EN BANC

G.R. No. 189185, August 16, 2016

WILFREDO MOSQUEDA, MARCELO VILLAGANES, JULIETA LAWAGON, CRISPIN

ALCOMENDRAS, CORAZON SABINADA, VIRGINIA CATA-AG, FLORENCIA SABANDON, AND
LEDEVINA ADLAWAN, Petitioners, v. PILIPINO BANANA GROWERS & EXPORTERS ASSOCIATION,
INC., DAVAO FRUITS CORPORATION, AND LAPANDAY AGRICULTURAL AND DEVELOPMENT
CORPORATION, Respondents.

G.R. No. 189305

CITY GOVERNMENT OF DAVAO, Petitioner, v. COURT OF APPEALS, PILIPINO BANANA

GROWERS & EXPORTERS ASSOCIATION (PBGEA), DAVAO FRUITS CORPORATION, AND
LAPANDAY AGRICULTURAL AND DEVELOPMENT CORPORATION, Respondent.

DECISION

BERSAMIN, J.:

This appeal through the consolidated petitions for review on certiorari assails the decision promulgated on
January 9, 20091 whereby the Court of Appeals (CA) reversed and set aside the judgment rendered on
September 22, 2007 by the Regional Trial Court (RTC), Branch 17, in Davao City upholding the validity
and constitutionality of Davao City Ordinance No. 0309-07, to wit:ChanRoblesVirtualawlibrary

WHEREFORE, premises considered, the appeal is GRANTED. The assailed September 22, 2007
Decision of the Regional Trial Court (RTC), 11th Judicial Region, Branch 17, Davao City, upholding the
validity and constitutionality of Davao City Ordinance No. 0309-07, is hereby REVERSED and SET
ASIDE.

FURTHER, the Writ of Preliminary Injunction dated 28 January 2008 enjoining the City Government of
Davao, and any other person or entity acting in its behalf, from enforcing and implementing City
Ordinance No. 0309-07, is hereby made permanent.

SO ORDERED.
Antecedents

After several committee hearings and consultations with various stakeholders, the Sangguniang
Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, to impose a ban against aerial
spraying as an agricultural practice by all agricultural entities within Davao
City, viz.:ChanRoblesVirtualawlibrary
ORDINANCE NO. 0309-07
Series of 2007

AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL PRACTICE IN ALL

AGRICULTURAL ACTIVITIES BY ALL AGRICULTURAL ENTITIES IN DAVAO CITY

Be it enacted by the Sangguniang Panlungsod of Davao City in session assembled that:

chanRoblesvirtualLawlibrarySECTION 1. TITLE. This Ordinance shall be known as "An Ordinance

Banning Aerial Spraying as an Agricultural Practice in all Agricultural Activities by all Agricultural Entities
in Davao City";

SECTION 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the method of
aerial spraying as an agricultural practice in all agricultural activities by all entities within Davao City;

SECTION 3. DEFINITION OF TERMS:

chanRoblesvirtualLawlibrarya. Aerial Spraying - refers to application of substances through the use of

aircraft of any form which dispenses the substances in the air.

b. Agricultural Practices - refer to the practices conducted by agricultural entities in relation to their
agricultural activities;

c. Agricultural Activities - refer to activities that include, but not limited to, land preparation, seeding,
planting, cultivation, harvesting and bagging;

d. Agricultural Entities - refer to persons, natural or juridical, involved in agricultural activities

e. Buffer Zone - is an identified 30-meter zone within and around the boundaries of agricultural
farms/plantations that need special monitoring to avoid or minimize harm to the environment and
inhabitants pursuant to policies and guidelines set forth in this Ordinance and other government
regulations. It is an area of land that must lie within the property which does not include public lands,
public thoroughfares or adjacent private properties. It must be planted with diversified trees that grow
taller than what are usually planted and grown in the plantation to protect those within the adjacent fields,
neighboring farms, residential area, schools and workplaces.

SECTION 4. SCOPE AND APPLICABILITY - The provisions of this Ordinance shall apply to all
agricultural entities within the territorial jurisdiction of Davao City;

SECTION 5. BAN OF AERIAL SPRAYING - A ban on aerial spraying shall be strictly enforced in the
territorial jurisdiction of Davao City three (3) months after the effectivity of this Ordinance.

SECTION 6. BUFFER ZONE - Consistent with national legislation and government regulations, all
agricultural entities must provide for a thirty (30) meter buffer zone within the boundaries of their
agricultural farms/plantations. This buffer zone must be properly identified through Global Positioning
System (GPS) survey. A survey plan showing the metes and bounds of each agricultural farm/plantation
must be submitted to the City Mayor's Office, with the buffer zone clearly identified therein;

SECTION 7. PENAL PROVISION - Violation of any provision of this Ordinance shall be punished as
follows:

chanRoblesvirtualLawlibrarya. First Offense: Fine of P5,000.00 and imprisonment of not less than one (1)
month but not more than three (3) months;

b. Second Offense: Fine of P5,000.00 and imprisonment of not less than three (3) months but not more
than six (6) months and suspension of City-issued permits and licenses for one (1) year;

c. Third Offense: Fine of P5,000.00 and imprisonment of not less than six (6) months but not more than
one (1) year and perpetual cancellation of City issued permits and licenses;

Provided, that in case the violation has been committed by a juridical person, the person in charge of the
management thereof shall be held liable;

SECTION 8. REPEALING CLAUSE - Any Ordinance that is contrary to or inconsistent with any of the
provisions of this Ordinance shall be deemed amended or repealed accordingly.

SECTION 9. EFFECTIVITY - This Ordinance shall take effect thirty (30) days from its publication in a
newspaper of general circulation in Davao City;
ENACTED, January 23, 2007 by a majority vote of all the Members of the Sangguniang
Panlungsod.2chanroblesvirtuallawlibrary
City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007.3 The ordinance took effect on
March 23, 2007 after its publication in the newspaper Mindanao Pioneer.4 Pursuant to Section 5 of the
ordinance, the ban against aerial spraying would be strictly enforced three months thereafter.

The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its members, namely:
Davao Fruits Corporation and Lapanday Agricultural and Development Corporation (PBGEA, et al.), filed
their petition in the RTC to challenge the constitutionality of the ordinance, and to seek the issuance of
provisional reliefs through a temporary restraining order (TRO) and/or writ of preliminary injunction.5 They
alleged that the ordinance exemplified the unreasonable exercise of police power; violated the equal
protection clause; amounted to the confiscation of property without due process of law; and lacked
publication pursuant] to Section 5116 of Republic Act No. 7160 (Local Government Code).

On May 8, 2007, the residents living within and adjacent to banana plantations in Davao City led by
Wilfredo Mosqueda,7 joined by other residents of Davao City,8 (Mosqueda, et al.) submitted their Motion
for Leave to Intervene and Opposition to the Issuance of a Preliminary Injunction.9 The RTC granted their
motion on June 4, 2007.10chanrobleslaw

On June 20, 2007, the RTC granted the prayer for issuance of the writ of preliminary injunction, and
subsequently issued the writ.11chanrobleslaw

Judgment of the RTC

On September 22, 2007, after trial, the RTC rendered judgment declaring Ordinance No. 0309-07 valid
and constitutional, decreeing thusly:ChanRoblesVirtualawlibrary
WHEREFORE, finding the subject [O]rdinance No. 0309-07 valid and constitutional in all aspect of the
grounds assailed by the petitioner, said [C]ity [O]rdinance No. 0309-07, is sustained of its validity and
constitutionality.

Accordingly, the order of this court dated June 20, 2007, granting the writ of preliminary injunction as
prayed for by petitioner is ordered cancelled and set aside as a result of this decision.

SO ORDERED.12chanroblesvirtuallawlibrary
The RTC opined that the City of Davao had validly exercised police power13 under the General Welfare
Clause of the Local Government Code;14 that the ordinance, being based on a valid classification, was
consistent with the Equal Protection Clause; that aerial spraying was distinct from other methods of
pesticides application because it exposed the residents to a higher degree of health risk caused by aerial
drift;15 and that the ordinance enjoyed the presumption of constitutionality, and could be invalidated only
upon a clear showing that it had violated the Constitution.16chanrobleslaw

However, the RTC, recognizing the impracticability of the 3-month transition period under Section 5 of
Ordinance No. 0309-07, recommended the parties to agree on an extended transition
period.17chanrobleslaw

Decision of the CA

PBGEA, et al. appealed,18 and applied for injunctive relief from the CA,19 which granted the
application20 and consequently issued a TRO to meanwhile enjoin the effectivity of the
ordinance.21chanrobleslaw

On January 9, 2009, the CA promulgated its assailed decision reversing the judgment of the RTC.22 It
declared Section 5 of Ordinance No. 0309-07 as void and unconstitutional for being unreasonable and
oppressive; found the three-month transition period impractical and oppressive in view of the engineering
and technical requirements of switching from aerial spraying to truck-mounted boom spraying; and opined
that the ban ran afoul with the Equal Protection Clause inasmuch as Section 3(a) of the ordinance - which
defined the term aerial spraying - did not make reasonable distinction between the hazards, safety and
beneficial effects of liquid substances that were being applied aerially; the different classes of pesticides
or fungicides; and the levels of concentration of these substances that could be beneficial and could
enhance agricultural production.

The CA did not see any established relation between the purpose of protecting the public and the
environment against the harmful effects of aerial spraying, on one hand, and the imposition of the ban
against aerial spraying of all forms of substances, on the other. It ruled that the maintenance of the 30-
meter buffer zone within and around the agricultural plantations under Section 6 of Ordinance No. 0309-
07 constituted taking of property without due process because the landowners were thereby compelled to
cede portions of their property without just compensation; that the exercise of police power to require the
buffer zone was invalid because there was no finding that the 30-meter surrounding belt was obnoxious to
the public welfare; and that, accordingly, Ordinance No. 0309-07 was unconstitutional because of the
absence of a separability clause.

The City of Davao and the intervenors filed their respective motions for reconsideration, but the CA
denied the motions on August 7, 2009.23chanrobleslaw

Hence, the separate, but now consolidated, appeals by petition for review on certiorari.

Issues

In G.R. No. 189185, petitioners Mosqueda, et al. rely on the following grounds,

namely:ChanRoblesVirtualawlibrary
I

THE COURT OF APPEALS IGNORED FUNDAMENTAL PRECEPTS AND CONCEPTS OF LAW

WHICH, PROPERLY CONSIDERED, NECESSARILY LEAD TO THE CONCLUSION THAT THE DAVAO
ORDINANCE IS CONSTITUTIONAL AND VALID

II

THE DAVAO ORDINANCE IS CONSISTENT WITH THE EQUAL PROTECTION CLAUSE

III

THE MEANS EMPLOYED BY THE DAVAO ORDINANCE IS MORE THAN REASONABLY RELATED TO
THE PURPOSE IT SEEKS TO ACHIEVE

IV

THE DAVAO ORDINANCE IS VALID, BEING DEMONSTRABLY REASONABLE AND FAIR

THE REQUIREMENT RELATING TO THE 30-METER BUFFER ZONE ARE [SIC] CONSISTENT WITH
DUE PROCESS OF LAW, BEING A VALID EXERCISE OF POLICE POWER
Mosqueda, et al. state that the CA ignored well-established precepts like the primacy of human rights
over property rights and the presumption of validity in favor of the ordinance; that the CA preferred the
preservation of the profits of respondents PBGEA, et al. to the residents' right to life, health and
ecology,24 thereby disregarding the benevolent purpose of the ordinance; that the CA assumed the
functions of the lawmaker when it set aside the wisdom behind the enactment of the ordinance; that the
CA failed to apply the precautionary principle, by which the State was allowed to take positive actions to
prevent harm to the environment and to human health despite the lack of scientific certainty; that the CA
erred in applying the "strict scrutiny method" in holding that the ordinance violated the Equal Protection
Clause because it only thereby applied in reviewing classifications that affected fundamental rights; that
there was nothing wrong with prohibiting aerial spraying per se considering that even the aerial spraying
of water produced drift that could affect unwilling neighbors whose, constitutional right to a clean and
healthy environment might be impinged;25cralawred that as far as the three-month period was concerned,
the CA should have considered that manual spraying could be conducted while the PBGEA, et al. laid
down the preparations for the conduct of boom spraying;26 that "reasonableness" could be more
appropriately weighed by balancing the interests of the parties against the protection of basic rights, like
the right to life, to health, and to a balanced and healthful ecology;27 that PBGEA, et al. did not
substantiate their claim of potential profit losses that would result from the shift; that business profits
should remain inferior and subordinate to their fundamental rights as residents of Davao City, which were
the rights that the assailed ordinance has sought to protect;28 that PBGEA, et al. did not explore other
modes of pesticide treatment either as a stop-gap or as a temporary measure while shifting to truck
mounted boom spraying;29 that the imposition of the 30-meter buffer zone was a valid exercise of police
power that necessarily flowed from the protection afforded by the ordinance from the unwanted effects of
ground spraying; that the imposition of the buffer zone did not constitute compensable taking under police
power, pursuant to the pronouncements in Seng Kee & Co. v. Earnshaw and Piatt30Patalinghug v. Court
of Appeals,31 and Social Justice Society (SJS) v. Atienza, Jr.;32 and that the 30-meter buffer zone
conformed with the ISO 1400033 and the DENR Environmental Compliance Certificate (ECC)
requirement.34chanrobleslaw

In G.R. No. 189305, petitioner City of Davao submits the following as the issues to be considered and
resolved, to wit:ChanRoblesVirtualawlibrary
I

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT SECTION 5
OF ORDINANCE NO. 0309-07, SERIES OF 2007 IS OPPRESSIVE AND AN UNREASONABLE
EXERCISE OF DELEGATED POLICE POWER

II

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT

ORDINANCE NO. 0309-07 IS VIOLATIVE OF THE EQUAL PROTECTION CLAUSE OF THE
CONSTITUTION;

III

WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT

ORDINANCE NO. 0309-07 CONSTITUTES TAKING OF PROPERTY WITHOUT COMPENSATION,
THUS, VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE CONSTITUTION

IV

WHETHER OR NOT AERIAL SPRAYING OF FUNGICIDES IS SAFE TO THE PEOPLE AND THE
ENVIRONMENT
The City of Davao explains that it had the authority to enact the assailed ordinance because it would
thereby protect the environment and regulate property and business in the interest of the general welfare
pursuant to Section 458 of the Local Government Code;35 that the ordinance was enacted to carry out its
mandate of promoting the public welfare under the General Welfare Clause (Section 16 of the Local
Government Code); that the ordinance did not violate the Equal Protection Clause because the distinction
lies in aerial spray as a method of application being more deleterious than other modes; that aerial
spraying produces more drift that causes discomfort, and an extremely offensive and obnoxious
experience the part of the residents; that spray drift cannot be controlled even with use by the
respondents of highly advanced apparatus, such as the Differential Global Positioning System, Micronair
Rotary Drift Control Atomizers, Intellimap, Intelliflow Spray Valve System, Control and Display Unit and
the Target Flow Spray Valve Switch System;36 that because of the inherent toxicity of Mancozeb (the
fungicide aerially applied by the respondents), there is no need to provide for a substantial distinction
based on the level of concentration;37 that as soon as fungicides are released in the air, they become air
pollutants pursuant to Section 5 of Republic Act No. 8749 (Philippine Clean Air Act of 1999),38 and the
activity thus falls under the authority of the local government units to ban; and that the ordinance does not
only seek to protect and promote human health but also serves as a measure against air pollution.

The City of Davao insists that it validly exercised police power because it does not thereby oblige the shift
from aerial to truck-mounted boom spraying; that the respondents only choose boom spraying to justify
the alleged impracticability of the transition period by erroneously adding the months required for each of
the stages without considering other steps that may be simultaneously undertaken;39 that the Court
should apply its ruling in Social Justice Society v. Atienza, Jr.,40 by which the six-month period for the
folding-up of business operations was declared a legitimate exercise of police power; that the
respondents did not present any documentary evidence on the feasibility of adopting other
methods;41 that only 1,800 hectares out of 5,200 hectares of plantations owned and operated by PBGEA's
members use aerial spraying, hence, the perceived ominous consequence of imposing a ban on aerial
spray to the banana industry is entirely misleading;42 that the urgency of prohibiting aerial spray justifies
the three-month transition period; that the complaints of the community residents - ranging from skin
itchiness, contraction and/or tightening in the chest, nausea, appetite loss and difficulty in breathing after
exposure to spray mist - only prove that aerial spraying brings discomfort and harm to the residents; that
considering that the testimony of Dr. Lynn Crisanta R. Panganiban, a pharmacologist and toxicologist,
established that fungicides could cause debilitating effects on the human body once inhaled or digested,
the CA erred in holding that there was no correlation between aerial application and the complaints of the
residents; that given that aerial spray produces more drift and is uncontrollable compared to the other
methods of applying fungicides, the ordinance becomes reasonable;43 and that the medical-related
complaints of the residents need not be proven by medical records considering that these were based on
personal knowledge.44chanrobleslaw

The City of Davao contends that the imposition of the 30-meter buffer zone is a valid exercise of police
power, rendering the claim for just compensation untenable; that the maintenance of the buffer zone does
not require the respondents to cede a portion of their landholdings; that the planting of diversified trees
within the buffer zone will serve to insulate the residents from spray drift; that such buffer zone does not
deprive the landowners of the lawful and beneficial use of their property;45 and that the buffer zone is
consistent with the Constitution, which reminds property owners that the use of property bears a social
function.46chanrobleslaw

In their comment, the respondents posit that the petition of the City; of Davao should be dismissed for
failure to attach material portions of the records, and for raising factual errors that are not within the realm
of this appeal by petition for review on certiorari;47 that the CA correctly declared the ordinance as
unreasonable due to the impossibility of complying with the three-month transition period; that shifting
from aerial to truck-mounted boom spraying will take at least three years and entails careful planning,
equipment and machineries, civil works, and capital funding of at least P400,000,000.00;48 that the Court
could rely on its ruling in City of Manila v. Laguio, Jr.,49 where an ordinance directing an existing
establishment to wind up or to transfer its business was declared as confiscatory in nature, and, therefore,
unconstitutional;50 that the total ban against aerial sprayig, coupled with the inadequate time to shift to
truck-mounted boom spraying, effectively deprives the respondents with an efficient means to control the
spread of the Black Sigatoka disease that threatens the banana plantations; that the ordinance will only
expose the plantations to the virulent disease that is capable of infecting 60% of the plantations on a
single cycle51 missed;52 that compared with other modes of application, aerial spraying is more cost-
efficient, safe and accurate; that truck-mounted boom spraying, for instance, requires 80-200 liters of
solution per hectare,53 while manual spraying uses 200-300 liters of solution per hectare; that aerial
spraying oily requires 30 liters per hectare; that in terms of safety and accuracy, manual spraying is the
least safe and accurate,54 and produces more drift than aerial spraying;55 that due to the 300-liter solution
required, the workers will be more exposed to the solution during manual application and such application
will thus be more in conflict with the purpose of the ordinance to prevent human exposure;56 that the
respondents also find the irrigation sprinklers suggested by the City of Davao as wasteful, unsafe and
impractical because it cannot provide the needed coverage for application of the solution to effectively
control. the Black Sigatoka disease; that in contrast, aerial application, coupled with the latest state of the
art technology and equipment, ensures accuracy, effectiveness, efficiency and safety compared to the
other methods of application; that the respondents vouch for the safety of the fungicides they use by
virtue of such fungicides having been registered with the Fertilizer and Pesticide Authority (FPA) and
classified as Category IV,57 and found to be mild; and that oral ingestion in large doses is required before
any adverse effects to humans may result.58chanrobleslaw

The respondents lament that the ban was imposed without any scientific basis; that the report59 prepared
by a fact-finding team (composed of the Vice Mayor, the City Health Officer, The City Planning and
Development Coordinator and the Assistance City Planning and Development Coordinator) organized by
the City of Davao revealed that there was no scientific evidence to support the clamor for the ban against
aerial spraying; that furthermore, national government agencies like the Department of Agriculture (DA),
Department of Health (DOR) and the Department of Trade and Industry (DTI) similarly concluded that
there was no scientific evidence to support the ban;60 that for four decades since the adoption of aerial
spraying, there has been no reported outbreak or any predisposition to ailment connected with the
pesticides applied; that the testimonies of the residents during the trial were mere "emotional anecdotal
evidence" that did not establish any scientific or medical bases of any causal connection between the
alleged health conditions complained of and the fungicides applied during aerial spraying;61 that the
allegations of health and environmental harm brought by the pesticides used to treat the banana
plantations were unfounded; that the 2001 study of the International Agency for Research on Cancer
showed that, contrary to the claim of Dra. Panganiban, the by-product of Mancozeb (Ethylenethiourea or
ETU) was "non-genotoxic" and not expected to produce thyroid cancer;62 that Carlos Mendoza, a geo-
hydrologist and geophysicist, testified that underground water contamination through aerial spraying
would be impossible because of the presence of latex, thick layers of clay and underlying rock
formations;63 that even the study conducted by the Philippine Coconut Authority (PCA) showed that the
rhinoceros beetle infestation in coconut plantations adjacent to the banana plantations was due to the
farmer's failure to observe phyto-sanitary measures, not to aerial spraying;64 that furthermore, aerial
spraying is internationally accepted as a "Good Agricultural Practice" (GAP)65 under the International
Code of Conduct on the Distribution and Use of Pesticides by the United Nations-Food and Agricultural
Organization (UN-FAO); that as such, they observe the standards laid down by the UN-FAO, and utilize
aerial spraying equipment that will ensure accuracy, safety and efficiency in applying the substances, and
which more than complies with the requirement under the Guidelines on Good Practice for Aerial
Application of Pesticides (Rome 2001);66 that in addition, they strictly observe standard operating
procedures prior to take-off,67 in-flight68 and post-flight;69 that they substantially invested in state-of-the-art
technology and equipment designed to ensure safety, accuracy, and effectiveness of aerial spraying
operations, to avoid aerial drift;70 that their equipment include: wind meters (to measure the wind velocity
in a specific area), wind cones (to determine the wind direction, and whether the wind is a headwind,
tailwind or a crosswind); central weather station (to measure wind speed, the temperature and relative
humidity), Differential Global Positioning System (DGPS),71 Intellimap,72 Control and Display
Unit,73 Micronair Rotary Drift Control Atomizers (AU 5000 Low-Drift model),74 Intelliflow Spray Valve
System,75 and Target Flow Spray Valve Switch System;76 and that they want to minimize, if not, eliminate
the occurrence of spray drift in order to minimize wastage of resources and reduced efficiency of spraying
programs implemented to control the Black Sigatoka disease.77chanrobleslaw

The respondents maintain that Ordinance No. 0309-07 will regulate aerial spraying as a method of
application, instead of the substances being used therein; that the prohibition is overbroad in light of other
available reasonable measures that may be resorted to by the local government; that the ordinance is
unreasonable, unfair, oppressive, and tantamount to a restriction or prohibition of trade;78 that the
ordinance will effectively impose a prohibition against all pesticides, including fungicides that fall under the
mildest type of substance; that as such, the petitioner has disregarded existing valid and substantive
classifications established and recognized by the World Health Organization (WHO) that are adopted by
the FPA; that the FPA is the national agency armed with the professional competence, technical
expertise, and legal mandate to deal with the issue of use and application of pesticides in our country;
that the fungicides they administer are duly registered with the FPA, and with other more developed
countries that have observed a stricter environmental and public health regulation such as the United
States Environmental Protection Agency (EPA) and the European Union (EU); that as such, the City of
Davao has disregarded valid, substantial and significant distinctions between levels of concentration of
the fungicides in the water solution aerially sprayed; that it is the FPA that regulates the level of
concentration of agricultural chemicals prior to commercial distribution and use in the country; that the
members of PBGEA only spray a water solution (water cocktail) containing 0.1 liter to 1.5 liters of the
active ingredient of fungicide in a 30-liter water solution per hectare that has undergone rigorous testing
and .evaluation prior to registration by the FPA; that the active ingredients of the fungicide are so diluted
that no harm may be posed to public health or to the environment through aerial application;79 that the
ordinance was so broad that it prohibits aerial application of any substance, including water;80 and that
aside from fungicides, the respondents also aerially apply vitamins, minerals and organic
fertilizers.81chanrobleslaw

The respondents submit that the maintenance of the 30-meter buffer zone under Section 5 of the
ordinance constitutes an improper exercise of police power; that the ordinance will require all
landholdings to maintain the buffer zone, thereby diminishing to a mere 1,600 square meters of usable
and productive land for every hectare of the plantation bounding residential areas, with the zone being
reserved for planting "diversified trees;" that this requirement amounts to taking without just compensation
or due process; and that the imposition of the buffer zone unduly deprives all landowners within the City
of Davao the beneficial use of their property;82 that the precautionary principle cannot be applied blindly,
because its application still requires some scientific basis; that the principle is also based on a mere
declaration that has not even reached the level of customary international law, not on a treaty binding on
the Government.83chanrobleslaw

The respondents argue that the illegality of the transition period results in the invalidity of the ordinance as
it does not carry a separability clause; and that the absence of such clause signifies the intention of the
Sangguniang Panlungsod of City of Davao to make the ordinance effective as a whole.84chanrobleslaw

The main issue is whether or not Ordinance No. 0309-07 is unconstitutional on due process and equal
protection grounds for being unreasonable and oppressive, and an invalid exercise of police power: (a) in
imposing a ban on aerial spraying as an agricultural practice in Davao City under Section 5; (b) in
decreeing a 3-month transition-period to shift to other modes of pesticide application under Section 5; and
(c) in requiring the maintenance of the 30-meter buffer zone under Section 6 thereof in all agricultural
lands in Davao City.

Ruling of the Court

We deny the petitions for review for their lack of merit.

I
Preliminary considerations:
The significant role of the banana industry
in ensuring economic stability and food security

There is no question that the implementation of Ordinance No. 0309-07, although the ordinance concerns
the imposition of the ban against aerial spraying in all agricultural lands within Davao City, will inevitably
have a considerable impact on the country's banana industry, particularly on export trading.

Banana exportation plays a significant role in the maintenance of the country's economic, stability and
food security. Banana is a consistent dollar earner and the fourth largest produced commodity in the
Philippines.85 In 2010, the Philippines figured among the top three banana producing countries in the
world.86 In 2014, fresh bananas accounted for 17% of the country's top agricultural export commodities,
gaining a close second to coconut oil with 18%.87 The Davao Region (Region XI)88 was the top banana
producing region in 2013, with a production growth rate of 16.4%, and 33.76% share in the total
agricultural output of the Region.89chanrobleslaw

Despite these optimistic statistics, the banana industry players struggle to keep up with the demands of
the trade by combatting the main threat to production posed by two major fungal diseases: the Panama
Disease Tropical Race 4 (Fusarium oxysprum f.sp. cubense) and the Black Sigatoka leaf spot disease
(Mycosphaerella ffiensis morelet). Pesticides have proven to be effective only against the Black Sigatoka
disease. There is yet no known cure for the Panama disease.90chanrobleslaw

The menace of the Black Sigatoka disease cannot be taken lightly. The disease causes destruction of the
plant by significantly reducing the leaf area, leading to premature ripening of the produce and resulting in
yield losses of at least 50%.91 Due to its effects on banana export trading, the disease has emerged as a
global concern that has correspondingly forced banana producers to increase the use of chemical
pesticides.92 Protectant fungicides such as Mancozeb, chlorothalonil and Propiconazole are applied to
combat the disease.93 These agricultural chemicals are aerially applied by the respondents in the banana
plantations within the jurisdiction of Davao City to arrest the proliferation of the disease.

Considering that banana export plantations exist in vast monocultures, effective treatment of the Black
Sigatoka disease is done by frequent aerial application of fungicides. This is an expensive practice
because it requires permanent landing strips, facilities for the mixing and loading of fungicides, and high
recurring expense of spray materials.94 The cost of aerial spraying accounts to 15-20% of the final retail
price of the crop, making the technology essentially unavailable to small landholdings that are more
vulnerable to the disease.95chanrobleslaw

Aerial spraying has become an agricultural practice in Davao City since the establishment of the banana
plantations in 1960.96 Out of the 5,205 hectares of commercial plantations devoted to Cavendish banana
being operated by the respondents in Davao City,97 around 1,800 hectares receive treatment through
aerial application. These plantations are situated in Barangays Sirib, Manuel Guianga, Tamayong,
Subasta Dacudao, Lasang, Mandug, Waan, Tigatto and Callawa,98 and are affected by the ban imposed
by Ordinance No. 0309-07. The DTI has issued a statement to the effect that the ban against aerial
spraying in banana plantations "is expected to kill the banana industry," affects the socio-economic
development of the barangays hosting the affected plantations, and has a disastrous impact on export
trading. The DTI has forecasted that the ban would discourage the entry of new players in the locality,
which would have a potential drawback in employment generation.99chanrobleslaw

II
The Sangguniang Bayan of Davao City
enacted Ordinance No. 0309-07
under its corporate powers

The petitioners assert that Ordinance No. 0309-07 is a valid act of the Sangguniang Bayan of Davao City-
pursuant to its delegated authority to exercise police power in the furtherance of public welfare and in
ensuring a sound and balanced environment for its constituents. The respondents negate this assertion,
describing the ordinance as unreasonable, discriminatory and oppressive.

The petitioners' assertion of its authority to enact Ordinance No. 0309-07 is upheld.

To be considered as a valid police power measure, an ordinance must pass a two-pronged test:
the formal (i.e., whether the ordinance is enacted within the corporate powers of the local government
unit, and whether it is passed in accordance with the procedure prescribed by law); and
the substantive (i.e., involving inherent merit, like the conformity of the ordinance with the limitations
under the Constitution and the statutes, as well as with the requirements of fairness and reason, and its
consistency with public policy).100chanrobleslaw

The formalities in enacting an ordinance are laid down in Section 53101 and Section 54102 of The Local
Government Code. These provisions require the ordinance to be passed by the majority of the members
of the sanggunian concerned, and to be presented to the mayor for approval. With no issues regarding
quorum during its deliberation having been raised, and with its approval of by City Mayor Duterte not
being disputed, we see no reason to strike down Ordinance No. 0309-07 for non-compliance with the
formal requisites under the Local Government Code.
We next ascertain whether the City of Davao acted within the limits of its corporate powers in enacting
Ordinance No. 0309-07.

The corporate powers of the local government unit confer the basic authority to enact legislation that may
interfere with personal liberty, property, lawful businesses and occupations in order to promote the
general welfare.103 Such legislative powers spring from the delegation thereof by Congress through either
the Local Government Code or a special law. The General Welfare Clause in Section 16 of the Local
Government Code embodies the legislative grant that enables the local government unit to effectively
accomplish and carry out the declared objects of its creation, and to promote and maintain local
autonomy.104 Section 16 reads:ChanRoblesVirtualawlibrary
Sec. 16. General Welfare. — Every local government unit shall exercise the powers expressly granted,
those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its
efficient and effective governance, and those which are essential to the promotion of the general welfare.
Within their respective territorial jurisdictions, local government units shall ensure and support among
other things, the preservation and enrichment of culture, promote health and safety, enhance the right of
the people to a balanced ecology, encourage and support the development of appropriate and self-reliant
scientific and technological capabilities, improve public morals, enhance economic prosperity and social
justice, promote full employment among their residents, maintain peace and order, and preserve the
comfort and convenience of their inhabitants.
Section 16 comprehends two branches of delegated powers, namely: the general legislative power and
the police power proper. General legislative power refers to the power delegated by Congress to the local
legislative body, or the Sangguniang Panlungsod in the case of Dayao City,105 to enable the local
legislative body to enact ordinances and make regulations. This power is limited in that the enacted
ordinances must not be repugnant to law, and the power must be exercised to effectuate and discharge
the powers and duties legally conferred to the local legislative body. The police power proper, on the
other hand, authorizes the local government unit to enact ordinances necessary and proper for the health
and safety, prosperity, morals, peace, good order, comfort, and convenience of the local government unit
and its constituents, and for the protection of their property.106chanrobleslaw

Section 458 of the Local Government Code explicitly vests the local government unit with the authority to
enact legislation .aimed at promoting the general welfare, viz.:ChanRoblesVirtualawlibrary
Section 458. Powers, Duties, Functions and Compensation. — (a) The sangguniang panlungsod, as the
legislative body of the city, shall enact ordinances, approve resolutions and appropriate funds for the
general welfare of the city and its inhabitants pursuant to Section 16 of this Code and in the proper
exercise of the corporate powers of the city as provided for under Section 22 of this Code. x x x
In terms of the right of the citizens to health and to a balanced and healthful ecology, the local
government unit takes its cue from Section 15 and Section 16, Article II of the 1987 Constitution.
Following the provisions of the Local Government Code and the Constitution, the acts of the local
government unit designed to ensure the health and lives of its constituents and to promote a balanced
and healthful ecology are well within the corporate powers vested in the local government unit.
Accordingly, the Sangguniang Bayan of Davao City is vested with the requisite authority to enact an
ordinance that seeks to protect the health and well-being of its constituents.

The respondents pose a challenge against Ordinance No. 0309-07 on the ground that the Sangguniang
Bayan of Davao City has disregarded the health of the plantation workers, contending that by imposing
the ban against aerial spraying the ordinance would place the plantation workers at a higher health risk
because the alternatives of either manual or truck-boom spraying method would be adopted; and that
exposing the workers to the same risk sought to be prevented by the ordinance would defeat its purported
purpose.

We disagree with the respondents.

With or without the ban against aerial spraying, the health and safety of plantation workers are secured by
existing state policies, rules and regulations implemented by the FPA, among others, which the
respondents are lawfully bound to comply with. The respondents even manifested their strict compliance
with these rules, including those in the UN-FAO Guidelines on Good Practice for Aerial Application of
Pesticides (Rome 2001). We should note that the Rome 2001 guidelines require the pesticide applicators
to observe the standards provided therein to ensure the health and safety of plantation workers. As such,
there cannot be any imbalance between the right to health of the residents vis-a-vis the workers even if a
ban will be imposed against aerial spraying and the consequent adoption of other modes of pesticide
treatment.

Furthermore, the constitutional right to health and maintaining environmental integrity are privileges that
do not only advance the interests of a group of individuals. The benefits of protecting human health and
the environment transcend geographical locations and even generations. This is the essence of Sections
15 and 16, Article II of the Constitution. In Oposa v. Factoran, Jr.107 we declared that the right to a
balanced and healthful ecology under Section 16 is an issue of transcendental importance with
intergenerational implications. It is under this milieu that the questioned ordinance should be appreciated.

Advancing the interests of the residents who are vulnerable to the alleged health risks due to their
exposure to pesticide drift justifies the motivation behind the enactment of the ordinance. The City of
Davao has the authority to enact pieces of legislation that will promote the general welfare, specifically the
health of its constituents. Such authority should not be construed, however, as a valid license for the City
of Davao to enact any ordinance it deems fit to discharge its mandate. A thin but well-defined line
separates authority to enact legislations from the method of accomplishing the same.

By distinguishing authority from method we face this question: Is a prohibition against aerial spraying a
lawfully permissible method that the local government unit of Davao City may adopt to prevent the
purported effects of aerial drift? To resolve this question, the Court must dig deeper into the intricate
issues arising from these petitions.

II
Ordinance No. 0309-07 violates the Due Process Clause

A valid ordinance must not only be enacted within the corporate powers of the local government and
passed according to the procedure prescribed by law.108 In order to declare it as a valid piece of local
legislation, it must also comply with the following substantive requirements, namely: (1) it must not
contravene the Constitution or any statute; (2) it must be fair, not oppressive; (3) it must not be partial or
discriminatory; (4) it must not prohibit but may regulate trade; (5) it must be general and consistent with
public policy; and (6) it must not be unreasonable.109chanrobleslaw

In the State's exercise of police power, the property rights of individuals may be subjected to restraints
and burdens in order to fulfill the objectives of the Government.110 A local government unit is considered
to have properly exercised its police powers only if it satisfies the following requisites, to wit: (1) the
interests of the public generally, as distinguished from those of a particular class, require the interference
of the State; and (2) the means employed are reasonably necessary for the attainment of the object
sought to be accomplished and not unduly oppressive.111 The first requirement refers to the Equal
Protection Clause of the Constitution; the second, to the Due Process Clause of the
Constitution.112chanrobleslaw

Substantive due process requires that a valid ordinance must have a sufficient justification for the
Government's action.113 This means that in exercising police power the local government unit must not
arbitrarily, whimsically or despotically enact the ordinance regardless of its salutary purpose. So long as
the ordinance realistically serves a legitimate public purpose, and it employs means that are reasonably
necessary to achieve that purpose without unduly oppressing the individuals regulated, the ordinance
must survive a due process challenge.114chanrobleslaw

The respondents challenge Section 5 of Ordinance No. 0309-07 for being unreasonable and oppressive
in that it sets the effectivity of the ban at three months after publication of the ordinance. They allege that
three months will be inadequate time to shift from aerial to truck-mounted boom spraying, and effectively
deprives them of efficient means to combat the Black Sigatoka disease.

The petitioners counter that the period is justified considering the urgency of protecting the health of the
residents.

We find for the respondents.

The impossibility of carrying out a shift to another mode of pesticide application within three months can
readily be appreciated given the vast area of the affected plantations and the corresponding resources
required therefor. To recall, even the RTC recognized the impracticality of attaining a full-shift to other
modes of spraying within three months in view of the costly financial and civil works required for the
conversion.115 In the assailed decision, the CA appropriately observed:ChanRoblesVirtualawlibrary
There appears to be three (3) forms of ground spraying, as distinguished from aerial spraying, which are:
1. "Truck-mounted boom spraying;" 2. "manual or backpack spraying." and 3. "sprinkler spraying."
Petitioners-appellants claim that it was physically impossible for them to shift to "truck-mounted boom
spraying" within three (3) months before the aerial spraying ban is actually enforced. They cited the
testimony of Dr. Maria Emilia Rita G. Fabregar, Ph.D, PBGEA Chairperson, to the effect that since
banana plantations in Davao City were configured for aerial spraying, the same lack the road network to
make "truck-mounted boom spraying" possible. According to Dr. Fabregar, it was impossible to construct
such road networks in a span of three (3) months. Engr. Magno P. Porticos, Jr., confirmed that the shift
demands the construction of three hundred sixty (360) linear kilometers of road which cannot be
completed in three (3) months.

