its exhibition or broadcast
by television.
The petition is impressed with merit.
The present controversy brings into focus the provisions of Section 3 of P. D.
No. 1986, partly reproduced as follows:
"SEC. 3. Powers and Functions. – The BOARD shall have the following
functions, powers and duties:
xxxxxx
b) To screen, review and examine all motion pictures as herein defined,
television programs, including publicity materials such as advertisements,
trailers and stills, whether such motion pictures and publicity materials be for
theatrical or non-theatrical distribution, for television broadcast or for general
viewing, imported or produced in the Philippines, and in the latter case,
whether they be for local viewing or for export.1a\^/phi1.net
c) To approve or disapprove, delete objectionable portions from and/or
prohibit the importation, exportation, production, copying, distribution, sale,
lease 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 a wrong or crime, such as but not limited to:
xxx
d) To supervise, regulate, and grant, deny or cancel, permits for the
importation, exportation, production, copying, distribution, sale, lease,
exhibition, and/or television broadcast of all motion pictures, television
programs and publicity materials, to the end and that no such pictures,
programs and materials as are determined by the BOARD to be
objectionable in accordance with paragraph (c) hereof shall be imported,
exported, produced, copied, reproduced, distributed, sold, leased, exhibited
and/or broadcast by television;
x x x x x x."
Vis-a-vis the foregoing provisions, our task is to decide whether or not
petitioner has the power to review the television program "The Inside Story."
The task is not Herculean because it merely resurrects this Court En Banc’s
ruling in Iglesia ni Cristo vs. Court of Appeals.26 There, the Iglesia ni Cristo
sought exception from petitioner’s review power contending that the term
"television programs" under Sec. 3 (b) does not include "religious programs"
which are protected under Section 5, Article III of the Constitution.27 This
Court, through Justice Reynato Puno, categorically ruled that P.D. No. 1986
gives petitioner "the power to screen, review and examine "all television
programs," emphasizing the phrase "all television programs," thus:
"The law gives the Board the power to screen, review and examine all
‘television programs.’ By the clear terms of the law, the Board has the power
to ‘approve, delete x x x and/or prohibit the x x x exhibition and/or television
broadcast of x x x television programs x x x.’ The law also directs the Board
to apply ‘contemporary Filipino cultural values as standard’ to determine
those which are objectionable for being ‘immoral, indecent, contrary to law
and/or good customs, injurious to the prestige of the Republic of the
Philippines and its people, or with a dangerous tendency to encourage the
commission of violence or of a wrong or crime.’"
Settled is the rule in statutory construction that where the law does not make
any exception, courts may not except something therefrom, unless there is
compelling reason apparent in the law to justify it.28 Ubi lex non distinguit
nec distinguere debemos. Thus, when the law says "all television programs,"
the word "all" covers all television programs, whether religious, public affairs,
news documentary, etc.29 The principle assumes that the legislative body
made no qualification in the use of general word or expression.30
It then follows that since "The Inside Story" is a television program, it is within
the jurisdiction of the MTRCB over which it has power of review.
Here, respondents sought exemption from the coverage of the term
"television programs" on the ground that the "The Inside Story" is a "public
affairs program, news documentary and socio-political editorial" protected
under Section 4,31 Article III of the Constitution. Albeit, respondent’s basis is
not freedom of religion, as in Iglesia ni Cristo,32 but freedom of expression
and of the press, the ruling in Iglesia ni Cristo applies squarely to the instant
issue. It is significant to note that in Iglesia ni Cristo, this Court declared that
freedom of religion has been accorded a preferred status by the framers of
our fundamental laws, past and present, "designed to protect the broadest
possible liberty of conscience, to allow each man to believe as his
conscience directs x x x." Yet despite the fact that freedom of religion has
been accorded a preferred status, still this Court, did not exempt the Iglesia
ni Cristo’s religious program from petitioner’s review power.
Respondents claim that the showing of "The Inside Story" is protected by the
constitutional provision on freedom of speech and of the press. However,
there has been no declaration at all by the framers of the Constitution that
freedom of expression and of the press has a preferred status.
