G.R. No. 88211 September 15, 1989

FERDINAND E. MARCOS, IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., IRENE M. ARANETA,

IMEE MANOTOC, TOMAS MANOTOC, GREGORIO ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), represented by its President,
CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO MACARAIG, SEDFREY ORDOÑEZ, MIRIAM DEFENSOR
SANTIAGO, FIDEL RAMOS, RENATO DE VILLA, in their capacity as Secretary of Foreign Affairs, Executive
Secretary, Secretary of Justice, Immigration Commissioner, Secretary of National Defense and Chief of Staff,
respectively, respondents.

CORTES, J.:

Before the Court is a contreversy of grave national importance. While ostensibly only legal issues are involved, the
Court's decision in this case would undeniably have a profound effect on the political, economic and other aspects of
national life.

We recall that in February 1986, Ferdinand E. Marcos was deposed from the presidency via the non-violent "people
power" revolution and forced into exile. In his stead, Corazon C. Aquino was declared President of the Republic under a
revolutionary government. Her ascension to and consilidation of power have not been unchallenged. The failed Manila
Hotel coup in 1986 led by political leaders of Mr. Marcos, the takeover of television station Channel 7 by rebel troops led
by Col. Canlas with the support of "Marcos loyalists" and the unseccessful plot of the Marcos spouses to surreptitiously
return from Hawii with mercenaries aboard an aircraft chartered by a Lebanese arms dealer [Manila Bulletin, January 30,
1987] awakened the nation to the capacity of the Marcoses to stir trouble even from afar and to the fanaticism and blind
loyalty of their followers in the country. The ratification of the 1987 Constitution enshrined the victory of "people power"
and also clearly reinforced the constitutional moorings of Mrs. Aquino's presidency. This did not, however, stop bloody
challenges to the government. On August 28, 1987, Col. Gregorio Honasan, one of the major players in the February
Revolution, led a failed coup that left scores of people, both combatants and civilians, dead. There were several other
armed sorties of lesser significance, but the message they conveyed was the same — a split in the ranks of the military
establishment that thraetened civilian supremacy over military and brought to the fore the realization that civilian
government could be at the mercy of a fractious military.

But the armed threats to the Government were not only found in misguided elements and among rabid followers of Mr.
Marcos. There are also the communist insurgency and the seccessionist movement in Mindanao which gained ground
during the rule of Mr. Marcos, to the extent that the communists have set up a parallel government of their own on the
areas they effectively control while the separatist are virtually free to move about in armed bands. There has been no let
up on this groups' determination to wrest power from the govermnent. Not only through resort to arms but also to through
the use of propaganda have they been successful in dreating chaos and destabilizing the country.

Nor are the woes of the Republic purely political. The accumulated foreign debt and the plunder of the nation attributed to
Mr. Marcos and his cronies left the economy devastated. The efforts at economic recovery, three years after Mrs. Aquino
assumed office, have yet to show concrete results in alleviating the poverty of the masses, while the recovery of the ill-
gotten wealth of the Marcoses has remained elusive.

Now, Mr. Marcos, in his deathbed, has signified his wish to return to the Philipppines to die. But Mrs. Aquino,
considering the dire consequences to the nation of his return at a time when the stability of government is threatened from
various directions and the economy is just beginning to rise and move forward, has stood firmly on the decision to bar the
return of Mr. Marcos and his family.

The Petition
This case is unique. It should not create a precedent, for the case of a dictator forced out of office and into exile after
causing twenty years of political, economic and social havoc in the country and who within the short space of three years
seeks to return, is in a class by itself.

This petition for mandamus and prohibition asks the Courts to order the respondents to issue travel documents to Mr.
Marcos and the immediate members of his family and to enjoin the implementation of the President's decision to bar their
return to the Philippines.

The Issue

Th issue is basically one of power: whether or not, in the exercise of the powers granted by the Constitution, the President
may prohibit the Marcoses from returning to the Philippines.

According to the petitioners, the resolution of the case would depend on the resolution of the following issues:

1. Does the President have the power to bar the return of former President Marcos and family to the
Philippines?

a. Is this a political question?

2. Assuming that the President has the power to bar former President Marcos and his family from
returning to the Philippines, in the interest of "national security, public safety or public health

a. Has the President made a finding that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety or public health?

b. Assuming that she has made that finding

(1) Have the requirements of due process been complied with in making such finding?

(2) Has there been prior notice to petitioners?

(3) Has there been a hearing?