In their separate testimonies, Dr. Fabregar and Engr. Porticos explained that a shift to "truck-mounted
boom spraying" requires the following steps which may be completed in three (3)
years:ChanRoblesVirtualawlibrary
1. six (6) months for planning the reconfiguration of banana plantations to ensure effective truck-mounted
boom spraying for the adequate protections of the plantations from the Black Sigatoka fungus and other
diseases, while maximizing land use;

2. two (2) months to secure government permits for infrastructure works to be undertaken thereon;

3. clearing banana plants and dismantling or reconstructing fixed infrastructures, such as roads, drains,
cable ways, and irrigation facilities, which phase may be completed in eighteen (18) months;

4. importation and purchase of trucks mounted with boom spraying, nurse trucks and protective gears.
The placing of orders and delivery of these equipments, including the training [of] the personnel who
would man the same, would take six (6) months; and cralawlawlibrary

5. securing the needed capitalization to finance these undertakings would take six (6) months to a year.
Ms. Maria Victoria E. Sembrano, CPA, Chairperson of the PBGEA Finance Committee, testified that her
committee and the Technical Committee and Engineering Group of PBGEA conducted a feasibility study
to determine the cost in undertaking the shift to ground spraying. Their findings fixed the estimated cost
for the purpose at Php 400 Million.

xxxx

Both appellees failed to rebut the foregoing testimonies with empirical findings to the contrary.

xxxx

Thus, in view of the infrastructural requirements as methodically explained, We are convinced that it was
physically impossible for petitioners-appellants to carry out a carefully planned configuration of vast
hectares of banana plantations and be able to actually adopt "truck-mounted boom spraying" within three
(3) months. To compel petitioners-appellants to abandon aerial spraying in favor of "manual or backpack
spraying" or "sprinkler spraying" within 3 months puts petitioners-appellants in a vicious dilemma between
protecting its investments and the health of its workers, on the one hand, and the threat of prosecution if
they refuse to comply with the imposition. We even find the 3-months transition period insufficient, not
only in acquiring and gearing-up the plantation workers of safety appurtenances, but more importantly in
reviewing safety procedures for "manual or backpack spraying" and in training such workers for the
purpose. Additionally, the engineering works for a sprinkler system in vast hectares of banana plantations
could not possibly be completed within such period, considering that safety and efficiency factors need to
be considered in its structural re-designing.

xxxx

Respondent-appellee argues that the Ordinance merely banned an agricultural practice and did not
actually prohibit the operation of banana plantations; hence, it is not oppressive. While We agree that the
measure did not impose a closure of a lawful enterprise, the proviso in Section 5, however, compels
petitioners-appellants to abandon aerial spraying without affording them enough time to convert and
adopt other spraying practices. This would preclude petitioners-appellants from being able to fertilize their
plantations with essential vitamins and minerals substances, aside from applying thereon the needed
fungicides or pesticides to control, if not eliminate the threat of, plant diseases. Such an apparent
eventuality would prejudice the operation of the plantations, and the economic repercussions thereof
would just be akin to shutting down the venture.

This Court, therefore, finds Section 5 of Ordinance No. 0309-07 an invalid provision because the
compulsion thereunder to abandon aerial spraying within an impracticable period of "three (3) months
after the effectivity of this Ordinance" is "unreasonable, oppressive and impossible to comply
with."116chanroblesvirtuallawlibrary
The required civil works for the conversion to truck-mounted boom spraying alone will consume
considerable time and financial resources given the topography and geographical features of the
plantations.117 As such, the conversion could not be completed within the short timeframe of three
months. Requiring the respondents and other affected individuals to comply with the consequences of the
ban within the three-month period under pain of penalty like fine, imprisonment and even cancellation of
business permits would definitely be oppressive as to constitute abuse of police power.

The respondents posit that the requirement of maintaining a buffer zone under Section 6 of the ordinance
violates due process for being confiscatory; and that the imposition unduly deprives all agricultural
landowners within Davao City of the beneficial use of their property that amounts to taking without just
compensation.

The position of the respondents is untenable.

In City of Manila v. Laguio, Jr.,118 we have thoroughly explained that taking only becomes confiscatory if it
substantially divests the owner of the beneficial use of its property, viz.:ChanRoblesVirtualawlibrary
An ordinance which permanently restricts the use of property that it cannot be used for any reasonable
purpose goes beyond regulation and must be recognized as a taking of the property without just
compensation. It is intrusive and violative of the private property rights of individuals.

The Constitution expressly provides in Article III, Section 9, that "private property shall not be taken for
public use without just compensation." The provision is the most important protection of property rights in
the Constitution. This is a restriction on the general power of the government to take property. The
constitutional provision is about ensuring that the government does not confiscate the property of some to
give it to others. In part too, it is about loss spreading. If the government takes away a person's property
to benefit society, then society should pay. The principal purpose of the guarantee is "to bar the
Government from forcing some people alone to bear public burdens which, in all fairness and justice,
should be borne by the public as a whole.

There are two different types of taking that can be identified. A "possessory" taking occurs when the
government confiscates or physically occupies property. A "regulatory" taking occurs when the
government's regulation leaves no reasonable economically viable use of the property.

In the landmark case of Pennsylvania Coal v. Mahon, it was held that a taking also could be found if
government regulation of the use of property went "too far." When regulation reaches a certain
magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to
support the act. While property may be regulated to a certain extent, if regulation goes too far it will be
recognized as a taking.

No formula or rule can be devised to answer the questions of what is too far and when regulation
becomes a taking. In Mahon, Justice Holmes recognized that it was "a question of degree and therefore
cannot be disposed of by general propositions." On many other occasions as well, the U.S. Supreme
Court has said that the issue of when regulation constitutes a taking is a matter of considering the facts in
each case. The Court asks whether justice and fairness require that the economic loss caused by public
action must be compensated by the government and thus borne by the public as a whole, or whether the
loss should remain concentrated on those few persons subject to the public action.

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it
leaves no reasonable economically viable use of property in a manner that interferes with reasonable
expectations for use. A regulation that permanently denies all economically beneficial or productive use of
land is, from the owner's point of view, equivalent to a "taking" unless principles of nuisance or property
law that existed when the owner acquired the land make the use prohibitable. When the owner of real
property has been called upon to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a taking.

A regulation which denies all economically beneficial or productive use of land will require compensation
under the takings clause. Where a regulation places limitations on land that fall short of eliminating all
economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors
including the regulation's economic effect on the landowner, the extent to which the regulation interferes
with reasonable investment-backed expectations and the character of government action. These inquiries
are informed by the purpose of the takings clause which is to prevent the government from forcing some
people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.

A restriction on use of property may also constitute a "taking" if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investment-
backed expectations of the owner. (bold Emphasis supplied)
The establishment of the buffer zone is required for the purpose of minimizing the effects of aerial
spraying within and near the plantations. Although Section 3(e) of the ordinance requires the planting of
diversified trees within the identified buffer zone, the requirement cannot be construed and deemed as
confiscatory requiring payment of just compensation. A landowner may only be entitled to compensation if
the taking amounts to a permanent denial of all economically beneficial or productive uses of the land.
The respondents cannot be said to be permanently and completely deprived of their landholdings
because they can still cultivate or make other productive uses of the areas to be identified as the buffer
zones.

III
Ordinance No. 0309-07 violates the Equal Protection Clause

A serious challenge being posed against Ordinance No. 0309-07 rests on its supposed collision with the
Equal Protection Clause. The respondents submit that the ordinance transgresses this constitutional
guaranty on two counts, to wit: (1) by prohibiting aerial spraying per se, regardless of the substance or the
level of concentration of the chemicals to be applied; and (2) by imposing the 30-meter buffer zone in all
agricultural lands in Davao City regardless of the sizes of the landholding.
The constitutional right to equal protection 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
institutions to treat similarly situated individuals in a similar manner. The guaranty equal protection
secures every person within the 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. The concept of equal justice under the law demands that the State governs
impartially, and not to draw distinctions between individuals solely on differences that are irrelevant to the
legitimate governmental objective.119chanrobleslaw

Equal treatment neither requires universal application of laws to all persons or things without
distinction,120 nor intends to prohibit legislation by limiting the object to which it is directed or by the
territory in which it is to operate.121 The guaranty of equal protection envisions equality among equals
determined according to a valid classification.122 If the groupings are characterized by substantial
distinctions that make real differences, one class may be treated and regulated differently from
another.123 In other word, a valid classification must be: (1) based on substantial distinctions; (2) germane
to the purposes of the law; (3) not limited to existing conditions only; and (4) equally applicable to all
members of the class.124chanrobleslaw

Based on these parameters, we find for the respondents.

The reasonability of a distinction and sufficiency of the justification given by the Government for its
conduct is gauged by using the means-end test.125 This test requires analysis of: (1) the interests of the
public that generally require its exercise, as distinguished from those of a particular class; and (2) the
means employed that are reasonably necessary for the accomplishment of the purpose and are not
unduly oppressive upon individuals.126 To determine the propriety of the classification, courts resort to
three levels of scrutiny, viz: the rational scrutiny, intermediate scrutiny and strict scrutiny.

The rational basis scrutiny (also known as the rational relation test or rational basis test) demands that the
classification reasonably relate to the legislative purpose.127 The rational basis test often applies in cases
involving economics or social welfare,128 or to any other case not involving a suspect
class.129chanrobleslaw

When the classification puts a quasi-suspect class at a disadvantage, it will be treated under intermediate
or heightened review. Classifications based on gender or illegitimacy receives intermediate scrutiny.130 To
survive intermediate scrutiny, the law must not only further an important governmental interest and be
substantially related to that interest, but the justification for the classification must be genuine and must
not depend on broad generalizations.131chanrobleslaw

The strict scrutiny review applies when a legislative classification impermissibly interferes with the
exercise of a fundamental right or operates to the peculiar class disadvantage of a suspect class. The
Government carries the burden 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.132chanrobleslaw

The petitioners advocate the rational basis test. In particular, the petitioning residents of Davao City argue
that the CA erroneously applied the strict scrutiny approach when it declared that the ordinance violated
the Equal Protection Clause because the ban included all substances including water and vitamins. The
respondents agree with the CA, however, and add that the ordinance does not rest on a valid distinction
because it has lacked scientific basis and has ignored the classifications of pesticides observed by the
FPA.

We partly agree with both parties.

In our view, the petitioners correctly argue that the rational basis approach appropriately applies herein.
Under the rational basis test, we shall: (1) discern the reasonable relationship between the means and the
purpose of the ordinance; and (2) examine whether the means or the prohibition against aerial spraying is
based on a substantial or reasonable distinction. A reasonable classification includes all persons or things
similarly situated with respect to the purpose of the law.133chanrobleslaw

Applying the test, the established classification under Ordinance No. 0309-07 is to be viewed in relation to
the group of individuals similarly situated with respect to the avowed purpose. This gives rise to two
classes, namely: (1) the classification under Ordinance No. 0309-07 (legislative classification); and (2) the
classification based on purpose (elimination of the mischief). The legislative classification found in Section
4 of the ordinance refers to "all agricultural entities" within Davao City. Meanwhile, the classification based
on the purpose of the ordinance cannot be easily discerned because the ordinance does not make any
express or implied reference to it. We have to search the voluminous records of this case to divine
the animus behind the action of the Sangguniang Panglungsod in prohibiting aerial spraying as an
agricultural activity. The effort has led uS to the following proposed resolution of the Sangguniang
Panglungsod,134viz.:ChanRoblesVirtualawlibrary
RESOLUTION NO. ____
Series of 2007

A RESOLUTION TO ENACT AN ORDINANCE BANNING AERIAL SPRAYING AS AN AGRICULTURAL

PRACTICE IN ALL AGRICULTURAL ENTITIES IN DAVAO CITY

WHEREAS, the City of Davao, with fertile lands and ideal climactic condition, hosts various large farms
planted with different crops;

WHEREAS, these farms, lay adjacent to other agricultural businesses and that residential areas abuts
these farm boundaries;

WHEREAS, aerial spraying as a mode of applying chemical substances such as fungicides and
pesticides is being used by investors/companies over large agricultural plantations in Davao City;

WHEREAS, the Davao City watersheds and ground water sources, located within and adjacent to Mount
Apo may be affected by the aerial spraying of chemical substances on the agricultural farms and
plantations therein;

WHEREAS, the effects of aerial spraying are found to be detrimental to the health of the residents of
Davao City most especially the inhabitants nearby agricultural plantations practicing aerials spraying;

WHEREAS, the unstable wind direction during the conduct of aerial spray application of these chemical
substances pose health hazards to people, animals, other crops and ground water sources;

WHEREAS, in order to achieve sustainable development, politics must be based on the Precautionary
Principle. Environment measures must anticipate, prevent, and attack the causes of environmental
degradation. Where there are threats of serious, irreversible damage, lack of scientific certainty should
not be used as a reason for postponing measures to prevent environmental degradation;

WHEREAS, it is the policy of the City of Davao to ensure the safety of its inhabitants from all forms of
hazards, especially if such hazards come from development activities that are supposed to be beneficial
to everybody;

WHEREAS, pesticides are by its nature poisonous, it is all the more dangerous when dispensed aerially
through aircraft because of unstable wind conditions which in turn makes aerial spray drifting to
unintended targets a commonplace.

WHEREAS, aerial spraying of pesticides is undeniably a nuisance.

WHEREAS, looking at the plight of the complainants and other stakeholders opposed to aerial spraying,
the issue of aerial spraying of pesticides is in all fours a nuisance. Given the vastness of the reach of
aerial spraying, the said form of dispensation falls into the category of a public nuisance. Public nuisance
is defined by the New Civil Code as one which affects a community or neighborhood or any considerable
number of persons, although the extent of the annoyance, danger or damage upon individuals may be
unequal.

WHEREAS, the General Welfare Clause of the Local Government Code empowers Local Government
Units to enact ordinances that provide for the health and safety, promote the comfort and convenience of
the City and the inhabitants thereof.

NOW THEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, that for the health, safety and
peace of mind of all the inhabitants of Davao City, let an ordinance be enacted banning aerial spraying as
an agricultural practice in all agricultural entities in Davao City.

xxxx
The proposed resolution identified aerial spraying of pesticides as a nuisance because of the unstable
wind direction during the aerial application, which (1) could potentially contaminate the Davao City
watersheds and ground water sources; (2) was detrimental to the health of Davao City residents, most
especially those living in the. nearby plantations; and (3) posed a hazard to animals and other crops.
Plainly, the mischief that the prohibition sought to address was the fungicide drift resulting from the aerial
application; hence, the classification based on the intent of the proposed ordinance covered all
agricultural entities conducting aerial spraying of fungicides that caused drift.

The assailed ordinance thus becomes riddled with several distinction issues.

A brief discussion on the occurrence of the drift that the ordinance seeks to address is necessary.

Pesticide treatment is based on the use of different methods of application and equipment,135 the choice
of which methods depend largely on the objective of distributing the correct dose to a defined target with
the minimum of wastage due to "drift."136 The term "drift" refers to the movement of airborne spray
droplets, vapors, or dust particles away from the target area during pesticide application.137 Inevitably, any
method of application causes drift, which may either be primary or secondary. As fittingly described by
scholars:138
Primary drift is the off-site movement of spray droplets at, or very close to, the time of application. For
example, a field application using a boom in a gusty wind situation could easily lead to a primary
drift. Primary spray drift is not product specific, and the active ingredients do not differ in their potential to
drift. However, the type of formulation, surfactant, or other adjuvant may affect spray drift potential.

Secondary drift is associated with pesticide vapor. Pesticide vapor drift is the movement of the gas that
forms when an active ingredient evaporates from plants, soil, or other surfaces. And while vapor drift is an
important issue, it only pertains to certain volatile products. Vapor drift and other forms
of secondary drift are product specific. Water-based sprays will volatize more quickly than oil-based
sprays. However, oil-based sprays can drift farther, especially above 95°F, because they are lighter.
Understandably, aerial drift occurs using any method of application, be it through airplanes, ground
sprayers, airblast sprayers or irrigation systems.139 Several factors contribute to the occurrence of drift
depending on the method of application, viz.:ChanRoblesVirtualawlibrary
AERIAL AIRBLAST GROUND CHEMIGATION
Droplet size Crop canopy Droplet size Application height
Application height Droplet size Boom height Wind speed
Wind speed Wind speed Wind speed
Swath adjustment
Canopy
Boom length
 Tank mix physical properties
Source: F.M. Fishel and J.A. Ferrell, "Managing Pesticide Drift," available at http://edis.ifas.edu/pi232.
citing Pesticide Notes, MSU Extension.

The four most common pesticide treatment methods adopted in Davao City are aerial, truck-mounted
boom, truck-mounted mechanical, and manual spraying.140 However, Ordinance No. 0309-07 imposes the
prohibition only against aerial spraying.

Davao City justifies the prohibition against aerial spraying by insisting that the occurrence of drift causes
inconvenience and harm to the residents and degrades the environment. Given this justification, does the
ordinance satisfy the requirement that the classification must rest on substantial distinction?

We answer in the negative.

The occurrence of pesticide drift is not limited to aerial spraying but results from the conduct of any mode
of pesticide application. Even manual spraying or truck-mounted boom spraying produces drift that may
bring about the same inconvenience, discomfort and alleged health risks to the community and to the
environment.141 A ban against aerial spraying does not weed out the harm that the ordinance seeks to
achieve.142 In the process, the ordinance suffers from being "underinclusive" because the classification
does not include all individuals tainted with the same mischief that the law seeks to eliminate.143 A
classification that is drastically underinclusive with respect to the purpose or end appears as an irrational
means to the legislative end because it poorly serves the intended purpose of the law.144chanrobleslaw

The claim that aerial spraying produces more aerial drift cannot likewise be sustained in view of the
petitioners' failure to substantiate the same. The respondents have refuted this claim, and have
maintained that on the contrary, manual spraying produces more drift than aerial treatment145 As such, the
decision of prohibiting only aerial spraying is tainted with arbitrariness.

Aside from its being underinclusive, the assailed ordinance also tends to be "overinclusive" because
its .impending implementation will affect groups that have no relation to the accomplishment of the
legislative purpose. Its implementation will unnecessarily impose a burden on a wider range of individuals
than those included in the intended class based on the purpose of the law.146chanrobleslaw

It can be noted that the imposition of the ban is too broad because the ordinance applies irrespective of
the substance to be aerially applied and irrespective of the agricultural activity to be conducted. The
respondents admit that they aerially treat their plantations not only with pesticides but also vitamins and
other substances. The imposition of the ban against aerial spraying of substances other than fungicides
and regardless of the agricultural activity being performed becomes unreasonable inasmuch as it patently
bears no relation to the purported inconvenience, discomfort, health risk and environmental danger which
the ordinance, seeks to address. The burden now will become more onerous to various entities including
the respondents and even others with no connection whatsoever to the intended purpose of the
ordinance.

In this respect, the CA correctly observed:ChanRoblesVirtualawlibrary

Ordinance No. 0309-07 defines "aerial spraying" as the "application of substances through the use of
aircraft of any form which dispenses the substances in the air." Inevitably, the ban imposed therein
encompasses aerial application of practically all substances, not only pesticides or fungicides but
including water and all forms of chemicals, regardless of its elements, composition, or degree of safety.

Going along with respondent-appellee's ratiocination that the prohibition in the Ordinance refers to aerial
spraying as a method of spraying pesticides or fungicides, there appears to be a need to single out
pesticides or fungicides in imposing such a ban because there is a striking distinction between such
chemicals and other substances (including water), particularly with respect to its safety implications to the
public welfare and ecology.
xxxx

We are, therefore, convinced that the total ban on aerial spraying runs afoul with the equal protection
clause because it does not classify which substances are prohibited from being applied aerially even as
reasonable distinctions should be made in terms of the hazards, safety or beneficial effects of liquid
substances to the public health, livelihood and the environment.147chanroblesvirtuallawlibrary
We clarify that the CA did not thereby apply the strict scrutiny approach but only evaluated the
classification established by the ordinance in relation to the purpose. This is the essence of the rational
basis approach.

The petitioners should be made aware that the rational basis scrutiny is not based on a simple means-
purpose correlation; nor does the rational basis scrutiny automatically result in a presumption of validity of
the ordinance or deference to the wisdom of the local legislature.148 To reiterate, aside from ascertaining
that the means and purpose of the ordinance are reasonably related, the classification should be based
on a substantial distinction.

However, we do not subscribe to the respondents' position that there must be a distinction based on the
level of concentration or the classification imposed by the FPA on pesticides. This strenuous requirement
cannot be expected from a local government unit that should only be concerned with general policies in
local administration and should not be restricted by technical concerns that are best left to agencies
vested with the appropriate special competencies. The disregard of the pesticide classification is not an
equal protection issue but is more relevant in another aspect of delegated police power that we consider
to be more appropriate in a later discussion.

The overinclusiveness of Ordinance No. 0309-07 may also be traced to its Section 6 by virtue of its
requirement for the maintenance of the 30- meter buffer zone. This requirement applies regardless of the
area of the agricultural landholding, geographical location, topography, crops grown and other
distinguishing characteristics that ideally should bear a reasonable relation to the evil sought to be
avoided. As earlier discussed, only large banana plantations could rely on aerial technology because of
the financial capital required therefor.

The establishment and maintenance of the buffer zone will become more burdensome to the small
agricultural landholders because: (1) they have to reserve the 30-meter belt surrounding their property;
(2) that will have to be identified through GPS; (3) the metes and bounds of the buffer zone will have to be
plotted in a survey plan for submission to the local government unit; and (4) will be limited as to the crops
that may be cultivated therein based on the mandate that the zone shall be devoted to "diversified trees"
taller than what are being grown therein.149 The arbitrariness of Section 6 all the more becomes evident
when the land is presently devoted to the cultivation of root crops and vegetables, and trees or plants
slightly taller than the root crops and vegetables are then to be planted. It is seriously to be doubted
whether such circumstance will prevent the occurrence of the drift to the nearby residential areas.

Section 6 also subjects to the 30-meter buffer zone requirement agricultural entities engaging in organic
farming, and' do not contribute to the occurrence of pesticide drift. The classification indisputably
becomes arbitrary and whimsical.

A substantially overinclusive or underinclusive classification tends to undercut the governmental claim

that the classification serves legitimate political ends.150 Where overinclusiveness is the problem, the vice
is that the law has a greater discriminatory or burdensome effect than necessary.151 In this light, we strike
down Section 5 and Section 6 of Ordinance No. 0309-07 for carrying an invidious classification, and for
thereby violating the Equal Protection Clause.

The discriminatory nature of the ordinance can be seen from its policy as stated in its Section 2, to
wit:ChanRoblesVirtualawlibrary
Section 2. POLICY OF THE CITY. It shall be the policy of the City of Davao to eliminate the method of
aerial spraying as an agricultural practice in all agricultural activities by all entities within Davao City.
Evidently, the ordinance discriminates against large farmholdings that are the only ideal venues for the
investment of machineries and equipment capable of aerial spraying. It effectively denies the affected
individuals the technology aimed at efficient and cost-effective operations and cultivation not only of
banana but of other crops as well. The prohibition against aerial spraying will seriously hamper the
operations of the banana plantations that depend on aerial technology to arrest the spread of the Black
Sigatoka disease and other menaces that threaten their production and harvest. As earlier shown, the
effect of the ban will not be limited to Davao City in view of the significant contribution of banana export
trading to the country's economy.

The discriminatory character of the ordinance makes it oppressive and unreasonable in light of the
existence and availability of more permissible and practical alternatives that will not overburden the
respondents and those dependent on their operations as well as those who stand to be affected by the
ordinance. In the view of Regional Director Roger C. Chio of DA Regional Field Unit XI, the alleged harm
caused by aerial spraying may be addressed by following the GAP that the DA has been promoting
among plantation operators. He explained his view thusly:ChanRoblesVirtualawlibrary
The allegation that aerial spraying is hazardous to animal and human being remains an allegation and
assumptions until otherwise scientifically proven by concerned authorities and agencies. This issue can
be addressed by following Good Agricultural Practices, which DA is promoting among fruit and vegetable
growers/plantations. Any method of agri-chemical application whether aerial or non-aerial if not properly
done in accordance with established procedures and code of good agricultural practices and if the
chemical applicators and or handlers lack of necessary competency, certainly it could be hazardous. For
the assurance that commercial applicators/aerial applicators possessed the competency and
responsibility of handling agri-chemical, such applicators are required under Article III, Paragraph 2 of
FPA Rules and Regulation No. 1 to secure license from FPA.

Furthermore users and applicators of agri-chemicals are also guided by Section 6 Paragraph 2 and 3
under column of Pesticides and Other agricultural Chemicals of PD 11445 which stated: "FPA shall
establish and enforce tolerance levels and good agricultural practices in raw agricultural commodities; to
restrict or ban the use of any chemical or the formulation of certain pesticides in specific areas or during
certain period upon evidence that the pesticide is eminent [sic] hazards has caused, or is causing
widespread serious damage to crops, fish, livestock or to public health and environment."

Besides the aforecited policy, rules and regulation enforced by DA, there are other laws and regulations
protecting and preserving the environment. If the implementation and monitoring of all these laws and
regulation are closely coordinated with concerned LGUs, Gas and NGAs and other private sectors,
perhaps we can maintain a sound and health environment x x x.152chanroblesvirtuallawlibrary
Indeed, based on the Summary Report on the Assessment and Factfinding Activities on the Issue of
Aerial Spraying in Banana Plantations,153 submitted by the fact-finding team organized by Davao City,
only three out of the 13 barangays consulted by the fact-finding team opposed the conduct of aerial
spraying; and of the three barangays, aerial spraying was conducted only in Barangay Subasta. In fact,
the fact-finding team found that the residents in those barangays were generally in favor of the operations
of the banana plantations, and did not oppose the conduct of aerial spraying.

IV
The Precautionary Principle still requires scientific basis

The petitioners finally plead that the Court should look at the merits of the ordinance based on the
precautionary principle. They argue that under the precautionary principle, the City of Davao is justified in
enacting Ordinance No. 0309-07 in order to prevent harm to the environment and human health despite
the lack of scientific certainty.

The petitioners' plea and argument cannot be sustained.

The principle of precaution originated as a social planning principle in Germany. In the 1980s, the Federal
Republic of Germany used the Vorsogeprinzip ("foresight principle") to justify the implementation of
vigorous policies to tackle acid rain, global warming and pollution of the North Sea.154 It has since
emerged from a need to protect humans and the environment from increasingly unpredictable, uncertain,
and unquantifiable but possibly catastrophic risks such as those associated with Genetically Modified
Organisms and climate change,155 among others. The oft-cited Principle 15 of the 1992 Rio Declaration
on Environment and Development (1992 Rio Agenda), first embodied this principle, as
follows:ChanRoblesVirtualawlibrary
Principle 15

In order to protect the environment, the precautionary approach shall be widely applied by States
according to their capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent
environmental degradation.
In this jurisdiction, the principle of precaution appearing in the Rules of Procedure for Environmental
Cases (A.M. No. 09-6-8-SC) involves matters of evidence in cases where there is lack of full scientific
certainty in establishing a causal link between human activity and environmental effect.156 In such an
event, the courts may construe a set of facts as warranting either judicial action or inaction with the goal
of preserving and protecting the environment.157chanrobleslaw

It is notable, therefore, that the precautionary principle shall only be relevant if there is concurrence of
three elements, namely: uncertainty, threat of environmental damage and serious or irreversible harm. In
situations where the threat is relatively certain, or that the causal link between an action and
environmental damage can be established, or the probability of occurrence can be calculated, only
preventive, not precautionary measures, may be taken. Neither will the precautionary principle apply if
there is no indication of a threat of environmental harm; or if the threatened harm is trivial or easily
reversible.158chanrobleslaw

We cannot see the presence of all the elements. To begin with, there has been no scientific study.
Although the precautionary principle allows lack of full scientific certainty in establishing a connection
between the serious or irreversible harm and the human activity, its application is still premised on
empirical studies. Scientific analysis is still a necessary basis for effective policy choices under the
precautionary principle.159chanrobleslaw

Precaution is a risk management principle invoked after scientific inquiry takes place. This scientific stage
is often considered synonympus with risk assessment.160 As such, resort to the principle shall not be
based on anxiety or emotion, but from a rational decision rule, based in ethics.161 As much as possible, a
complete and objective scientific evaluation of the risk to the environment or health should be conducted
and made available to decision-makers for them to choose the most appropriate course of
action.162 Furthermore, the positive and negative effects of an activity is also important in the application
of the principle. The potential harm resulting from certain activities should always be judged in view of the
potential benefits they offer, while the positive and negative effects of potential precautionary measures
should be considered.163chanrobleslaw

The only study conducted to validate the effects of aerial spraying appears to be the Summary Report on
the Assessment and Fact-Finding Activities on the Issue of Aerial Spraying in Banana Plantations.164 Yet,
the fact-finding team that generated the report was not a scientific study that could justify the resort to
the .precautionary principle. In fact, the Sangguniang Bayan ignored the findings and conclusions of the
fact-finding team that recommended only a regulation, not a ban, against aerial spraying. The
recommendation was in line with the advocacy of judicious handling and application of chemical
pesticides by the DOH-Center for Health Development in the Davao Region in view of the scarcity of
scientific studies to support the ban against aerial spraying.165chanrobleslaw

We should not apply the precautionary approach in sustaining the ban against aerial spraying if little or
nothing is known of the exact or potential dangers that aerial spraying may bring to the health of the
residents within and near the plantations and to the integrity and balance of the environment. It is
dangerous to quickly presume that the effects of aerial spraying would be adverse even in the absence of
evidence. Accordingly, for lack of scientific data supporting a ban on aerial spraying, Ordinance No. 0309-
07 should be struck down for being unreasonable.

V
Ordinance No. 0309-07 is an ultra vires act

The Court further holds that in addition to its unconstitutionality for carrying an unwarranted classification
that contravenes the Equal Protection Clause, Ordinance No. 0309-07 suffers from another legal infirmity.

The petitioners represent that Ordinance No. 0309-07 is a valid exercise of legislative and police powers
by the Sangguniang Bayan of Davao City pursuant to Section 458 in relation to Section 16 both of
the Local Government Code. The respondents counter that Davao City thereby disregarded the
regulations implemented by the Fertilizer and Pesticide Authority (FPA), including its identification and
classification of safe pesticides and other agricultural chemicals.

We uphold the respondents.

An ordinance enjoys the presumption of validity on the basis that:ChanRoblesVirtualawlibrary

The action of the elected representatives of the people cannot be lightly set aside. The councilors must, in
the very nature of things, be familiar with the necessities of their particular municipality and with all the
facts and circumstances which surround the subject, and necessities of their particular municipality and
with all the facts and circumstances which surround the subject, and necessitate action. The local
legislative body, by enacting the ordinance, has in effect given notice that the regulations are essential to
the well-being of the people.166chanroblesvirtuallawlibrary
Section 5(c) of the Local Government Code accords a liberal interpretation to its general welfare
provisions. The policy of liberal construction is consistent with the spirit of local autonomy that endows
local government units with sufficient power and discretion to accelerate their economic development and
uplift the quality of life for their constituents.

Verily, the Court has championed the cause of public welfare on several occasions. In so doing, it has
accorded liberality to the general welfare provisions of the Local Government Code by upholding the
validity of local ordinances enacted for the common good. For instance, in Social Justice Society (SJS) v.
Atienza, Jr.,167 the Court validated a zoning ordinance that reclassified areas covered by a large oil depot
from industrial to commercial in order to ensure the life, health and property of the inhabitants residing
within the periphery of the oil depot. Another instance is Gancayco v. City Government of Quezon
City,168 where the Court declared as valid a city ordinance ordering the construction of arcades that would
ensure the health and safety of the city and its inhabitants, improvement of their morals, peace, good
order, comfort and convenience, as well as the promotion of their prosperity. Even in its early years, the
Court already extended liberality towards the exercise by the local government units; of their legislative
powers in order to promote the general welfare of their communities. This was exemplified in United
States v. Salaveria,169 wherein gambling was characterized as "an act beyond the pale of good morals"
that the local legislative council could validly suppress to protect the well-being of its constituents; and
in United States v. Abendan,170 whereby the right of the then Municipality of Cebu to enact an ordinance
relating to sanitation and public health was upheld.

The power to legislate under the General Welfare Clause is not meant to be an invincible authority. In
fact, Salaveria and Abendan emphasized the reasonableness and consistency of the exercise by the
local government units with the laws or policies of the State.171 More importantly, because the police
power of the local government units flows from the express delegation of the power by Congress, its
exercise is to be construed in strictissimi juris. Any doubt or ambiguity arising out of the terms used in
granting the power should be construed against the local legislative units.172 Judicial scrutiny comes into
play whenever the exercise of police power affects life, liberty or property.173 The presumption of validity
and the policy of liberality are not restraints on the power of judicial review in the face of questions about
whether an ordinance conforms with the Constitution, the laws or public policy, or if it is unreasonable,
oppressive, partial, discriminating or in derogation of a common right. The ordinance must pass the test of
constitutionality and the test of consistency with the prevailing laws.174chanrobleslaw

Although the Local Government Code vests the municipal corporations with sufficient power to govern
themselves and manage their affairs and activities, they definitely have no right to enact ordinances
dissonant with the State's laws and policy. The Local Government Code has been fashioned to delineate
the specific parameters and limitations to guide each local government unit in exercising its delegated
powers with the view of making the local government unit a fully functioning subdivision of the State within
the constitutional and statutory restraints.175 The Local Government Code is not intended to vest in the
local government unit the blanket authority to legislate upon any subject that it finds proper to legislate
upon in the guise of serving the common good.

The function of pesticides control, regulation and development is within the jurisdiction of the FPA under
Presidential Decree No. 1144.176 The FPA was established in recognition of the need for a technically
oriented government entity177 that will protect the public from the risks inherent in the use of
pesticides.178 To perform its mandate, it was given under Section 6 of Presidential Decree No. 1144 the
following powers and functions with respect to pesticides and other agricultural
chemicals, viz.:ChanRoblesVirtualawlibrary
Section 6. Powers and functions. The FPA shall have jurisdiction, on over all existing handlers of
pesticides, fertilizers and other agricultural chemical inputs. The FPA shall have the following powers and
functions:

chanRoblesvirtualLawlibraryx x x x

III. Pesticides and Other Agricultural Chemicals

1. To determine specific uses or manners of use for each pesticide or pesticide formulation;

2. To establish and enforce levels and good agricultural practices for use of pesticides in raw agricultural
commodities;

3. To restrict or ban the use of any pesticide or the formulation of certain pesticides in specific areas or
during certain periods upon evidence that the pesticide is an imminent hazard, has caused, or is causing
widespread serious damage to crops, fish or livestock, or to public health and environment;

xxxx

5. To inspect the establishment and premises of pesticide handlers to insure that industrial health and
safety rules and anti-pollution regulations are followed;

6. To enter and inspect farmers' fields to ensure that only the recommended pesticides are used in
specific crops in accordance with good agricultural practice;

x x x x (Emphasis supplied).
Evidently, the FPA was responsible for ensuring the compatibility between the usage and the application
of pesticides in agricultural activities and the demands for human health and environmental safety. This
responsibility includes not only the identification of safe and unsafe pesticides, but also the prescription of
the safe modes of application in keeping with the standard of good agricultural practices.

On the other hand, the enumerated devolved functions to the local government units do not include the
regulation and control of pesticides and other agricultural chemicals.179 The non-inclusion should preclude
the Sangguniang Bayan of Davao City from enacting Ordinance No. 0309-07, for otherwise it would be
arrogating unto itself the authority to prohibit the aerial application of pesticides in derogation of the
authority expressly vested in the FPA by Presidential Decree No. 1144.

In enacting Ordinance No. 0309-07 without the inherent and explicit authority to do so, the City of Davao
performed an ultra vires act. As a local government unit, the City of Davao could act only as an agent of
Congress, and its every act should always conform to and reflect the will of its principal.180 As clarified in
Batangas CATV, Inc. v. Court of Appeals:181
[W]here the state legislature has made provision for the regulation of conduct, it has manifested its
intention that the subject matter shall be fully covered by the statute, and that a municipality, under its
general powers, cannot regulate the same conduct. In Keller vs. State, it was held that: "Where there is
no express power in the charter of a municipality authorizing it to adopt ordinances regulating certain
matters which are specifically covered by a general statute, a municipal ordinance, insofar as it attempts
to regulate the subject which is completely covered by a general statute of the legislature, may be
rendered invalid. x x x Where the subject is of statewide concern, and the legislature has appropriated the
field and declared the rule, its declaration is binding throughout the State." A reason advanced for this
view is that such ordinances are in excess of the powers granted to the municipal corporation.

Since E.O. No. 205, a general law, mandates that the regulation of CATV operations shall be exercised
by the NTC, an LGU cannot enact an ordinance or approve a resolution in violation of the said law.

It is a fundamental principle that municipal ordinances are inferior in status and subordinate to the laws of
the state. An ordinance in conflict with a state law of general character and statewide application is
universally held to be invalid. The principle is frequently expressed in the declaration that municipal
authorities, under a general grant of power, cannot adopt ordinances which infringe the spirit of a state
law or repugnant to the general policy of the state. In every power to pass ordinances given to a
municipality, there is an implied restriction that the ordinances shall be consistent with the general
law.182 (Emphasis ours)
For sure, every local government unit only derives its legislative authority from Congress. In no instance
can the local government unit rise above its source of authority. As such, its ordinance cannot run against
or contravene existing laws, precisely because its authority is only by virtue of the valid delegation from
Congress. As emphasized in City of Manila v. Laguio, Jr.:183
The requirement that the enactment must not violate existing law gives stress to the precept that local
government units are able to legislate only by virtue of their derivative legislative power, a delegation of
legislative power from the national legislature. The delegate cannot be superior to the principal or
exercise powers higher than those of the latter.