If this Court, in Iglesia ni Cristo, did not exempt religious programs from the
jurisdiction and review power of petitioner MTRCB, with more reason, there
is no justification to exempt therefrom "The Inside Story" which, according to
respondents, is protected by the constitutional provision on freedom of
expression and of the press, a freedom bearing no preferred status.
The only exceptions from the MTRCB’s power of review are those expressly
mentioned in Section 7 of P. D. No. 1986, such as (1) television programs
imprinted or exhibited by the Philippine Government and/or its departments
and agencies, and (2) newsreels. Thus:
"SEC. 7. Unauthorized showing or exhibition. – It shall be unlawful for any
person or entity to exhibit or cause to be exhibited in any moviehouse,
theatre, or public place or by television within the Philippines any motion
picture, television program or publicity material, including trailers, and stills
for lobby displays in connection with motion pictures, not duly authorized by
the owner or his assignee and passed by the BOARD; or to print or cause to
be printed on any motion picture to be exhibited in any theater or public place
or by television a label or notice showing the same to have been officially
passed by the BOARD when the same has not been previously authorized,
except motion pictures, television programs or publicity material imprinted or
exhibited by the Philippine Government and/or its departments and agencies,
and newsreels."
Still in a desperate attempt to be exempted, respondents contend that the
"The Inside Story" falls under the category of newsreels.
Their contention is unpersuasive.
P. D. No. 1986 does not define "newsreels." Webster’s dictionary defines
newsreels as short motion picture films portraying or dealing with current
events.33 A glance at actual samples of newsreels shows that they are
mostly reenactments of events that had already happened. Some concrete
examples are those of Dziga Vertov’s Russian Kino-Pravda newsreel series
(Kino-Pravda means literally "film-truth," a term that was later translated
literally into the French cinema verite) and Frank Capra’s Why We Fight
series.34 Apparently, newsreels are straight presentation of events. They are
depiction of "actualities." Correspondingly, the MTRCB Rules and
Regulations35 implementing P. D. No. 1986 define newsreels as "straight
news reporting, as distinguished from news analyses, commentaries and
opinions. Talk shows on a given issue are not considered newsreels."36
Clearly, the "The Inside Story" cannot be considered a newsreel. It is more of
a public affairs program which is described as a variety of news treatment; a
cross between pure television news and news-related commentaries,
analysis and/or exchange of opinions.37 Certainly, such kind of program is
within petitioner’s review power.
It bears stressing that the sole issue here is whether petitioner MTRCB has
authority to review "The Inside Story." Clearly, we are not called upon to
determine whether petitioner violated Section 4, Article III (Bill of Rights) of
the Constitution providing that no law shall be passed abridging the freedom
of speech, of oppression or the press. Petitioner did not disapprove or ban
the showing of the program. Neither did it cancel respondents’ permit.
Respondents were merely penalized for their failure to submit to petitioner
"The Inside Story" for its review and approval. Therefore, we need not
resolve whether certain provisions of P. D. No. 1986 and the MTRCB Rules
and Regulations specified by respondents contravene the Constitution.
Consequently, we cannot sustain the RTC’s ruling that Sections 3 (c) (d), 4, 7
and 11 of P. D. No. 1986 and Sections 3, 7 and 28 (a) of the MTRCB Rules
and Regulations are unconstitutional. It is settled that no question involving
the constitutionality or validity of a law or governmental act may be heard and
decided by the court unless there is compliance with the legal requisites for
judicial inquiry, namely: (1) that the question must be raised by the proper
party; (2) that there must be an actual case or controversy; (3) that the
question must be raised at the earliest possible opportunity; and, (4) that the
decision on the constitutional or legal question must be necessary to the
determination of the case itself.38
WHEREFORE, the instant petition is GRANTED.l^vvphi1.net The assailed
RTC Decision dated November 18, 1997 and Order dated August 26, 2002
are hereby REVERSED. The Decision dated March 12, 1993 of petitioner
MTRCB is AFFIRMED. Costs against respondents.
SO ORDERED.