(4) Assuming that notice and hearing may be dispensed with, has the President's decision,
including the grounds upon which it was based, been made known to petitioners so that
they may controvert the same?

c. Is the President's determination that the return of former President Marcos and his family to the
Philippines is a clear and present danger to national security, public safety, or public health a political
question?

d. Assuming that the Court may inquire as to whether the return of former President Marcos and his
family is a clear and present danger to national security, public safety, or public health, have respondents
established such fact?

3. Have the respondents, therefore, in implementing the President's decision to bar the return of former
President Marcos and his family, acted and would be acting without jurisdiction, or in excess of
jurisdiction, or with grave abuse of discretion, in performing any act which would effectively bar the
return of former President Marcos and his family to the Philippines? [Memorandum for Petitioners, pp. 5-
7; Rollo, pp. 234-236.1

The case for petitioners is founded on the assertion that the right of the Marcoses to return to the Philippines is guaranteed
under the following provisions of the Bill of Rights, to wit:
 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.

xxx xxx xxx

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.

The petitioners contend that the President is without power to impair the liberty of abode of the Marcoses because only a
court may do so "within the limits prescribed by law." Nor may the President impair their right to travel because no law
has authorized her to do so. They advance the view that before the right to travel may be impaired by any authority or
agency of the government, there must be legislation to that effect.

The petitioners further assert that under international law, the right of Mr. Marcos and his family to return to the
Philippines is guaranteed.

The Universal Declaration of Human Rights provides:

Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each
state.

(2) Everyone has the right to leave any country, including his own, and to return to his country.

Likewise, the International Covenant on Civil and Political Rights, which had been ratified by the Philippines, provides:

Article 12

1) Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of
movement and freedom to choose his residence.

2) Everyone shall be free to leave any country, including his own.

3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by
law, are necessary to protect national security, public order (order public), public health or morals or the
rights and freedoms of others, and are consistent with the other rights recognized in the present Covenant.

4) No one shall be arbitrarily deprived of the right to enter his own country.

On the other hand, the respondents' principal argument is that the issue in this case involves a political question which is
non-justiciable. According to the Solicitor General:

As petitioners couch it, the question involved is simply whether or not petitioners Ferdinand E. Marcos
and his family have the right to travel and liberty of abode. Petitioners invoke these constitutional rights
in vacuo without reference to attendant circumstances.

Respondents submit that in its proper formulation, the issue is whether or not petitioners Ferdinand E.
Marcos and family have the right to return to the Philippines and reside here at this time in the face of the
determination by the President that such return and residence will endanger national security and public
safety.

It may be conceded that as formulated by petitioners, the question is not a political question as it involves
merely a determination of what the law provides on the matter and application thereof to petitioners
Ferdinand E. Marcos and family. But when the question is whether the two rights claimed by petitioners
Ferdinand E. Marcos and family impinge on or collide with the more primordial and transcendental right
 of the State to security and safety of its nationals, the question becomes political and this Honorable Court
can not consider it.

There are thus gradations to the question, to wit:

Do petitioners Ferdinand E. Marcos and family have the right to return to the Philippines and reestablish
their residence here? This is clearly a justiciable question which this Honorable Court can decide.

Do petitioners Ferdinand E. Marcos and family have their right to return to the Philippines and reestablish
their residence here even if their return and residence here will endanger national security and public
safety? this is still a justiciable question which this Honorable Court can decide.

Is there danger to national security and public safety if petitioners Ferdinand E. Marcos and family shall
return to the Philippines and establish their residence here? This is now a political question which this
Honorable Court can not decide for it falls within the exclusive authority and competence of the President
of the Philippines. [Memorandum for Respondents, pp. 9-11; Rollo, pp. 297-299.]

Respondents argue for the primacy of the right of the State to national security over individual rights. In support thereof,
they cite Article II of the Constitution, to wit:

Section 4. The prime duty of the Government is to serve and protect the people. The Government may
call upon the people to defend the State and, in the fulfillment thereof, all citizens may be required, under
conditions provided by law, to render personal, military, or civil service.

Section 5. The maintenance of peace and order, the protection of life, liberty, and property, and the
promotion of the general welfare are essential for the enjoyment by all the people of the blessings of
democracy.

Respondents also point out that the decision to ban Mr. Marcos and family from returning to the Philippines for reasons of
national security and public safety has international precedents. Rafael Trujillo of the Dominican Republic, Anastacio
Somoza Jr. of Nicaragua, Jorge Ubico of Guatemala, Fulgencio batista of Cuba, King Farouk of Egypt, Maximiliano
Hernandez Martinez of El Salvador, and Marcos Perez Jimenez of Venezuela were among the deposed dictators whose
return to their homelands was prevented by their governments. [See Statement of Foreign Affairs Secretary Raul S.
Manglapus, quoted in Memorandum for Respondents, pp. 26-32; Rollo, pp. 314-319.]