This relationship between the national legislature and the local government units has not been enfeebled
by the new provisions in the Constitution strengthening the policy of local autonomy. The national
legislature is still the principal of the local government units, which cannot defy its will or modify or violate
it.184chanroblesvirtuallawlibrary

Moreover, Ordinance No. 0309-07 proposes to prohibit an activity already covered by the jurisdiction of
the FPA, which has issued its own regulations under its Memorandum Circular No. 02, Series of 2009,
entitled Good Agricultural Practices for Aerial Spraying of Fungicide in Banana Plantations.185 While
Ordinance No. 0309-07 prohibits aerial spraying in banana plantations within the City of Davao,
Memorandum Circular No. 02 seeks to regulate the conduct of aerial spraying in banana
plantations186 pursuant to Section 6, Presidential Decree No. 1144, and in conformity with the standard of
Good Agricultural Practices (GAP). Memorandum Circular No. 02 covers safety
procedures,187 handling188 and post-application,189 including the qualifications of applicators,190 storing of
fungicides,191 safety and equipment of plantation personnel,192 all of which are incompatible with the
prohibition against aerial spraying under Ordinance No. 0309-07.

Although Memorandum Circular No. 02 and Ordinance No. 0309-07 both require the maintenance of the
buffer zone, they differ as to their treatment and maintenance of the buffer zone. Under Memorandum
Circular No. 02, a 50-meter "no-spray boundary" buffer zone should be observed by the spray
pilots,193 and the observance of the zone should be recorded in the Aerial Spray Final Report (ASFR) as a
post-application safety measure.194 On the other hand, Ordinance No. 0309-07 requires the maintenance
of the 30-meter buffer zone to be planted with diversified trees.195chanrobleslaw
Devoid of the specific delegation to its local legislative body, the City of Davao exceeded its delegated
authority to enact Ordinance No. 0309-07. Hence, Ordinance No. 0309-07 must be struck down also for
being an ultra vires act on the part of the Sangguniang Bayan of Davao City.

We must emphasize that our ruling herein does not seek to deprive the LGUs their right to regulate
activities within their jurisdiction. They are empowered under Section 16 of the Local Government Code to
promote the general welfare of the people through regulatory, not prohibitive, ordinances that conform
with the policy directions of the National Government. Ordinance No. 0309-07 failed to pass this test as it
contravenes the specific regulatory policy on aerial spraying in banana plantations on a nationwide scale
of the National Government, through the FPA.

Finally, the unconstitutionality of the ban renders nugatory Ordinance No. 0309-07 in its entirety.
Consequently, any discussion on the lack of the separability clause becomes entirely irrelevant.

WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari for their lack of
merit; AFFIRMS the decision promulgated on January 9, 2009 in C.A.-G.R. CV No. 01389-MIN. declaring
Ordinance No. 0309-07 UNCONSTITUTIONAL; PERMANENTLY ENJOINS respondent City of Davao,
and all persons or entities acting in its behalf or under its authority, from enforcing and implementing
Ordinance No. 0309-07; and ORDERS the petitioners to pay the costs of suit.

EN BANC

August 8, 2017

G.R. No. 225442

SAMAHAN NG MGA PROGRESIBONG KABATAAN (SPARK),* JOANNE ROSE SACE LIM, JOHN
ARVIN NAVARRO BUENAAGUA, RONEL BACCUTAN, MARK LEO DELOS REYES, and CLARISSA
JOYCE VILLEGAS, minor, for herself and as represented by her father, JULIAN VILLEGAS,
JR., Petitioners,
vs.
QUEZON CITY, as represented by MAYOR HERBERT BAUTISTA, CITY OF MANILA, as represented
by MAYOR JOSEPH ESTRADA, and NAVOTAS CITY, as represented by MAYOR JOHN REY
TIANGCO,, Respondents,

DECISION

PERLAS-BERNABE, J.:

This petition for certiorari and prohibition1 assails the constitutionality of the curfew ordinances issued by
the local governments of Quezon City, Manila, and Navotas. The petition prays that a temporary
restraining order (TRO) be issued ordering respondents Herbert Bautista, Joseph Estrada, and John Rey
Tiangco, as Mayors of their respective local governments, to prohibit, refrain, and desist from
implementing and enforcing these issuances, pending resolution of this case, and eventually, declare the
City of Manila's ordinance as ultra vires for being contrary to Republic Act No. (RA) 9344,2 or the
"Juvenile Justice and Welfare Act," as amended, and all curfew ordinances as unconstitutional for
violating the constitutional right of minors to travel, as well as the right of parents to rear their children.

The Facts

Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew for minors,
several local governments in Metro Manila started to strictly implement their curfew ordinances on minors
through police operations which were publicly known as part of "Oplan Rody."3
Among those local governments that implemented curfew ordinances were respondents: (a) Navotas
City, through Pambayang Ordinansa Blg. 99- 02,4 dated August 26, 1999, entitled
"Nagtatakdang 'Curfew' ng mga Kabataan na Wala Pang Labing Walong (18) Taong Gulang sa Bayan ng
Navotas, Kalakhang Maynila," as amended by Pambayang Ordinansa Blg. 2002-13,5 dated June 6, 2002
(Navotas Ordinance); (b) City of Manila, through Ordinance No. 80466 entitled "An Ordinance Declaring
the Hours from 10:00 P.M. to 4:00 A.M. of the Following Day as 'Barangay Curfew Hours' for Children and
Youths Below Eighteen (18) Years of Age; Prescribing Penalties Therefor; and for Other Purposes" dated
October 14, 2002 (Manila Ordinance); and (c) Quezon City, through Ordinance No. SP- 2301,7 Series of
2014, entitled "An Ordinance Setting for a [sic] Disciplinary Hours in Quezon City for Minors from 10:00
P.M. to 5:00 A.M., Providing Penalties for Parent/Guardian, for Violation Thereof and for Other Purposes"
dated July 31, 2014 (Quezon City Ordinance; collectively, Curfew Ordinances).8

Petitioners,9 spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK) - an association of

young adults and minors that aims to forward a free and just society, in particular the protection of the
rights and welfare of the youth and minors10 - filed this present petition, arguing that the Curfew
Ordinances are unconstitutional because they: (a) result in arbitrary and discriminatory enforcement, and
thus, fall under the void for vagueness doctrine; (b) suffer from overbreadth by proscribing or impairing
legitimate activities of minors during curfew hours; (c) deprive minors of the right to liberty and the right to
travel without substantive due process; and (d) deprive parents of their natural and primary right in rearing
the youth without substantive due process.11 In addition, petitioners assert that the Manila Ordinance
contravenes RA 9344, as amended by RA 10630.12

More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and discriminatory
enforcement as there are no clear provisions or detailed standards on how law enforcers should
apprehend and properly determine the age of the alleged curfew violators.13 They further argue that the
law enforcer's apprehension depends only on his physical assessment, and, thus, subjective and based
only on the law enforcer's visual assessment of the alleged curfew violator.14

While petitioners recognize that the Curfew Ordinances contain provisions indicating the activities
exempted from the operation of the imposed curfews, i.e., exemption of working students or students with
evening class, they contend that the lists of exemptions do not cover the range and breadth of legitimate
activities or reasons as to why minors would be out at night, and, hence, proscribe or impair the legitimate
activities of minors during curfew hours.15

Petitioners likewise proffer that the Curfew Ordinances: (a) are unconstitutional as they deprive minors of
the right to liberty and the right to travel without substantive due process;16 and (b) fail to pass the strict
scrutiny test, for not being narrowly tailored and for employing means that bear no reasonable relation to
their purpose.17 They argue that the prohibition of minors on streets during curfew hours will not per
se protect and promote the social and moral welfare of children of the community.18

Furthermore, petitioners claim that the Manila Ordinance, particularly Section 419 thereof, contravenes
Section 57-A20 of RA 9344, as amended, given that the cited curfew provision imposes on minors the
penalties of imprisonment, reprimand, and admonition. They contend that the imposition of penalties
contravenes RA 9344's express command that no penalty shall be imposed on minors for curfew
violations.21

Lastly, petitioners submit that there is no compelling State interest to impose curfews contrary to the
parents' prerogative to impose them in the exercise of their natural and primary right in the rearing of the
youth, and that even if a compelling interest exists, less restrictive means are available to achieve the
same. In this regard, they suggest massive street lighting programs, installation of CCTV s (closed-circuit
televisions) in public streets, and regular visible patrols by law enforcers as other viable means of
protecting children and preventing crimes at night. They further opine that the government can impose
more reasonable sanctions, i.e., mandatory parental counseling and education seminars informing the
parents of the reasons behind the curfew, and that imprisonment is too harsh a penalty for parents who
allowed their children to be out during curfew hours.22
 The Issue Before the Court

The primordial issue for the Court's resolution in this case is whether or not the Curfew Ordinances are
unconstitutional.

The Court's Ruling

The petition is partly granted.

I.

At the onset, the Court addresses the procedural issues raised in this case. Respondents seek the
dismissal of the petition, questioning: (a) the propriety of certiorari and prohibition under Rule 65 of the
Rules of Court to assail the constitutionality of the Curfew Ordinances; (b) petitioners' direct resort to the
Court, contrary to the hierarchy of courts doctrine; and (c) the lack of actual controversy and standing to
warrant judicial review.23

A. Propriety of the Petition for

Certiorari and Prohibition.

Under the 1987 Constitution, judicial power includes the duty of the courts of justice 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."24 Section 1, Article VIII of the
1987 Constitution reads:

ARTICLE VIII
JUDICIAL DEPARTMENT

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. (Emphasis and underscoring supplied)

Case law explains that the present Constitution has "expanded the concept of judicial power, which up to
then was confined to its traditional ambit of settling actual controversies involving rights that were legally
demandable and enforceable."25

In Araullo v. Aquino III,26 it was held that petitions for certiorari and prohibition filed before the Court "are
the remedies by which the grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the Government may be determined under the Constitution."27 It
was explained that "[w]ith respect to the Court, x x x the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may be issued to correct
errors of jurisdiction committed not only by a tribunal, corporation, board or officer exercising judicial,
quasi-judicial or ministerial functions, but also to set right, undo[,] and restrain any act of grave abuse
of discretion amounting to lack or excess of jurisdiction by any branch or instrumentality of the
Government, even if the latter does not exercise judicial, quasi-judicial or ministerial
functions. This application is expressly authorized by the text of the second paragraph of Section 1,
[Article VIII of the 1987 Constitution cited above]."28
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical Centers
Association, Inc.,29 it was expounded that "[ m ]eanwhile that no specific procedural rule has been
promulgated to enforce [the] 'expanded' constitutional definition of judicial power and because of the
commonality of 'grave abuse of discretion' as a ground for review under Rule 65 and the courts' expanded
jurisdiction, the Supreme Court - based on its power to relax its rules - allowed Rule 65 to be used as the
medium for petitions invoking the courts' expanded jurisdiction[. ]"30

In this case, petitioners question the issuance of the Curfew Ordinances by the legislative councils of
Quezon City, Manila, and Navotas in the exercise of their delegated legislative powers on the ground that
these ordinances violate the Constitution, specifically, the provisions pertaining to the right to travel of
minors, and the right of parents to rear their children. They also claim that the Manila Ordinance, by
imposing penalties against minors, conflicts with RA 9344, as amended, which prohibits the imposition of
penalties on minors for status offenses. It has been held that "[t]here is grave abuse of discretion when an
act is (1) done contrary to the Constitution, the law or jurisprudence or (2) executed whimsically,
capriciously or arbitrarily, out of malice, ill will or personal bias. "31 In light of the foregoing, petitioners
correctly availed of the remedies of certiorari and prohibition, although these governmental actions were
not made pursuant to any judicial or quasi-judicial function.

B. Direct Resort to the Court.

Since petitions for certiorari and prohibition are allowed as remedies to assail the constitutionality of
legislative and executive enactments, the next question to be resolved is whether or not petitioners' direct
resort to this Court is justified.

The doctrine of hierarchy of courts "[r]equires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court. The Supreme Court has original jurisdiction over
petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. While this jurisdiction is
shared with the Court of Appeals [(CA)] and the [Regional Trial Courts], a direct invocation of this
Court's jurisdiction is allowed when there are special and important reasons therefor, clearly and
especially set out in the petition[.]"32 This Court is tasked to resolve "the issue of constitutionality of
a law or regulation at the first instance [if it] is of paramount importance and immediately affects
the social, economic, and moral well-being of the people,"33 as in this case. Hence, petitioners' direct
resort to the Court is justified.

C. Requisites of Judicial Review.

"The prevailing rule in constitutional litigation is 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: (a) there must be an actual case or controversy calling for
the exercise of judicial power; (b) the person challenging the act must have the standing to question the
validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity; and (d) the issue of constitutionality must be the very lis mota of the case."34 In this case,
respondents assail the existence of the first two (2) requisites.

1. Actual Case or Controversy.

"Basic in the exercise of judicial power - whether under the traditional or in the expanded setting - is the
presence of an actual case or controversy."35 "[A]n actual case or controversy is one which 'involves a
conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as
distinguished from a hypothetical or abstract difference or dispute.' In other words, 'there must be a
contrariety of legal rights that can be interpreted and enforced on the basis of existing law and
jurisprudence."36 According to recent jurisprudence, in the Court's exercise of its expanded jurisdiction
under the 1987 Constitution, this requirement is simplified "by merely requiring a prima facie showing
of grave abuse of discretion in the assailed governmental act." 37
"Corollary to the requirement of an actual case or controversy is the requirement of ripeness. 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 of."38

Applying these precepts, this Court finds that there exists an actual justiciable controversy in this case
given the evident clash of the parties' legal claims, particularly on whether the Curfew Ordinances impair
the minors' and parents' constitutional rights, and whether the Manila Ordinance goes against the
provisions of RA 9344. Based on their asseverations, petitioners have - as will be gleaned from the
substantive discussions below - conveyed a prima facie case of grave abuse of discretion, which perforce
impels this Court to exercise its expanded jurisdiction. The case is likewise ripe for adjudication,
considering that the Curfew Ordinances were being implemented until the Court issued the
TRO39 enjoining their enforcement. The purported threat or incidence of injury is, therefore, not merely
speculative or hypothetical but rather, real and apparent.

2. Legal Standing.

"The question of locus standi or legal standing focuses on the determination of whether those assailing
the governmental act have the right of appearance to bring the matter to the court for adjudication.
[Petitioners] must show that they have a personal and substantial interest in the case, such that they
have sustained or are in immediate danger of sustaining, some direct injury as a consequence of
the enforcement of the challenged governmental act."40 "' [I]nterest' in the question involved must be
material - an interest that is in issue and will be affected by the official act- as distinguished from being
merely incidental or general."41

"The gist of the question of [legal] standing is whether a party alleges such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court depends for illumination of difficult constitutional
questions. Unless a person is injuriously affected in any of his constitutional rights by the operation of
statute or ordinance, he has no standing."42

As abovementioned, the petition is anchored on the alleged breach of two (2) constitutional rights,
namely: (1) the right of minors to freely travel within their respective localities; and (2) the primary right of
parents to rear their children. Related to the first is the purported conflict between RA 9344, as amended,
and the penal provisions of the Manila Ordinance.

Among the five (5) individual petitioners, only Clarissa Joyce Villegas (Clarissa) has legal standing to
raise the issue affecting the minor's right to travel,43 because: (a) she was still a minor at the time the
petition was filed before this Court,44 and, hence, a proper subject of the Curfew Ordinances; and (b) as
alleged, she travels from Manila to Quezon City at night after school and is, thus, in imminent danger of
apprehension by virtue of the Curfew Ordinances. On the other hand, petitioners Joanne Rose Sace Lim,
John Arvin Navarro Buenaagua, Ronel Baccutan (Ronel), and Mark Leo Delos Reyes (Mark Leo)
admitted in the petition that they are all of legal age, and therefore, beyond the ordinances' coverage.
Thus, they are not proper subjects of the Curfew Ordinances, for which they could base any direct injury
as a consequence thereof.

None of them, however, has standing to raise the issue of whether the Curfew Ordinances violate the
parents' right to rear their children as they have not shown that they stand before this Court as parent/s
and/or guardian/s whose constitutional parental right has been infringed. It should be noted that Clarissa
is represented by her father, Julian Villegas, Jr. (Mr. Villegas), who could have properly filed the petition
for himself for the alleged violation of his parental right. But Mr. Villegas did not question the Curfew
Ordinances based on his primary right as a parent as he only stands as the representative of his minor
child, Clarissa, whose right to travel was supposedly infringed.

As for SPARK, it is an unincorporated association and, consequently, has no legal personality to bring an
action in court.45 Even assuming that it has the capacity to sue, SPARK still has no standing as it failed to
allege that it was authorized by its members who were affected by the Curfew Ordinances, i.e., the
minors, to file this case on their behalf.

Hence, save for Clarissa, petitioners do not have the required personal interest in the controversy. More
particularly, Clarissa has standing only on the issue of the alleged violation of the minors' right to travel,
but not on the alleged violation of the parents' right.

These notwithstanding, this Court finds it proper to relax the standing requirement insofar as all the
petitioners are concerned, in view of the transcendental importance of the issues involved in this case. "In
a number of cases, this Court has taken a liberal stance towards the requirement of legal standing,
especially when paramount interest is involved. Indeed, when those who challenge the official act are
able to craft an issue of transcendental significance to the people, the Court may exercise its
sound discretion and take cognizance of the suit. It may do so in spite of the inability of the petitioners
to show that they have been personally injured by the operation of a law or any other government act."46

This is a case of first impression in which the constitutionality of juvenile curfew ordinances is placed
under judicial review. Not only is this Court asked to determine the impact of these issuances on the right
of parents to rear their children and the right of minors to travel, it is also requested to determine the
extent of the State's authority to regulate these rights in the interest of general welfare. Accordingly, this
case is of overarching significance to the public, which, therefore, impels a relaxation of procedural rules,
including, among others, the standing requirement.

That being said, this Court now proceeds to the substantive aspect of this case.

II.

A. Void for Vagueness.

Before resolving the issues pertaining to the rights of minors to travel and of parents to rear their children,
this Court must first tackle petitioners' contention that the Curfew Ordinances are void for vagueness.

In particular, petitioners submit that the Curfew Ordinances are void for not containing sufficient
enforcement parameters, which leaves the enforcing authorities with unbridled discretion to carry out their
provisions. They claim that the lack of procedural guidelines in these issuances led to the questioning of
petitioners Ronel and Mark Leo, even though they were already of legal age. They maintain that the
enforcing authorities apprehended the suspected curfew offenders based only on their physical
appearances and, thus, acted arbitrarily. Meanwhile, although they conceded that the Quezon City
Ordinance requires enforcers to determine the age of the child, they submit that nowhere does the said
ordinance require the law enforcers to ask for proof or identification of the child to show his age.47

The arguments are untenable.

"A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men
of common intelligence must necessarily guess at its meaning and differ as to its application. It is
repugnant to the Constitution in two (2) 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."48
In this case, petitioners' invocation of the void for vagueness doctrine is improper, considering that they
do not properly identify any provision in any of the Curfew Ordinances, which, because of its vague
terminology, fails to provide fair warning and notice to the public of what is prohibited or required so that
one may act accordingly.49 The void for vagueness doctrine is premised on due process
considerations, which are absent from this particular claim. In one case, it was opined that:

[T]he vagueness doctrine is a specie of "unconstitutional uncertainty," which may involve "procedural due
process uncertainty cases" and "substantive due process uncertainty cases." "Procedural due process
uncertainty" involves cases where the statutory language was so obscure that it failed to give adequate
warning to those subject to its prohibitions as well as to provide proper standards for adjudication. Such a
definition encompasses the vagueness doctrine. This perspective rightly integrates the vagueness
doctrine with the due process clause, a necessary interrelation since there is no constitutional provision
that explicitly bars statutes that are "void-for-vagueness."50

Essentially, petitioners only bewail the lack of enforcement parameters to guide the local authorities in the
proper apprehension of suspected curfew offenders. They do not assert any confusion as to what
conduct the subject ordinances prohibit or not prohibit but only point to the ordinances' lack of
enforcement guidelines. The mechanisms related to the implementation of the Curfew Ordinances are,
however, matters of policy that are best left for the political branches of government to resolve. Verily, the
objective of curbing unbridled enforcement is not the sole consideration in a void for vagueness analysis;
rather, petitioners must show that this perceived danger of unbridled enforcement stems from an
ambiguous provision in the law that allows enforcement authorities to second-guess if a particular conduct
is prohibited or not prohibited. In this regard, that ambiguous provision of law contravenes due process
because agents of the government cannot reasonably decipher what conduct the law permits and/or
forbids. In Bykofsky v. Borough of Middletown, 51 it was ratiocinated that:

A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution
on ad hoc and subjective basis, and vague standards result in erratic and arbitrary application based on
individual impressions and personal predilections.52

As above-mentioned, petitioners fail to point out any ambiguous standard in any of the provisions of the
Curfew Ordinances, but rather, lament the lack of detail on how the age of a suspected minor would be
determined. Thus, without any correlation to any vague legal provision, the Curfew Ordinances cannot be
stricken down under the void for vagueness doctrine.

Besides, petitioners are mistaken in claiming that there are no sufficient standards to identify suspected
curfew violators. While it is true that the Curfew Ordinances do not explicitly state these parameters, law
enforcement agents are still bound to follow the prescribed measures found in statutory law when
implementing ordinances. Specifically, RA 9344, as amended, provides:

Section 7. Determination of Age. - x x x The age of a child may be determined from the child's birth
certificate, baptismal certificate or any other pertinent documents. In the absence of these
documents, age may be based on information from the child himself/herself, testimonies of other
persons, the physical appearance of the child and other relevant evidence. (Emphases supplied)

This provision should be read in conjunction with · the Curfew Ordinances because RA 10630 (the law
that amended RA 9344) repeals all ordinances inconsistent with statutory law.53 Pursuant to Section 57-A
of RA 9344, as amended by RA 10630,54 minors caught in violation of curfew ordinances are
children at risk and, therefore, covered by its provisions.55 It is a long-standing principle that
"[c]onformity with law is one of the essential requisites for the validity of a municipal
ordinance."56 Hence, by necessary implication, ordinances should be read and implemented in
conjunction with related statutory law.
Applying the foregoing, any person, such as petitioners Ronel and Mark Leo, who was perceived to be a
minor violating the curfew, may therefore prove that he is beyond the application of the Curfew
Ordinances by simply presenting any competent proof of identification establishing their majority age. In
the absence of such proof, the law authorizes enforcement authorities to conduct a visual assessment of
the suspect, which - needless to state - should be done ethically and judiciously under the circumstances.
Should law enforcers disregard these rules, the remedy is to pursue the appropriate action against the
erring enforcing authority, and not to have the ordinances invalidated.

All told, petitioners' prayer to declare the Curfew Ordinances as void for vagueness is denied.

B. Right of Parents to Rear their

Children.

Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive parents of their
natural and primary right in the rearing of the youth without substantive due process. In this regard, they
assert that this right includes the right to determine whether minors will be required to go home at a
certain time or will be allowed to stay late outdoors. Given that the right to impose curfews is primarily with
parents and not with the State, the latter's interest in imposing curfews cannot logically be compelling.57

Petitioners' stance cannot be sustained.

Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the rights of parents
in the rearing of their children:

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. (Emphasis and underscoring supplied.)

As may be gleaned from this provision, the rearing of children (i.e., referred to as the "youth") for civic
efficiency and the development of their moral character are characterized not only as parental rights, but
also as parental duties. This means that parents are not only given the privilege of exercising their
authority over their children; they are equally obliged to exercise this authority conscientiously. The duty
aspect of this provision is a reflection of the State's independent interest to ensure that the youth would
eventually grow into free, independent, and well-developed citizens of this nation. For indeed, it is during
childhood that minors are prepared for additional obligations to society. "[T]he duty to prepare the child
for these [obligations] must be read to include the inculcation of moral standards, religious
beliefs, and elements of good citizenship."58 "This affirmative process of teaching, guiding, and
inspiring by precept and example is essential to the growth of young people into mature, socially
responsible citizens."59

By history and tradition, "the parental role implies a substantial measure of authority over one's
children."60 In Ginsberg v. New York,61 the Supreme Court of the United States (US) remarked that
"constitutional interpretation has consistently recognized that the parents' claim to authority in their own
household to direct the rearing of their children is basic in the structure of our society."62 As in our
Constitution, the right and duty of parents to rear their children is not only described as "natural," but also
as "primary." The qualifier "primary" connotes the parents' superior right over the State in the
upbringing of their children.63 The rationale for the State's deference to parental control over their
children was explained by the US Supreme Court in Bellotti v. Baird (Bellotti),64 as follows:

[T]he guiding role of parents in their upbringing of their children justifies limitations on the freedoms of
minors. The State commonly protects its youth from adverse governmental action and from their own
immaturity by requiring parental consent to or involvement in important decisions by minors. But an
additional and more important justification for state deference to parental control over children is
that "the child is not [a) mere creature of the State; those who nurture him and direct his destiny
have the right, coupled with the high duty, to recognize and prepare him for additional
obligations."65 (Emphasis and underscoring supplied)

While parents have the primary role in child-rearing, it should be stressed that "when actions
concerning the child have a relation to the public welfare or the well-being of the child, the [Sltate
may act to promote these legitimate interests." 66 Thus, "[i]n cases in which harm to the physical or
mental health of the child or to public safety, peace, order, or welfare is demonstrated, these
legitimate state interests may override the parents' qualified right to control the upbringing of
their children."67

As our Constitution itself provides, the State is mandated to support parents in the exercise of these
rights and duties. State authority is therefore, not exclusive of, but rather, complementary to
parental supervision. In Nery v. Lorenzo,68 this Court acknowledged the State's role as parens patriae in
protecting minors, viz. :

[Where minors are involved, the State acts as parens patriae. To it is cast the duty of protecting
the rights of persons or individual who because of age or incapacity are in an unfavorable
position, vis-a-vis other parties. Unable as they are to take due care of what concerns them, they have
the political community to look after their welfare. This obligation the state must live up to. It cannot be
recreant to such a trust. As was set forth in an opinion of the United States Supreme Court: "This
prerogative of parens patriae is inherent in the supreme power of every State, x x x."69 (Emphases
and underscoring supplied)

As parens patriae, the State has the inherent right and duty to aid parents in the moral
development of their children,70 and, thus, assumes a supporting role for parents to fulfill their parental
obligations. In Bellotti, it was held that "[I]egal restriction on minors, especially those supportive of the
parental role, may be important to the child's chances for the full growth and maturity that make eventual
participation in a free society meaningful and rewarding. Under the Constitution, the State can
properly conclude that parents and others, teachers for example, who have the primary
responsibility for children's well-being are entitled to the support of the laws designed to aid
discharge of that responsibility."71

The Curfew Ordinances are but examples of legal restrictions designed to aid parents in their role of
promoting their children's well-being. As will be later discussed at greater length, these ordinances further
compelling State interests (particularly, the promotion of juvenile safety and the prevention of juvenile
crime), which necessarily entail limitations on the primary right of parents to rear their children. Minors,
because of their peculiar vulnerability and lack of experience, are not only more exposed to potential
physical harm by criminal elements that operate during the night; their moral well-being is likewise
imperiled as minor children are prone to making detrimental decisions during this time.72

At this juncture, it should be emphasized that the Curfew Ordinances apply only when the minors are not -
whether actually or constructively (as will be later discussed) - accompanied by their parents. This serves
as an explicit recognition of the State's deference to the primary nature of parental authority and the
importance of parents' role in child-rearing. Parents are effectively given unfettered authority over their
children's conduct during curfew hours when they are able to supervise them. Thus, in all actuality, the
only aspect of parenting that the Curfew Ordinances affects is the parents' prerogative to allow
minors to remain in public places without parental accompaniment during the curfew hours. 73 In
this respect, the ordinances neither dictate an over-all plan of discipline for the parents to apply to
their minors nor force parents to abdicate their authority to influence or control their minors'
activities.74 As such, the Curfew Ordinances only amount to a minimal - albeit reasonable - infringement
upon a parent's right to bring up his or her child.
Finally, it may be well to point out that the Curfew Ordinances positively influence children to spend more
time at home. Consequently, this situation provides parents with better opportunities to take a more active
role in their children's upbringing. In Schleifer v. City of Charlottesvillle (Schleifer),75 the US court
observed that the city government "was entitled to believe x x x that a nocturnal curfew would promote
parental involvement in a child's upbringing. A curfew aids the efforts of parents who desire to protect
their children from the perils of the street but are unable to control the nocturnal behavior of those
children."76 Curfews may also aid the "efforts of parents who prefer their children to spend time on their
studies than on the streets."77 Reason dictates that these realities observed in Schleifer are no less
applicable to our local context. Hence, these are additional reasons which justify the impact of the
nocturnal curfews on parental rights.

In fine, the Curfew Ordinances should not be declared unconstitutional for violating the parents' right to
rear their children.

C. Right to Travel.

Petitioners further assail the constitutionality of the Curfew Ordinances based on the minors' right to
travel. They claim that the liberty to travel is a fundamental right, which, therefore, necessitates the
application of the strict scrutiny test. Further, they submit that even if there exists a compelling State
interest, such as the prevention of juvenile crime and the protection of minors from crime, there are other
less restrictive means for achieving the government's interest.78 In addition, they posit that the Curfew
Ordinances suffer from overbreadth by proscribing or impairing legitimate activities of minors during
curfew hours.79

Petitioner's submissions are partly meritorious.

At the outset, the Court rejects petitioners' invocation of the overbreadth doctrine, considering that
petitioners have not claimed any transgression of their rights to free speech or any inhibition of speech-
related conduct. In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism Council(Southern
Hemisphere),80 this Court explained that "the application of the overbreadth doctrine is limited to a facial
kind of challenge and, owing to the given rationale of a facial challenge, applicable only to free speech
cases,"81 viz.:

By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before the court,
that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a statute cannot
be properly analyzed for being substantially overbroad if the court confines itself only to facts as applied
to the litigants.

The most distinctive feature of the overbreadth technique is that it marks an exception to some of the
usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the unconstitutional
aspects of the law by invalidating its improper applications on a case to case basis. Moreover,
challengers to a law are not permitted to raise the rights of third parties and can only assert their own
interests. In overbreadth analysis, those rules give way; challenges are permitted to raise the rights of
third parties; and the court invalidates the entire statute "on its face," not merely "as applied for" so that
the overbroad law becomes unenforceable until a properly authorized court construes it more
narrowly. The factor that motivates courts to depart from the normal adjudicatory rules is the
concern with the "chilling;" deterrent effect of the overbroad statute on third parties not
courageous enough to bring suit. The Court assumes that an overbroad law's "very existence may
cause others not before the court to refrain from constitutionally protected speech or expression." An
overbreadth ruling is designed to remove that deterrent effect on the speech of those third
parties.82 (Emphases and underscoring supplied)
In the same case, it was further pointed out that "[i]n restricting the overbreadth doctrine to free speech
claims, the Court, in at least two [(2)] cases, observed that the US Supreme Court has not recognized an
overbreadth doctrine outside the limited context of the First Amendment,83 and that claims of facial
overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate only
spoken words. In Virginia v. Hicks,84 it was held that rarely, if ever, will an overbreadth challenge succeed
against a law or regulation that is not specifically addressed to speech or speech-related conduct. Attacks
on overly broad statutes are justified by the 'transcendent value to all society of constitutionally protected
expression. "'85

In the more recent case of SpousesImbong v. Ochoa, Jr.,86 it was opined that "[f]acial challenges can
only be raised on the basis of overbreadth and not on vagueness. Southern
Hemisphere demonstrated how vagueness relates to violations of due process rights, whereas facial
challenges are raised on the basis of overbreadth and limited to the realm of freedom of
expression."87

That being said, this Court finds it improper to undertake an overbreadth analysis in this case, there being
no claimed curtailment of free speech. On the contrary, however, this Court finds proper to examine the
assailed regulations under the strict scrutiny test.

The right to travel is recognized and guaranteed as a fundamental right88 under Section 6, Article III of
the 1987 Constitution, to wit:

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in
the interest of national security, public safety, or public health, as may be provided by
law. (Emphases and underscoring supplied)

Jurisprudence provides that this right refers to the right to move freely from the Philippines to other
countries or within the Philippines.89 It is a right embraced within the general concept of liberty.90 Liberty -
a birthright of every person - includes the power of locomotion91 and the right of citizens to be free to use
their faculties in lawful ways and to live and work where they desire or where they can best pursue the
ends of life.92

The right to travel is essential as it enables individuals to access and exercise their other rights, such as
the rights to education, free expression, assembly, association, and religion.93 The inter-relation of the
right to travel with other fundamental rights was briefly rationalized in City of Maquoketa v. Russell,94 as
follows:

Whenever the First Amendment rights of freedom of religion, speech, assembly, and association require
one to move about, such movement must necessarily be protected under the First Amendment.

Restricting movement in those circumstances to the extent that First Amendment Rights cannot be
exercised without violating the law is equivalent to a denial of those rights. One court has
eloquently pointed this out:

We would not deny the relatedness of the rights guaranteed by the First Amendment to freedom
of travel and movement. If, for any reason, people cannot walk or drive to their church, their freedom to
worship is impaired. If, for any reason, people cannot walk or drive to the meeting hall, freedom of
assembly is effectively blocked. If, for any reason, people cannot safely walk the sidewalks or drive the
streets of a community, opportunities for freedom of speech are sharply limited. Freedom of movement
is inextricably involved with freedoms set forth in the First Amendment. (Emphases supplied)

Nevertheless, grave and overriding considerations of public interest justify restrictions even if made
against fundamental rights. Specifically on the freedom to move from one place to another, jurisprudence
provides that this right is not absolute.95 As the 1987 Constitution itself reads, the State96 may impose
limitations on the exercise of this right, provided that they: (1) serve the interest of national security,
public safety, or public health; and (2) are provided by law.97

The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety and
prevention of juvenile crime, inarguably serve the interest of public safety. The restriction on the minor's
movement and activities within the confines of their residences and their immediate vicinity during the
curfew period is perceived to reduce the probability of the minor becoming victims of or getting involved in
crimes and criminal activities. As to the second requirement, i.e., that the limitation "be provided by law,"
our legal system is replete with laws emphasizing the State's duty to afford special protection to children,
i.e., RA 7610,98 as amended, RA 977599 RA 9262100 RA 9851101RA 9344102 RA 10364103 RA
9211104 RA8980,105 RA9288,106 and Presidential Decree (PD) 603,107 as amended.

Particularly relevant to this case is Article 139 of PD 603, which explicitly authorizes local government
units, through their city or municipal councils, to set curfew hours for children. It reads:

Article 139. Curfew Hours for Children. - City or municipal councils may prescribe such curfew hours
for children as may be warranted by local conditions. The duty to enforce curfew ordinances shall
devolve upon the parents or guardians and the local authorities.

x x x x (Emphasis and underscoring supplied)

As explicitly worded, city councils are authorized to enact curfew ordinances (as what respondents have
done in this case) and enforce the same through their local officials. In other words, PD 603 provides
sufficient statutory basis - as required by the Constitution - to restrict the minors' exercise of the right to
travel.

The restrictions set by the Curfew Ordinances that apply solely to minors are likewise constitutionally
permissible. In this relation, this Court recognizes that minors do possess and enjoy constitutional
rights,108 but the exercise of these rights is not co-extensive as those of adults. 109 They are always
subject to the authority or custody of another, such as their parent/s and/or guardian/s, and the
State.110 As parens patriae, the State regulates and, to a certain extent, restricts the minors' exercise of
their rights, such as in their affairs concerning the right to vote,111 the right to execute contracts,112 and the
right to engage in gainful employment.113 With respect to the right to travel, minors are required by law to
obtain a clearance from the Department of Social Welfare and Development before they can travel to a
foreign country by themselves or with a person other than their parents.114 These limitations demonstrate
that the State has broader authority over the minors' activities than over similar actions of adults,115 and
overall, reflect the State's general interest in the well-being of minors.116 Thus, the State may impose
limitations on the minors' exercise of rights even though these limitations do not generally apply to adults.

In Bellotti,117the US Supreme Court identified three (3) justifications for the differential treatment of the
minors' constitutional rights. These are: first, the peculiar vulnerability of children; second, their
inability to make critical decisions in an informed and mature manner; and third, the importance of
the parental role in child rearing:118

[On the first reason,] our cases show that although children generally are protected by the same
constitutional guarantees against governmental deprivations as are adults, the State is entitled to adjust
its legal system to account for children's vulnerability and their needs for 'concern, ... sympathy,
and ... paternal attention.x x x.

[On the second reason, this Court's rulings are] grounded [on] the recognition that, during the formative
years of childhood and adolescence, minors often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them. x x x.
 xxxx

[On the third reason,] the guiding role of parents in the upbringing of their children justifies limitations on
the freedoms of minors. The State commonly protects its youth from adverse governmental action and
from their own immaturity by requiring parental consent to or involvement in important decisions by
minors. x x x.

xxxx

x x x Legal restrictions on minors, especially those supportive of the parental role, may be
important to the child's chances for the full growth and maturity that make eventual participation in a
free society meaningful and rewarding.119 (Emphases and underscoring supplied)

Moreover, in Prince v. Massachusetts,120 the US Supreme Court acknowledged the heightened dangers

on the streets to minors, as compared to adults:

A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people
into full maturity as citizens, with all that implies. It may secure this against impeding restraints and
dangers within a broad range of selection. Among evils most appropriate for such action are the crippling
effects of child employment, more especially in public places, and the possible harms arising from
other activities subject to all the diverse influences of the [streets]. It is too late now to doubt that
legislation appropriately designed to reach such evils is within the state's police power, whether against
the parent's claim to control of the child or one that religious scruples dictate contrary action.

It is true children have rights, in common with older people, in the primary use of highways. But even in
such use streets afford dangers for them not affecting adults. And in other uses, whether in work
or in other things, this difference may be magnified. 121 (Emphases and underscoring supplied)

For these reasons, the State is justified in setting restrictions on the minors' exercise of their travel rights,
provided, they are singled out on reasonable grounds.