Reno vs. ACLU (June 26, 1997, D-96-511)
Facts of the case
Several litigants challenged the constitutionality of two provisions in the 1996
Communications Decency Act. Intended to protect minors from unsuitable
internet material, the Act criminalized the intentional transmission of
"obscene or indecent" messages as well as the transmission of information
which depicts or describes "sexual or excretory activities or organs" in a
manner deemed "offensive" by community standards. After being enjoined by
a District Court from enforcing the above provisions, except for the one
concerning obscenity and its inherent protection against child pornography,
Attorney General Janet Reno appealed directly to the Supreme Court as
provided for by the Act's special review provisions.
Question
Did certain provisions of the 1996 Communications Decency Act violate the
First and Fifth Amendments by being overly broad and vague in their
definitions of the types of internet communications which they criminalized?
Yes. The Court held that the Act violated the First Amendment because its
regulations amounted to a content-based blanket restriction of free speech.
The Act failed to clearly define "indecent" communications, limit its
restrictions to particular times or individuals (by showing that it would not
impact adults), provide supportive statements from an authority on the
unique nature of internet communications, or conclusively demonstrate that
the transmission of "offensive" material is devoid of any social value. The
Court added that since the First Amendment distinguishes between
"indecent" and "obscene" sexual expressions, protecting only the former, the
Act could be saved from facial overbreadth challenges if it dropped the words
"or indecent" from its text. The Court refused to address any Fifth
Amendment issues.
Justice Sandra Day O'Connor authored an opinion concurring in the
judgment in part and dissenting in part, joined by Chief Justice William
Rehnquist. Justice O'Connor would invalidate the provisions only to the
extent that they fail to adhere to the Court's principle that zoning restrictions
may be valid if they do not unduly limit adult access to the material.
Miller vs. California [413 U.S. 15 (1973)]
Facts of the case
Miller, after conducting a mass mailing campaign to advertise the sale of
"adult" material, was convicted of violating a California statute prohibiting the
distribution of obscene material. Some unwilling recipients of Miller's
brochures complained to the police, initiating the legal proceedings.
Question
Is the sale and distribution of obscene materials by mail protected under the
First Amendment's freedom of speech guarantee?
In a 5-to-4 decision, the Court held that obscene materials did not enjoy First
Amendment protection. The Court modified the test for obscenity established
in Roth v. United States and Memoirs v. Massachusetts, holding that "[t]he
basic guidelines for the trier of fact must be: (a) whether 'the average person,
applying contemporary community standards' would find that 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." The Court rejected the
"utterly without redeeming social value" test of the Memoirs decision.
Ernando vs. Court of Appeals (G.R. No. 159751, December 6, 2006)
This petition for review on certiorari assails the Decision1 dated March 21,
2003 and the Resolution dated September 2, 2003, of the Court of Appeals
in CA-G.R. CR No. 25796, which affirmed the Decision of the Regional Trial
Court of Manila (RTC), Branch 21, in Criminal Case No. 99-176582.
The RTC convicted Gaudencio E. Fernando and Rudy Estorninos for
violation of Article 2012 of the Revised Penal Code, as amended by
Presidential Decree Nos. 960 and 969, and sentenced each to imprisonment
of four (4) years and one (1) day to six (6) years of prision correccional, and
to pay the fine of P6,000 and cost of suit.
The facts as culled from the records are as follows.
Acting on reports of sale and distribution of pornographic materials, officers
of the Philippine National Police Criminal Investigation and Detection Group
in the National Capital Region (PNP-CIDG NCR) conducted police
surveillance on the store bearing the name of Gaudencio E. Fernando Music
Fair (Music Fair). On May 5, 1999, Judge Perfecto Laguio of the Regional
Trial Court of Manila, Branch 19, issued Search Warrant No. 99-1216 for
violation of Article 201 of the Revised Penal Code against petitioner
Gaudencio E. Fernando and a certain Warren Tingchuy. The warrant ordered
the search of Gaudencio E. Fernando Music Fair at 564 Quezon Blvd.,
corner Zigay Street, Quiapo, Manila, and the seizure of the following items:
a. Copies of New Rave Magazines with nude obscene pictures;
b. Copies of IOU Penthouse Magazine with nude obscene pictures;
c. Copies of Hustler International Magazine with nude obscene pictures; and
d. Copies of VHS tapes containing pornographic shows.3
On the same day, police officers of the PNP-CIDG NCR served the warrant
on Rudy Estorninos, who, according to the prosecution, introduced himself
as the store attendant of Music Fair. The police searched the premises and
confiscated twenty-five (25) VHS tapes and ten (10) different magazines,
which they deemed pornographic.