The parties are in agreement that the underlying issue is one of the scope of presidential power and its limits. We,
however, view this issue in a different light. Although we give due weight to the parties' formulation of the issues, we are
not bound by its narrow confines in arriving at a solution to the controversy.

At the outset, we must state that it would not do to view the case within the confines of the right to travel and the import
of the decisions of the U.S. Supreme Court in the leading cases of Kent v. Dulles [357 U.S. 116, 78 SCt 1113, 2 L Ed. 2d
1204] and Haig v. Agee [453 U.S. 280, 101 SCt 2766, 69 L Ed. 2d 640) which affirmed the right to travel and recognized
exceptions to the exercise thereof, respectively.

It must be emphasized that the individual right involved is not the right to travel from the Philippines to other countries or
within the Philippines. These are what the right to travel would normally connote. Essentially, the right involved is the
right to return to one's country, a totally distinct right under international law, independent from although related to the
right to travel. Thus, the Universal Declaration of Humans Rights and the International Covenant on Civil and Political
Rights treat the right to freedom of movement and abode within the territory of a state, the right to leave a country, and the
right to enter one's country as separate and distinct rights. The Declaration speaks of the "right to freedom of movement
and residence within the borders of each state" [Art. 13(l)] separately from the "right to leave any country, including his
own, and to return to his country." [Art. 13(2).] On the other hand, the Covenant guarantees the "right to liberty of
movement and freedom to choose his residence" [Art. 12(l)] and the right to "be free to leave any country, including his
own." [Art. 12(2)] which rights may be restricted by such laws as "are necessary to protect national security, public order,
public health or morals or enter qqqs own country" of which one cannot be "arbitrarily deprived." [Art. 12(4).] It would
therefore be inappropriate to construe the limitations to the right to return to one's country in the same context as those
pertaining to the liberty of abode and the right to travel.

The right to return to one's country is not among the rights specifically guaranteed in the Bill of Rights, which treats only
of the liberty of abode and the right to travel, but it is our well-considered view that the right to return may be considered,
as a generally accepted principle of international law and, under our Constitution, is part of the law of the land [Art. II,
Sec. 2 of the Constitution.] However, it is distinct and separate from the right to travel and enjoys a different protection
under the International Covenant of Civil and Political Rights, i.e., against being "arbitrarily deprived" thereof [Art. 12
(4).]

Thus, the rulings in the cases Kent and Haig which refer to the issuance of passports for the purpose of effectively
exercising the right to travel are not determinative of this case and are only tangentially material insofar as they relate to a
conflict between executive action and the exercise of a protected right. The issue before the Court is novel and without
precedent in Philippine, and even in American jurisprudence.

Consequently, resolution by the Court of the well-debated issue of whether or not there can be limitations on the right to
travel in the absence of legislation to that effect is rendered unnecessary. An appropriate case for its resolution will have
to be awaited.

Having clarified the substance of the legal issue, we find now a need to explain the methodology for its resolution. Our
resolution of the issue will involve a two-tiered approach. We shall first resolve whether or not the President has the
power under the Constitution, to bar the Marcoses from returning to the Philippines. Then, we shall determine, pursuant to
the express power of the Court under the Constitution in Article VIII, Section 1, whether or not the President acted
arbitrarily or with grave abuse of discretion amounting to lack or excess of jurisdiction when she determined that the
return of the Marcose's to the Philippines poses a serious threat to national interest and welfare and decided to bar their
return.

Executive Power

The 1987 Constitution has fully restored the separation of powers of the three great branches of government. To recall the
words of Justice Laurel in Angara v. Electoral Commission [63 Phil. 139 (1936)], "the Constitution has blocked but with
deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the
government." [At 157.1 Thus, the 1987 Constitution explicitly provides that "[the legislative power shall be vested in the
Congress of the Philippines" Art VI, Sec. 11, "[t]he executive power shall bevested in the President of the Philippines"
[Art. VII, Sec. 11, and "[te judicial power shall be vested in one Supreme Court and in such lower courts as may be
established by law" [Art. VIII, Sec. 1.] These provisions not only establish a separation of powers by actual division
[Angara v. Electoral Commission, supra] but also confer plenary legislative, executive and judicial powers subject only to
limitations provided in the Constitution. For as the Supreme Court in Ocampo v. Cabangis [15 Phil. 626 (1910)] pointed
out "a grant of the legislative power means a grant of all legislative power; and a grant of the judicial power means a grant
of all the judicial power which may be exercised under the government." [At 631-632.1 If this can be said of the
legislative power which is exercised by two chambers with a combined membership of more than two hundred members
and of the judicial power which is vested in a hierarchy of courts, it can equally be said of the executive power which is
vested in one official the President.