Philippine jurisprudence has developed three (3) tests of judicial scrutiny to determine the
reasonableness of classifications.122 The strict scrutiny test applies when a classification
either (i) interferes with the exercise of fundamental rights, including the basic liberties guaranteed under
the Constitution, or (ii) burdens suspect classes.123 The intermediate scrutiny test applies when a
classification does not involve suspect classes or fundamental rights, but requires heightened scrutiny,
such as in classifications based on gender and legitimacy.124 Lastly, the rational basis test applies to all
other subjects not covered by the first two tests.125

Considering that the right to travel is a fundamental right in our legal system guaranteed no less by our
Constitution, the strict scrutiny test126 is the applicable test.127 At this juncture, it should be emphasized
that minors enjoy the same constitutional rights as adults; the fact that the State has broader authority
over minors than over adults does not trigger the application of a lower level of scrutiny.128 In Nunez v.
City of San Diego (Nunez),129 the US court illumined that:

Although many federal courts have recognized that juvenile curfews implicate the fundamental rights of
minors, the parties dispute whether strict scrutiny review is necessary. The Supreme Court teaches that
rights are no less "fundamental" for minors than adults, but that the analysis of those rights may
differ:

Constitutional rights do not mature and come into being magically only when one attains the state-
defined age of majority.1âwphi1 Minors, as well as adults, are protected by the Constitution and
possess constitutional rights. The Court[,] indeed, however, [has long] recognized that the State has
somewhat broader authority to regulate the activities of children than of adults. xxx. Thus, minors' rights
are not coextensive with the rights of adults because the state has a greater range of interests that
justify the infringement of minors' rights.

The Supreme Court has articulated three specific factors that, when applicable, warrant differential
analysis of the constitutional rights of minors and adults: x x x. The Bellotti test [however] does not
establish a lower level of scrutiny for the constitutional rights of minors in the context of a
juvenile curfew. Rather, the Bellotti framework enables courts to determine whether the state has a
compelling state interest justifying greater restrictions on minors than on adults. x x x.

x x x Although the state may have a compelling interest in regulating minors differently than
adults, we do not believe that [a] lesser degree of scrutiny is appropriate to review burdens on
minors' fundamental rights. x x x.

According, we apply strict scrutiny to our review of the ordinance. x x x.130 (Emphases supplied)

The strict scrutiny test as applied to minors entails a consideration of the peculiar circumstances of
minors as enumerated in Bellotti vis-a-vis the State's duty as parenspatriae to protect and preserve their
well-being with the compelling State interests justifying the assailed government act. Under the strict
scrutiny test, a legislative classification that interferes with the exercise of a fundamental right or operates
to the disadvantage of a suspect class is presumed unconstitutional.131 Thus, the government has the
burden of proving that the classification (1) is necessary to achieve a compelling State
interest, and (i1) is the least restrictive means to protect such interest or the means chosen is
narrowly tailored to accomplish the interest.132

a. Compelling State Interest.

Jurisprudence holds that compelling State interests include constitutionally declared policies.133 This
Court has ruled that children's welfare and the State's mandate to protect and care for them
as parenspatriae constitute compelling interests to justify regulations by the State. 134 It is akin to
the paramount interest of the state for which some individual liberties must give way.135 As explained
in Nunez, the Bellotti framework shows that the State has a compelling interest in imposing greater
restrictions on minors than on adults. The limitations on minors under Philippine laws also highlight this
compelling interest of the State to protect and care for their welfare.

In this case, respondents have sufficiently established that the ultimate objective of the Curfew
Ordinances is to keep unsupervised minors during the late hours of night time off of public areas, so as to
reduce - if not totally eliminate - their exposure to potential harm, and to insulate them against criminal
pressure and influences which may even include themselves. As denoted in the "whereas clauses" of the
Quezon City Ordinance, the State, in imposing nocturnal curfews on minors, recognizes that:

[b] x x x children, particularly the minors, appear to be neglected of their proper care and guidance,
education, and moral development, which [lead] them into exploitation, drug addiction, and become
vulnerable to and at the risk of committing criminal offenses;

xxxx

[d] as a consequence, most of minor children become out-of-school youth, unproductive by-standers,
street children, and member of notorious gangs who stay, roam around or meander in public or private
roads, streets or other public places, whether singly or in groups without lawful purpose or justification;

xxxx
[f] reports of barangay officials and law enforcement agencies reveal that minor children roaming around,
loitering or wandering in the evening are the frequent personalities involved in various infractions of city
ordinances and national laws;

[g] it is necessary in the interest of public order and safety to regulate the movement of minor children
during night time by setting disciplinary hours, protect them from neglect, abuse or cruelty and
exploitation, and other conditions prejudicial or detrimental to their development;

[h] to strengthen and support parental control on these minor children, there is a need to put a restraint on
the tendency of growing number of youth spending their nocturnal activities wastefully, especially in the
face of the unabated rise of criminality and to ensure that the dissident elements of society are not
provided with potent avenues for furthering their nefarious activities[.]136

The US court's judicial demeanor in Schleifer,137 as regards the information gathered by the City Council
to support its passage of the curfew ordinance subject of that case, may serve as a guidepost to our own
eatment of the present case. Significantly, in Schleifer, the US court recognized the entitlement of elected
bodies to implement policies for a safer community, in relation to the proclivity of children to make
dangerous and potentially life-shaping decisions when left unsupervised during the late hours of night:

Charlottesville was constitutionally justified in believing that its curfew would materially assist its first
stated interest-that of reducing juvenile violence and crime. The City Council acted on the basis of
information from many sources, including records from Charlottesville's police department, a survey of
public opinion, news reports, data from the United States Department of Justice, national crime reports,
and police reports from other localities. On the basis of such evidence, elected bodies are entitled to
conclude that keeping unsupervised juveniles off the streets late at night will make for a safer
community. The same streets may have a more volatile and less wholesome character at night
than during the day. Alone on the streets at night children face a series of dangerous and
potentially life-shaping decisions. Drug dealers may lure them to use narcotics or aid in their sale.
Gangs may pressure them into membership or participation in violence. "[D]uring the formative years of
childhood and adolescence, minors often lack the experience, perspective, and judgment to recognize
and avoid choices that could be detrimental to them." Those who succumb to these criminal
influences at an early age may persist in their criminal conduct as adults. Whether we as judges
subscribe to these theories is beside the point. Those elected officials with their finger on the pulse of
their home community clearly did. In attempting to reduce through its curfew the opportunities for children
to come into contact with criminal influences, the City was directly advancing its first objective of
reducing juvenile violence and crime.138 (Emphases and underscoring supplied; citations omitted)

Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and Manila
presented statistical data in their respective pleadings showing the alarming prevalence of crimes
involving juveniles, either as victims or perpetrators, in their respective localities.139

Based on these findings, their city councils found it necessary to enact curfew ordinances pursuant to
their police power under the general welfare clause.140 In this light, the Court thus finds that the local
governments have not only conveyed but, in fact, attempted to substantiate legitimate concerns
on public welfare, especially with respect to minors. As such, a compelling State interest exists for
the enactment and enforcement of the Curfew Ordinances.

With the first requirement of the strict scrutiny test satisfied, the Court now proceeds to determine if the
restrictions set forth in· the Curfew Ordinances are narrowly tailored or provide the least restrictive means
to address the cited compelling State interest - the second requirement of the strict scrutiny test.

b. Least Restrictive Means/ Narrowly Drawn.

The second requirement of the strict scrutiny test stems from the fundamental premise that citizens
should not be hampered from pursuing legitimate activities in the exercise of their constitutional rights.
While rights may be restricted, the restrictions must be minimal or only to the extent necessary to achieve
the purpose or to address the State's compelling interest. When it is possible for governmental
regulations to be more narrowly drawn to avoid conflicts with constitutional rights, then they must
be so narrowly drawn. 141

Although treated differently from adults, the foregoing standard applies to regulations on minors as they
are still accorded the freedom to participate in any legitimate activity, whether it be social, religious, or
civic.142 Thus, in the present case, each of the ordinances must be narrowly tailored as to ensure minimal
constraint not only on the minors' right to travel but also on their other constitutional rights.143

In In Re Mosier,144 a US court declared a curfew ordinance unconstitutional impliedly for not being
narrowly drawn, resulting in unnecessary curtailment of minors' rights to freely exercise their religion and
to free speech.145 It observed that:

The ordinance prohibits the older minor from attending alone Christmas Eve Midnight Mass at the
local Roman Catholic Church or Christmas Eve services at the various local Protestant
Churches. It would likewise prohibit them from attending the New [Year's] Eve watch services at the
various churches. Likewise it would prohibit grandparents, uncles, aunts or adult brothers and sisters from
taking their minor relatives of any age to the above mentioned services. x x x.

xxxx

Under the ordinance, during nine months of the year a minor could not even attend the city council
meetings if they ran past 10:30 (which they frequently do) to express his views on the necessity to
repeal the curfew ordinance, clearly a deprivation of his First Amendment right to freedom of
speech.

xxxx

[In contrast, the ordinance in Bykofsky v. Borough of Middletown (supra note 52)] was [a] very narrowly
drawn ordinance of many pages with eleven exceptions and was very carefully drafted in an attempt to
pass constitutional muster. It specifically excepted [the] exercise of First Amendment rights, travel
in a motor vehicle and returning home by a direct route from religious, school, or voluntary
association activities. (Emphases supplied)

After a thorough evaluation of the ordinances' respective provisions, this Court finds that only the Quezon
City Ordinance meets the above-discussed requirement, while the Manila and Navotas Ordinances do
not.

The Manila Ordinance cites only four (4) exemptions from the coverage of the curfew, namely: (a) minors
accompanied by their parents, family members of legal age, or guardian; (b) those running lawful errands
such as buying of medicines, using of telecommunication facilities for emergency purposes and the like;
(c) night school students and those who, by virtue of their employment, are required in the streets or
outside their residence after 10:00 p.m.; and (d) those working at night.146

For its part, the Navotas Ordinance provides more exceptions, to wit: (a) minors with night classes; (b)
those working at night; (c) those who attended a school or church activity, in coordination with a specific
barangay office; (d) those traveling towards home during the curfew hours; (e) those running errands
under the supervision of their parents, guardians, or persons of legal age having authority over them; (j)
those involved in accidents, calamities, and the like. It also exempts minors from the curfew during these
specific occasions: Christmas eve, Christmas day, New Year's eve, New Year's day, the night before the
barangay fiesta, the day of the fiesta, All Saints' and All Souls' Day, Holy Thursday, Good Friday, Black
Saturday, and Easter Sunday.147

This Court observes that these two ordinances are not narrowly drawn in that their exceptions are
inadequate and therefore, run the risk of overly restricting the minors' fundamental freedoms. To be fair,
both ordinances protect the rights to education, to gainful employment, and to travel at night from school
or work.148 However, even with those safeguards, the Navotas Ordinance and, to a greater extent, the
Manila Ordinance still do not account for the reasonable exercise of the minors' rights of association, free
exercise of religion, rights to peaceably assemble, and of free expression, among others.

The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon protected
liberties. The Navotas Ordinance is apparently more protective of constitutional rights than the Manila
Ordinance; nonetheless, it still provides insufficient safeguards as discussed in detail below:

First, although it allows minors to engage in school or church activities, it hinders them from engaging in
legitimate non-school or nonchurch activities in the streets or going to and from such activities; thus, their
freedom of association is effectively curtailed. It bears stressing that participation in legitimate activities of
organizations, other than school or church, also contributes to the minors' social, emotional, and
intellectual development, yet, such participation is not exempted under the Navotas Ordinance.

Second, although the Navotas Ordinance does not impose the curfew during Christmas Eve and
Christmas day, it effectively prohibits minors from attending traditional religious activities (such
as simbang gabi) at night without accompanying adults, similar to the scenario depicted in Mosier.149 This
legitimate activity done pursuant to the minors' right to freely exercise their religion is therefore effectively
curtailed.

Third, the Navotas Ordinance does not accommodate avenues for minors to engage in political rallies or
attend city council meetings to voice out their concerns in line with their right to peaceably assemble and
to free expression.

Certainly, minors are allowed under the Navotas Ordinance to engage in these activities outside curfew
hours, but the Court finds no reason to prohibit them from participating in these legitimate activities during
curfew hours. Such proscription does not advance the State's compelling interest to protect minors from
the dangers of the streets at night, such as becoming prey or instruments of criminal activity. These
legitimate activities are merely hindered without any reasonable relation to the State's interest; hence, the
Navotas Ordinance is not narrowly drawn. More so, the Manila Ordinance, with its limited exceptions, is
also not narrowly drawn.

In sum, the Manila and Navotas Ordinances should be completely stricken down since their exceptions,
which are essentially determinative of the scope and breadth of the curfew regulations, are inadequate to
ensure protection of the above-mentioned fundamental rights. While some provisions may be valid, the
same are merely ancillary thereto; as such, they cannot subsist independently despite the presence150 of
any separability clause.151

The Quezon City Ordinance stands in stark contrast to the first two (2) ordinances as it sufficiently
safeguards the minors' constitutional rights. It provides the following exceptions:

Section 4. EXEMPTIONS - Minor children under the following circumstances shall not be covered by the
provisions of this ordinance;

(a) Those accompanied by their parents or guardian;

 (b) Those on their way to or from a party, graduation ceremony, religious mass,
and/or other extra-curricular activities of their school or organization wherein their
attendance are required or otherwise indispensable, or when such minors are out
and unable to go home early due to circumstances beyond their control as verified
by the proper authorities concerned; and

(c) Those attending to, or in experience of, an emergency situation such as conflagration,
earthquake, hospitalization, road accident, law enforcers encounter, and similar
incidents[;]

(d) When the minor is engaged in an authorized employment activity, or going to or

returning home from the same place of employment activity without any detour or stop;

(e) When the minor is in [a] motor vehicle or other travel accompanied by an adult in no
violation of this Ordinance;

(f) When the minor is involved in an emergency;

(g) When the minor is out of his/her residence attending an official school,

religious, recreational, educational, social, community or other similar private
activity sponsored by the city, barangay, school, or other similar private
civic/religious organization/group (recognized by the community) that supervises
the activity or when the minor is going to or returning home from such activity,
without any detour or stop; and

(h) When the minor can present papers certifying that he/she is a student and was
dismissed from his/her class/es in the evening or that he/she is a working
student.152 (Emphases and underscoring supplied)

As compared to the first two (2) ordinances, the list of exceptions under the Quezon City Ordinance is
more narrowly drawn to sufficiently protect the minors' rights of association, free exercise of religion,
travel, to peaceably assemble, and of free expression.

Specifically, the inclusion of items (b) and (g) in the list of exceptions guarantees the protection of these
aforementioned rights. These items uphold the right of association by enabling minors to attend
both official and extra-curricular activities not only of their school or church but also of other
legitimate organizations. The rights to peaceably assemble and of free expression are also
covered by these items given that the minors' attendance in the official activities of civic or
religious organizations are allowed during the curfew hours. Unlike in the Navotas Ordinance, the
right to the free exercise of religion is sufficiently safeguarded in the Quezon City Ordinance by exempting
attendance at religious masses even during curfew hours. In relation to their right to ravel, the
ordinance allows the minor-participants to move to and from the places where these activities are
held. Thus, with these numerous exceptions, the Quezon City Ordinance, in truth, only prohibits
unsupervised activities that hardly contribute to the well-being of minors who publicly loaf and
loiter within the locality at a time where danger is perceivably more prominent.

To note, there is no lack of supervision when a parent duly authorizes his/her minor child to run lawful
errands or engage in legitimate activities during the night, notwithstanding curfew hours. As astutely
observed by Senior Associate Justice Antonio T. Carpio and Associate Justice Marvic M.V.F. Leonen
during the deliberations on this case, parental permission is implicitly considered as an exception found in
Section 4, item (a) of the Quezon City Ordinance, i.e., "[t]hose accompanied by their parents or guardian",
as accompaniment should be understood not only in its actual but also in its constructive sense. As the
Court sees it, this should be the reasonable construction of this exception so as to reconcile the juvenile
curfew measure with the basic premise that State interference is not superior but only complementary to
parental supervision. After all, as the Constitution itself prescribes, the parents' right to rear their children
is not only natural but primary.

Ultimately, it is important to highlight that this Court, in passing judgment on these ordinances, is dealing
with the welfare of minors who are presumed by law to be incapable of giving proper consent due to their
incapability to fully understand the import and consequences of their actions. In one case it was observed
that:

A child cannot give consent to a contract under our civil laws. This is on the rationale that she can easily
be the victim of fraud as she is not capable of fully understanding or knowing the nature or import of her
actions. The State, as parenspatriae, is under the obligation to minimize the risk of harm to those who,
because of their minority, are as yet unable to take care of themselves fully. Those of tender years
deserve its protection.153

Under our legal system's own recognition of a minor's inherent lack of full rational capacity, and balancing
the same against the State's compelling interest to promote juvenile safety and prevent juvenile crime,
this Court finds that the curfew imposed under the Quezon City Ordinance is reasonably justified with its
narrowly drawn exceptions and hence, constitutional. Needless to say, these exceptions are in no way
limited or restricted, as the State, in accordance with the lawful exercise of its police power, is not
precluded from crafting, adding, or modifying exceptions in similar laws/ordinances for as long as the
regulation, overall, passes the parameters of scrutiny as applied in this case.

D. Penal Provisions of the Manila Ordinance.

Going back to the Manila Ordinance, this Court deems it proper - as it was raised - to further discuss the
validity of its penal provisions in relation to RA 9344, as amended.

To recount, the Quezon City Ordinance, while penalizing the parent/s or guardian under Section 8
thereof,154 does not impose any penalty on the minors. For its part, the Navotas Ordinance requires the
minor, along with his or her parent/s or guardian/s, to render social civic duty and community service
either in lieu of - should the parent/s or guardian/s of the minor be unable to pay the fine imposed - or in
addition to the fine imposed therein.155 Meanwhile, the Manila Ordinance imposed various sanctions
to the minor based on the age and frequency of violations, to wit:

SEC. 4. Sanctions and Penalties for Violation. Any child or youth violating this ordinance shall be
sanctioned/punished as follows:

(a) If the offender is Fifteen (15) years of age and below, the sanction shall consist of a
REPRIMAND for the youth offender and ADMONITION to the offender's parent,
guardian or person exercising parental authority.

(b) If the offender is Fifteen (15) years of age and under Eighteen (18) years of age, the
sanction/penalty shall be:

1. For the FIRST OFFENSE, Reprimand and Admonition;

2. For the SECOND OFFENSE, Reprimand and Admonition, and a warning

about the legal impostitions in case of a third and subsequent violation; and

3. For the THIRD AND SUBSEQUENT OFFENSES, Imprisonment of one (1)

day to ten (10) days, or a Fine of TWO THOUSAND PESOS (Php2,000.00), or
both at the discretion of the Court, PROVIDED, That the complaint shall be
 filed by the PunongBarangay with the office of the City Prosecutor.156 (Emphases
and underscoring supplied).

Thus springs the question of whether local governments could validly impose on minors these sanctions -
i.e., (a) community . service; (b) reprimand and admonition; (c) fine; and (d) imprisonment. Pertinently,
Sections 57 and 57-A of RA 9344, as amended, prohibit the imposition of penalties on minors for
status offenses such as curfew violations, viz.:

SEC. 57. Status Offenses. - Any conduct not considered an offense or not penalized if committed
by an adult shall not be considered an offense and shall not be punished if committed by a child.

SEC. 57-A. Violations of Local Ordinances. - Ordinances enacted by local governments concerning

juvenile status offenses such as but not limited to, curfew violations, truancy, parental disobedience,
anti-smoking and anti-drinking laws, as well as light offenses and misdemeanors against public order or
safety such as, but not limited to, disorderly conduct, public scandal, harassment, drunkenness, public
intoxication, criminal nuisance, vandalism, gambling, mendicancy, littering, public urination, and
trespassing, shall be for the protection of children. No penalty shall be imposed on children for
said violations, and they shall instead be brought to their residence or to any barangay official at the
barangay hall to be released to the custody of their parents. Appropriate intervention programs shall
be provided for in such ordinances. The child shall also be recorded as a "child at risk" and not as a
"child in conflict with the law." The ordinance shall also provide for intervention programs, such as
counseling, attendance in group activities for children, and for the parents, attendance in parenting
education seminars. (Emphases and underscoring supplied.)

To clarify, these provisions do not prohibit the enactment of regulations that curtail the conduct of minors,
when the similar conduct of adults are not considered as an offense or penalized (i.e., status offenses).
Instead, what they prohibit is the imposition of  penalties on minors for violations of these regulations.
Consequently, the enactment of curfew ordinances on minors, without penalizing them for violations
thereof, is not violative of Section 57-A.

"Penalty"157 is defined as "[p]unishment imposed on a wrongdoer usually in the form of imprisonment or

fine";158 "[p ]unishment imposed by lawful authority upon a person who commits a deliberate or negligent
act."159 Punishment, in tum, is defined as "[a] sanction - such as fine, penalty, confinement, or loss of
property, right, or privilege - assessed against a person who has violated the law."160

The provisions of RA 9344, as amended, should not be read to mean that all the actions of the minor in
violation of the regulations are without legal consequences. Section 57-A thereof empowers local
governments to adopt appropriate intervention programs, such as community-based
programs161 recognized under Section 54162 of the same law.

In this regard, requiring the minor to perform community service is a valid form of intervention program
that a local government (such as Navotas City in this case) could appropriately adopt in an ordinance to
promote the welfare of minors. For one, the community service programs provide minors an alternative
mode of rehabilitation as they promote accountability for their delinquent acts without the moral and social
stigma caused by jail detention.

In the same light, these programs help inculcate discipline and compliance with the law and legal orders.
More importantly, they give them the opportunity to become productive members of society and thereby
promote their integration to and solidarity with their community.

The sanction of admonition imposed by the City of Manila is likewise consistent with Sections 57 and 57-
A of RA 9344 as it is merely a formal way of giving warnings and expressing disapproval to the minor's
misdemeanor. Admonition is generally defined as a "gentle or friendly reproof' or "counsel or warning
against fault or oversight."163 The Black's Law Dictionary defines admonition as "[a]n authoritatively issued
warning or censure";164 while the Philippine Law Dictionary defines it as a "gentle or friendly reproof, a
mild rebuke, warning or reminder, [counseling], on a fault, error or oversight, an expression of
authoritative advice or warning."165 Notably, the Revised Rules on Administrative Cases in the Civil
Service (RRACCS) and our jurisprudence in administrative cases explicitly declare that "a warning or
admonition shall not be considered a penalty."166

In other words, the disciplinary measures of community-based programs and admonition are clearly not
penalties - as they are not punitive in nature - and are generally less intrusive on the rights and conduct of
the minor. To be clear, their objectives are to formally inform and educate the minor, and for the latter to
understand, what actions must be avoided so as to aid him in his future conduct.

A different conclusion, however, is reached with regard to reprimand and fines and/or imprisonment
imposed by the City of Manila on the minor. Reprimand is generally defined as "a severe or formal
reproof."167 The Black's Law Dictionary defines it as "a mild form of lawyer discipline that does not restrict
the lawyer's ability to practice law";168 while the Philippine Law Dictionary defines it as a "public and formal
censure or severe reproof, administered to a person in fault by his superior officer or body to which he
belongs. It is more than just a warning or admonition."169 In other words, reprimand is a formal and public
pronouncement made to denounce the error or violation committed, to sharply criticize and rebuke the
erring individual, and to sternly warn the erring individual including the public against repeating or
committing the same, and thus, may unwittingly subject the erring individual or violator to unwarranted
censure or sharp disapproval from others. In fact, the RRACCS and our jurisprudence explicitly indicate
that reprimand is a penalty,170 hence, prohibited by Section 57-A of RA 9344, as amended.

Fines and/or imprisonment, on the other hand, undeniably constitute penalties - as provided in our
various criminal and administrative laws and jurisprudence - that Section 57-A of RA 9344, as amended,
evidently prohibits.

As worded, the prohibition in Section 57-A is clear, categorical, and unambiguous. It states that "[n]o
penalty shall be imposed on children for x x x violations [of] juvenile status offenses]." Thus, for
imposing the sanctions of reprimand, fine, and/or imprisonment on minors for curfew violations, portions
of Section 4 of the Manila Ordinance directly and irreconcilably conflict with the clear language of Section
57-A of RA 9344, as amended, and hence, invalid. On the other hand, the impositions of community
service programs and admonition on the minors are allowed as they do not constitute penalties.

CONCLUSION

In sum, while the Court finds that all three Curfew Ordinances have passed the first prong of the strict
scrutiny test - that is, that the State has sufficiently shown a compelling interest to promote juvenile safety
and prevent juvenile crime in the concerned localities, only the Quezon City Ordinance has passed the
second prong of the strict scrutiny test, as it is the only issuance out of the three which provides for the
least restrictive means to achieve this interest. In particular, the Quezon City Ordinance provides for
adequate exceptions that enable minors to freely exercise their fundamental rights during the prescribed
curfew hours, and therefore, narrowly drawn to achieve the State's purpose. Section 4 (a) of the said
ordinance, i.e., "[t]hose accompanied by their parents or guardian", has also been construed to include
parental permission as a constructive form of accompaniment and hence, an allowable exception to the
curfew measure; the manner of enforcement, however, is left to the discretion of the local government
unit.

In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and void, while
the Quezon City Ordinance is declared as constitutional and thus, valid in accordance with this Decision.

For another, the Court has determined that the Manila Ordinance's penal provisions imposing reprimand
and fines/imprisonment on minors conflict with Section 57-A of RA 9344, as amended. Hence, following
the rule that ordinances should always conform with the law, these provisions must be struck down as
invalid.

WHEREFORE, the petition is PARTLYGRANTED. The Court hereby declares Ordinance No. 8046,
issued by the local government of the City of Manila, and Pambayang Ordinansa Blg. No. 99-02, as
amended by Pambayang Ordinansa Blg. 2002-13 issued by the local government of Navotas
City, UNCONSTITUTIONAL and, thus, NULL and VOID; while Ordinance No. SP-2301, Series of 2014,
issued by the local government of the Quezon City is declared CONSTITUTIONAL and, thus, VALID in
accordance with this Decision.
G.R. No. 199669

SOUTHERN LUZON DRUG CORPORATION, Petitioner,

vs.
THE DEPARTMENT OF SOCIAL WELFARE AND DEVELOPMENT, THE NATIONAL COUNCIL FOR
THE WELFARE OF DISABLED PERSONS, THE DEPARTMENT OF FINANCE, and THE BUREAU OF
INTERNAL REVENUE, Respondents

DECISION

REYES, J.:

Before the Court is a Petition for Review on Certiorari1under Rule 45 of the Rules of Court, assailing the
Decision2 dated June 17, 2011, and Resolution3 dated November 25, 2011 of the Court of Appeals (CA)
in CA-G.R. SP No. 102486, which dismissed the petition for prohibition filed by Southern Luzon Drug
Corporation (petitioner) against the Department of1 Social Welfare and Development (DSWD), the
National Council for the Welfare of Disabled Persons (NCWDP) (now National Council on Disability
Affairs or NCDA), the Department of Finance (DOF) and the Bureau of: Internal Revenue (collectively, the
respondents), which sought to prohibit the implementation of Section 4(a) of Republic Act (R.A.) No.
9257, otherwise known as the "Expanded Senior Citizens Act of 2003"  and Section 32 of R.A. No. 9442,
which amends the "Magna Carta for Disabled Persons," particularly the granting of 20% discount on the
purchase of medicines by senior citizens and persons with disability (PWD),: respectively, and treating
them as tax deduction.

The petitioner is a domestic corporation engaged in the business of: drugstore operation in the Philippines
while the respondents are government' agencies, office and bureau tasked to monitor compliance with
R.A. Nos. 9257 and 9442, promulgate implementing rules and regulations for their effective
implementation, as well as prosecute and revoke licenses of erring1 establishments.

Factual Antecedents

On April 23, 1992, R.A. No. 7432, entitled "An Act to Maximize the Contribution of Senior Citizens to
Nation-Building, Grant Benefits and Special Privileges and For Other Purposes," was enacted. Under the
said law, a senior citizen, who must be at least 60 years old and has an annual income of not more than
P60,000.00,4 may avail of the privileges provided in Section 4 thereof, one of which is 20% discount on
the purchase of medicines. The said provision states:

Sec. 4. Privileges for the Senior Citizen. - x x x:

a) the grant of twenty percent (20%) discount from all establishments relative to utilization of
transportation services, hotels and similar lodging establishment, restaurants and recreation centers and
purchase of medicine anywhere in the country: Provided, That private establishments may claim the
cost as tax credit[.]

x x x x (Emphasis ours)

To recoup the amount given as discount to qualified senior citizens, covered establishments can claim an
equal amount as tax credit which can be applied against the income tax due from them.

On February 26, 2004, then President Gloria Macapagal-Arroyo signed R.A. No. 9257, amending some
provisions of R.A. No. 7432. The new law retained the 20% discount on the purchase of medicines but
removed the annual income ceiling thereby qualifying all senior citizens to the privileges under the law.
Further, R.A. No. 9257 modified the tax treatment of the discount granted to senior citizens, from tax
credit to tax deduction from gross income, computed based on the net cost of goods sold or services
rendered. The pertinent provision, as amended by R.A. No. 9257, reads as follows:

SEC. 4. Privileges for the Senior Citizens.  - The senior citizens shall be entitled to the following:

(a) the grant of twenty percent (20%) discount from all establishments relative to the utilization of services
in hotels and similar lodging establishments, restaurants and recreation centers, and purchase of
medicines in all establishments for the exclusive use or enjoyment of senior citizens, including funeral and
burial services for the death of senior citizens;

xxxx

The establishment may claim the discounts granted under (a), (f), (g) and (h) as tax deduction
based on the net cost of the goods sold or services rendered: Provided, That the cost of the
discount shall be allowed as deduction from gross income for the same taxable year that the
discount is granted. Provided, further,  That the total amount of the claimed tax deduction net of value-
added tax if applicable, shall be included in their gross sales receipts for tax purposes and shall be
subject to proper documentation and to the provisions of the National Internal Revenue Code, as
amended. (Emphasis ours)

On May 28, 2004, the DSWD issued the Implementing Rules and Regulations (IRR) of R.A. No. 9257.
Article 8 of Rule VI of the said IRR provides:

Article 8. Tax Deduction of Establishments.  - The establishment may claim the discounts granted under
Rule V, Section 4 - Discounts for Establishments; Section 9, Medical and Dental Services in Private
Facilities and Sections 10 and 11 -Air, Sea and Land Transportation as tax deduction based on the net
cost of the goods sold or services rendered. Provided, That the cost of the discount shall be allowed
as deduction from gross income for the same taxable year that the discount is granted; Provided,
further, That the total amount of the claimed tax deduction net of value-added tax if applicable, shall be
included in their gross sales receipts for tax purposes and shall be subject to proper documentation and
to the provisions of the National Internal Revenue Code, as amended; Provided, finally, that the
implementation of the tax deduction shall be subject to the Revenue Regulations to be issued by the
Bureau of Internal Revenue (BIR) and approved by the Department of Finance (DOF). (Emphasis ours)

The change in the tax treatment of the discount given to senior citizens did not sit well with some drug
store owners and corporations, claiming it affected the profitability of their business. Thus, on January 13,
2005, I Carlos Superdrug Corporation (Carlos Superdrug), together with other. corporation and
proprietors operating drugstores in the Philippines, filed a Petition for Prohibition with Prayer for
Temporary Restraining Order (TRO) I and/or Preliminary Injunction before this Court, entitled Carlos
Superdrug  I Corporation v. DSWD,5docketed as G.R. No. 166494, assailing the constitutionality of
Section 4(a) of R.A. No. 9257 primarily on the ground that it amounts to taking of private property without
payment of just compensation. In a Decision dated June 29, 2007, the Court upheld the constitutionality
of the assailed provision, holding that the same is a legitimate exercise of police power. The relevant
portions of the decision read, thus:

The law is a legitimate exercise of police power which, similar to the power of eminent domain, has
general welfare for its object. Police power is not capable of an exact definition, but has been purposely
veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response to conditions and circumstances, thus assuring the greatest
benefits. Accordingly, it has been described as "the most essential, insistent and the least limitable of
powers, extending as it does to all the great public needs." It is "[t]he power vested in the legislature by
the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes,
and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to
be for the good and welfare of the commonwealth, and of the subjects of the same."

For this reason, when the conditions so demand as determined by the legislature, property rights must
bow to the primacy of police power because property rights, though sheltered by due process, must yield
to general welfare.

xxxx

Moreover, the right to property has a social dimension. While Article XIII of the Constitution provides the
precept for the protection of property, various laws and jurisprudence, particularly on agrarian reform and
the regulation of contracts and public utilities, continuously serve as a reminder that the right to property
can be relinquished upon the command of the State for the promotion of public good. Undeniably, the
success of the senior citizens program rests largely on the support imparted by petitioners and the other
private establishments concerned. This being the case, the means employed in invoking the active
participation of the private sector, in order to achieve the purpose or objective of the law, is reasonably
and directly related. Without sufficient proof that Section 4(a) of RA. No. 9257 is arbitrary, and that the
continued implementation of the same would be unconscionably detrimental to petitioners, the Court will
refrain from quashing a legislative act.

WHEREFORE, the petition is DISMISSED  for lack of merit.6 (Citations omitted)

On August 1, 2007, Carlos Superdrug filed a motion for reconsideration of the foregoing decision.
Subsequently, the Court issued Resolution dated August 21, 2007, denying the said motion with finality. 7

Meanwhile, on March 24, 1992, R.A. No. 7277 pertaining to the "Magna Carta for Disabled Persons" was
enacted, codifying the rights and privileges of PWDs. Thereafter, on April 30, 2007, R.A. No. 9442 was
enacted, amending R.A. No. 7277. One of the salient amendments in the law is the insertion of Chapter 8
in Title 2 thereof, which enumerates the other privileges and incentives of PWDs, including the grant of
20% discount on the purchase of medicines. Similar to R.A. No. 9257, covered establishments shall claim
the discounts given to PWDs as tax deductions from the gross income, based on the net cost of goods
sold or services rendered. Section 32 ofR.A. No. 9442 reads:

CHAPTER 8. Other Privileges and Incentives

SEC. 32. Persons with disability shall be entitled to the following:

xxxx

(c) At least twenty percent (20%) discount for the purchase of medicines in all drugstores for the exclusive
use or enjoyment of persons with disability;

xxxx

The establishments may claim the discounts granted in subsections (a), (b), (c), (e), (t) and (g) as
taxdeductions based on the net cost of the goods sold or services rendered: Provided,
however, That the cost of the discount shall be allowed as deduction from gross income for the same
taxable year that the discount is granted: Provided, further, That the total amount of the claimed tax
deduction net of value-added tax if applicable, shall be included in their gross sales receipts for tax
purposes and shall be subject to proper documentation and to the provisions of the National Internal
Revenue Code (NIRC), as amended. (Emphasis ours)
Pursuant to the foregoing, the IRR of R.A. No. 9442 was promulgated by the DSWD, Department of
Education, DOF, Department of Tourism and the Department of Transportation and
Communications.8Sections 5 .1 and 6.1.d thereof provide:

Sec. 5. Definition of Terms.  For purposes of these Rules and Regulations, these terms are defined as
follows:

5.1. Persons with Disability  are those individuals defined under Section 4 of RA 7277,
"An Act Providing for the Rehabilitation, Self-Development and Self-Reliance of Persons
with Disability as amended and their integration into the Mainstream of Society and for
Other Purposes." This is defined as a person suffering from restriction or different
abilities, as a result of a mental, physical or sensory impairment, to perform an activity in
a manner or within the range considered normal for human being. Disability shall mean:
(1) a physical or mental impairment that substantially limits one or more psychological,
physiological or anatomical function of an individual or activities of such individual; (2) a
record of such an impairment; or (3) being regarded as having such an impairment.

xxxx

6.1.d Purchase of Medicine - At least twenty percent (20%) discount on the purchase of

medicine for the exclusive use and enjoyment of persons with disability. All drug stores,
hospital, pharmacies, clinics and other similar establishments selling medicines are
required to provide at least twenty percent (20%) discount subject to the guidelines
issued by DOH and PHILHEALTH.

On February 26, 2008, the petitioner filed a Petition for Prohibition with Application for TRO and/or Writ of
Preliminary Injunction9 with the CA, seeking to declare as unconstitutional (a) Section 4(a) of R.A. No.
9257, and  (b) Section 32 of R.A. No. 9442 and Section 5.1 of its IRR, insofar as these provisions only
allow tax deduction on the gross income based on the net cost of goods sold or services rendered as
compensation to private establishments for the 20% discount that they are required to grant to senior
citizens and PWDs. Further, the petitioner prayed that the respondents be permanently enjoined from
implementing the assailed provisions.

Ruling of the CA

On June 17, 2011, the CA dismissed the petition, reiterating the ruling of the Court in Carlos
Superdrug10particularly that Section 4(a) of R.A. No. 9257 was a valid exercise of police power. Moreover,
the CA held that considering that the same question had been raised by parties similarly situated and was
resolved in Carlos Superdrug,  the rule of stare decisis stood as a hindrance to any further attempt to
relitigate the same issue. It further noted that jurisdictional considerations also compel the dismissal of the
action. It particularly emphasized that it has no original or appellate jurisdiction to pass upon the
constitutionality of the assailed laws, 11 the same pertaining to the Regional Trial Court (RTC). Even
assuming that it had concurrent jurisdiction with the RTC, the principle of hierarchy of courts mandates
that the case be commenced and heard by the lower court. 12 The CA further ruled that the petitioner
resorted to the wrong remedy as a petition for prohibition will not lie to restrain the actions of the
respondents for the simple reason that they do not exercise judicial, quasi-judicial or ministerial duties
relative to the issuance or implementation of the questioned provisions. Also, the petition was wanting of
the allegations of the specific acts committed by the respondents that demonstrate the exercise of these
powers which may be properly challenged in a petition for prohibition.13

The petitioner filed its Motion for Reconsideration 14 of the Decision dated June 17, 2011 of the CA, but
the same was denied in a Resolution 15 dated November 25, 2011.