On September 13, 1999, petitioners with Warren Tingchuy, were charged in
an Information which reads as follows:
That on or about May 5, 1999, in the City of Manila, Philippines, the said
accused, did then and there willfully, unlawfully, feloniously, publicly and
jointly exhibit indecent or immoral acts, scenes or shows at Music Fair,
located at 564 Quezon Blvd., corner Zigay [S]t., Quiapo[,] this City[,] by then
and there selling and exhibiting obscene copies of x-rated VHS Tapes, lewd
films depicting men and women having sexual intercourse[,] lewd
photographs of nude men and women in explicating (sic) positions which
acts serve no other purpose but to satisfy the market for lust or pornography
to public view.
Contrary to law.4
When arraigned, petitioners and Tingchuy pleaded not guilty to the offense
charged. Thereafter, trial ensued.
The prosecution offered the confiscated materials in evidence and presented
the following witnesses: Police Inspector Rodolfo L. Tababan, SPO4 Rolando
Buenaventura and Barangay Chairperson Socorro Lipana, who were all
present during the raid. After the prosecution presented its evidence, the
counsel for the accused moved for leave of court to file a demurrer to
evidence, which the court granted. On October 5, 2000, the RTC however
denied the demurrer to evidence and scheduled the reception of evidence for
the accused. A motion for reconsideration was likewise denied.
Thereafter, the accused waived their right to present evidence and instead
submitted the case for decision.5
The RTC acquitted Tingchuy for lack of evidence to prove his guilt, but
convicted herein petitioners as follows:
WHEREFORE, premises considered, the Court finds accused GAUDENCIO
FERNANDO and RUDY ESTORNINOS GUILTY beyond reasonable doubt of
the crime charged and are hereby sentenced to suffer the indeterminate
penalty of FOUR (4) YEARS and ONE (1) DAY as minimum to SIX (6)
YEARS of prision correccional as maximum, to pay fine of P6,000.00 each
and to pay the cost.
For failure of the prosecution to prove the guilt of accused WARREN
TINGCHUY beyond reasonable doubt, he is hereby ACQUITTED of the
crime charged.
The VHS tapes and the nine (9) magazines utilized as evidence in this case
are hereby confiscated in favor of the government.
SO ORDERED.6
Petitioners appealed to the Court of Appeals. But the appellate courtlatter
affirmed in toto the decision of the trial court, as follows,
WHEREFORE, finding no reversible error on the part of the trial court, the
decision appealed from is AFFIRMED IN TOTO.

Costs against accused-appellants.
SO ORDERED.7
Hence the instant petition assigning the following errors:
I. Respondent court erred in convicting petitioner Fernando even if he was
not present at the time of the raid
II. Respondent erred in convicting petitioner Estorninos who was not doing
anything illegal at the time of the raid.8
Simply, the issue in this case is whether the appellate court erred in affirming
the petitioners’ conviction.
Petitioners contend that the prosecution failed to prove that at the time of the
search, they were selling pornographic materials. Fernando contends that
since he was not charged as the owner of an establishment selling obscene
materials, the prosecution must prove that he was present during the raid
and that he was selling the said materials. Moreover, he contends that the
appellate court’s reason for convicting him, on a presumption of continuing
ownership shown by an expired mayor’s permit, has no sufficient basis since
the prosecution failed to prove his ownership of the establishment.