Unyielding, the petitioner filed the instant petition, raising the following assignment of errors, to wit:
 I

THE CA SERIOUSLY ERRED WHEN IT RULED THAT A PETITION FOR PROHIBITION FILED WITH
THE CA IS AN IMPROPER REMEDY TO ASSAIL THE CONSTITUTIONALITY OF THE 20%, SALES
DISCOUNT FOR SENIOR CITIZENS AND PWDs;

II

THE CA SERIOUSLY ERRED WHEN IT HELD THAT THE SUPREME COURT'S RULING IN CARLOS
SUPERDRUG  CONSTITUTES STARE DECISIS;

III

THE CA SERIOUSLY ERRED ON A QUESTION OF SUBSTANCE WHEN IT RULED THAT THE 20%,
SALES DISCOUNT FOR SENIOR CITIZENS AND PWDs IS A VALID EXERCISE OF POLICE POWER.
ON THE CONTRARY, IT IS AN INVALID EXERCISE OF THE POWER OF EMINENT DOMAIN
BECAUSE IT FAILS TO PROVIDE JUST COMPENSATION TO THE PETITIONER AND OTHER
SIMILARLY SITUATED DRUGSTORES;

IV

THE CA SERIOUSLY ERRED ON A QUESTION OF SUBSTANCE WHEN IT RULED THAT THE 20°/o
SALES DISCOUNT FOR SENIOR CITIZENS AND PWDs DOES NOT VIOLATE THE PETITIONER'S
RIGHT TO EQUAL PROTECTION OF THE LAW; and

THE CA SERIOUSLY ERRED ON A QUESTION OF SUBSTANCE WHEN IT RULED THAT THE

DEFINITIONS OF DISABILITIES AND PWDs ARE NOT VAGUE AND DO NOT VIOLATE THE
PETITIONER'S RIGHT TO DUE PROCESS OF LAW.16

Ruling of the Court

Prohibition may be filed to question

the constitutionality of a law

In the assailed decision, the CA noted that the action, although denominated as one for prohibition, seeks
the declaration of the unconstitutionality of Section 4(a) of R.A. No. 9257 and Section 32 of R.A. No.9442.
It held that in such a case, the proper remedy is not a special civil 1 action but a petition for declaratory
relief, which falls under the exclusive original jurisdiction of the RTC, in the first instance, and of the
Supreme Court, on appeal. 17

The Court clarifies.

Generally, the office of prohibition is to prevent the unlawful and oppressive exercise of authority and is
directed against proceedings that are done without or in excess of jurisdiction, or with grave abuse of
discretion, there being no appeal or other plain, speedy, and adequate remedy in the ordinary course of
law. It is the remedy to prevent inferior courts, corporations, boards, or persons from usurping or
exercising a jurisdiction or power with which they have not been vested by law. 18 This is, however, not
the lone office of an action for prohibition. In Diaz, et al. v. The Secretary of Finance, et al.,  19 prohibition
was also recognized as a proper remedy to prohibit or nullify acts of executive officials that amount to
usurpation of legislative authority. 20 And, in a number of jurisprudence, prohibition was allowed as a
proper action to assail the constitutionality of a law or prohibit its implementation.
In Social Weather Stations, Inc. v. Commission on Elections, 21therein petitioner filed a petition for
prohibition to assail the constitutionality of Section 5.4 of R.A. No. 9006, or the "Fair Elections Act,"  which
prohibited the publication of surveys within 15 days before an election for national candidates, and seven
days for local candidates. Included in the petition is a prayer to prohibit the Commission on Elections from
enforcing the said provision. The Court granted the Petition and struck down the assailed provision for
being unconstitutional. 22

In Social Justice Society (SJS) v. Dangerous Drugs Board, et al.,23 therein petitioner assailed the
constitutionality of paragraphs (c ), (d), (f) and (g) of Section 36 of R.A. No. 9165, otherwise known as
the "Comprehensive Dangerous Drugs Act of 2002," on the ground that they constitute undue delegation
of legislative power for granting unbridled discretion to schools and private employers in determining the
manner of drug 'testing of their employees, and that the law constitutes a violation of the right against
unreasonable searches and seizures. It also sought to enjoin the Dangerous Drugs Board and the
Philippine Drug Enforcement Agency from enforcing the challenged provision.24 The Court partially
granted the petition by declaring Section 36(f) and (g) of R.A. No. 9165 unconstitutional, and permanently
enjoined the concerned agencies from implementing them. 25

In another instance, consolidated petitions for prohibitions26 questioning the constitutionality of the Priority
Development Assistance Fund were deliberated upon by this Court which ultimately granted the same.

Clearly, prohibition has been found an appropriate remedy to challenge the constitutionality of various
laws, rules, and regulations.

There is also no question regarding the jurisdiction of the CA to hear and decide a petition for prohibition.
By express provision of the law, particularly Section 9(1) of Batas Pambansa Bilang 129,27 the CA was
granted "original jurisdiction to issue writs of mandamus,  prohibition, certiorari, habeas corpus, and quo
warranto,  and auxiliary writs or I processes, whether or not in aid of its appellate jurisdiction." This
authority· the CA enjoys concurrently with RTCs and this Court.

In the same manner, the supposed violation of the principle of the ·. hierarchy of courts does not pose any
hindrance to the full deliberation of the issues at hand. It is well to remember that "the judicial hierarchy of
courts is not an iron-clad rule. It generally applies to cases involving warring factual allegations. For this
reason, litigants are required to [refer] to the trial courts at the first instance to determine the truth or falsity
of these contending allegations on the basis of the evidence of the parties. Cases which depend on
disputed facts for decision cannot be brought immediately before appellate courts as they are not triers of
facts. Therefore, a strict application of the rule of hierarchy of courts is not necessary when the cases
brought before the appellate courts do not involve factual but legal questions."28

Moreover, the principle of hierarchy of courts may be set aside for special and important reasons, such as
when dictated by public welfare and ' the advancement of public policy, or demanded by the broader
interest of justice.29 Thus, when based on the good judgment of the court, the urgency and significance of
the issues presented calls for its intervention, it should not hesitate to exercise its duty to resolve.

The instant petition presents an exception to the principle as it basically raises a legal question on the
constitutionality of the mandatory discount and the breadth of its rightful beneficiaries. More importantly,
the resolution of the issues will redound to the benefit of the public as it will put to rest the questions on
the propriety of the granting of discounts to senior citizens and PWDs amid the fervent insistence of
affected establishments that the measure transgresses their property rights. The Court, therefore, finds it
to the best interest of justice that the instant petition be resolved.

The instant case is not barred by

stare decisis
The petitioner contends that the CA erred in holding that the ruling in Carlos Superdrug  constitutes
as stare decisis  or law of the case which bars the relitigation of the issues that had been resolved therein
and had been raised anew in the instant petition. It argues that there are substantial differences
between Carlos Superdrug and the circumstances in the instant case which take it out from the operation
of the doctrine of stare decisis.  It cites that in Carlos Superdrug,  the Court denied the petition because
the petitioner therein failed to prove the confiscatory effect of the tax deduction scheme as no proof of
actual loss was submitted. It believes that its submission of financial statements for the years 2006 and
2007 to prove the confiscatory effect of the law is a material fact that distinguishes the instant case from
that of Carlos Superdrug.  30

The Court agrees that the ruling in Carlos Superdrug does not constitute stare decisis to the instant case,
not because of the petitioner's submission of financial statements which were wanting in the first case, but
because it had the good sense of including questions that had not been raised or deliberated in the
former case of Carlos Superdrug, i.e.,  validity of the 20% discount granted to PWDs, the supposed
vagueness of the provisions of R.A. No. 9442 and violation of the equal protection clause.

Nonetheless, the Court finds nothing in the instant case that merits a reversal of the earlier ruling of the
Court in Carlos Superdrug. Contrary to the petitioner's claim, there is a very slim difference between the
issues in Carlos Superdrug and the instant case with respect to the nature of the senior citizen discount.
A perfunctory reading of the circumstances of the two cases easily discloses marked similarities in the
issues and the arguments raised by the petitioners in both cases that semantics nor careful play of words
can hardly obscure.

In both cases, it is apparent that what the petitioners are ultimately questioning is not the grant of the
senior citizen discount per se,  but the manner by which they were allowed to recoup the said discount. In
particular, they are protesting the change in the tax treatment of the senior citizen discount from tax credit
to being merely a deduction from gross income which they claimed to have significantly reduced their
profits.

This question had been settled in Carlos Superdrug, where the Court ruled that the change in the tax
treatment of the discount was a valid exercise of police power, thus:

Theoretically, the treatment of the discount as a deduction reduces the net income of the private
establishments concerned. The discounts given would have entered the coffers and formed part of the
gross sales of the private establishments, were it not for R.A. No. 9257.

xxxx

A tax deduction does not offer full reimbursement of the senior citizen discount. As such, it would not
meet the definition of just compensation.

Having said that, this raises the question of whether the State, in promoting the health and welfare of a
special group of citizens, can impose upon private establishments the burden of partly subsidizing a
government program.

The Court believes so.

The Senior Citizens Act was enacted primarily to maximize the contribution of senior citizens to nation-
building, and to grant benefits and privileges to them for their improvement and well-being as the State
considers them an integral part of our society.

The priority given to senior citizens finds its basis in the Constitution as set forth in the law itself. Thus, the
Act provides:
SEC. 2. [R.A.] No. 7432 is hereby amended to read as follows:

SEC. 1. Declaration of Policies and Objectives.-  Pursuant to Article XV, Section 4 of the Constitution, it is
the duty of the family to take care of its elderly members while the State may design programs of social
security for them. In addition to this, Section 10 in the Declaration of Principles and State Policies
provides: "The State shall provide social justice in all phases of national development." Further, Article
XIII, Section 11, provides: "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." Consonant with these constitutional principles the following are the
declared policies of this Act:

xxxx

(f) To recognize the important role of the private sector in the improvement of the welfare of senior
citizens and to actively seek their partnership.

To implement the above policy, the law grants a twenty percent discount to senior citizens for medical and
dental services, and diagnostic and laboratory fees; admission fees charged by theaters, concert halls,
circuses, carnivals, and other similar places of culture, leisure and amusement; fares for domestic land,
air and sea travel; utilization of services in hotels and similar lodging establishments, restaurants and
recreation centers; and purchases of medicines for the exclusive use or enjoyment of senior citizens. As a
form of reimbursement, the law provides that business establishments extending the twenty percent
discount to senior citizens may claim the discount as a tax deduction.

The law is a legitimate exercise of police power which, similar to the power of eminent domain, has
general welfare for its object. Police power is not capable of an exact definition, but has been purposely
veiled in general terms to underscore its comprehensiveness to meet all exigencies and provide enough
room for an efficient and flexible response to conditions and circumstances, thus assuring the greatest
benefits. Accordingly, it has been described as "the most essential, insistent and the least limitable of
powers, extending as it does to all the great public needs." It is "[t]he power vested in the legislature by
the constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes,
and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to
be for the good and welfare of the commonwealth, and of the subjects of the same."

For this reason, when the conditions so demand as determined by the legislature, property rights must
bow to the primacy of police power because proper rights, though sheltered by due process, must yield to
general welfare. 31 (Citations omitted and emphasis in the original)

Verily, it is the bounden duty of the State to care for the elderly as they reach the point in their lives when
the vigor of their youth has diminished and resources have become scarce. Not much because of choice,
they become needing of support from the society for whom they presumably spent their productive days
and for whose betterment they' exhausted their energy, know-how and experience to make our days
better to live.

In the same way, providing aid for the disabled persons is an equally important State responsibility. Thus,
the State is obliged to give full support to the improvement of the total well-being of disabled persons and
their integration into the mainstream of society. 32This entails the creation of opportunities for them and
according them privileges if only to balance the playing field which had been unduly tilted against them
because of their limitations.

The duty to care for the elderly and the disabled lies not only upon the State, but also on the community
and even private entities. As to the State, the duty emanates from its role as parens patriae  which holds it
under obligation to provide protection and look after the welfare of its people especially those who cannot
tend to themselves. Parens patriae  means parent of his or her country, and refers to the State in its role
as "sovereign", or the State in its capacity as a provider of protection to those unable to care for
themselves. 33 In fulfilling this duty, the State may resort to the exercise of its inherent powers: police
power, eminent domain and power of taxation.

In Gerochi v. Department of Energy,34the Court passed upon one of the inherent powers of the state, the
police power, where it emphasized, thus:

[P]olice power is the power of the state to promote public welfare by restraining and regulating the use of
liberty and property. It is the most pervasive, the least limitable, and the most demanding of the three
fundamental powers of the State. The justification is found in the Latin maxim salus populi est suprema
lex  (the welfare of the people is the supreme law) and sic utere tuo ut alienum non laedas  (so use your
property as not to injure the property of others). As an inherent attribute of sovereignty which virtually
extends to all public needs, police power grants a wide panoply of instruments through which the State,
as parens patriae, gives effect to a host of its regulatory powers. We have held that the power to
"regulate" means the power to protect, foster, promote, preserve, and control, with due regard for the
interests, first and foremost, of the public, then of the utility and of its patrons. 35 (Citations omitted)

It is in the exercise of its police power that the Congress enacted R.A. Nos. 9257 and 9442, the laws
mandating a 20% discount on purchases of medicines made by senior citizens and PWDs. It is also in
further exercise of this power that the legislature opted that the said discount be claimed as tax deduction,
rather than tax credit, by covered establishments.

The petitioner, however, claims that the change in the tax treatment of the discount is illegal as it
constitutes taking without just compensation. It even submitted financial statements for the years 2006
and 2007 to support its claim of declining profits when the change in the policy was implemented.

The Court is not swayed.

To begin with, the issue of just compensation finds no relevance in the instant case as it had already been
made clear in Carlos Superdrug that the power being exercised by the State in the imposition of senior
citizen discount was its police power. Unlike in the exercise of the power of eminent domain, just
compensation is not required in wielding police power. This is precisely because there is no taking
involved, but only an imposition of burden.

In Manila Memorial Park, Inc., et al. v. Secretary of the DSWD, et al.,  36 the Court ruled that by examining
the nature and the effects of R.A. No. 9257, it becomes apparent that the challenged governmental act
was an exercise of police power. It was held, thus:

[W]e now look at the nature and effects of the 20% discount to determine if it constitutes an exercise of
police power or eminent domain.

The 20% discount is intended to improve the welfare of senior citizens who, at their age, are less likely to
be gainfully employed, more prone to illnesses and other disabilities, and, thus, in need of subsidy in
purchasing basic commodities. It may not be amiss to mention also that the discount serves to honor
senior citizens who presumably spent the productive years of their lives on contributing to the
development and progress of the nation. This distinct cultural Filipino practice of honoring the elderly is an
integral part of this law.

As to its nature and effects, the 20% discount is a regulation affecting the ability of private establishments
to price their products and services relative to a special class of individuals, senior citizens, for which the
Constitution affords preferential concern. In turn, this affects the amount of profits or income/gross sales
that a private establishment can derive from senior citizens. In other words, the subject regulation affects
the pricing, and, hence, the profitability of a private establishment. However, it does not purport to
appropriate or burden specific properties, used in the operation or conduct of the business of private
establishments, for the use or benefit of the public, or senior citizens for that matter, but merely regulates
the pricing of goods and services relative to, and the amount of profits or income/gross sales that such
private establishments may derive from, senior citizens.

The subject regulation may be said to be similar to, but with substantial distinctions from, price control or
rate of 'return on investment control laws which are traditionally regarded as police power measures. x x
x.37 (Citations omitted)

In the exercise of police power, "property rights of private individuals are subjected to restraints and
burdens in order to secure the general comfort, health, and prosperity of the State."38 Even then, the
State's claim of police power cannot be arbitrary or unreasonable. After all, the overriding purpose of the
exercise of the power is to promote general welfare, public health and safety, among others. It is a
measure, which by sheer necessity, the State exercises, even to the point of interfering with personal
liberties or property rights in order to advance common good. To warrant such interference, two requisites
must concur: (a) the interests of the public generally, as distinguished from those of a particular class,
require the interference of the! State; and (b) the means employed are reasonably necessary to the:
attainment of the object sought to be accomplished and not unduly oppressive upon individuals. In other
words, the proper exercise of the police power requires the concurrence of a lawful subject and a lawful
method.39

The subjects of R.A. Nos. 9257 and 9442, i.e.,  senior citizens and PWDs, are individuals whose well-
being is a recognized public duty. As a public duty, the responsibility for their care devolves upon the
concerted efforts of the State, the family and the community. In Article XIII, Section 1 of the Constitution,
the State is mandated 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, and remove
cultural inequities by equitably diffusing wealth and political power1 for the common good. The more
apparent manifestation of these social inequities is the unequal distribution or access to healthcare
services. To: abet in alleviating this concern, the State is committed to 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, with priority for the needs of the
underprivileged sick, elderly, disabled, women, and children.40

In the same manner, the family and the community have equally significant duties to perform in reducing
social inequality. The family as the basic social institution has the foremost duty to care for its elderly
members.41 On the other hand, the community, which include the private sector, is recognized as an
active partner of the State in pursuing greater causes. The private sector, being recipients of the privilege
to engage business in our land, utilize our goods as well as the services of our people for proprietary
purposes, it is only fitting to expect their support in measures that contribute to common good. Moreover,
their right to own, establish and operate economic enterprises is always subject to the duty of the State to
promote distributive justice and to intervene when the common good so demands.42

The Court also entertains no doubt on the legality of the method taken by the legislature to implement the
declared policies of the subject laws, that is, to impose discounts on the medical services and purchases
of senior citizens and PWDs and to treat the said discounts as tax deduction rather than tax credit. The
measure is fair and reasonable and no credible proof was presented to prove the claim that it was
confiscatory. To be considered confiscatory, there must be taking  of property without just compensation.

Illuminating on this point is the discussion of the Court on the concept of taking in City of Manila v. Hon.
Laguio, Jr.,43  viz.:

There are two different types of taking that can be identified. A "possessory" taking occurs when the
government confiscates or physically occupies property. A "regulatory" taking occurs when the
government's regulation leaves no reasonable economically viable use of the property.
 xxxx

No formula or rule can be devised to answer the questions of what is too far and when regulation
becomes a taking. In Mahon,  Justice Holmes recognized that it was "a question of degree and therefore
cannot be disposed of by general propositions." On many other occasions as well, the U.S. Supreme
Court has said that the issue of when regulation constitutes a taking is a matter of considering the facts in
each case. x x x.

What is crucial in judicial consideration of regulatory takings is that government regulation is a taking if it
leaves no reasonable economically viable use of property in a manner that interferes with reasonable
expectations for use. A regulation that permanently denies all economically beneficial or productive use of
land is, from the owner's point of view, equivalent to a "taking" unless principles of nuisance or property
law that existed when the owner acquired the land make the use prohibitable. When the owner of real
property has been called upon to sacrifice all economically beneficial uses in the name of the common
good, that is, to leave his property economically idle, he has suffered a taking.

xxxx

A restriction on use of property may also constitute a "taking" if not reasonably necessary to the
effectuation of a substantial public purpose or if it has an unduly harsh impact on the distinct investment-
backed expectations of the owner.44 (Citations omitted)

The petitioner herein attempts to prove its claim that the pertinent provisions of R.A. Nos. 9257 and 9442
amount to taking by presenting financial statements purportedly showing financial losses incurred by them
due to the adoption of the tax deduction scheme.

For the petitioner's clarification, the presentation of the financial statement is not of compelling
significance in justifying its claim for just compensation. What is imperative is for it to establish that there
was taking in the constitutional sense or that, in the imposition of the mandatory discount, the power
exercised by the state was eminent domain.

According to Republic of the Philippines v. Vda. de Castellvi,45five circumstances must be present in order
to qualify "taking" as an exercise of eminent domain. First,  the expropriator must enter a private
property. Second, the entrance into private property must be for more than a momentary
period. Third,  the entry into the property should be under warrant or color of legal authority. Fourth,  the
property must be devoted to a public use or otherwise informally appropriated or injuriously
affected. Fifth, the utilization of the property for public use must be in such a way as to oust the owner
and deprive him of all beneficial enjoyment of the property. 46

The first requirement speaks of entry into a private property which clearly does not obtain in this case.
There is no private property that is; invaded or appropriated by the State. As it is, the petitioner
precipitately deemed future profits as private property and then proceeded to argue that the State took it
away without full compensation. This seemed preposterous considering that the subject of what the
petitioner supposed as taking was not even earned profits but merely an expectation of profits, which may
not even occur. For obvious reasons, there cannot be taking of a contingency or of a mere possibility
because it lacks physical existence that is necessary before there could be any taking. Further, it is
impossible to quantify the compensation for the loss of supposed profits before it is earned.

The supposed taking also lacked the characteristics of permanence 47 and consistency.1âwphi1 The

presence of these characteristics is significant because they can establish that the effect of the
questioned provisions is the same on all establishments and those losses are indeed its unavoidable
consequence. But apparently these indications are wanting in this case. The reason is that the impact on
the establishments varies depending on their response to the changes brought about by the subject
provisions. To be clear, establishments, are not prevented from adjusting their prices to accommodate the
effects of the granting of the discount and retain their profitability while being fully compliant to the laws. It
follows that losses are not inevitable because establishments are free to take business measures to
accommodate the contingency. Lacking in permanence and consistency, there can be no taking in the
constitutional sense. There cannot be taking in one establishment and none in another, such that the
former can claim compensation but the other may not. Simply told, there is no taking to justify
compensation; there is only poor business decision to blame.

There is also no ousting of the owner or deprivation of ownership. Establishments are neither divested of
ownership of any of their properties nor is anything forcibly taken from them. They remain the owner of
their goods and their profit or loss still depends on the performance of their sales.

Apart from the foregoing, covered establishments are also provided with a mechanism to recoup the
amount of discounts they grant the senior citizens and PWDs. It is provided in Section 4(a) of R.A. No.
9257 and Section 32 of R.A. No. 9442 that establishments may claim the discounts as "tax deduction
based on the net cost of the goods sold or services rendered." Basically, whatever amount was given as
discount, covered establishments may claim an equal amount as an expense or tax deduction. The
trouble is that the petitioner, in protesting the change in the tax treatment of the discounts, apparently
seeks tax incentive and not merely a return of the amount given as discounts. It premised its
interpretation of financial losses in terms of the effect of the change in the tax treatment of the discount on
its tax liability; hence, the claim that the measure was confiscatory. However, as mentioned earlier in the
discussion, loss of profits is not the inevitable result of the change in tax treatment of the discounts; it is
more appropriately a consequence of poor business decision.

It bears emphasizing that the law does not place a cap on the amount of mark up that covered
establishments may impose on their items. This rests on the discretion of the establishment which, of
course, is expected to put in the price of the overhead costs, expectation of profits and other
considerations into the selling price of an item. In a simple illustration, here is Drug A,  with acquisition
cost of ₱8.00, and selling price of ₱10.00. Then comes a law that imposes 20% on senior citizens and
PWDs, which affected Establishments 1, 2 and 3. Let us suppose that the approximate number of patrons
who purchases Drug A is 100, half of which are senior citizens and PWDs. Before the passage of the law,
all of the establishments are earning the same amount from profit from the sale of Drug A, viz.:

Before the passage of the law:

Drug A
Acquisition cost ₱8.00
Selling price ₱10.00
Number of patrons 100
Sales:
100 x ₱10.00 = ₱1,000.00
Profit: ₱200

After the passage of the law, the three establishments reacted differently. Establishment 1 was passive
and maintained the price of Drug A  at ₱8.00 which understandably resulted in diminution of profits.

Establishment 1

Drug A
Acquisition cost ₱8.00
 Selling price ;₱10.00
Number of patrons 100
Senior Citizens/PWD 50
Sales
100 x ₱10.00 = ₱1,000.00
Deduction: ₱100.00
Profit: ₱100.00

On the other hand, Establishment 2, mindful that the new law will affect the profitability of the business,
made a calculated decision by increasing the mark up of Drug A to ₱3.20, instead of only ₱2.00. This
brought a positive result to the earnings of the company.

Establishment 2

Drug A
Acquisition cost ;₱8.00
Selling price ₱11.20
Number of patron 100
Senior Citizens/PWDs 50
Sales
100 x ₱10.00 = ₱1,000.00
Deduction: ₱112.00
Profit: ₱208.00

For its part, Establishment 3 raised the mark up on Drug A  to only ₱3.00 just to even out the effect of the
law. This measure left a negligible effect on its profit, but Establishment 3 took it as a social duty: to share
in the cause being promoted by the government while still maintaining profitability.

Establishment 3

Drug A
Acquisition cost ₱8.00
Selling price ₱11.20
Number of patrons 100
Senior Citizens/PWD 50
Sales
100 x ₱10.00 = ₱1,000.00
Deduction: ₱110.00
Profit: ₱190.00
The foregoing demonstrates that it is not the law per se which occasioned the losses in the covered
establishments but bad business I judgment. One of the main considerations in making business
decisions is the law because its effect is widespread and inevitable. Literally, anything can be a subject of
legislation. It is therefore incumbent upon business managers to cover this contingency and consider it in
making business strategies. As shown in the illustration, the better responses were exemplified by
Establishments 2 and 3 which promptly put in the additional costs brought about by the law into the price
of Drug A. In doing so, they were able to maintain the profitability of the business, even earning some
more, while at the same time being fully compliant with the law. This is not to mention that the illustration
is even too simplistic and not' the most ideal since it dealt only with a single drug being purchased by both
regular patrons and senior citizens and PWDs. It did not consider the accumulated profits from the other
medical and non-medical products being sold by the establishments which are expected to further curb
the effect of the granting of the discounts in the business.

It is therefore unthinkable how the petitioner could have suffered losses due to the mandated discounts in
R.A. Nos. 9257 and 9442, when a fractional increase in the prices of items could bring the business
standing at a balance even with the introduction of the subject laws. A level adjustment in the pricing of
items is a reasonable business measure to take in order to adapt to the contingency. This could even
make establishments earn more, as shown in the illustration, since every fractional increase in the price of
covered items translates to a wider cushion to taper off the effect of the granting of discounts and
ultimately results to additional profits gained from the purchases of the same items by regular patrons
who are not entitled to the discount. Clearly, the effect of the subject laws in the financial standing of
covered companies depends largely on how they respond and forge a balance between profitability and
their sense of social responsibility. The adaptation is entirely up to them and they are not powerless to
make adjustments to accommodate the subject legislations.

Still, the petitioner argues that the law is confiscatory in the sense that the State takes away a portion of
its supposed profits which could have gone into its coffers and utilizes it for public purpose. The petitioner
claims that the action of the State amounts to taking for which it should be compensated.

To reiterate, the subject provisions only affect the petitioner's right to profit, and not earned profits.
Unfortunately for the petitioner, the right to profit is not a vested right or an entitlement that has accrued
on the person or entity such that its invasion or deprivation warrants compensation. Vested rights are
"fixed, unalterable, or irrevocable."48 More extensively, they are depicted as follows:

Rights which have so completely and definitely accrued to or settled in a person that they are not subject
to be defeated or cancelled by the act of any other private person, and which it is right and equitable that
the government should recognize and protect, as being lawful in themselves, and settled according to the
then current rules of law, and of which the individual could not be deprived arbitrarily without injustice, or
of which he could not justly be deprived otherwise than by the established methods of procedure and for
the public welfare. x x x A right is not 'vested' unless it is more than a mere expectation based on the
anticipated continuance of present laws; it must be an established interest in property, not open to doubt.
x x x To be vested in its accurate legal sense, a right must be complete and consummated, and one of
which the person to whom it belongs cannot be divested without his consent.x x x.49 (Emphasis ours)

Right to profits does not give the petitioner the cause of action to ask for just compensation, it being only
an inchoate right or one that has not fully developed50 and therefore cannot be claimed as one's own. An
inchoate right is a mere expectation, which may or may not come into existence. It is contingent as it only
comes "into existence on an event or condition which may not happen or be performed until some other
event may prevent their vesting."51 Certainly, the petitioner cannot claim confiscation or taking of
something that has yet to exist. It cannot claim deprivation of profit before the consummation of a sale
and the purchase by a senior citizen or PWD.

Right to profit is not an accrued right; it is not fixed, absolute nor indefeasible. It does not come into being
until the occurrence or realization of a condition precedent. It is a mere "contingency that might never
eventuate into a right. It stands for a mere possibility of profit but nothing might ever be payable under
it."52

The inchoate nature of the right to profit precludes the possibility of compensation because it lacks the
quality or characteristic which is necessary before any act of taking or expropriation can be effected.
Moreover, there is no yardstick fitting to quantify a contingency or to determine compensation for a mere
possibility. Certainly, "taking" presupposes the existence of a subject that has a quantifiable or
determinable value, characteristics which a mere contingency does not possess.

Anent the question regarding the shift from tax credit to tax deduction, suffice it is to say that it is within
the province of Congress to do so in the exercise of its legislative power. It has the authority to choose the
subject of legislation, outline the effective measures to achieve its declared policies and even impose
penalties in case of non-compliance. It has the sole discretion to decide which policies to pursue and
devise means to achieve them, and courts often do not interfere in this exercise for as long as it does not
transcend constitutional limitations. "In performing this duty, the legislature has no guide but its judgment
and discretion and the wisdom of experience."53 In Carter v. Carter Coal Co.,54legislative discretion has
been described as follows:

Legislative congressional discretion begins with the choice of means, and ends with the adoption of
methods and details to carry the delegated powers into effect. x x x [W]hile the powers are rigidly limited
to the enumerations of the Constitution, the means which may be employed to carry the powers into effect
are not restricted, save that they must be appropriate, plainly adapted to the end, and not prohibited by,
but consistent with, the letter and spirit of the Constitution. x x x. 55 (Emphasis ours)

Corollary, whether to treat the discount as a tax deduction or tax credit is a matter addressed to the
wisdom of the legislature. After all, it is within its prerogative to enact laws which it deems sufficient to
address a specific public concern. And, in the process of legislation, a bill goes through rigorous tests of
validity, necessity and sufficiency in both houses of Congress before enrolment. It undergoes close
scrutiny of the members of Congress and necessarily had to surpass the arguments hurled against its
passage. Thus, the presumption of validity that goes with every law as a form of deference to the process
it had gone through and also to the legislature's exercise of discretion. Thus, in lchong, etc., et
al. v. Hernandez) etc., and Sarmiento,56the Court emphasized, thus:

It must not be overlooked, in the first place, that the legislature, which is the constitutional repository of
police power and exercises the prerogative of determining the policy of the State, is by force of
circumstances primarily the judge of necessity, adequacy or reasonableness and wisdom, of any
law promulgated in the exercise of the police power, or of the measures adopted to implement the
public policy or to achieve public interest.x x x.57 (Emphasis ours)

The legislature may also grant rights and impose additional burdens: It may also regulate industries, in
the exercise of police power, for the protection of the public. R.A. Nos. 9257 and 9442 are akin to
regulatory laws, the issuance of which is within the ambit of police power. The minimum wage law, zoning
ordinances, price control laws, laws regulating the operation of motels and hotels, laws limiting the
working hours to eight, and the like fall under this category. 58

Indeed, regulatory laws are within the category of police power measures from which affected persons or
entities cannot claim exclusion or compensation. For instance, private establishments cannot protest that
the imposition of the minimum wage is confiscatory since it eats up a considerable chunk of its profits or
that the mandated remuneration is not commensurate for the work done. The compulsory nature of the
provision for minimum wages underlies the effort of the State; as R.A. No. 672759 expresses it, to promote
productivity-improvement and gain-sharing measures to ensure a decent standard of living for the
workers and their families; to guarantee the rights of labor to its just share in the fruits of production; to
enhance employment generation in the countryside through industry dispersal; and to allow business and
industry reasonable returns on investment, expansion and growth, and as the Constitution expresses it, to
affirm labor as a primary social economic force. 60

Similarly, the imposition of price control on staple goods in R.A. No. 758161 is likewise a valid exercise of
police power and affected establishments cannot argue that the law was depriving them of supposed
gains. The law seeks to ensure the availability of basic necessities and prime commodities at reasonable
prices at all times without denying legitimate business a fair return on investment. It likewise aims to
provide effective and sufficient protection to consumers against hoarding, profiteering and cartels with
respect to the supply, distribution, marketing and pricing of said goods, especially during periods of
calamity, emergency, widespread illegal price manipulation and other similar situations.62

More relevantly, in Manila Memorial Park, Inc.,63it was ruled that it is within the bounds of the police power
of the state to impose burden on private entities, even if it may affect their profits, such as in the
imposition of price control measures. There is no compensable taking but only a recognition of the fact
that they are subject to the regulation of the State and that all personal or private interests must bow
down to the more paramount interest of the State.

This notwithstanding, the regulatory power of the State does not authorize the destruction of the business.
While a business may be regulated, such regulation must be within the bounds of reason, i.e.,  the
regulatory ordinance must be reasonable, and its provision cannot be oppressive amounting to an
arbitrary interference with the business or calling subject of regulation. A lawful business or calling may
not, under the guise of regulation, be unreasonably interfered with even by the exercise of police
power. 64 After all, regulation only signifies control or restraint, it does not mean suppression or absolute
prohibition. Thus, in Philippine Communications Satellite Corporation  v. Alcuaz,  65 the Court emphasized:

The power to regulate is not the power to destroy useful and harmless enterprises, but is the power to
protect, foster, promote, preserve, and control with due regard for the interest, first and foremost, of the
public, then of the utility and of its patrons. 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. 66 (Citation omitted)

Here, the petitioner failed to show that R.A. Nos. 9257 and 9442, under the guise of regulation, allow
undue interference in an otherwise legitimate business.1avvphi1 On the contrary, it was shown that the
questioned laws do not meddle in the business or take anything from it but only regulate its realization of
profits.

The subject laws do not violate the

equal protection clause

The petitioner argues that R.A. Nos. 9257 and 9442 are violative of the equal protection clause in that it
failed to distinguish between those who have the capacity to pay and those who do not, in granting the
20% discount. R.A. No. 9257, in particular, removed the income qualification in R.A. No. 7432
of'₱60,000.00 per annum before a senior citizen may be entitled to the 20o/o discount.

The contention lacks merit.

The petitioner's argument is dismissive of the reasonable qualification on which the subject laws were
based. In City of Manila v. Hon. Laguio, Jr.,  67 the Court emphasized:

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. The guarantee
means that no person or class of persons shall be denied the same protection of laws which is enjoyed by
other persons or other classes in like circumstances.68 (Citations omitted)

"The equal protection clause is not infringed by legislation which applies only to those persons falling
within a specified class. If the groupings are characterized by substantial distinctions that make real
differences, one class may be treated and regulated differently from another."69 For a classification to be
valid, (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 same class. 70

To recognize all senior citizens as a group, without distinction as to income, is a valid classification. The
Constitution itself considered the elderly as a class of their own and deemed it a priority to address their
needs. When the Constitution declared its intention to prioritize the predicament of the underprivileged
sick, elderly, disabled, women, and children,71 it did not make any reservation as to income, race, religion
or any other personal circumstances. It was a blanket privilege afforded the group of citizens in the
enumeration in view of the vulnerability of their class.

R.A. No. 9257 is an implementation of the avowed policy of the Constitution to enact measures that
protect and enhance the right of all the people to human dignity, reduce social, economic, and political
inequalities. 72 Specifically, it caters to the welfare of all senior citizens. The classification is based on
age and therefore qualifies all who have attained the age of 60. Senior citizens are a class of their own,
who are in need and should be entitled to government support, and the fact that they may still be earning
for their own sustenance should not disqualify them from the privilege.

It is well to consider that our senior citizens have already reached the age when work opportunities have
dwindled concurrently as their physical health.1âwphi1 They are no longer expected to work, but there
are still those who continue to work and contribute what they can to the country. Thus, to single them out
and take them out of the privileges of the law for continuing to strive and earn income to fend for
themselves is inimical to a welfare state that the Constitution envisions. It is tantamount to penalizing
them for their persistence. It is commending indolence rather than rewarding diligence. It encourages
them to become wards of the State rather than productive partners.

Our senior citizens were the laborers, professionals and overseas contract workers of the past. While
some may be well to do or may have the capacity to support their sustenance, the discretion to avail of
the privileges of the law is up to them. But to instantly tag them. as undeserving of the privilege would be
the height of ingratitude; it is an outright discrimination.

The same ratiocination may be said of the recognition of PWDs as a class in R.A. No. 9442 and in
granting them discounts.1âwphi1 It needs no further explanation that PWDs have special needs which,
for most,' last their entire lifetime. They constitute a class of their own, equally deserving of government
support as our elderlies. While some of them maybe willing to work and earn income for themselves, their
disability deters them from living their full potential. Thus, the need for assistance from the government to
augment the reduced income or productivity brought about by their physical or intellectual limitations.

There is also no question that the grant of mandatory discount is germane to the purpose of R.A. Nos.
9257 and 9442, that is, to adopt an integrated and comprehensive approach to health development and
make essential goods and other social services available to all the people at affordable cost, with special
priority given to the elderlies and the disabled, among others. The privileges granted by the laws ease
their concerns and allow them to live more comfortably.

The subject laws also address a continuing concern of the government for the welfare of the senior
citizens and PWDs. It is not some random predicament but an actual, continuing and pressing concern
that requires preferential attention. Also, the laws apply to all senior citizens and PWDs, respectively,
without further distinction or reservation. Without a doubt, all the elements for a valid classification were
met.

The definitions of "disabilities" and

"PWDs" are clear and unequivocal

Undeterred, the petitioner claims that R.A. No. 9442 is ambiguous particularly in defining the terms
"disability" and "PWDs," such that it lack comprehensible standards that men of common intelligence
must guess at its meaning. It likewise bewails the futility of the given safeguards to prevent abuse since
government officials who are neither experts nor practitioners of medicine are given the authority to issue
identification cards that authorizes the granting of the privileges under the law.

The Court disagrees.

Section 4(a) of R.A. No. 7277, the precursor of R.A. No. 94421 defines "disabled persons" as follows:

(a) Disabled persons  are those suffering from restriction or different abilities, as a result of a mental,
physical or sensory impairment, to perform an activity in the manner or within the range considered
normal for a human being[.]

On the other hand, the term "PWDs" is defined in Section 5.1 of the IRR of R.A. No. 9442 as follows:

5.1. PersonswithDisability are those individuals defined under Section 4 of [R.A. No.] 7277 [or] An Act
Providing for the Rehabilitation, Self-Development and Self-Reliance of Persons with Disability as
amended and their integration into the Mainstream of Society and for Other Purposes. This is defined as
a person suffering from restriction or different abilities, as a result of a mental, physical or sensory
impairment, to perform an activity in a manner or within the range considered normal for human being.
Disability shall mean (1) a physical 1or mental impairment that substantially limits one or more
psychological, physiological or anatomical function of an individual or activities of such individual; (2) a
record of such an impairment; or (3) being regarded as having such an impairment.

The foregoing definitions have a striking conformity with the definition of "PWDs" in Article 1 of the United
Nations Convention on the Rights of Persons with Disabilities  which reads:

Persons with disabilities include those who have long-term physical, mental, intellectual or sensory
impairments which in interaction with various barriers may hinder their full and effective participation in
society on an equal basis with others. (Emphasis and italics ours)

The seemingly broad definition of the terms was not without good reasons. It recognizes that "disability is
an evolving concept"73 and appreciates the "diversity of PWDs."74 The terms were given comprehensive
definitions so as to accommodate the various forms of disabilities, and not confine it to a particular case
as this would effectively exclude other forms of physical, intellectual or psychological impairments.

Moreover, in Estrada v. Sandiganbayan,  75 it was declared, thus:

A statute is not rendered uncertain and void merely because general terms are used therein, or because
of the employment of terms without defining them; much less do we have to define every word we use.
Besides, there is no positive constitutional or statutory command requiring the legislature to define each
and every word in an enactment. Congress is not restricted in the form of expression of its will, and its
inability to so define the words employed in a statute will not necessarily result in the vagueness or
ambiguity of the law so long as the legislative will is clear, or at least, can be gathered from the whole act
x x x.76 (Citation omitted)
At any rate, the Court gathers no ambiguity in the provisions of R.A. No. 9442. As regards the petitioner's
claim that the law lacked reasonable standards in determining the persons entitled to the discount,
Section 32 thereof is on point as it identifies who may avail of the privilege and the manner of its
availment. It states:

Sec. 32. x x x

The abovementioned privileges are available only to persons with disability who are Filipino citizens upon
submission of any of the following as proof of his/her entitlement thereto:

(I) An identification card issued by the city or municipal mayor or the barangay captain of
the place where the persons with disability resides;

(II) The passport of the persons with disability concerned; or

(III) Transportation discount fare Identification Card (ID) issued by the National Council
for the Welfare of Disabled Persons (NCWDP).

It is, however, the petitioner's contention that the foregoing authorizes government officials who had no
medical background to exercise discretion in issuing identification cards to those claiming to be PWDs. It
argues that the provision lends to the indiscriminate availment of the privileges even by those who are not
qualified.

The petitioner's apprehension demonstrates a superficial understanding of the law and its implementing
rules. To be clear, the issuance of identification cards to PWDs does not depend on the authority of the
city or municipal mayor, the DSWD or officials of the NCDA (formerly NCWDP). It is well to remember that
what entitles a person to the privileges of the law is his disability,  the fact of which he must prove to
qualify. Thus, in NCDA Administrative Order (A.O.) No. 001, series of 2008, 77 it is required that the
person claiming disability must submit the following requirements before he shall be issued a PWD
Identification Card:

1. Two "1 x l" recent ID pictures with the names, and signatures or thumb marks at the back of the picture.

2. One (1) Valid ID

3. Document to confirm the medical or disability condition 78

To confirm his disability, the person must obtain a medical certificate or assessment, as the case maybe,
issued by a licensed private or government physician, licensed teacher or head of a business
establishment attesting to his impairment. The issuing entity depends on whether the disability is apparent
or non-apparent. NCDAA.O. No. 001 further provides:79
 DISABILITY DOCUMENT ISSUING ENTITY
Apparent Medical Licensed Private or
Disability Certificate Government Physician
 
  School Licensed Teacher duly
Assessment signed by the School
Principal
  Certificate of  Head of the Business
Disability Establishment
 Head of Non-
Government
Organization

Non-Apparent Medical Licensed Private or

Disability Certificate Government Physician
 

To provide further safeguard, the Department of Health issued A.O. No. 2009-0011, providing guidelines
for the availment of the 20% discount on the purchase of medicines by PWDs. In making a purchase, the
individual must present the documents enumerated in Section VI(4)(b ), to wit:

i. PWD identification card x x x

ii. Doctor's prescription stating the name of the PWD, age, sex, address, date, generic name of
the medicine, dosage form, dosage strength, quantity, signature over printed name of physician,
physician's address, contact number of physician or dentist, professional license number,
professional tax receipt number and narcotic license number, if applicable. To safeguard the
health of PWDs and to prevent abuse of [R.A. No.] 9257, a doctor's prescription is required in the
purchase of over-the-counter medicines. x x x.

iii. Purchase booklet issued by the local social/health office to PWDs for free containing the
following basic information:

a) PWD ID number

b) Booklet control number

c) Name of PWD

d) Sex

e) Address

f) Date of Birth

g) Picture

h) Signature of PWD
 i) Information of medicine purchased:

i.1 Name of medicine

i.2 Quantity

i.3 Attending Physician

i.4 License Number

i.5 Servicing drug store name

i.6 Name of dispensing pharmacist

j) Authorization letter of the PWD x x x in case the medicine is bought by the

representative or caregiver of the PWD.

The PWD identification card also has a validity period of only three years which facilitate in the monitoring
of those who may need continued support and who have been relieved of their disability, and therefore
may be taken out of the coverage of the law.

At any rate, the law has penal provisions which give concerned establishments the option to file a case
against those abusing the privilege Section 46(b) of R.A. No. 9442 provides that "[a]ny person who
abuses the privileges granted herein shall be punished with imprisonment of not less than six months or a
fine of not less than Five Thousand pesos (₱5,000.00), but not more than Fifty Thousand pesos
(₱50,000.00), or both, at the discretion of the court." Thus, concerned establishments, together with the
proper government agencies, must actively participate in monitoring compliance with the law so that only
the intended beneficiaries of the law can avail of the privileges.

Indubitably, the law is clear and unequivocal, and the petitioner claim of vagueness to cast uncertainty in
the validity of the law does not stand.

WHEREFORE, in view of the foregoing disquisition, Section 4(a) of Republic Act No. 9257 and Section 32
of Republic Act No. 9442 are hereby declared CONSTITUTIONAL.
G.R. No. 169838             April 25, 2006

BAYAN, KARAPATAN, KILUSANG MAGBUBUKID NG PILIPINAS (KMP), GABRIELA, Fr. Jose

Dizon, Renato Constantino, Jr., Froyel Yaneza, and Fahima Tajar, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive Secretary, Manila City Mayor LITO ATIENZA,
Chief of the Philippine National Police, Gen. ARTURO M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL
QUEROL, and Western Police District Chief Gen. PEDRO BULAONG, Respondents.

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

G.R. No. 169848             April 25, 2006

Jess Del Prado, Wilson Fortaleza, Leody de Guzman, Pedro Pinlac, Carmelita Morante, Rasti
Delizo, Paul Bangay, Marie Jo Ocampo, Lilia dela Cruz, Cristeta Ramos, Adelaida Ramos, Mary
Grace Gonzales, Michael Torres, Rendo Sabusap, Precious Balute, Roxanne Magboo, Ernie
Bautista, Joseph de Jesus, Margarita Escober, Djoannalyn Janier, Magdalena Sellote, Manny
Quiazon, Ericson Dizon, Nenita Cruzat, Leonardo De los Reyes, Pedrito Fadrigon, Petitioners,
vs.
EDUARDO ERMITA, in his official capacity as The Executive Secretary and in his personal
capacity, ANGELO REYES, in his official capacity as Secretary of the Interior and Local
Governments, ARTURO LOMIBAO, in his official capacity as the Chief, Philippine National Police,
VIDAL QUEROL, in his official capacity as the Chief, National Capital Regional Police Office
(NCRPO), PEDRO BULAONG, in his official capacity as the Chief, Manila Police District (MPD)
AND ALL OTHER PUBLIC OFFICERS GARCIA, and AND PRIVATE INDIVIDUALS ACTING UNDER
THEIR CONTROL, SUPERVISION AND INSTRUCTIONS, Respondents.

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

G.R. No. 169881             April 25, 2006

KILUSANG MAYO UNO, represented by its Chairperson ELMER C. LABOG and Secretary General
JOEL MAGLUNSOD, NATIONAL FEDERATION OF LABOR UNIONS-KILUSANG MAYO UNO
(NAFLU-KMU), represented by its National President, JOSELITO V. USTAREZ, ANTONIO C.
PASCUAL, SALVADOR T. CARRANZA, GILDA SUMILANG, FRANCISCO LASTRELLA, and ROQUE
M. TAN, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY, PNP DIRECTOR GENRAL ARTURO LOMIBAO,
HONORABLE MAYOR LITO ATIENZA, and PNP MPD CHIEF SUPT. PEDRO
BULAONG, Respondents.

DECISION

AZCUNA, J.:

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 Court 9 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 B.P. No. 880

(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.
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.
G.R. No. 205728               January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.

NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY. MAVIL V.
MAJARUCON, Respondents.

DECISION

LEONEN, J.:

"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.
G.R. No. 213847               August 18, 2015

JUAN PONCE ENRILE, Petitioner,

vs.
SANDIGANBAYAN (THIRD DIVISION), AND PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

BERSAMIN, J.:

The decision whether to detain or release an accused before and during trial is ultimately an incident of
the judicial power to hear and determine his criminal case. The strength of the Prosecution's case, albeit
a good measure of the accused’s propensity for flight or for causing harm to the public, is subsidiary to
the primary objective of bail, which is to ensure that the accused appears at trial.1

The Case

Before the Court is the petition for certiorari filed by Senator Juan Ponce Enrile to assail and annul the
resolutions dated July 14, 20142 and August 8, 20143 issued by the Sandiganbayan (Third Division) in
Case No. SB-14-CRM-0238, where he has been charged with plunder along with several others. Enrile
insists that the resolutions, which respectively denied his Motion To Fix Bail and his Motion For
Reconsideration, were issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

Antecedents

On June 5, 2014, the Office of the Ombudsman charged Enrile and several others with plunder in the
Sandiganbayan on the basis of their purported involvement in the diversion and misuse of appropriations
under the Priority Development Assistance Fund (PDAF).4 On June 10, 2014 and June 16, 2014, Enrile
respectively filed his Omnibus Motion5 and Supplemental Opposition,6 praying, among others, that he be
allowed to post bail should probable cause be found against him. The motions were heard by the
Sandiganbayan after the Prosecution filed its Consolidated Opposition.7

On July 3, 2014, the Sandiganbaya n issued its resolution denying Enrile’s motion, particularly on the
matter of bail, on the ground of its prematurity considering that Enrile had not yet then voluntarily
surrendered or been placed under the custody of the law.8 Accordingly, the Sandiganbayan ordered the
arrest of Enrile.9

On the same day that the warrant for his arrest was issued, Enrile voluntarily surrendered to Director
Benjamin Magalong of the Criminal Investigation and Detection Group (CIDG) in Camp Crame, Quezon
City, and was later on confined at the Philippine National Police (PNP) General Hospital following his
medical examination.10

Thereafter, Enrile filed his Motion for Detention at the PNP General Hospital ,11 and his Motion to Fix
Bail ,12 both dated July 7, 2014, which were heard by the Sandiganbayan on July 8, 2014.13 In support of
the motions, Enrile argued that he should be allowed to post bail because: (a) the Prosecution had not yet
established that the evidence of his guilt was strong; (b) although he was charged with plunder, the
penalty as to him would only be reclusion temporal , not reclusion perpetua ; and (c) he was not a flight
risk, and his age and physical condition must further be seriously considered.

On July 14, 2014, the Sandiganbayan issued its first assailed resolution denying Enrile’s Motion to Fix
Bail, disposing thusly:
x x x [I]t is only after the prosecution shall have presented its evidence and the Court shall have made a
determination that the evidence of guilt is not strong against accused Enrile can he demand bail as a
matter of right. Then and only then will the Court be duty-bound to fix the amount of his bail.

To be sure, no such determination has been made by the Court. In fact, accused Enrile has not filed an
application for bail. Necessarily, no bail hearing can even commence. It is thus exceedingly premature for
accused Enrile to ask the Court to fix his bail.

Accused Enrile next argues that the Court should grant him bail because while he is charged with
plunder, "the maximum penalty that may be possibly imposed on him is reclusion temporal, not reclusion
perpetua." He anchors this claim on Section 2 of R.A. No. 7080, as amended, and on the allegation that
he is over seventy (70) years old and that he voluntarily surrendered. "Accordingly, it may be said that the
crime charged against Enrile is not punishable by reclusion perpetua, and thus bailable."

The argument has no merit.

x x x [F]or purposes of bail, the presence of mitigating circumstance/s is not taken into consideration.
These circumstances will only be appreciated in the imposition of the proper penalty after trial should the
accused be found guilty of the offense charged. x x x

Lastly, accused Enrile asserts that the Court should already fix his bail because he is not a flight risk and
his physical condition must also be seriously considered by the Court.

Admittedly, the accused’s age, physical condition and his being a flight risk are among the factors that are
considered in fixing a reasonable amount of bail. However, as explained above, it is premature for the
Court to fix the amount of bail without an anterior showing that the evidence of guilt against accused
Enrile is not strong.

WHEREFORE, premises considered, accused Juan Ponce Enrile’s Motion to Fix Bail dated July 7, 2014
is DENIED for lack of merit.

SO ORDERED.14

On August 8, 2014, the Sandiganbayan issued it s second assailed resolution to deny Enrile’s motion for
reconsideration filed vis-à-vis the July 14, 2014 resolution.15

Enrile raises the following grounds in support of his petition for certiorari , namely:

A. Before judgment of the Sandiganbayan, Enrile is bailable as a matter of right. Enrile

may be deemed to fall within the exception only upon concurrence of two (2)
circumstances: (i) where the offense is punishable by reclusion perpetua, and (ii) when
evidence of guilt is strong.

B. The prosecution failed to show clearly and conclusively that Enrile, if ever he would be
convicted, is punishable by reclusion perpetua; hence, Enrile is entitled to bail as a matter
of right.

C. The prosecution failed to show clearly and conclusively that evidence of Enrile’s guilt (if
ever) is strong; hence, Enrile is entitled to bail as a matter of right.

D. At any rate, Enrile may be bailable as he is not a flight risk. 16

Enrile claims that before judgment of conviction, an accused is entitled to bail as matter of right; th at it is
the duty and burden of the Prosecution to show clearly and conclusively that Enrile comes under the
exception and cannot be excluded from enjoying the right to bail; that the Prosecution has failed to
establish that Enrile, if convicted of plunder, is punishable by reclusion perpetua considering the presence
of two mitigating circumstances – his age and his voluntary surrender; that the Prosecution has not come
forward with proof showing that his guilt for the crime of plunder is strong; and that he should not be
considered a flight risk taking into account that he is already over the age of 90, his medical condition,
and his social standing.

In its Comment ,17 the Ombudsman contends that Enrile’s right to bail is discretionary as he is charged
with a capital offense; that to be granted bail, it is mandatory that a bail hearing be conducted to
determine whether there is strong evidence of his guilt, or the lack of it; and that entitlement to bail
considers the imposable penalty, regardless of the attendant circumstances.

Ruling of the Court

The petition for certiorari is meritorious.

1.
Bail protects the right of the accused to
due process and to be presumed innocent

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved.18 The
presumption of innocence is rooted in the guarantee of due process, and is safeguarded by the
constitutional right to be released on bail,19 and further binds the court to wait until after trial to impose any
punishment on the accused.20

It is worthy to note that bail is not granted to prevent the accused from committing additional crimes.[[21]
The purpose of bail is to guarantee the appearance of the accused at the trial, or whenever so required by
the trial court. The amount of bail should be high enough to assure the presence of the accused when so
required, but it should be no higher than is reasonably calculated to fulfill this purpose.22 Thus, bail acts as
a reconciling mechanism to accommodate both the accused’s interest in his provisional liberty before or
during the trial, and the society’s interest in assuring the accused’s presence at trial.23

2.
Bail may be granted as a
matter of right or of discretion

The right to bail is expressly afforded by Section 13, Article III (Bill of Rights) of the Constitution, viz.:

x x x All persons, except those charged with offenses punishable by reclusion perpetua when evidence of
guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance
as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of
habeas corpus is suspended. Excessive bail shall not be required.

This constitutional provision is repeated in Section 7, Rule 11424 of the Rules of Court , as follows:

Section 7. Capital offense or an offense punishable by reclusion perpetua or life imprisonment, not
bailable. — No person charged with a capital offense, or an offense punishable by reclusion perpetua or
life imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the
criminal prosecution.
A capital offense in the context of the rule refers to an offense that, under the law existing at the time of its
commission and the application for admission to bail, may be punished with death.25

The general rule is, therefore, that any person, before being convicted of any criminal offense, shall be
bailable, unless he is charged with a capital offense, or with an offense punishable with reclusion
perpetua or life imprisonment, and the evidence of his guilt is strong. Hence, from the moment he is
placed under arrest, or is detained or restrained by the officers of the law, he can claim the guarantee of
his provisional liberty under the Bill of Rights, and he retains his right to bail unless he is charged with a
capital offense, or with an offense punishable with reclusion perpetua or life imprisonment, and the
evidence of his guilt is strong.26 Once it has been established that the evidence of guilt is strong, no right
to bail shall be recognized.27

As a result, all criminal cases within the competence of the Metropolitan Trial Court, Municipal Trial Court,
Municipal Trial Court in Cities, or Municipal Circuit Trial Court are bailable as matter of right because
these courts have no jurisdiction to try capital offenses, or offenses punishable with reclusion perpetua or
life imprisonment. Likewise, bail is a matter of right prior to conviction by the Regional Trial Court (RTC)
for any offense not punishable by death, reclusion perpetua , or life imprisonment, or even prior to
conviction for an offense punishable by death, reclusion perpetua , or life imprisonment when evidence of
guilt is not strong.28

On the other hand, the granting of bail is discretionary: (1) upon conviction by the RTC of an offense not
punishable by death, reclusion perpetua or life imprisonment;29 or (2) if the RTC has imposed a penalty of
imprisonment exceeding six years, provided none of the circumstances enumerated under paragraph 3 of
Section 5, Rule 114 is present, as follows:

(a) That he is a recidivist, quasi-recidivist, or habitual delinquent, or has committed the crime
aggravated by the circumstance of reiteration;

(b) That he has previously escaped from legal confinement, evaded sentence, or violated the
conditions of his bail without valid justification;

(c) That he committed the offense while under probation, parole, or conditional pardon;

(d) That the circumstances of hi s case indicate the probability of flight if released on bail; or

(e) That there is undue risk that he may commit another crime during the pendency of the appeal.

3.
Admission to bail in offenses punished
by death, or life imprisonment, or reclusion
perpetua is subject to judicial discretion

For purposes of admission to bail, the determination of whether or not evidence of guilt is strong in
criminal cases involving capital offenses, or offenses punishable with reclusion perpetua or life
imprisonment lies within the discretion of the trial court. But, as the Court has held in Concerned Citizens
v. Elma ,30 "such discretion may be exercised only after the hearing called to ascertain the degree of guilt
of the accused for the purpose of whether or not he should be granted provisional liberty." It is axiomatic,
therefore, that bail cannot be allowed when its grant is a matter of discretion on the part of the trial court
unless there has been a hearing with notice to the Prosecution.31 The indispensability of the hearing with
notice has been aptly explained in Aguirre v. Belmonte, viz. :32
x x x Even before its pronouncement in the Lim case, this Court already ruled in People vs. Dacudao,
etc., et al. that a hearing is mandatory before bail can be granted to an accused who is charged with a
capital offense, in this wise:

The respondent court acted irregularly in granting bail in a murder case without any hearing on the motion
asking for it, without bothering to ask the prosecution for its conformity or comment, as it turned out later,
over its strong objections. The court granted bail on the sole basis of the complaint and the affidavits of
three policemen, not one of whom apparently witnessed the killing. Whatever the court possessed at the
time it issued the questioned ruling was intended only for prima facie determining whether or not there is
sufficient ground to engender a well-founded belief that the crime was committed and pinpointing the
persons who probably committed it. Whether or not the evidence of guilt is strong for each individual
accused still has to be established unless the prosecution submits the issue on whatever it has already
presented. To appreciate the strength or weakness of the evidence of guilt, the prosecution must be
consulted or heard. It is equally entitled as the accused to due process.

Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable
opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime,
character and reputation of the accused, the weight of the evidence against him, the probability of the
accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not
the accused is under bond in other cases. (Section 6, Rule 114, Rules of Court) It is highly doubtful if the
trial court can appreciate these guidelines in an ex-parte determination where the Fiscal is neither present
nor heard.

The hearing, which may be either summary or otherwise, in the discretion of the court, should primarily
determine whether or not the evidence of guilt against the accused is strong. For this purpose, a summary
hearing means:

x x x such brief and speedy method of receiving and considering the evidence of guilt as is practicable
and consistent with the purpose of hearing which is merely to determine the weight of evidence for
purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry
as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate
on the outcome of the trial or on what further evidence may be therein offered or admitted. The course of
inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as
has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross
examination.33

In resolving bail applications of the accused who is charged with a capital offense, or an offense
punishable by reclusion perpetua or life imprisonment, the trial judge is expected to comply with the
guidelines outlined in Cortes v. Catral,34 to wit:

1. In all cases, whether bail is a matter of right or of discretion, notify the prosecutor of the hearing
of the application for bail or require him to submit his recommendation (Section 18, Rule 114 of
the Rules of Court, as amended);

2. Where bail is a matter of discretion, conduct a hearing of the application for bail regardless of
whether or not the prosecution refuses to present evidence to show that the guilt of the accused
is strong for the purpose of enabling the court to exercise its sound discretion; (Section 7 and 8,
supra)

3. Decide whether the guilt of the accused is strong based on the summary of evidence of the
prosecution;

4. If the guilt of the accused is no t strong, discharge the accused upon the approval of the
bailbond (Section 19, supra) Otherwise petition should be denied.
 3.
Enrile’s poor health justifies his admission to bail

We first note that Enrile has averred in his Motion to Fix Bail the presence of two mitigating circumstances
that should be appreciated in his favor, namely: that he was already over 70 years at the time of the
alleged commission of the offense, and that he voluntarily surrendered.35

Enrile’s averment has been mainly uncontested by the Prosecution, whose Opposition to the Motion to
Fix Bail has only argued that –

8. As regards the assertion that the maximum possible penalty that might be imposed upon Enrile is only
reclusion temporal due to the presence of two mitigating circumstances, suffice it to state that the
presence or absence of mitigating circumstances is also not consideration that the Constitution deemed
worthy. The relevant clause in Section 13 is "charged with an offense punishable by." It is, therefore, the
maximum penalty provided by the offense that has bearing and not the possibility of mitigating
circumstances being appreciated in the accused’s favor.36

Yet, we do not determine now the question of whether or not Enrile’s averment on the presence of the two
mitigating circumstances could entitle him to bail despite the crime alleged against him being punishable
with reclusion perpetua ,37 simply because the determination, being primarily factual in context, is ideally
to be made by the trial court.

Nonetheless, in now granting Enrile’s petition for certiorari, the Court is guided by the earlier mentioned
principal purpose of bail, which is to guarantee the appearance of the accused at the trial, or whenever so
required by the court. The Court is further mindful of the Philippines’ responsibility in the international
community arising from the national commitment under the Universal Declaration of Human Rights to:

x x x uphold the fundamental human rights as well as value the worth and dignity of every person. This
commitment is enshrined in Section II, Article II of our Constitution which provides: "The State values the
dignity of every human person and guarantees full respect for human rights." The Philippines, therefore,
has the responsibility of protecting and promoting the right of every person to liberty and due process,
ensuring that those detained or arrested can participate in the proceedings before a court, to enable it to
decide without delay on the legality of the detention and order their release if justified. In other words, the
Philippine authorities are under obligation to make available to every person under detention such
remedies which safeguard their fundamental right to liberty. These remedies include the right to be
admitted to bail.38

This national commitment to uphold the fundamental human rights as well as value the worth and dignity
of every person has authorized the grant of bail not only to those charged in criminal proceedings but also
to extraditees upon a clear and convincing showing: (1 ) that the detainee will not be a flight risk or a
danger to the community; and (2 ) that there exist special, humanitarian and compelling circumstances.39

In our view, his social and political standing and his having immediately surrendered to the authorities
upon his being charged in court indicate that the risk of his flight or escape from this jurisdiction is highly
unlikely. His personal disposition from the onset of his indictment for plunder, formal or otherwise, has
demonstrated his utter respect for the legal processes of this country. We also do not ignore that at an
earlier time many years ago when he had been charged with rebellion with murder and multiple frustrated
murder, he already evinced a similar personal disposition of respect for the legal processes, and was
granted bail during the pendency of his trial because he was not seen as a flight risk.40 With his solid
reputation in both his public and his private lives, his long years of public service, and history’s judgment
of him being at stake, he should be granted bail.

The currently fragile state of Enrile’s health presents another compelling justification for his admission to
bail, but which the Sandiganbayan did not recognize.
In his testimony in the Sandiganbayan,41 Dr. Jose C. Gonzales, the Director of the Philippine General
Hospital (PGH), classified Enrile as a geriatric patient who was found during the medical examinations
conducted at the UP-PGH to be suffering from the following conditions:

(1) Chronic Hypertension with fluctuating blood pressure levels on multiple drug therapy;
(Annexes 1.1, 1.2, 1.3);

(2) Diffuse atherosclerotic cardiovascular disease composed of the following :

a. Previous history of cerebrovascular disease with carotid and vertebral artery disease ;
(Annexes 1.4, 4.1)

b. Heavy coronary artery calcifications; (Annex 1.5)

c. Ankle Brachial Index suggestive of arterial calcifications. (Annex 1.6)

(3) Atrial and Ventricular Arrhythmia (irregular heart beat) documented by Holter monitoring ;
(Annexes 1.7.1, 1.7.2)

(4) Asthma-COPD Overlap Syndrom (ACOS) and postnasal drip syndrome; (Annexes 2.1, 2.2)

(5) Ophthalmology:

a. Age-related mascular degeneration, neovascular s/p laser of the Retina, s/p Lucentis
intra-ocular injections; (Annexes 3.0, 3.1, 3.2)

b. S/p Cataract surgery with posterior chamber intraocular lens. (Annexes 3.1, 3.2)

(6) Historical diagnoses of the following:

a. High blood sugar/diabetes on medications;

b. High cholesterol levels/dyslipidemia;

c. Alpha thalassemia;

d. Gait/balance disorder;

e. Upper gastrointestinal bleeding (etiology uncertain) in 2014;

f. Benign prostatic hypertrophy (with documented enlarged prostate on recent

ultrasound).42

Dr. Gonzales attested that the following medical conditions, singly or collectively, could pose significant
risk s to the life of Enrile, to wit: (1) uncontrolled hypertension, because it could lead to brain or heart
complications, including recurrence of stroke; (2) arrhythmia, because it could lead to fatal or non-fatal
cardiovascular events, especially under stressful conditions; (3) coronary calcifications associated with
coronary artery disease, because they could indicate a future risk for heart attack under stressful
conditions; and (4) exacerbations of ACOS, because they could be triggered by certain circumstances
(like excessive heat, humidity, dust or allergen exposure) which could cause a deterioration in patients
with asthma or COPD.43
Based on foregoing, there is no question at all that Enrile’s advanced age and ill health required special
medical attention. His confinement at the PNP General Hospital, albeit at his own instance,44 was not
even recommended by the officer-in-charge (O IC) and the internist doctor of that medical facility because
of the limitations in the medical support at that hospital. Their testimonies ran as follows:

JUSTICE MARTIRES:

The question is, do you feel comfortable with the continued confinement of Senator Enrile at the
Philippine National Police Hospital?

DR. SERVILLANO:

No, Your Honor.

JUSTICE MARTIRES:

Director, doctor, do you feel comfortable with the continued confinement of Senator Enrile at the PNP
Hospital ?

PSUPT. JOCSON:

No, Your Honor.

JUSTICE MARTIRES:

Why?

PSUPT. JOCSON:

Because during emergency cases, Your Honor, we cannot give him the best.

JUSTICE MARTIRES:

At present, since you are the attending physician of the accused, Senator Enrile, are you happy or have
any fear in your heart of the present condition of the accused vis a vis the facilities of the hospital?

DR. SERVILLANO:

Yes, Your Honor. I have a fear.

JUSTICE MARTIRES:

That you will not be able to address in an emergency situation?

DR. SERVILLANO:

Your Honor, in case of emergency situation we can handle it but probably if the condition of the patient
worsen, we have no facilities to do those things, Your Honor.45

Bail for the provisional liberty of the accused, regardless of the crime charged, should be allowed
independently of the merits of the charge, provided his continued incarceration is clearly shown to be
injurious to his health or to endanger his life. Indeed, denying him bail despite imperiling his health and life
would not serve the true objective of preventive incarceration during the trial.

Granting bail to Enrile on the foregoing reasons is not unprecedented. The Court has already held in Dela
Rama v. The People’s Court:46

x x x This court, in disposing of the first petition for certiorari, held the following:

x x x [ U]nless allowance of bail is forbidden by law in the particular case, the illness of the prisoner,

independently of the merits of the case, is a circumstance, and the humanity of the law makes it a
consideration which should, regardless of the charge and the stage of the proceeding, influence the court
to exercise its discretion to admit the prisoner to bail ;47

xxx

Considering the report of the Medical Director of the Quezon Institute to the effect that the petitioner "is
actually suffering from minimal, early, unstable type of pulmonary tuberculosis, and chronic, granular
pharyngitis," and that in said institute they "have seen similar cases, later progressing into advance
stages when the treatment and medicine are no longer of any avail;" taking into consideration that the
petitioner’s previous petition for bail was denied by the People’s Court on the ground that the petitioner
was suffering from quiescent and not active tuberculosis, and the implied purpose of the People’s Court in
sending the petitioner to the Quezon Institute for clinical examination and diagnosis of the actual condition
of his lungs, was evidently to verify whether the petitioner is suffering from active tuberculosis, in order to
act accordingly in deciding his petition for bail; and considering further that the said People’s Court has
adopted and applied the well-established doctrine cited in our above-quoted resolution, in several cases,
among them, the cases against Pio Duran (case No. 3324) and Benigno Aquino (case No. 3527), in
which the said defendants were released on bail on the ground that they were ill and their continued
confinement in New Bilibid Prison would be injurious to their health or endanger their life; it is evident and
we consequently hold that the People’s Court acted with grave abuse of discretion in refusing to re lease
the petitioner on bail.48

It is relevant to observe that granting provisional liberty to Enrile will then enable him to have his medical
condition be properly addressed and better attended to by competent physicians in the hospitals of his
choice. This will not only aid in his adequate preparation of his defense but, more importantly , will
guarantee his appearance in court for the trial.

On the other hand, to mark time in order to wait for the trial to finish before a meaningful consideration of
the application for bail can be had is to defeat the objective of bail, which is to entitle the accused to
provisional liberty pending the trial. There may be circumstances decisive of the issue of bail – whose
existence is either admitted by the Prosecution, or is properly the subject of judicial notice – that the
courts can already consider in resolving the application for bail without awaiting the trial to finish.49 The
Court thus balances the scales of justice by protecting the interest of the People through ensuring his
personal appearance at the trial, and at the same time realizing for him the guarantees of due process as
well as to be presumed innocent until proven guilty.

Accordingly, we conclude that the Sandiganbayan arbitrarily ignored the objective of bail to ensure the
appearance of the accused during the trial; and unwarrantedly disregarded the clear showing of the
fragile health and advanced age of Enrile. As such, the Sandiganbayan gravely abused its discretion in
denying Enrile’s Motion To Fix Bail. Grave abuse of discretion, as the ground for the issuance of the writ
of certiorari , connotes whimsical and capricious exercise of judgment as is equivalent to excess, or lack
of jurisdiction.50 The abuse must be so patent and gross as to amount to an evasion of a positive duty or
to a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the
power is exercised in an arbitrary and despotic manner by reason of passion or hostility.51 WHEREFORE,
the Court GRANTS the petition for certiorari ; ISSUES the writ of certiorari ANNULING and SETTING
ASIDE the Resolutions issued by the Sandiganbayan (Third Division) in Case No. SB-14 CRM-0238 on
July 14, 2014 and August 8, 2014; ORDERS the PROVISIONAL RELEASE of petitioner Juan Ponce
Enrile in Case No. SB-14-CRM-0238 upon posting of a cash bond of ₱1,000,000.00 in the
Sandiganbayan; and DIRECTS the immediate release of petitioner Juan Ponce Enrile from custody
unless he is being detained for some other lawful cause.

No pronouncement on costs of suit.

SO ORDERED.
G.R. No. 197930

EFRAIM C. GENUINO, ERWIN F. GENUINO and SHERYL G. SEE, Petitioners

vs
HON. LEILA M. DE LIMA, in her capacity as Secretary of Justice, and RICARDO V. PARAS III, in his
capacity as Chief State Counsel, CRISTINO L. NAGUIAT, JR. and the BUREAU OF IMMIGRATION,
Respondents

DECISION

REYES, JR., J.:

These consolidated Petitions for Certiorari and Prohibition with Prayer for the Issuance of Temporary
Restraining Orders (TRO) and/or Writs of Preliminary Injunction Under Rule 65 of the Rules of Court
assail the constitutionality of Department of Justice (DOJ) Circular No. 41, series of 2010, otherwise
known as the "Consolidated Rules and Regulations Governing Issuance and Implementation of Hold
Departure Orders, Watchlist Orders and Allow Departure Orders," on the ground that it infringes on the
constitutional right to travel.

Also, in G.R. Nos. 199034 and 199046, the petitioners therein seek to annul and set aside the following
orders issued by the former DOJ Secretary Leila De Lima (De Lima), pursuant to DOJ Circular No. 41,
thus:

1. Watchlist Order No. ASM-11-237 dated August 9, 2011;1

2. Amended Watchlist Order No. 2011-422 dated September 6, 2011;2 and

3. Watchlist Order No. 2011-573 dated October 27, 2011.3

In a Supplemental Petition, petitioner Gloria Macapagal-Arroyo (GMA) further seeks the invalidation of the
Order4 dated November 8, 2011, denying her application for an Allow-Departure Order (ADO).

Similarly, in G.R. No. 197930, petitioners Efraim C. Genuino (Efraim), Erwin F. Genuino (Erwin) and
Sheryl Genuino-See (Genuinos) pray for the nullification of the Hold-Departure Order5 (HDO) No. 2011-64
dated July 22, 2011 issued against them.

Antecedent Facts

On March 19, 1998, then DOJ Secretary Silvestre H. Bello III issued DOJ Circular No. 17, prescribing
rules and regulations governing the issuance of HDOs. The said issuance was intended to restrain the
indiscriminate issuance of HDOs which impinge on the people's right to travel.

On April 23, 2007, former DOJ Secretary Raul M. Gonzalez issued DOJ Circular No. 18, prescribing rules
and regulations governing the issuance and implementation of watchlist orders. In particular, it provides
for the power of the DOJ Secretary to issue a Watchlist Order (WLO) against persons with criminal cases
pending preliminary investigation or petition for review before the DOJ. Further, it states that the DOJ
Secretary may issue an ADO to a person subject of a WLO who intends to leave the country for some
exceptional reasons.6 Even with the promulgation of DOJ Circular No. 18, however, DOJ Circular No. 17
remained the governing rule on the issuance of HDOs by the DOJ.

On May 25, 2010, then Acting DOJ Secretary Alberto C. Agra issued the assailed DOJ Circular No. 41,
consolidating DOJ Circular Nos. 17 and 18, which will govern the issuance and implementation of HDOs,
WLOS, and ADOs. Section 10 of DOJ Circular No. 41 expressly repealed all rules and regulations
contained in DOJ Circular Nos. 17 and 18, as well as all instructions, issuances or orders or parts thereof
which are inconsistent with its provisions.

After the expiration of GMA's term as President of the Republic of the Philippines and her subsequent
election as Pampanga representative, criminal complaints were filed against her before the DOJ,
particularly:

(a) XVI-INV-10H-00251, entitled Danilo A. Lihaylihay vs. Gloria Macapagal-Arroyo, et al., for plunder;7

(b) XVI-INV-11D-00170, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder,

malversation and/or illegal use of OWWA funds, graft and corruption, violation of the Omnibus Election
Code (OEC), violation of the Code of Conduct and Ethical Standards for Public Officials, and qualified
theft;8 and

(c) XVI-INV-11F-00238, entitled Francisco I. Chavez vs. Gloria Macapagal-Arroyo, et al., for plunder,

malversation, and/or illegal use of public funds, graft and corruption, violation of the OEC, violation of the
Code of Conduct and Ethical Standards for Public Officials and qualified theft.9

In view of the foregoing criminal complaints, De Lima issued DOJ WLO No. 2011-422 dated August 9,
2011 against GMA pursuant to her authority under DOJ Circular No. 41. She also ordered for the
inclusion of GMA's name in the Bureau of Immigration (BI) watchlist.10 Thereafter, the Bl issued WLO No.
ASM-11-237,11 implementing De Lima's order.