Estorninos, on the other hand, insists that he was not an attendant in Music
Fair, nor did he introduce himself so.9
The Solicitor General counters that owners of establishments selling obscene
publications are expressly held liable under Article 201, and petitioner
Fernando’s ownership was sufficiently proven. As the owner, according to
the Solicitor General, Fernando was naturally a seller of the prohibited
materials and liable under the Information. The Solicitor General also
maintains that Estorninos was identified by Barangay Chairperson Socorro
Lipana as the store attendant, thus he was likewise liable.10
At the outset, we note that the trial court gave petitionersthem the opportunity
to adduce present their evidence to disprove refute the prosecution’s
evidence.11 . Instead, they waived their right to present evidence and opted
to submitted the case for decision.a1 12 The trial court therefore resolved the
case on the basis of prosecution’s evidence against the petitioners.
As obscenity is an unprotected speech which the State has the right to
regulate, the State in pursuing its mandate to protect, as parens patriae, the
public from obscene, immoral and indecent materials must justify the
regulation or limitation.
One such regulation is Article 201 of the Revised Penal Code. To be held
liable, the prosecution must prove that (a) the materials, publication, picture
or literature are obscene; and (b) the offender sold, exhibited, published or
gave away such materials.13 Necessarily, that the confiscated materials are
obscene must be proved.
Almost a century has passed since the Court first attempted to define
obscenity in People v. Kottinger.14 There the Court defined obscenity as
something which is offensive to chastity, decency or delicacy. The test to
determine the existence of obscenity is, whether the tendency of the matter
charged as obscene, is to deprave or corrupt those whose minds are open to
such immoral influences and into whose hands a publication or other article
charged as being obscene may fall.15 Another test according to Kottinger is
"that which shocks the ordinary and common sense of men as an
indecency."16 But, Kottinger hastened to say that whether a picture is
obscene or indecent must depend upon the circumstances of the case, and
that ultimately, the question is to be decided by the judgment of the
aggregate sense of the community reached by it.17
Thereafter, the Court in People v. Go Pin18 and People v. Padan y Alova, et
al.,19 involving a prosecution under Article 201 of the Revised Penal Code,
laid the tests which did little to clearly draw the fine lines of obscenity.
In People v. Go Pin, the Court said:
If such pictures, sculptures and paintings are shown in art exhibits and art
galleries for the cause of art, to be viewed and appreciated by people
interested in art, there would be no offense committed. However, the pictures
here in question were used not exactly for art’s sake but rather for
commercial purposes. In other words, the supposed artistic qualities of said
pictures were being commercialized so that the cause of art was of
secondary or minor importance. Gain and profit would appear to have been
the main, if not the exclusive consideration in their exhibition; and it would not
be surprising if the persons who went to see those pictures and paid
entrance fees for the privilege of doing so, were not exactly artists and
persons interested in art and who generally go to art exhibitions and galleries
to satisfy and improve their artistic tastes, but rather people desirous of
satisfying their morbid curiosity and taste, and lust, and for love [of]
excitement, including the youth who because of their immaturity are not in a
position to resist and shield themselves from the ill and perverting effects of
these pictures.20
People v. Padan y Alova, et al. in a way reaffirmed the standards set in Go
Pin but with its own test of "redeeming feature." The Court therein said that:
[A]n actual exhibition of the sexual act, preceded by acts of lasciviousness,
can have no redeeming feature. In it, there is no room for art. One can see
nothing in it but clear and unmitigated obscenity, indecency, and an offense
to public morals, inspiring and causing as it does, nothing but lust and
lewdness, and exerting a corrupting influence specially on the youth of the
land.21
Notably, the Court in the later case of Gonzales v. Kalaw Katigbak,22
involving motion pictures, still applied the "contemporary community
standards" of Kottinger but departed from the rulings of Kottinger, Go Pin and
Padan y Alova in that the Court measures obscenity in terms of the
"dominant theme" of the material taken as a "whole" rather than in isolated
passages.
Later, in Pita v. Court of Appeals, concerning alleged pornographic
publications, the Court recognized that Kottinger failed to afford a conclusive
definition of obscenity, and that both Go Pin and Padan y Alova raised more
questions than answers such as, whether the absence or presence of artists
and persons interested in art and who generally go to art exhibitions and
galleries to satisfy and improve their artistic tastes, determine what art is; or
that if they find inspiration in the exhibitions, whether such exhibitions cease
to be obscene.23 Go Pin and Padan y Alova gave too much latitude for
judicial arbitrament, which has permitted ad lib of ideas and "two-cents
worths" among judges as to what is obscene or what is art.24
The Court in Pita also emphasized the difficulty of the question and pointed
out how hazy jurisprudence is on obscenity and how jurisprudence actually
failed to settle questions on the matter. Significantly, the dynamism of human
civilization does not help at all. It is evident that individual tastes develop,
adapt to wide-ranging influences, and keep in step with the rapid advance of
civilization.25 It seems futile at this point to formulate a perfect definition of
obscenity that shall apply in all cases.
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.26 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."27 No one will
be subject to prosecution for the sale or exposure of obscene materials
unless these materials depict or describe patently offensive "hard core"
sexual conduct.28 Examples included (a) patently offensive representations
or descriptions of ultimate sexual acts, normal or perverted, actual or
simulated; and (b) patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of the genitals.29
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
judge’s sound discretion.
In this case, the trial court found the confiscated materials obscene and the
Court of Appeals affirmed such findings. The trial court in ruling that the
confiscated materials are obscene, reasoned as follows:
Are the magazines and VHS tapes confiscated by the raiding team obscene
or offensive to morals? . . .
Pictures of men and women in the nude doing the sexual act appearing in
the nine (9) confiscated magazines namely Dalaga, Penthouse, Swank,
Erotic, Rave, Playhouse, Gallery and two (2) issues of QUI are offensive to
morals and are made and shown not for the sake of art but rather for
commercial purposes, that is gain and profit as the exclusive consideration in
their exhibition. The pictures in the magazine exhibited indecent and immoral
scenes and acts…The exhibition of the sexual act in their magazines is but a
clear and unmitigated obscenity, indecency and an offense to public morals,
inspiring…lust and lewdness, exerting a corrupting influence especially on
the youth. (Citations omitted)
The VHS tapes also [exhibit] nude men and women doing the sexual
intercourse. The tape entitled "Kahit sa Pangarap Lang" with Myra Manibog
as the actress shows the naked body of the actress. The tape exhibited
indecent and immoral scenes and acts. Her dancing movements excited the
sexual instinct of her male audience. The motive may be innocent, but the
performance was revolting and shocking to good minds...
In one (1) case the Supreme Court ruled:
Since the persons who went to see those pictures and paid entrance fees
were usually not artists or persons interested in art to satisfy and inspire their
artistic tastes but persons who are desirous of satisfying their morbid
curiosity, taste and lust and for [love] of excitement, including the youth who
because of their immaturity are not in a position to resist and shield
themselves from the ill and perverting effects of the pictures, the display of
such pictures for commercial purposes is a violation of Art. 201. If those
pictures were shown in art exhibits and art galleries for the cause of art, to be
viewed and appreciated by people interested in art, there would be no
offense committed (People vs. Go Pin, 97 Phil 418).
[B]ut this is not so in this case.30
Findings of fact of the Court of Appeals affirming that of the trial court are
accorded great respect, even by this Court, unless such findings are patently
unsupported by the evidence on record or the judgment itself is based on
misapprehension of facts.31 In this case, petitioners neither presented
contrary evidence nor questioned the trial court’s findings. There is also no
showing that the trial court, in finding the materials obscene, was arbitrary.
Did petitioners participate in the distribution and exhibition of obscene
materials?
We emphasize that mere possession of obscene materials, without intention
to sell, exhibit, or give them away, is not punishable under Article 201,
considering the purpose of the law is to prohibit the dissemination of obscene
materials to the public. The offense in any of the forms under Article 201 is
committed only when there is publicity.32 The law does not require that a
person be caught in the act of selling, giving away or exhibiting obscene
materials to be liable, for as long as the said materials are offered for sale,
displayed or exhibited to the public. In the present case, we find that
petitioners are engaged in selling and exhibiting obscene materials.
Notably, the subject premises of the search warrant was the Gaudencio E.