On September 6, 2011, De Lima issued DOJ Amended WLO No. 2011-422 against GMA to reflect her full
name "Ma. Gloria M. Macapagal-Arroyo" in the BI Watchlist.12 WLO No. 2011-422, as amended, is valid
for a period of 60 days, or until November 5, 2011, unless sooner terminated or otherwise extended. This
was lifted in due course by De Lima, in an Order dated November 14, 2011, following the expiration of its
validity.13

Meanwhile, on October 20, 2011, two criminal complaints for Electoral Sabotage and Violation of the OEC
were filed against GMA and her husband, Jose Miguel Arroyo (Miguel Arroyo), among others, with the
DOJ-Commission on Elections (DOJ-COMELEC) Joint Investigation Committee on 2004 and 2007
Election Fraud,14 specifically:

(a) DOJ-COMELEC Case No. 001-2011, entitled DOJ-COMELEC Fact Finding Team vs. Gloria
Macapagal-Arroyo et al., (for the Province of Maguindanao), for electoral sabotage/violation of the OEC
and COMELEC Rules and Regulations;15 and

(b) DOJ-COMELEC Case No. 002-2011, entitled Aquilino Pimentel III vs. Gloria Macapagal-Arroyo, et
al., for electoral sabotage.16

Following the filing of criminal complaints, De Lima issued DOJ WLO No. 2011-573 against GMA and
Miguel Arroyo on October 27, 2011, with a validity period of 60 days, or until December 26, 2011, unless
sooner terminated or otherwise extended.17

In three separate letters dated October 20, 2011, October 21, 2011, and October 24, 2011, GMA
requested for the issuance of an ADO, pursuant to Section 7 of DOJ Circular No. 41, so that she may be
able to seek medical attention from medical specialists abroad for her hypoparathyroidism and metabolic
bone mineral disorder. She mentioned six different countries where she intends to undergo consultations
and treatments: United States of America, Germany, Singapore, Italy, Spain and Austria.18 She likewise
undertook to return to the Philippines, once her treatment abroad is completed, and participate in the
proceedings before the DOJ.19 In support of her application for ADO, she submitted the following
documents, viz.:

1. Second Endorsement dated September 16, 2011 of Speaker Feliciano Belmonte, Jr. to the Secretary
of Foreign Affairs, of her Travel Authority;

2. First Endorsement dated October 19, 201120 of Artemio A. Adasa, OIC Secretary General of the House
of Representatives, to the Secretary of Foreign Affairs, amending her Travel Authority to include travel to
Singapore, Spain and Italy;

3. Affidavit dated October 21, 2011,21 stating the purpose of travel to Singapore, Germany and Austria;

4. Medical Abstract dated October 22, 2011,22 signed by Dr. Roberto Mirasol (Dr. Mirasol);

5. Medical Abstract dated October 24, 2011,23 signed by Dr. Mario Ver;

6. Itinerary submitted by the Law Firm of Diaz, Del Rosario and Associates, detailing the schedule of
consultations with doctors in Singapore.

To determine whether GMA's condition necessitates medical attention abroad, the Medical Abstract
prepared by Dr. Mirasol was referred to then Secretary of the Department of Health, Dr. Enrique Ona (Dr.
Ona) for his expert opinion as the chief government physician. On October 28, 2011, Dr. Ona,
accompanied by then Chairperson of the Civil Service Commission, Francisco Duque, visited GMA at her
residence in La Vista Subdivision, Quezon City. Also present at the time of the visit were GMA's attending
doctors who explained her medical condition and the surgical operations conducted on her. After the visit,
Dr. Ona noted that "Mrs. Arroyo is recuperating reasonably well after having undergone a series of three
major operations."24

On November 8, 2011, before the resolution of her application for ADO, GMA filed the present Petition
for Certiorari and Prohibition under Rule 65 of the Rules of Court with Prayer for the Issuance of a TRO
and/or Writ of Preliminary Injunction, docketed as G.R. No. 199034, to annul and set aside DOJ Circular
No. 41 and WLOs issued against her for allegedly being unconstitutional.25

A few hours thereafter, Miguel Arroyo filed a separate Petition for Certiorari and Prohibition under the
same rule, with Prayer for the Issuance of a TRO and/or a Writ of Preliminary Injunction, likewise
assailing the constitutionality of DOJ Circular No. 41 and WLO No. 2011-573. His petition was docketed
as G.R. No. 199046.26

Also, on November 8, 2011, De Lima issued an Order,27 denying GMA's application for an ADO, based on
the following grounds:

First, there appears to be discrepancy on the medical condition of the applicant as stated in her affidavit,
on the other hand, and the medical abstract of the physicians as well as her physician's statements to
Secretary Ona during the latter's October 28, 2011 visit to the Applicant, on the other.

xxxx

Second, based on the medical condition of Secretary Ona, there appears to be no urgent and immediate
medical emergency situation for Applicant to seek medical treatment abroad. x x x.

xxxx
Third, Applicant lists several countries as her destination, some of which were not for purposes of
medical consultation, but for attending conferences. XX X.

xxxx

Fourth, while the Applicant's undertaking is to return to the Philippines upon the completion of her
medical treatment, this means that her return will always depend on said treatment, which, based on her
presentation of her condition, could last indefinitely. x x x.

xxxx

Fifth, X X X X. Applicant has chosen for her destination five (5) countries, namely, Singapore, Germany,
Austria, Spain and Italy, with which the Philippines has no existing extradition treaty. X X X.

Χ Χ Χ Χ

IN VIEW OF THE FOREGOING, the application for an Allow Departure Order (ADO)

of Congresswoman MA. GLORIA M. MACAPAGAL-ARROYO is hereby DENIED for lack of merit.

SO ORDERED. 28

On November 9, 2011, De Lima, together with her co-respondents, Ricardo V. Paras, III, Chief State
Counsel of the DOJ and Ricardo A. David, Jr., who was then BI Commissioner, (respondents) filed a Very
Urgent Manifestation and Motion29 in G.R. Nos. 199034 and 199046, praying (1) that they be given a
reasonable time to comment on the petitions and the applications for a TRO and/or writ of preliminary
injunction before any action on the same is undertaken by the Court; (2) that the applications for TRO
and/or writ of preliminary injunction be denied for lack of merit, and; (3) that the petitions be set for oral
arguments after the filing of comments thereto.30

On November 13, 2011, GMA filed a Supplemental Petition31 which included a prayer to annul and set
aside the Order dated November 8, 2011, denying her application for ADO. On the following day, GMA
filed her Comment/Opposition32 to the respondents' Very Urgent Manifestation and Motion dated
November 9, 2011, in G.R. No. 199034.

On November 15, 2011, the Court issued a Resolution,33 ordering the consolidation of G.R. Nos. 199034
and 199046, and requiring the respondents to file their comment thereto not later than November 18,
2011. The Court likewise resolved to issue a TRO in the consolidated petitions, enjoining the respondents
from enforcing or implementing DOJ Circular No. 41 and WLO Nos. ASM-11-237 dated August 9, 2011,
2011-422 dated September 6, 2011, and 2011-573 dated October 27, 2011, subject to the following
conditions, to wit:

(i) The petitioners shall post a cash bond of Two Million Pesos (₱2,000,000.00) payable to this Court
within five (5) days from notice hereof. Failure to post the bond within the aforesaid period will result in the
automatic lifting of the temporary restraining order;

(ii) The petitioners shall appoint a legal representative common to both of them who will receive
subpoena, orders and other legal processes on their behalf during their absence. The petitioners shall
submit the name of the legal representative, also within five (5) days from notice hereof; and

(iii) If there is a Philippine embassy or consulate in the place where they will be traveling, the petitioners
shall inform said embassy or consulate by personal appearance or by phone of their whereabouts at all
times;34
On the very day of the issuance of the TRO, the petitioners tendered their compliance35 with the
conditions set forth in the Resolution dated November 15, 2011 of the Court and submitted the following:
(1) a copy of Official Receipt No. 0030227-SC-EP, showing the payment of the required cash bond of
Two Million Pesos (₱2,000,000.00);36 (2) certification from the Fiscal and Management and Budget Office
of the Supreme Court, showing that the cash bond is already on file with the office;37 (3) special powers of
attorney executed by the petitioners, appointing their respective lawyers as their legal
representatives; 38 and (4) an undertaking to report to the nearest consular office in the countries where
they will travel.39

At around 8:00 p.m. on the same day, the petitioners proceeded to the Ninoy Aquino International Airport
(NAIA), with an aide-de-camp and a private nurse, to take their flights to Singapore. However, the BI
officials at NAIA refused to process their travel documents which ultimately resulted to them not being
able to join their flights.40

On November 17, 2011, GMA, through counsel, filed an Urgent Motion41 for Respondents to Cease and
Desist from Preventing Petitioner GMA from Leaving the Country. She strongly emphasized that the TRO
issued by the Court was immediately executory and that openly defying the same is tantamount to gross
disobedience and resistance to a lawful order of the Court."42 Not long after, Miguel Arroyo followed
through with an Urgent Manifestation,43 adopting and repleading all the allegations in GMA's motion.

On November 16, 2011, the respondents filed a Consolidated Urgent Motion for Reconsideration and/or
to Lift TRO,44 praying that the Court reconsider and set aside the TRO issued in the consolidated petitions
until they are duly heard on the merits. In support thereof, they argue that the requisites for the issuance
of a TRO and writ of preliminary injunction were not established by the petitioners. To begin with, the
petitioners failed to present a clear and mistakable right which needs to be protected by the issuance of a
TRO. While the petitioners anchor their right in esse on the right to travel under Section 6, Article III of the
1987 Constitution, the said right is not absolute. One of the limitations on the right to travel is DOJ
Circular No. 41, which was issued pursuant to the rule-making powers of the DOJ in order to keep
individuals under preliminary investigation within the jurisdiction of the Philippine criminal justice system.
With the presumptive constitutionality of DOJ Circular No. 41, the petitioners cannot claim that they have
a clear and unmistakable right to leave the country as they are the very subject of the mentioned
issuance.45 Moreover, the issuance of a TRO will effectively render any judgment on the consolidated
petitions moot and academic. No amount of judgment can recompense the irreparable injury that the state
is bound to suffer if the petitioners are permitted to leave the Philippine jurisdiction.46

On November 18, 2011, the Court issued a Resolution,47 or requiring De Lima to show cause why she
should not be disciplinarily dealt with or held in contempt of court for failure to comply with the TRO. She
was likewise ordered to immediately comply with the TRO by allowing the petitioners to leave the country.
At the same time, the Court denied the Consolidated Urgent Motion for Reconsideration and/or to Lift
TRO dated November 16, 2011 filed by the Office of the Solicitor General.48

On even date, the COMELEC, upon the recommendation of the Joint DOJ-COMELEC Preliminary
Investigation Committee, filed an information for the crime of electoral sabotage under Section 43(b) of
Republic Act (R.A.) No. 9369 against GMA, among others, before the Regional Trial Court (RTC) of
Pasay City, which was docketed as R-PSY-11-04432-CR49 and raffled to Branch 112. A warrant of arrest
for GMA was forthwith issued.

Following the formal filing of an Information in court against GMA, the respondents filed an Urgent
Manifestation with Motion to Lift TRO.50 They argue that the filing of the information for electoral sabotage
against GMA is a supervening event which warrants the lifting of the TRO issued by this Court. They
asseverate that the filing of the case vests the trial court the jurisdiction to rule on the disposition of the
case. The issue therefore on the validity of the assailed WLOs should properly be raised and threshed out
before the RTC of Pasay City where the criminal case against GMA is pending, to the exclusion of all
other courts.51
Also, on November 18, 2011, the COMELEC issued a Resolution, dismissing the complaint for violation of
OEC and electoral sabotage against Miguel Arroyo, among others, which stood as the basis for the
issuance of WLO No. 2011-573. Conformably, the DOJ issued an Order dated November 21,
2011,52 lifting WLO No. 2011-573 against Miguel Arroyo and ordering for the removal of his name in the
BI watchlist.

Thereafter, the oral arguments on the consolidated petitions proceeded as scheduled on November 22,
2011, despite requests from the petitioners' counsels for an earlier date. Upon the conclusion of the oral
arguments on December 1, 2011, the parties were required to submit their respective memoranda.53

Meanwhile, in G.R. No. 197930, HDO No. 2011-64 dated July 22, 201154 was issued against Genuinos,
among others, after criminal complaints for Malversation, as defined under Article 217 of the Revised
Penal Code (RPC), and Violation of Sections 3(e), (g), (h) and (i) of R.A. No. 3019 were filed against them
by the Philippine Amusement and Gaming Corporation (PAGCOR), through its Director, Eugene
Manalastas, with the DOJ on June 14, 2011, for the supposed diversion of funds for the film "Baler." This
was followed by the filing of another complaint for Plunder under R.A. No. 7080, Malversation under
Article 217 of the RPC and Violation of Section 3 of R.A. No. 3019, against the same petitioners, as well
as members and incorporators of BIDA Production, Inc. Wildformat, Inc. and Pencil First, Inc., for
allegedly siphoning off PAGCOR funds into the coffers of BIDA entities. Another complaint was thereafter
filed against Efraim and Erwin was filed before the Office of the Ombudsman for violation of R.A. No.
3019 for allegedly releasing PAGCOR funds intended for the Philippine Sports Commission directly to the
Philippine Amateur Swimming Association, Inc.55 In a Letter56 dated July 29, 2011 addressed to Chief
State Counsel Ricardo Paras, the Genuinos, through counsel, requested that the HDO against them be
lifted. This plea was however denied in a Letter57 dated August 1, 2011 which prompted the institution of
the present petition by the Genuinos. In a Resolution58 dated April 21, 2015, the Court consolidated the
said petition with G.R. Nos. 199034 and 199046.

The Court, after going through the respective memoranda of the parties and their pleadings, sums up the
issues for consideration as follows:

WHETHER THE COURT MAY EXERCISE ITS POWER OF JUDICIAL REVIEW;

II

WHETHER THE DOJ HAS THE AUTHORITY TO ISSUE DOJ CIRCULAR NO. 41; and

III

WHETHER THERE IS GROUND TO HOLD THE FORMER DOJ SECRETARY GUILTY OF CONTEMPT
OF COURT.

Ruling of the Court

The Court may exercise its power of

judicial review despite the filing of
information for electoral sabotage
against GMA

It is the respondents' contention that the present petitions should be dismissed for lack of a justiciable
controversy. They argue that the instant petitions had been rendered moot and academic by (1) the
expiration of the WLO No. 422 dated August 9, 2011, as amended by the Order dated September 6,
2011;59 (2) the filing of an information for electoral sabotage against GMA,60 and; (3) the lifting of the WLO
No. 2011-573 dated November 14, 2011 against Miguel Arroyo and the subsequent deletion of his name
from the BI watchlist after the COMELEC en banc dismissed the case for electoral sabotage against
him.61

The power of judicial review is articulated in Section 1, Article VIII of the 1987 Constitution which reads:

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.62

Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations,
to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the
person challenging the act must have the standing to question the validity of the subject act or issuance;
otherwise stated, he must have a personal and substantial interest in the case such that he has
sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality
must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of
the case.63

Except for the first requisite, there is no question with respect to the existence of the three (3) other
requisites. Petitioners have the locus standi to initiate the petition as they claimed to have been unlawfully
subjected to restraint on their right to travel owing to the issuance of WLOs against them by authority of
DOJ Circular No. 41. Also, they have contested the constitutionality of the questioned issuances at the
most opportune time.

The respondents, however, claim that the instant petitions have become moot and academic since there
is no longer any actual case or controversy to resolve following the subsequent filing of an information for
election sabotage against GMA on November 18, 2011 and the lifting of WLO No. 2011-573 against
Miguel Arroyo and the deletion of his name from the BI watchlist after the dismissal of the complaint for
electoral sabotage against him.

To be clear, "an actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is definite and concrete, touching the legal relations of parties having
adverse legal interest; a real and substantial controversy admitting of specific relief."64 When the issues
have been resolved or when the circumstances from which the legal controversy arose no longer exist,
the case is rendered moot and academic. "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."65

The Court believes that the supervening events following the filing of the instant petitions, while may have
seemed to moot the instant petitions, will not preclude it from ruling on the constitutional issues raised by
the petitioners. The Court, after assessing the necessity and the invaluable gain that the members of the
bar, as well as the public may realize from the academic discussion of the constitutional issues raised in
the petition, resolves to put to rest the lingering constitutional questions that abound the assailed
issuance. This is not a novel occurrence as the Court, in a number of occasions, took up cases up to its
conclusion notwithstanding claim of mootness.

In Evelio Javier vs. The Commission on Elections,66 emphatically stated, thus:

The Supreme Court is not only the highest arbiter of legal questions but also the conscience of the
government. The citizen comes to us in quest of law but we must also give him justice. The two are not
always the same. There are times when we cannot grant the latter because the issue has been settled
and decision is no longer possible according to the law. But there are also times when although the
dispute has disappeared, as in this case, it nevertheless cries out to be resolved. Justice demands that
we act then, not only for the vindication of the outraged right, though gone, but also for the guidance of
and as a restraint upon the future.67

In Prof. David vs. Pres. Macapagal-Arroyo,68 the Court proceeded in ruling on the constitutionality of
Presidential Proclamation (PP) No. 1017 in which GMA declared a state of national emergency, and
General Order No. 5 (G.O. No. 5), which ordered the members of the Armed Forces of the Philippines
and the Philippine National Police to carry all necessary actions to suppress acts of terrorism and lawless
violence, notwithstanding the issuance of PP 1021 lifting both issuances. The Court articulated, thus:

The Court holds that President Arroyo's issuance of PP 1021 did not render the present petitions moot
and academic. During the eight (8) days that PP 1017 was operative, the police officers, according to
petitioners, committed illegal acts in implementing it. Are PP 1017 and G.O. No. 5 constitutional or
valid? Do they justify these alleged illegal acts? These are the vital issues that must be resolved in
the present petitions. It must be stressed that unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation, inoperative.

The "moot and academic" principle is not a magical formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise moot and academic, if: first, there is a grave
violation of the Constitution; second, the exceptional character of the situation and the paramount public
interest is involved; third, when constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public; and fourth, the case is capable of repetition yet evading
review.69 (Citations omitted and emphasis supplied)

In the instant case, there are exceptional circumstances that warrant the Court's exercise of its power of
judicial review. The petitioners impute the respondents of violating their constitutional right to travel
through the enforcement of DOJ Circular No. 41. They claim that the issuance unnecessarily places a
restraint on the right to travel even in the absence of the grounds provided in the Constitution.

There is also no question that the instant petitions involved a matter of public interest as the petitioners
are not alone in this predicament and there can be several more in the future who may be similarly
situated. It is not farfetched that a similar challenge to the constitutionality of DOJ Circular No. 41 will
recur considering the thousands of names listed in the watch list of the DOJ, who may brave to question
the supposed illegality of the issuance. Thus, it is in the interest of the public, as well as for the education
of the members of the bench and the bar, that this Court takes up the instant petitions and resolves the
question on the constitutionality of DOJ Circular No. 41.

The Constitution is inviolable and

supreme of all laws

We begin by emphasizing that the Constitution is the fundamental, paramount and supreme law of the
nation; it is deemed written in every statute and contract.70 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 a testament to the living democracy in this jurisdiction. It contains the compendium of
the guaranteed rights of individuals, as well as the powers granted to and restrictions imposed on
government officials and instrumentalities. It is that lone unifying code, an inviolable authority that
demands utmost respect and obedience.
The more precious gifts of democracy that the Constitution affords us are enumerated in the Bill of Rights
contained in Article III. In particular, Section 1 thereof 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.

The guaranty of liberty does not, however, imply unbridled license for an individual to do whatever he
pleases, for each is given an equal right to enjoy his liberties, with no one superior over another. Hence,
the enjoyment of one's liberties must not infringe on anyone else's equal entitlement.

Surely, the Bill of Rights operates as a protective cloak under which the individual may assert his liberties.
Nonetheless, "the Bill of Rights itself does not purport to be an absolute guaranty of individual rights and
liberties. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one's
will. It is subject to the far more overriding demands and requirements of the greater number."71

It is therefore reasonable that in order to achieve communal peace and public welfare, calculated
limitations in the exercise of individual freedoms are necessary. Thus, in many significant provisions, the
Constitution itself has provided for exceptions and restrictions to balance the free exercise of rights with
the equally important ends of promoting common good, public order and public safety.

The state's exercise of police power is also well-recognized in this jurisdiction as an acceptable limitation
to the exercise of individual rights. In Philippine Association of Service Exporters, Inc. vs. Drilon,[[72]] it
was defined as the inherent and plenary power in the State which enables it to prohibit all things hurtful to
the comfort, safety, and welfare of society. It is rooted in the conception that men in organizing the state
and imposing upon its government limitations to safeguard constitutional rights did not intend thereby to
enable an individual citizen or a group of citizens to obstruct unreasonably the enactment of such salutary
measures calculated to ensure communal peace, safety, good order, and welfare.73

Still, it must be underscored that in a constitutional government like ours, liberty is the rule and restraint
the exception.74 Thus, restrictions in the exercise of fundamental liberties are heavily guarded against so
that they may not unreasonably interfere with the free exercise of constitutional guarantees.

The right to travel and its limitations

The right to travel is part of the "liberty" of which a citizen cannot be deprived without due process of
law.75 It is part and parcel of the guarantee of freedom of movement that the Constitution affords its
citizen. Pertinently, Section 6, Article III of the Constitution provides:

Section 6. The liberty of abode and of changing the same within the limits prescribed by law shall not be
impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the
interest of national security, public safety or public health, as maybe provided by law.

Liberty under the foregoing clause includes the right to choose one's residence, to leave it whenever he
pleases and to travel wherever he wills.76 Thus, in Zacarias Villavicencio vs. Justo Lucban,77 the Court
held illegal the action of the Mayor of Manila in expelling women who were known prostitutes and sending
them to Davao in order to eradicate vices and immoral activities proliferated by the said subjects. It was
held that regardless of the mayor's laudable intentions, no person may compel another to change his
residence without being expressly authorized by law or regulation.

It is apparent, however, that the right to travel is not absolute. There are constitutional, statutory and
inherent limitations regulating the right to travel. Section 6 itself provides that the right to travel may be
impaired only in the interest of national security, public safety or public health, as may be provided by law.
In Silverio vs. Court of Appeals,78 the Court elucidated, thus:
Article III, Section 6 of the 1987 Constitution should be interpreted to mean that while the liberty of travel
may be impaired even without Court Order, the appropriate executive officers or administrative authorities
are not armed with arbitrary discretion to impose limitations. They can impose limits only on the basis of
"national security, public safety, or public health" and "as may be provided by law," a limitive
phrase which did not appear in the 1973 text (The Constitution, Bernas, Joaquin G.,S.J., Vol. I, First
Edition, 1987, p. 263). Apparently, the phraseology in the 1987 Constitution was a reaction to the ban on
international travel imposed under the previous regime when there was a Travel Processing Center,
which issued certificates of eligibility to travel upon application of an interested party.79 (Emphasis ours)

Clearly, under the provision, there are only three considerations that may permit a restriction on the right
to travel: national security, public safety or public health. As a further requirement, there must be an
explicit provision of statutory law or the Rules of Court80 providing for the impairment. The requirement for
a legislative enactment was purposely added to prevent inordinate restraints on the person's right to
travel by administrative officials who may be tempted to wield authority under the guise of national
security, public safety or public health. This is in keeping with the principle that ours is a government of
laws and not of men and also with the canon that provisions of law limiting the enjoyment of liberty should
be construed against the government and in favor of the individual.81

The necessity of a law before a curtailment in the freedom of movement may be permitted is apparent in
the deliberations of the members of the Constitutional Commission. In particular, Fr. Joaquin Bernas, in
his sponsorship speech, stated thus:

On Section 5, in the explanation on page 6 of the annotated provisions, it says that the phrase "and
changing the same" is taken from the 1935 version; that is, changing the abode. The addition of the
phrase WITHIN THE LIMITS PRESCRIBED BY LAW ensures that, whether the rights be impaired on
order of a court or without the order of a court, the impairment must be in accordance with the
prescriptions of law; that is, it is not left to the discretion of any public officer.82

It is well to remember that under the 1973 Constitution, the right to travel is compounded with the liberty
of abode in Section 5 thereof, which reads:

Section 5, 1973 Constitution: 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.
(Emphasis ours)

The provision, however, proved inadequate to afford protection to ordinary citizens who were subjected to
"hamletting" under the Marcos regime.83 Realizing the loophole in the provision, the members of the
Constitutional Commission agreed that a safeguard must be incorporated in the provision in order to
avoid this unwanted consequence. Thus, the Commission meticulously framed the subject provision in
such a manner that the right cannot be subjected to the whims of any administrative officer. In addressing
the loophole, they found that requiring the authority of a law most viable in preventing unnecessary
intrusion in the freedom of movement, viz.:

MR. NOLLEDO. X X X X

My next question is with respect to Section 5, lines 8 to 12 of page 2. It says here that the liberty of abode
shall not be impaired except upon lawful order of the court or - underscoring the word "or" - when
necessary in the interest of national security, public safety or public health. So, in the first part, there is the
word "court"; in the second part, it seems that the question rises as to who determines whether it is in the
interest of national security, public safety, or public health. May it be determined merely by administrative
authorities?

FR. BERNAS. The understanding we have of this is that, yes, it may be determined by administrative
authorities provided that they act, according to line 9, within the limits prescribed by law. For instance
when this thing came up; what was in mind were passport Officers. If they want to deny a passport on the
first instance, do they have to go to court? The position is, they may deny a passport provided that the
denial is based on the limits prescribed by law. The phrase "within the limits prescribed by law" is
something which is added here. That did not exist in the old provision.84

During the discussions, however, the Commission realized the necessity of separating the concept of
liberty of abode and the right to travel in order to avoid untoward results. Ultimately, distinct safeguards
were laid down which will protect the liberty of abode and the right to travel separately, viz.:

MR. TADEO. Mr. Presiding Officer, anterior amendment on Section 5, page 2, line 11. Iminumungkahi
kong alisin iyong mga salitang nagmumula sa "or" upang maiwasan natin ang walang pakundangang
paglabag sa liberty of abode sa ngalan ng national security at pagsasagawa ng "hamletting" ng kung
sinu-sino na lamang. Kapag inalis ito, maisasagawa lamang ang "hamletting" upon lawful order of the
court. X X X.

xxxx

MR. RODRIGO. Aside from that, this includes the right to travel?

FR. BERNAS. Yes.

MR. RODRIGO. But another right is involved here and that is to travel?

SUSPENSION OF SESSION

FR. BERNAS. Mr. Presiding Officer, may I request a suspension so that we can separate the liberty of
abode and or changing the same from the right to travel, because they may necessitate different
provisions.

THE PRESIDING OFFICER (Mr. Bengzon). The session is suspended.

xxxx

RESUMPTION OF SESSION

xxxx

THE PRESIDING OFFICER (Mr.Bengzon). The session is resumed. Commisioner Bernas is recognized

FR. BERNAS. The proposal is amended to read: "The liberty of abode and of changing the same within
the limits prescribed by law, shall not be impaired except upon lawful order of the court. NEITHER SHALL
THE RIGHT TO TRAVEL BE IMPAIRED EXCEPT IN THE INTEREST OF NATIONAL SECURITY,
PUBLIC SAFETY, OR PUBLIC HEALTH AS MAYBE PROVIDED BY LAW.

THE PRESIDING OFFICER (Mr. Bengzon). The Committee has accepted the amendment, as amended.
Is there any objection? (Silence) The Chair hears none; the amendment, as amended, is approved.85

It is clear from the foregoing that the liberty of abode may only be impaired by a lawful order of the court
and, on the one hand, the right to travel may only be impaired by a law that concerns national security,
public safety or public health. Therefore, when the exigencies of times call for a limitation on the right to
travel, the Congress must respond to the need by explicitly providing for the restriction in a law. This is in
deference to the primacy of the right to travel, being a constitutionally-protected right and not simply a
statutory right, that it can only be curtailed by a legislative enactment.

Thus, in Philippine Association of Service Exporters, Inc. vs. Hon. Franklin M. Drilon, 86 the Court upheld
the validity of the Department Order No. 1, Series of 1988, issued by the Department of Labor and
Employment, which temporarily suspended the deployment of domestic and household workers abroad.
The measure was taken in response to escalating number of female workers abroad who were subjected
to exploitative working conditions, with some even reported physical and personal abuse. The Court held
that Department Order No. 1 is a valid implementation of the Labor Code, particularly, the policy to "afford
protection to labor." Public safety considerations justified the restraint on the right to travel.

Further, in Leave Division, Office of the Administrative Services (OAS) - Office of the Court Administrator
(OCA) vs. Wilma Salvacion P. Heusdens,87  the Court enumerated the statutes which specifically provide
for the impairment of the right to travel, viz.:

Some of these statutory limitations [to the right to travel] are the following:

1] The Human Security Act of 2010 or (R.A.] No. 9372. The law restricts the right to travel of an individual
charged with the crime of terrorism even though such person is out on bail.

2] The Philippine Passport Act of 1996 or R.A. No. 8239. Pursuant to said law, the Secretary of Foreign
Affairs or his authorized consular officer may refuse the issuance of, restrict the use of, or withdraw, a
passport of a Filipino citizen.

3] The "Anti- Trafficking in Persons Act of 2003" or R.A. No. 9208. Pursuant to the provisions thereof, the
[BI], in order to manage migration and curb trafficking in persons, issued Memorandum Order Radir No.
2011-011, allowing its Travel Control and Enforcement Unit to "offload passengers with fraudulent travel
documents, doubtful purpose of travel, including possible victims of human trafficking" from our ports.

4] The Migrant Workers and Overseas Filipinos Act of 1995 or R. A. No. 8042, as amended by R.A. No.
10022. In enforcement of said law, the Philippine Overseas Employment Administration (POEA) may
refuse to issue deployment permit to a specific country that effectively prevents our migrant workers to
enter such country.

5] The Act on Violence against Women and Children or R.A. No. 9262. The law restricts movement of an
individual against whom the protection order is intended.

6] Inter-Country Adoption Act of 1995 or R.A. No. 8043. Pursuant thereto, the Inter-Country Adoption
Board may issue rules restrictive of an adoptee's right to travel "to protect the Filipino child from abuse,
exploitation, trafficking and/or sale or any other practice in connection with adoption which is harmful,
detrimental, or prejudicial to the child."88

In any case, when there is a dilemma between an individual claiming the exercise of a constitutional right
vis-à-vis the state's assertion of authority to restrict the same, any doubt must, at all times, be resolved in
favor of the free exercise of the right, absent any explicit provision of law to the contrary.

The issuance of DOJ Circular No. 41

has no legal basis

Guided by the foregoing disquisition, the Court is in quandary of identifying the authority from which the
DOJ believed its power to restrain the right to travel emanates. To begin with, there is no law particularly
providing for the authority of the secretary of justice to curtail the exercise of the right to travel, in the
interest of national security, public safety or public health. As it is, the only ground of the former DOJ
Secretary in restraining the petitioners, at that time, was the pendency of the preliminary investigation of
the Joint DOJ-COMELEC Preliminary Investigation Committee on the complaint for electoral sabotage
against them.89

To be clear, DOJ Circular No. 41 is not a law. It is not a legislative enactment which underwent the
scrutiny and concurrence of lawmakers, and submitted to the President for approval. It is a mere
administrative issuance apparently designed to carry out the provisions of an enabling law which the
former DOJ Secretary believed to be Executive Order (E.O.) No. 292, otherwise known as the
"Administrative Code of 1987." She opined that DOJ Circular No. 41 was validly issued pursuant to the
agency's rulemaking powers provided in Sections 1 and 3, Book IV, Title III, Chapter 1 of E.O. No. 292
and Section 50, Chapter 11, Book IV of the mentioned Code.

Indeed, administrative agencies possess quasi-legislative or rulemaking powers, among others. It is the
power to make rules and regulations which results in delegated legislation that is within the confines of
the granting statute and the doctrine of non-delegability and separability of powers."90 In the exercise of
this power, the rules and regulations that administrative agencies promulgate should be within the scope
of the statutory authority granted by the legislature to the administrative agency. It is required that the
regulation be germane to the objects and purposes of the law, and be not in contradiction to, but in
conformity with, the standards prescribed by law. They must conform to and be consistent with the
provisions of the enabling statute in order for such rule or regulation to be valid. 91

It is, however, important to stress that before there can even be a valid administrative issuance, there
must first be a showing that the delegation of legislative power is itself valid. It is valid only if there is a law
that (a) is complete in itself, setting forth therein the policy to be executed, carried out, or implemented by
the delegate; and (b) fixes a standard the limits of which are sufficiently determinate and determinable to
which the delegate must conform in the performance of his functions.92

A painstaking examination of the provisions being relied upon by the former DOJ Secretary will disclose
that they do not particularly vest the DOJ the authority to issue DOJ Circular No. 41 which effectively
restricts the right to travel through the issuance of WLOs and HDOs. Sections 1 and 3, Book IV, Title III,
Chapter 1 of E.O. No. 292 reads:

Section 1. Declaration of Policy. It is the declared policy of the State to provide the government with a
principal law agency which shall be both its legal counsel and prosecution arm; administer the criminal
justice system in accordance with the accepted processes thereof consisting in the investigation
of the crimes, prosecution of offenders and administration of the correctional system; implement the
laws on the admission and stay of aliens, citizenship, land titling system, and settlement of land problems
involving small landowners and member of indigenous cultural minorities, and provide free legal services
to indigent members of the society.

xxxx

Section 3. Powers and Functions.- to accomplish its mandate, the Department shall have the following
powers and functions:

(1) Act as principal law agency of the government and as legal counsel and representative thereof,
whenever so required;

(2) Investigate the commission of crimes, prosecute offenders and administer the probation and
correction system;

xxxx
(6) Provide immigration and naturalization regulatory services and implement the laws governing
citizenship and the admission and stay of aliens;

(7) Provide legal services to the national government and its functionaries, including government-owned
and controlled corporations and their subsidiaries;

(8) Such other functions as may be provided by law. (Emphasis supplied)

A plain reading of the foregoing provisions shows that they are mere general provisions designed to lay
down the purposes of the enactment and the broad enumeration of the powers and functions of the DOJ.
In no way can they be interpreted as a grant of power to curtail a fundamental right as the language of the
provision itself does not lend to that stretched construction. To be specific, Section 1 is simply a
declaration of policy, the essence of the law, which provides for the statement of the guiding principle, the
purpose and the necessity for the enactment. The declaration of policy is most useful in statutory
construction as an aid in the interpretation of the meaning of the substantive provisions of the law. It is
preliminary to the substantive portions of the law and certainly not the part in which the more significant
and particular mandates are contained. The suggestion of the former DOJ Secretary that the basis of the
issuance of DOJ Circular No. 41 is contained in the declaration of policy of E.O. No. 292 not only defeats
logic but also the basic style of drafting a decent piece of legislation because it supposes that the authors
of the law included the operative and substantive provisions in the declaration of policy when its objective
is merely to introduce and highlight the purpose of the law.

Succinctly, "a declaration of policy contained in a statute is, like a preamble, not a part of the substantive
portions of the act. Such provisions are available for clarification of ambiguous substantive portions of the
act, but may not be used to create ambiguity in other substantive provisions."93

In the same way, Section 3 does not authorize the DOJ to issue WLOS and HDOs to restrict the
constitutional right to travel. There is even no mention of the exigencies stated in the Constitution that will
justify the impairment. The provision simply grants the DOJ the power to investigate the commission of
crimes and prosecute offenders, which are basically the functions of the agency. However, it does not
carry with it the power to indiscriminately devise all means it deems proper in performing its functions
without regard to constitutionally-protected rights. The curtailment of a fundamental right, which is what
DOJ Circular No. 41 does, cannot be read into the mentioned provision of the law. Any impairment or
restriction in the exercise of a constitutional right must be clear, categorical and unambiguous. For the
rule is that:

Constitutional and statutory provisions control with respect to what rules and regulations may be
promulgated by an administrative body, as well as with respect to what fields are subject to regulation by
it. It may not make rules and regulations which are inconsistent with the provisions of the Constitution or a
statute, particularly the statute it is administering or which created it, or which are in derogation of, or
defeat, the purpose of a statute. 94

The DOJ cannot also rely on Section 50, Chapter 11, Book IV of E.O. No. 292, which simply provides for
the types of issuances that administrative agencies, in general, may issue. It does not speak of any
authority or power but rather a mere clarification on the nature of the issuances that may be issued by a
secretary or head of agency. The innocuous provision reads as follows:

Section 50. General Classification of Issuances. The administrative issuances of Secretaries and heads
of bureaus, offices and agencies shall be in the form of circulars or orders.

(1) Circulars shall refer to issuance prescribing policies, rules and regulations, and procedures
promulgated pursuant to law, applicable to individuals and organizations outside the Government and
designed to supplement provisions of the law or to provide means for carrying them out, including
information relating thereto; and
(2) Orders shall refer to issuances directed to particular offices, officials, or employees, concerning
specific matters including assignments, detail and transfer of personnel, for observance or compliance by
all concerned. (Emphasis Ours)

In the same manner, Section 7, Chapter 2, Title III, Book IV of E.O. 292 cited in the memorandum of the
former DOJ Secretary cannot justify the restriction on the right to travel in DOJ Circular No. 41. The
memorandum particularly made reference to Subsections 3, 4 and 9 which state:

Section 7.  Powers and Functions of the Secretary. - The Secretary shall:

(1) Advise the President in issuing executive orders, regulations, proclamations and other issuances, the
promulgation of which is expressly vested by law in the President relative to matters under the jurisdiction
of the Department;

(2) Establish the policies and standards for the operation of the Department pursuant to the approved
programs of governments:

(3) Promulgate rules and regulations necessary to carry out department objectives, policies,
functions, plans, programs and projects;

(4) Promulgate administrative issuances necessary for the efficient administration of the offices
under the Secretary and for proper execution of the laws relative thereto. These issuances shall
not prescribe penalties for their violation, except when expressly authorized by law;

xxxx

(9) Perform such other functions as may be provided by law. (Emphasis Ours)

It is indisputable that the secretaries of government agencies have the power to promulgate rules and
regulations that will aid in the performance of their functions. This is adjunct to the power of administrative
agencies to execute laws and does not require the authority of a law. This is, however, different from the
delegated legislative power to promulgate rules of government agencies.

The considered opinion of Mr. Justice Carpio in Abakada Guro Party List (formerly AASIS) et al. vs. Hon.
Purisima et l.95 is illuminating:

The inherent power of the Executive to adopt rules and regulations to execute or implement the law is
different from the delegated legislative power to prescribe rules. The inherent power of the Executive to
adopt rules to execute the law does not require any legislative standards for its exercise while the
delegated legislative power requires sufficient legislative standards for its exercise.

xxxx

Whether the rule-making power by the Executive is a delegated legislative power or an inherent Executive
power depends on the nature of the rule-making power involved. If the rule-making power is inherently a
legislative power, such as the power to fix tariff rates, the rule-making power of the Executive is a
delegated legislative power. In such event, the delegated power can be exercised only if sufficient
standards are prescribed in the law delegating the power.