Fernando Music Fair, named after petitioner Fernando.33 The mayor’s
permit was under his name. Even his bail bond shows that Hhe lives in the
same place.34 Moreover, the mayor’s permit dated August 8, 1996, shows
that he is the owner/operator of the store.35 While the mayor’s permit had
already expired, it does not negate the fact that Fernando owned and
operated the establishment. It would be absurd to make his failure to renew
his business permit and illegal operation a shield from prosecution of an
unlawful act. Furthermore, when he preferred not to present contrary
evidence, the things which he possessed were presumptively his.36
Petitioner Estorninos is likewise liable as the store attendant actively
engaged in selling and exhibiting the obscene materials. Prosecution witness
Police Inspector Tababan, who led the PNP-CIDG NCR that conducted the
search, identified him as the store attendant upon whom the search warrant
was served.37 Tababan had no motive for testifying falsely against
Estorninos and we uphold the presumption of regularity in the performance of
his duties. Lastly, this Court accords great respect to and treats with finality
the findings of the trial court on the matter of credibility of witnesses, absent
any palpable error or arbitrariness in their findings.38 In our view, no
reversible error was committed by the appellate court as well as the trial
court in finding the herein petitioners guilty as charged.
WHEREFORE, the Decision dated March 21, 2003 and the Resolution dated
September 2, 2003, of the Court of Appeals affirming the Decision of the
Regional Trial Court of Manila, Branch 21, in Criminal Case No. 99-176582
are hereby AFFIRMED.
SO ORDERED.
Eastern Broadcasting Corp. (DYRE) vs. Dans [137 SCRA 247 (1985)]
This petition was filed to compel the respondents to allow the reopening of
Radio Station DYRE which had been summarily closed on grounds of
national security.
The petitioner contended that it was denied due process when it was closed
on the mere allegation that the radio station was used to incite people to
sedition. it alleged that no hearing was held and not a bit of proof was
submitted to establish a factual basis for the closure. The petitioner was not
informed beforehand why administrative action which closed the radio station
was taken against it. No action was taken by the respondents to entertain a
motion seeking the reconsideration of the closure action. The petitioner also
raised the issue of freedom of speech. It appears from the records that the
respondents' general charge of "inciting people to commit acts of sedition"
arose from the petitioner's shift towards what it stated was the coverage of
public events and the airing of programs geared towards public affairs.
On March 25, 1985, before the Court could promulgate a decision squarely
passing upon all the issues raised, the petitioner through its president, Mr.
Rene G. Espina suddenly filed a motion to withdraw or dismiss the petition.
The petitioner alleged:
1. Petitioner Eastern Broadcasting Corporation has already sold its radio
broadcasting station in favor of Manuel B. Pastrana as well as its rights and
interest in the radio station DYRE in Cebu including its right to operate and
its equipment;
2. Respondent National Telecommunications Commission has expressed its
willingness to grant to the said new owner Manuel B. Pastrana the requisite
license and franchise to operate the said radio station and to approve the
sale of the radio transmitter of said station DYRE;
3. In view of the foregoing, petitioner has no longer any interest in said case,
and the new owner, Manuel B. Pastrana is likewise not interested in pursuing
the case any further.
The case, therefore, has become moot and academic. However, for the
guidance of inferior courts and administrative tribunals exercising quasi-
judicial functions, the Court issues the following guidelines:

(1) The cardinal primary requirements in administrative proceedings laid
down by this Court in Ang Tibay v. Court of Industrial Relations (69 Phil. 635)
should be followed before a broadcast station may be closed or its
operations curtailed. 1
(2) It is necessary to reiterate that while there is no controlling and precise
definition of due process, it furnishes an unavoidable standard to which
government action must conform in order that any deprivation of life, liberty,
or property, in each appropriate case, may be valid (Ermita-Malate Hotel and
Motel Operators Association v. City Mayor, 20 SCRA 849).
(3) All forms of media, whether print or broadcast, are entitled to the broad
protection of the freedom of speech and expression clause. The test for
limitations on freedom of expression continues to be the clear and present
danger rule — that words are used in such circumstances and are of such a
nature as to create a clear and present danger that they will bring about the
substantive evils that the lawmaker has a right to prevent, In his Constitution
of the Philippines (2nd Edition, pp. 569-570) Chief Justice Enrique M.
Fernando cites at least nine of our decisions which apply the test —
(Primicias v. Fugoso [80 Phil. 71], American Bible Society v. City of Manila
[101 Phil. 386], Cabansag v. Fernandez [102 Phil. 152], Vera v. Arca [28
SCRA 351], Navarro v. Villegas [31 SCRA 931], Imbong v. Ferrer [35 SCRA
28], Badoy v. Commission on Elections [35 SCRA 285], People v. Ferrer [48
SCRA 382], and the Philippine Blooming Mills Employees Organization v.
Philippine Blooming Mills Co., Inc. [51 SCRA 189]. More recently, the clear
and present danger test was applied in J.B.L. Reyes in behalf of the Anti-
Bases Coalition v. Bagatsing [125 SCRA 553].
(4) The clear and present danger test, however, does not lend itself to a
simplistic and all embracing interpretation applicable to all utterances in all
forums.
Broadcasting has to be licensed. Airwave frequencies have to be allocated
among qualified users. A broadcast corporation cannot simply appropriate a
certain frequency without regard for government regulation or for the rights of
others.
All forms of communication are entitled to the broad protection of the
freedom of expression clause. Necessarily, however, the freedom of
television and radio broadcasting is somewhat lesser in scope than the
freedom accorded to newspaper and print media.
The American Court in Federal Communications Commission v. Pacifica
Foundation (438 U.S. 726), confronted with a patently offensive and indecent
regular radio program, explained why radio broadcasting, more than other
forms of communications, receives the most limited protection from the free
expression clause. First, broadcast media have established a uniquely
pervasive presence in the lives of all citizens, Material presented over the
airwaves confronts the citizen, not only in public, but in the privacy of his
home. Second, broadcasting is uniquely accessible to children. Bookstores
and motion picture theaters may be prohibited from making certain material
available to children, but the same selectivity cannot be done in radio or
television, where the listener or viewer is constantly tuning in and out.
Similar considerations apply in the area of national security.
The broadcast media have also established a uniquely pervasive presence in
the lives of all Filipinos, Newspapers and current books are found only in
metropolitan areas and in the poblaciones of municipalities accessible to fast
and regular transportation. Even here, there are low income masses who find
the cost of books, newspapers, and magazines beyond their humble means.
Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television
set is also becoming universal. Their message may be simultaneously
received by a national or regional audience of listeners including the
indifferent or unwilling who happen to be within reach of a blaring radio or
television set. The materials broadcast over the airwaves reach every person
of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to
inflammatory or offensive speech would be difficult to monitor or predict. The
impact of the vibrant speech is forceful and immediate. Unlike readers of the
printed work, the radio audience has lesser opportunity to cogitate analyze,
and reject the utterance.
(5) The clear and present danger test, therefore, must take the particular
circumstances of broadcast media into account. The supervision of radio
stations-whether by government or through self-regulation by the industry
itself calls for thoughtful, intelligent and sophisticated handling.
The government has a right to be protected against broadcasts which incite
the listeners to violently overthrow it. Radio and television may not be used to
organize a rebellion or to signal the start of widespread uprising. At the same
time, the people have a right to be informed. Radio and television would have
little reason for existence if broadcasts are limited to bland, obsequious, or
pleasantly entertaining utterances. Since they are the most convenient and
popular means of disseminating varying views on public issues, they also
deserve special protection.
(6) The freedom to comment on public affairs is essential to the vitality of a
representative democracy. In the 1918 case of United States v. Bustos (37
Phil. 731) this Court was already stressing that.

The interest of society and the maintenance of good government demand a

full discussion of public affairs. Complete liberty to comment on the conduct
of public men is a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and an unjust accusation; the wound can be assuaged with
the balm of a clear conscience. A public officer must not be too thin-skinned
with reference to comment upon his official acts. Only thus can the
intelligence and dignity of the individual be exalted.

(7) Broadcast stations deserve the special protection given to all forms of
media by the due process and freedom of expression clauses of the
Constitution.

WHEREFORE, the case having become moot and academic, the petitioner's
motion to withdraw or dismiss the petition is hereby GRANTED.

SO ORDERED.