If the rules are issued by the President in implementation or execution of self-executory constitutional
powers vested in the President, the rule-making power of the President is not a delegated legislative
power. X X X. The rule is that the President can execute the law without any delegation of power from the
legislature. Otherwise, the President becomes a mere figure-head and not the sole Executive of the
Government.96

The questioned circular does not come under the inherent power of the executive department to adopt
rules and regulations as clearly the issuance of HDO and WLO is not the DOJ's business. As such, it is a
compulsory requirement that there be an existing law, complete and sufficient in itself, conferring the
expressed authority to the concerned agency to promulgate rules. On its own, the DOJ cannot make
rules, its authority being confined to execution of laws. This is the import of the terms "when expressly
provided by law" or "as may be provided by law" stated in Sections 7(4) and 7(9), Chapter 2, Title III,
Book IV of E.O. 292 . The DOJ is confined to filling in the gaps and the necessary details in carrying into
effect the law as enacted.97 Without a clear mandate of an existing law, an administrative issuance is ultra
vires.

Consistent with the foregoing, there must be an enabling law from which DOJ Circular No. 41 must derive
its life. Unfortunately, all of the supposed statutory authorities relied upon by the DOJ did not pass the
completeness test and sufficient standard test. The DOJ miserably failed to establish the existence of the
enabling law that will justify the issuance of the questioned circular.

That DOJ Circular No. 41 was intended to aid the department in realizing its mandate only begs the
question. The purpose, no matter how commendable, will not obliterate the lack of authority of the DOJ to
issue the said issuance. Surely, the DOJ must have the best intentions in promulgating DOJ Circular No.
41, but the end will not justify the means. To sacrifice individual liberties because of a perceived good is
disastrous to democracy. In Association of Small Landowners in the Philippines, Inc. vs. Secretary of
Agrarian Reform,98 the Court emphasized:

One of the basic principles of the democratic system is that where the rights of the individual are
concerned, the end does not justify the means. It is not enough that there be a valid objective; it is also
necessary that the means employed to pursue it be in keeping with the Constitution. Mere expediency will
not excuse constitutional shortcuts. There is no question that not even the strongest moral conviction or
the most urgent public need, subject only to a few notable exceptions, will excuse the bypassing of an
individual's rights. It is no exaggeration to say that a person invoking a right guaranteed under Article III of
the Constitution is a majority of one even as against the rest of the nation who would deny him that right.99

The DOJ would however insist that the resulting infringement of liberty is merely incidental, together with
the consequent inconvenience, hardship or loss to the person being subjected to the restriction and that
the ultimate objective is to preserve the investigative powers of the DOJ and public order.100 It posits that
the issuance ensures the presence within the country of the respondents during the preliminary
investigation.101 Be that as it may, no objective will ever suffice to legitimize desecration of a fundamental
right. To relegate the intrusion as negligible in view of the supposed gains is to undermine the inviolable
nature of the protection that the Constitution affords.

Indeed, the DOJ has the power to investigate the commission of crimes and prosecute offenders. Its
zealousness in pursuing its mandate is laudable but more admirable when tempered by fairness and
justice. It must constantly be reminded that in the hierarchy of rights, the Bill of Rights takes precedence
over the right of the State to prosecute, and when weighed against each other, the scales of justice tilt
towards the former. 102 Thus, in Allado vs. Diokno,103 the Court declared, viz.:

The sovereign power has the inherent right to protect itself and its people from vicious acts which
endanger the proper administration of justice; hence, the State has every right to prosecute and punish
violators of the law. This is essential for its self- preservation, nay, its very existence. But this does not
confer a license for pointless assaults on its citizens. The right of the State to prosecute is not a carte
blanche for government agents to defy and disregard the rights of its citizens under the Constitution. 104
The DOJ stresses the necessity of the restraint imposed in DOJ Circular No. 41 in that to allow the
petitioners, who are under preliminary investigation, to exercise an untrammelled right to travel, especially
when the risk of flight is distinctly high will surely impede the efficient and effective operation of the justice
system. The absence of the petitioners, it asseverates, would mean that the farthest criminal proceeding
they could go would be the filing of the criminal information since they cannot be arraigned in absentia.105

The predicament of the DOJ is understandable yet untenable for relying on grounds other what is
permitted within the confines of its own power and the nature of preliminary investigation itself. The Court,
in Paderanga vs. Drilon,106 made a clarification on the nature of a preliminary investigation, thus:

A preliminary investigation is x x x an inquiry or proceeding for the purpose of determining whether there
is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court
has been committed and that the respondent is probably guilty thereof, and should be held for trial. X X X
A preliminary investigation is not the occasion for the full and exhaustive display of the parties' evidence;
it is for the presentation of such evidence only as may engender a well grounded belief that an offense
has been committed and that the accused is probably guilty thereof.107

It bears emphasizing that the conduct of a preliminary investigation is an implement of due process which
essentially benefits the accused as it accords an opportunity for the presentation of his side with regard to
the accusation.108 The accused may, however, opt to waive his presence in the preliminary investigation.
In any case, whether the accused responds to a subpoena, the investigating prosecutor shall resolve the
complaint within 10 days after the filing of the same.

The point is that in the conduct of a preliminary investigation, the presence of the accused is not
necessary for the prosecutor to discharge his investigatory duties. If the accused chooses to waive his
presence or fails to submit countervailing evidence, that is his own lookout. Ultimately, he shall be bound
by the determination of the prosecutor on the presence of probable cause and he cannot claim denial of
due process.

The DOJ therefore cannot justify the restraint in the liberty of movement imposed by DOJ Circular No. 41
on the ground that it is necessary to ensure presence and attendance in the preliminary investigation of
the complaints. There is also no authority of law granting it the power to compel the attendance of the
subjects of a preliminary investigation, pursuant to its investigatory powers under E.O. No. 292. Its
investigatory power is simply inquisitorial and, unfortunately, not broad enough to embrace the imposition
of restraint on the liberty of movement.

That there is a risk of flight does not authorize the DOJ to take the situation upon itself and draft an
administrative issuance to keep the individual within the Philippine jurisdiction so that he may not be able
to evade criminal prosecution and consequent liability. It is an arrogation of power it does not have; it is a
usurpation of function that properly belongs to the legislature.

Without a law to justify its action, the issuance of DOJ Circular No. 41 is an unauthorized act of the DOJ
of empowering itself under the pretext of dire exigency or urgent necessity. This action runs afoul the
separation of powers between the three branches of the government and cannot be upheld. Even the
Supreme Court, in the exercise of its power to promulgate rules is limited in that the same shall not
diminish, increase, or modify substantive rights.109 This should have cautioned the DOJ, which is only
one of the many agencies of the executive branch, to be more scrutinizing in its actions especially when
they affect substantive rights, like the right to travel.

The DOJ attempts to persuade this Court by citing cases wherein the restrictions on the right to travel
were found reasonable, i.e. New York v. O'Neill, 110 Kwong vs. Presidential Commission on Good
Government111  and PASEI.
It should be clear at this point that the DOJ cannot rely on PASEI to support its position for the reasons
stated earlier in this disquisition. In the same manner, Kant Kwong is not an appropriate authority since
the Court never ruled on the constitutionality of the authority of the PCGG to issue HDOs in the said case.
On the contrary, there was an implied recognition of the validity of the PCGG's Rules and Regulations as
the petitioners therein even referred to its provisions to challenge the PCGG's refusal to lift the HDOs
issued against them despite the lapse of the period of its effectivity. The petitioners never raised any
issue as to the constitutionality of Section 2 of the PCGG Rules and Regulations but only questioned the
agency's nonobservance of the rules particularly on the lifting of HDOs. This is strikingly different from the
instant case where the main issue is the constitutionality of the authority of the DOJ Secretary to issue
HDOs under DOJ Circular No. 41.

Similarly, the pronouncement is New York does not lend support to the respondents' case. In the said
case, the respondent therein questioned the constitutionality of a Florida statute entitled "Uniform Law to
Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings," under
which authority a judge of the Court of General Sessions, New York County requested the Circuit Court of
Dade County, Florida, where he was at that time, that he be given into the custody of New York
authorities and be transported to New York to testify in a grand jury proceeding. The US Supreme Court
upheld the constitutionality of the law, ruling that every citizen, when properly summoned, has the
obligation to give testimony and the same will not amount to violation of the freedom to travel but, at most,
a mere temporary interference. The clear deviation of the instant case from New York is that in the latter
case there is a law specifically enacted to require the attendance of the respondent to court proceedings
to give his testimony, whenever it is needed. Also, after the respondent fulfils his obligation to give
testimony, he is absolutely free to return in the state where he was found or to his state of residence, at
the expense of the requesting state. In contrast, DOJ Circular No. 41 does not have an enabling law
where it could have derived its authority to interfere with the exercise of the right to travel. Further, the
respondent is subjected to continuing restraint in his right to travel as he is not allowed to go until he is
given, if he will ever be given, an ADO by the secretary of justice.

The DOJ cannot issue DOJ Circular

No. 41 under the guise of police
power

The DOJ's reliance on the police power of the state cannot also be countenanced. Police power pertains
to the "state authority to enact legislation that may interfere with personal liberty or property in order to
promote the general welfare."112 "It may be said to be that inherent and plenary power in the State which
enables it to prohibit all things hurtful to the comfort, safety, and welfare of society."113 Verily, the exercise
of this power is primarily lodged with the legislature but may be wielded by the President and
administrative boards, as well as the lawmaking bodies on all municipal levels, including the barangay, by
virtue of a valid delegation of power. 114

It bears noting, however, that police power may only be validly exercised if (a) the interests of the public
generally, as distinguished from those of a particular class, require the interference of the State, and (b)
the means employed are reasonably necessary to the attainment of the object sought to be accomplished
and not unduly oppressive upon individuals.115

On its own, the DOJ cannot wield police power since the authority pertains to Congress. Even if it claims
to be exercising the same as the alter ego of the President, it must first establish the presence of a
definite legislative enactment evidencing the delegation of power from its principal. This, the DOJ failed to
do. There is likewise no showing that the curtailment of the right to travel imposed by DOJ Circular No. 41
was reasonably necessary in order for it to perform its investigatory duties.

In any case, the exercise of police power, to be valid, must be reasonable and not repugnant to the
Constitution.116 It must never be utilized to espouse actions that violate the Constitution. Any act, however
noble its intentions, is void if it violates the Constitution.117 In the clear language of the Constitution, it is
only in the interest of national security, public safety and public health that the right to travel may be
impaired. None one of the mentioned circumstances was invoked by the DOJ as its premise for the
promulgation of DOJ Circular No. 41.

DOJ Circular No. 41 transcends

constitutional limitations

Apart from lack of legal basis, DOJ Circular No. 41 also suffers from other serious infirmities that render it
invalid. The apparent vagueness of the circular as to the distinction between a HDO and WLO is violative
of the due process clause. An act that is vague "violates due process for failure to accord persons,
especially the parties targeted by it, fair notice of the conduct to avoid and leaves law enforcers unbridled
discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle."118 Here, the distinction is significant as it will inform the respondents of the grounds, effects and
the measures they may take to contest the issuance against them. Verily, there must be a standard by
which a HDO or WLO may be issued, particularly against those whose cases are still under preliminary
investigation, since at that stage there is yet no criminal information against them which could have
warranted the restraint.

Further, a reading of the introductory provisions of DOJ Circular No. 41 shows that it emanates from the
DOJ's assumption of powers that is not actually conferred to it. In one of the whereas clauses of the
issuance, it was stated, thus:

WHEREAS, while several Supreme Court circulars, issued through the Office of the Court Administrator,
clearly state that "[HDO) shall be issued only in criminal cases within the exclusive jurisdiction of the
[RTCs)," said circulars are, however, silent with respect to cases falling within the jurisdiction of courts
below the RTC as well as those pending determination by government prosecution offices;

Apparently, the DOJ's predicament which led to the issuance of DOJ Circular No. 41 was the supposed
inadequacy of the issuances of this Court pertaining to HDOs, the more pertinent of which is SC Circular
No. 3997.119 It is the DOJ's impression that with the silence of the circular with regard to the issuance of
HDOs in cases falling within the jurisdiction of the MTC and those still pending investigation, it can take
the initiative in filling in the deficiency. It is doubtful, however, that the DOJ Secretary may undertake such
action since the issuance of HDOs is an exercise of this Court's inherent power "to preserve and to
maintain the effectiveness of its jurisdiction over the case and the person of the accused."120 It is an
exercise of judicial power which belongs to the Court alone, and which the DOJ, even as the principal law
agency of the government, does not have the authority to wield.

Moreover, the silence of the circular on the matters which are being addressed by DOJ Circular No. 41 is
not without good reasons.1awp++i1 Circular No. 39-97 was specifically issued to avoid indiscriminate
issuance of HDOs resulting to the inconvenience of the parties affected as the same could amount to an
infringement on the right and liberty of an individual to travel. Contrary to the understanding of the DOJ,
the Court intentionally held that the issuance of HDOs shall pertain only to criminal cases within the
exclusive jurisdiction of the RTC, to the exclusion of criminal cases falling within the jurisdiction of the
MTC and all other cases. The intention was made clear with the use of the term "only." The reason lies in
seeking equilibrium between the state's interest over the prosecution of the case considering the gravity
of the offense involved and the individual's exercise of his right to travel. Thus, the circular permits the
intrusion on the right to travel only when the criminal case filed against the individual is within the
exclusive jurisdiction of the RTC, or those that pertains to more serious crimes or offenses that are
punishable with imprisonment of more than six years. The exclusion of criminal cases within the
jurisdiction of the MTC is justified by the fact that they pertain to less serious offenses which is not
commensurate with the curtailment of a fundamental right. Much less is the reason to impose restraint on
the right to travel of respondents of criminal cases still pending investigation since at that stage no
information has yet been filed in court against them. It is for these reasons that Circular No. 3997
mandated that HDO may only be issued in criminal cases filed with the RTC and withheld the same
power from the MTC.
Remarkably, in DOJ Circular No. 41, the DOJ Secretary went overboard by assuming powers which have
been withheld from the lower courts in Circular No. 39-97. In the questioned circular, the DOJ Secretary
may issue HDO against the accused in criminal cases within the jurisdiction of the MTC121 and against
defendants, respondents and witnesses in labor or administrative cases,122 no matter how unwilling they
may be. He may also issue WLO against accused in criminal cases pending before the RTC,123 therefore
making himself in equal footing with the RTC, which is authorized by law to issue HDO in the same
instance. The DOJ Secretary may likewise issue WLO against respondents in criminal cases pending
preliminary investigation, petition for review or motion for reconsideration before the DOJ.124 More striking
is the authority of the DOJ Secretary to issue a HDO or WLO motu proprio, even in the absence of the
grounds stated in the issuance if he deems necessary in the interest of national security, public safety or
public health.125

It bears noting as well that the effect of the HDO and WLO in DOJ Circular No. 41 is too obtrusive as it
remains effective even after the lapse of its validity period as long as the DOJ Secretary does not approve
the lifting or cancellation of the same. Thus, the respondent continually suffers the restraint in his mobility
as he awaits a favorable indorsement of the government agency that requested for the issuance of the
HDO or WLO and the affirmation of the DOJ Secretary even as the HDO or WLO against him had
become functus officio with its expiration.

It did not also escape the attention of the Court that the DOJ Secretary has authorized himself to permit a
person subject of HDO or WLO to travel through the issuance of an ADO upon showing of "exceptional
reasons" to grant the same. The grant, however, is entirely dependent on the sole discretion of the DOJ
Secretary based on his assessment of the grounds stated in the application.

The constitutional violations of DOJ Circular No. 41 are too gross to brush aside particularly its
assumption that the DOJ Secretary's determination of the necessity of the issuance of HDO or WLO can
take the place of a law that authorizes the restraint in the right to travel only in the interest of national
security, public safety or public health. The DOJ Secretary has recognized himself as the sole authority in
the issuance and cancellation of HDO or WLO and in the determination of the sufficiency of the grounds
for an ADO. The consequence is that the exercise of the right to travel of persons subject of preliminary
investigation or criminal cases in court is indiscriminately subjected to the discretion of the DOJ Secretary.

This is precisely the situation that the 1987 Constitution seeks to avoid for an executive officer to impose
restriction or exercise discretion that unreasonably impair an individual's right to travel-- thus, the addition
of the phrase, "as maybe provided by law" in Section 6, Article III thereof. In Silverio, the Court
underscored that this phraseology in the 1987 Constitution was a reaction to the ban on international
travel imposed under the previous regime when there was a Travel Processing Center, which issued
certificates of eligibility to travel upon application of an interested party.126 The qualifying phrase is not a
mere innocuous appendage. It secures the individual the absolute and free exercise of his right to travel
at all times unless the more paramount considerations of national security, public safety and public health
call for a temporary interference, but always under the authority of a law.

The subject WLOs and the restraint

on the right to travel.

In the subject WLOs, the illegal restraint on the right to travel was subtly incorporated in the wordings
thereof. For better illustration, the said WLOs are hereby reproduced as follows:

WLO No. ASM-11-237127

(Watchlist)

In re: GLORIA M. MACAPAGAL-ARROYO

x-----------------------x
 ORDER

On 09 August 2011, Hon. Leila M. De Lima, Secretary of the Department of Justice issued an order
docketed as Watchlist Order No. 2011-422 directing the Bureau of Immigration to include the
name GLORIA M. MACAPAGAL-ARROYO in the Bureau's Watchlist.

It appears that GLORIA M. MACAPAGAL-ARROYO is the subject of an investigation by the Department

of Justice in connection with the following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria
Macapagal-Arroyo
XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria
Macapagal-Arroyo
XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria
Macapagal-Arroyo Jocelyn
"Joc-Joc" Bolante, Ibarra
Poliquit et al.
Plunder
Plunder, Malversation and/or
Illegal use of OWWA Funds,
Graft and Corruption, Violation
of The Omnibus Election Code,
Violation of the Code of Ethical
Standards for Public Officials,
and Qualified Theft
Plunder, Malversation and/or
Illegal use of Public Funds,
Graft and Corruption, Violation
of The Omnibus Election Code.
Violation of the Code of Ethical
Standards for Public Officials,
and Qualified Theft

Based on the foregoing and pursuant to Department of Justice Circular No. 41 (Consolidated Rules and
Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders,
and Allow Departure Orders) dated 25 May 2010, we order the inclusion of the name GLORIA
M.  MACAPAGAL-ARROYO  in the Watchlist.

This watchlist shall be valid for sixty (60) days unless sooner revoked or extended.

The Airport Operation Division and Immigration Regulation Division Chiefs shall implement this Order.

Notify the Computer Section.

SO ORDERED.

09 August 2011 (Emphasis ours)

Watchlist Order No. 2011-422128

In re: Issuance of Watchlist

Order against MA. GLORIA M.
MACAPAGAL-ARROYO
x-----------------------x

AMENDED ORDER

Whereas, Ma. Gloria M. Macapagal-Arroyo is the subject of an investigation by this Department in

connection with the following cases:

Docket No. Title of the Case Offense/s Charged

XVI-INV-10H-00251 Danilo A. Lihaylihay vs. Gloria
Macapagal-Arroyo
XVIX-INV-11D-00170 Francisco I. Chavez vs. Gloria
Macapagal-Arroyo
XVI-INV-11F-00238 Francisco I. Chavez vs. Gloria
Macapagal-Arroyo Jocelyn
"Joc-Joc" Bolante, Ibarra
Poliquit et al.
Plunder
Plunder, Malversation and/or
Illegal use of OWWA Funds,
Graft and Corruption, Violation
of The Omnibus Election Code,
Violation of the Code of Ethical
Standards for Public Officials,
and Qualified Theft
Plunder, Malversation and/or
Illegal use of Public Funds,
Graft and Corruption, Violation
of The Omnibus Election Code.
Violation of the Code of Ethical
Standards for Public Officials,
and Qualified Theft

Pursuant to Section 2(c) of Department Circular (D.C.) No. 41 dated May 25, 2010 Consolidated Rules
and Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist
Orders, and Allow Departure Orders), the undersigned hereby motu proprio issues a Watchlist Order
against Ma. Gloria M. Macapagal-Arroyo.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist the name of Ma. Gloria M. Macapagal-Arroyo.

Pursuant to Section 4 of D.C. No. 41, this Order is valid for a period of sixty (60) days from issuance
unless sooner terminated or extended.

SO ORDERED.

City of Manila, September 6, 2011. (Emphasis ours)

Watchlist Order (WLO) No. 2011- 573129

IN RE: Issuance of WLO against

BENJAMIN ABALOS, SR. et al.

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

ORDER
Pursuant to Section 2(c) of Department Circular No. 41 dated May 25, 2010 (Consolidated Rules and
Regulations Governing the Issuance and Implementation of Hold Departure Orders, Watchlist Orders,
and Allow Departure Orders), after careful evaluation, finds the Application for the Issuance of WLO
against the following meritorious;

xxxx

12. MA. GLORIA M. MACAPAGAL-ARROYO Address: Room MB-2, House of Representatives Quezon
City

xxxx

Ground for WLO Issuance: Pendency of the case, entitled "DOJ-

COMELEC Fact Finding Committee v.
Benjamin Abalos Sr., et al.," for Electoral
Sabotage/Omnibus Election Code docketed
as DOJ-COMELEC Case No. 001-2011

1. MA. GLORIA M. MACAPAGAL-ARROYO

Address: Room MB-2, House of Representatives Quezon City

2. JOSE MIGUEL TUASON ARROYO

Address: L.T.A. Bldg. 118 Perea St. Makati City

xxxx

Ground for WLO Issuance: Pendency of the case, entitled "Aquilino

Pimentel III v. Gloria Macapagal-Arroyo, el
Al.." for Electoral Sabotage docketed as DOJ-
COMELEC Case No. 002-2011.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist, the names of the above-named persons.

This Order is valid for a period of sixty (60) days from the date of its issuance unless sooner terminated or
otherwise extended.1âwphi1

SO ORDERED.

On the other hand, HDO No. 2011-64 issued against the petitioners in G. R. No. 197930 pertinently
states:

Hold Departure Order (HDO)

No. 2011- 64130

In re: Issuance of HDO against

EFRAIM C. GENUINO, ET AL.

x-----------------------x
 ORDER

After a careful evaluation of the application, including the documents attached thereto, for the issuance of
Hold Departure Order (HDO) against the above-named persons filed pursuant to this Department's
Circular (D.C.) No. 41 (Consolidated Rules and Regulations Governing the Issuance and Implementation
of Hold Departure Orders, Watchlist Orders, and Allow Departure Orders) dated May 25, 2010, we find
the application meritorious.

Accordingly, the Commissioner of Immigration, Manila, is hereby ordered to INCLUDE in the Bureau of
Immigration's Watchlist the names of EFRAIM C. GENUINO, SHERYLL F. GENUINO-SEE, ERWIN F.
GENUINO, RAFAEL "BUTCH" A. FRANCISCO, EDWARD "DODIE" F. KING, RENE C. FIGUEROA,
ATTY, CARLOS R. BAUTISTA, JR., EMILIO "BOYET" B. MARCELO, RODOLFO SORIANO, JR., AND
JOHNNY G. TAN.

Name: EFRAIM C. GENUINO

Nationality: Filipino
Last known address: No. 42 Lapu Lapu Street,
Magallanes Village, Makati City
Ground for HDO Issuance: Malversation, Violation of the Anti-
Graft and Corrupt Practices Act,
Plunder
Details of the Case: Plending before the National
Prosecution Service, Department of
Justice (NPS Docket No. XV-INV-
11F-00229 Pending before the
Office of the Ombudsman (Case
No. CPL-C-11-1297) Pending
before the National Prosecution
Service, Department of Justice (I.S.
No. XVI-INV-11G-00248)
Name: SHERYLL F. GENUINO-SEE
Nationality: Filipino
Last known address: No. 32-a Pasco Parkview, Makati
City
Ground for HDO Issuance: Malversation, Violation of the Anti-
Graft and Corrupt Practices Act,
Plunder
Details of the case: Pending before the National
Prosecution Service, Department of
Justice (I.S. No. XVI-INV-11G-
00248)
Name: ERWIN F. GENUINO
Nationality: Filipino
Last known address: No. 5 J.P. Rizal Extension,
COMEMBO, Makati City
Ground for HDO Issuance: Malversation, Violation of the Anti-

Details of the Case:
Graft and Corrupt Practices Act,
Plunder
Pending before the National
Prosecution Service, Department of
Justice (NPS Docket No. XV-INV-
11F-00229 Pending before the
National Prosecution Service,
Department of Justice (I.S. No. XVI-
INV-11G-00248)

xxxx

Pursuant to Section 1 of D.C. No. 41, this Order is valid for a period of five (5) years unless sooner
terminated.

SO ORDERED. (Emphasis ours)

On its face, the language of the foregoing issuances does not contain an explicit restraint on the right to
travel. The issuances seemed to be a mere directive from to the BI officials to include the named
individuals in the watchlist of the agency. Noticeably, however, all of the WLOs contained a common
reference to DOJ Circular No. 41, where the authority to issue the same apparently emanates, and from
which the restriction on the right to travel can be traced. Section 5 thereof provides, thus:

Section 5. HDO/WLO Lifting or Cancellation- In the lifting or cancellation of the HDO/WLO issued
pursuant to this Circular, the following shall apply:

(a) The HDO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the HDO as provided for in the preceding section has
already expired;

2. When the accused subject of the HDO has been allowed to leave the country
during the pendency of the case, or has been acquitted of the charge, or the case in
which the warrant/order of arrest was issued has been dismissed or the warrant/order of
arrest has been recalled;

3. When the civil or labor case or case before an administrative agency of the
government wherein the presence of the alien subject of the HDO/WLO has been
dismissed by the court or by appropriate government agency, or the alien has been
discharged as a witness therein, or the alien has been allowed to leave the country:

(b) The WLO may be lifted or cancelled under any of the following grounds:

1. When the validity period of the WLO as provided for in the preceding section has
already expired;

2. When the accused subject of the WLO has been allowed by the court to leave
the country during the pendency of the case, or has been acquitted of the charge;
and

3. When the preliminary investigation is terminated, or when the petition for review,

or motion for reconsideration has been denied and/or dismissed.
 xxxx

That the subject of a HDO or WLO suffers restriction in the right to travel is implied in the fact that under
Sections 5(a) (2) and 5(b) (2), the concerned individual had to seek permission to leave the country from
the court during the pendency of the case against him. Further, in 5 (b) (3), he may not leave unless the
preliminary investigation of the case in which he is involved has been terminated.

In the same manner, it is apparent in Section 7 of the same circular that the subject of a HDO or WLO
cannot leave the country unless he obtains an ADO. The said section reads as follows:

Section 7. Allow Departure Order (ADO)- Any person subject of HDO/WLO issued pursuant to this
Circular who intends, for some exceptional reasons, to leave the country may, upon application
under oath with the Secretary of Justice, be issued an ADO.

The ADO may be issued upon submission of the following requirements:

(a) Affidavit stating clearly the purpose, inclusive period of the date of travel, and
containing an undertaking to immediately report to the DOJ upon return; and

(b) Authority to travel or travel clearance from the court or appropriate government office
where the case upon which the issued HDO/WLO was based is pending, or from the
investigating prosecutor in charge of the subject case.

By requiring an ADO before the subject of a HDO or WLO is allowed to leave the country, the only
plausible conclusion that can be made is that its mere issuance operates as a restraint on the right to
travel. To make it even more difficult, the individual will need to cite an exceptional reason to justify the
granting of an ADO.

The WLO also does not bear a significant distinction from a HDO, thereby giving the impression that they
are one and the same or, at the very least, complementary such that whatever is not covered in Section
1,131 which pertains to the issuance of HDO, can conveniently fall under Section 2,132 which calls for the
issuance of WLO. In any case, there is an identical provision in DOJ Circular No. 41 which authorizes the
Secretary of Justice to issue a HDO or WLO against anyone, motu proprio, in the interest of national
security, public safety or public health. With this all-encompassing provision, there is nothing that can
prevent the Secretary of Justice to prevent anyone from leaving the country under the guise of national
security, public safety or public health.

The exceptions to the right to travel

are limited to those stated in Section
6, Article III of the Constitution

The DOJ argues that Section 6, Article III of the Constitution is not an exclusive enumeration of the
instances wherein the right to travel may be validly impaired.133 It cites that this Court has its own
administrative issuances restricting travel of its employees and that even lower courts may issue HDO
even on grounds outside of what is stated in the Constitution. 134

The argument fails to persuade.

It bears reiterating that the power to issue HDO is inherent to the courts. The courts may issue a HDO
against an accused in a criminal case so that he may be dealt with in accordance with law.135 It does not
require legislative conferment or constitutional recognition; it co-exists with the grant of judicial power.
In Defensor-Santiago vs. Vasquez, 136 the Court declared, thus:
Courts possess certain inherent powers which may be said to be implied from a general grant of
jurisdiction, in addition to those expressly conferred on them. These inherent powers are such powers as
are necessary for the ordinary and efficient exercise of jurisdiction; or essential to the existence, dignity
and functions of the court, as well as to the due administration of justice; or are directly appropriate,
convenient and suitable to the execution of their granted powers; and include the power to maintain the
court's jurisdiction and render it effective in behalf of the litigants. 137

The inherent powers of the courts are essential in upholding its integrity and largely beneficial in keeping
the people's faith in the institution by ensuring that it has the power and the means to enforce its
jurisdiction.

As regards the power of the courts to regulate foreign travels, the Court, in Leave Division, explained:

With respect to the power of the Court, Section 5 (6), Article VIII of the 1987 Constitution provides that
the Supreme Court shall have administrative supervision over all courts and the personnel
thereof. This provision empowers the Court to oversee all matters relating to the effective supervision
and management of all courts and personnel under it. Recognizing this mandate, Memorandum Circular
No. 26 of the Office of the President, dated July 31, 1986, considers the Supreme Court exempt and with
authority to promulgate its own rules and regulations on foreign travels. Thus, the Court came out with
OCA Circular No. 49-2003 (B).

Where a person joins the Judiciary or the government in general, he or she swears to faithfully adhere to,
and abide with, the law and the corresponding office rules and regulations. These rules and regulations,
to which one submits himself or herself, have been issued to guide the government officers and
employees in the efficient performance of their obligations. When one becomes a public servant, he or
she assumes certain duties with their concomitant responsibilities and gives up some rights like the
absolute right to travel so that public service would not be prejudiced. 138

It is therefore by virtue of its administrative supervision over all courts and personnel that this Court came
out with OCA Circular No. 492003, which provided for the guidelines that must be observed by employees
of the judiciary seeking to travel abroad. Specifically, they are required to secure a leave of absence for
the purpose of foreign travel from this Court through the Chief Justice and the Chairmen of the Divisions,
or from the Office of the Court Administrator, as the case maybe. This is "to ensure management of court
dockets and to avoid disruption in the administration of justice."139

OCA Circular No. 49-2003 is therefore not a restriction, but more properly, a regulation of the employee's
leave for purpose of foreign travel which is necessary for the orderly administration of justice. To "restrict"
is to restrain or prohibit a person from doing something; to "regulate" is to govern or direct according to
rule.140 This regulation comes as a necessary consequence of the individual's employment in the judiciary,
as part and parcel of his contract in joining the institution. For, if the members of the judiciary are at liberty
to go on leave any time, the dispensation of justice will be seriously hampered. Short of key personnel,
the courts cannot properly function in the midst of the intricacies in the administration of justice. At any
rate, the concerned employee is not prevented from pursuing his travel plans without complying with OCA
Circular No. 49-2003 but he must be ready to suffer the consequences of his non-compliance.

The same ratiocination can be said of the regulations of the Civil Service Commission with respect to the
requirement for leave application of employees in the government service seeking to travel abroad. The
Omnibus Rules Implementing Book V of E.O. No. 292 states the leave privileges and availment
guidelines for all government employees, except those who are covered by special laws. The filing of
application for leave is required for purposes of orderly personnel administration. In pursuing foreign
travel plans, a government employee must secure an approved leave of absence from the head of his
agency before leaving for abroad.
To be particular, E.O. No. 6 dated March 12, 1986, as amended by Memorandum Order (MO) No. 26
dated July 31, 1986, provided the procedure in the disposition of requests of government officials and
employees for authority to travel abroad. The provisions of this issuance were later clarified in the
Memorandum Circular No. 18 issued on October 27, 1992. Thereafter, on September 1, 2005, E.O. No.
459 was issued, streamlining the procedure in the disposition of requests of government officials and
employees for authority to travel abroad. Section 2 thereof states:

Section 2. Subject to Section 5 hereof, all other government officials and employees seeking
authority to travel abroad shall henceforth seek approval from their respective heads of
agencies, regardless of the length of their travel and the number of delegates concerned. For the
purpose of this paragraph, heads of agencies refer to the Department Secretaries or their equivalents.
(Emphasis ours)

The regulation of the foreign travels of government employees was deemed necessary "to promote
efficiency and economy in the government service."141 The objective was clearly administrative efficiency
so that government employees will continue to render public services unless they are given approval to
take a leave of absence in which case they can freely exercise their right to travel. It should never be
interpreted as an exception to the right to travel since the government employee during his approved
leave of absence can travel wherever he wants, locally or abroad. This is no different from the leave
application requirements for employees in private companies.

The point is that the DOJ may not justify its imposition of restriction on the right to travel of the subjects of
DOJ Circular No. 41 by resorting to an analogy. Contrary to its claim, it does not have inherent power to
issue HDO, unlike the courts, or to restrict the right to travel in anyway. It is limited to the powers
expressly granted to it by law and may not extend the same on its own accord or by any skewed
interpretation of its authority.

The key is legislative enactment

The Court recognizes the predicament which compelled the DOJ to issue the questioned circular but the
solution does not lie in taking constitutional shortcuts. Remember that the Constitution "is the fundamental
and paramount law of the nation to which all other laws must conform and in accordance with which all
private rights are determined and all public authority administered."142 Any law or issuance, therefore,
must not contradict the language of the fundamental law of the land; otherwise, it shall be struck down for
being unconstitutional.

Consistent with the foregoing, the DOJ may not promulgate rules that have a negative impact on
constitutionally-protected rights without the authority of a valid law. Even with the predicament of
preventing the proliferation of crimes and evasion of criminal responsibility, it may not overstep
constitutional boundaries and skirt the prescribed legal processes.

That the subjects of DOJ Circular No. 41 are individuals who may have committed a wrong against the
state does not warrant the intrusion in the enjoyment of their basic rights. They are nonetheless innocent
individuals and suspicions on their guilt do not confer them lesser privileges to enjoy. As emphatically
pronounced in Secretary of National Defense vs. Manalo, et al., 143 "the constitution is an overarching sky
that covers all in its protection. It affords protection to citizens without distinction. Even the most
despicable person deserves the same respect in the enjoyment of his rights as the upright and abiding.

Let it also be emphasized that this Court fully realizes the dilemma of the DOJ. The resolution of the
issues in the instant petitions was partly aimed at encouraging the legislature to do its part and enact the
necessary law so that the DOJ may be able to pursue its prosecutorial duties without trampling on
constitutionally-protected rights. Without a valid legislation, the DOJ's actions will perpetually be met with
legal hurdles to the detriment of the due administration of justice. The challenge therefore is for the
legislature to address this problem in the form of a legislation that will identify permissible intrusions in the
right to travel. Unless this is done, the government will continuously be confronted with questions on the
legality of their actions to the detriment of the implementation of government processes and realization of
its objectives.

In the meantime, the DOJ may remedy its quandary by exercising more vigilance and efficiency in the
performance of its duties. This can be accomplished by expediency in the assessment of complaints filed
before its office and in the prompt filing of information in court should there be an affirmative finding of
probable cause so that it may legally request for the issuance of HDO and hold accused for trial. Clearly,
the solution lies not in resorting to constitutional shortcuts but in an efficient and effective performance of
its prosecutorial duties.

The Court understands the dilemma of the government on the effect of the declaration of
unconstitutionality of DOJ Circular No. 41, considering the real possibility that it may be utilized by
suspected criminals, especially the affluent ones, to take the opportunity to immediately leave the country.
While this is a legitimate concern, it bears stressing that the government is not completely powerless or
incapable of preventing their departure or having them answer charges that may be subsequently filed
against them. In his Separate Concurring Opinion, Mr. Justice Carpio, pointed out that Republic Act No.
(R.A.) 8239, otherwise known as the Philippine Passport Act of 1996, explicitly grants the Secretary of
Foreign Affairs or any of the authorized consular officers the authority to issue verify, restrict, cancel or
refuse the issuance of a passport to a citizen under the circumstances mentioned in Section 4144 thereof.
Mr. Justice Tijam, on the other hand, mentioned Memorandum Circular No. 036, which was issued
pursuant to R.A. No. 9208 or the Anti-Trafficking in Persons Act of 2003, as amended by R.A. No. 10364
or the Expanded Anti-Trafficking in Persons Acts of 2012, which authorizes the BI to hold the departure of
suspected traffickers or trafficked individuals. He also noted that the Commissioner of BI has the authority
to issue a HDO against a foreigner subject of deportation proceedings in order to ensure his appearance
therein. Similarly, the proposal of Mr. Justice Velasco for the adoption of new set of rules which will allow
the issuance of a precautionary warrant of arrest offers a promising solution to this quandary. This, the
Court can do in recognition of the fact that laws and rules of procedure should evolve as the present
circumstances require.

Contempt charge against respondent

De Lima

It is well to remember that on November 18, 2011, a Resolution145 was issued requiring De Lima to show
cause why she should not be disciplinarily dealt or be held in contempt for failure to comply with the TRO
issued by this Court.

In view, however, of the complexity of the facts and corresponding full discussion that it rightfully
deserves, the Court finds it more fitting to address the same in a separate proceeding. It is in the interest
of fairness that there be a complete and exhaustive discussion on the matter since it entails the imposition
of penalty that bears upon the fitness of the respondent as a member of the legal profession. The Court,
therefore, finds it proper to deliberate and resolve the charge of contempt against De Lima in a separate
proceeding that could accommodate a full opportunity for her to present her case and provide a better
occasion for the Court to deliberate on her alleged disobedience to a lawful order.

WHEREFORE, in view of the foregoing disquisition, Department of Justice Circular No. 41 is hereby
declared UNCONSTITUTIONAL. All issuances which were released pursuant thereto are hereby
declared NULL and VOID.

The Clerk of Court is hereby DIRECTED to REDOCKET the Resolution of the Court dated November 28,
2011, which required respondent Leila De Lima to show cause why she should not be cited in contempt,
as a separate petition.

SO ORDERED.