As stated above, the Constitution provides that "[t]he executive power shall be vested in the President of the Philippines."
[Art. VII, Sec. 1]. However, it does not define what is meant by executive power" although in the same article it touches
on the exercise of certain powers by the President, i.e., the power of control over all executive departments, bureaus and
offices, the power to execute the laws, the appointing power, the powers under the commander-in-chief clause, the power
to grant reprieves, commutations and pardons, the power to grant amnesty with the concurrence of Congress, the power to
contract or guarantee foreign loans, the power to enter into treaties or international agreements, the power to submit the
budget to Congress, and the power to address Congress [Art. VII, Sec. 14-23].

The inevitable question then arises: by enumerating certain powers of the President did the framers of the Constitution
intend that the President shall exercise those specific powers and no other? Are these se enumerated powers the breadth
and scope of "executive power"? Petitioners advance the view that the President's powers are limited to those specifically
enumerated in the 1987 Constitution. Thus, they assert: "The President has enumerated powers, and what is not
enumerated is impliedly denied to her. Inclusion unius est exclusio alterius[Memorandum for Petitioners, p. 4- Rollo p.
233.1 This argument brings to mind the institution of the U.S. Presidency after which ours is legally patterned.**

Corwin, in his monumental volume on the President of the United States grappled with the same problem. He said:

Article II is the most loosely drawn chapter of the Constitution. To those who think that a constitution
ought to settle everything beforehand it should be a nightmare; by the same token, to those who think that
constitution makers ought to leave considerable leeway for the future play of political forces, it should be
a vision realized.

We encounter this characteristic of Article 11 in its opening words: "The executive power shall be vested
in a President of the United States of America." . . .. [The President: Office and Powers, 17871957, pp. 3-
4.]

Reviewing how the powers of the U.S. President were exercised by the different persons who held the office from
Washington to the early 1900's, and the swing from the presidency by commission to Lincoln's dictatorship, he concluded
that "what the presidency is at any particular moment depends in important measure on who is President." [At 30.]

This view is shared by Schlesinger who wrote in The Imperial Presidency:

For the American Presidency was a peculiarly personal institution. it remained of course, an agency of
government subject to unvarying demands and duties no remained, of cas President. But, more than most
agencies of government, it changed shape, intensity and ethos according to the man in charge. Each
President's distinctive temperament and character, his values, standards, style, his habits, expectations,
Idiosyncrasies, compulsions, phobias recast the WhiteHouse and pervaded the entire government. The
executive branch, said Clark Clifford, was a chameleon, taking its color from the character and
personality of the President. The thrust of the office, its impact on the constitutional order, therefore
altered from President to President. Above all, the way each President understood it as his personal
obligation to inform and involve the Congress, to earn and hold the confidence of the electorate and to
render an accounting to the nation and posterity determined whether he strengthened or weakened the
constitutional order. [At 212- 213.]

We do not say that the presidency is what Mrs. Aquino says it is or what she does but, rather, that the consideration of
tradition and the development of presidential power under the different constitutions are essential for a complete
understanding of the extent of and limitations to the President's powers under the 1987 Constitution. The 1935
Constitution created a strong President with explicitly broader powers than the U.S. President. The 1973 Constitution
attempted to modify the system of government into the parliamentary type, with the President as a mere figurehead, but
through numerous amendments, the President became even more powerful, to the point that he was also the de facto
Legislature. The 1987 Constitution, however, brought back the presidential system of government and restored the
separation of legislative, executive and judicial powers by their actual distribution among three distinct branches of
government with provision for checks and balances.

It would not be accurate, however, to state that "executive power" is the power to enforce the laws, for the President is
head of state as well as head of government and whatever powers inhere in such positions pertain to the office unless the
Constitution itself withholds it. Furthermore, the Constitution itself provides that the execution of the laws is only one of
the powers of the President. It also grants the President other powers that do not involve the execution of any provision of
law, e.g., his power over the country's foreign relations.

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the exercise of specific
powers of the President, it maintains intact what is traditionally considered as within the scope of "executive power."
Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the
Constitution. In other words, executive power is more than the sum of specific powers so enumerated,

It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be
executive. Thus, in the landmark decision of Springer v. Government of the Philippine Islands, 277 U.S. 189 (1928), on
the issue of who between the Governor-General of the Philippines and the Legislature may vote the shares of stock held
by the Government to elect directors in the National Coal Company and the Philippine National Bank, the U.S. Supreme
Court, in upholding the power of the Governor-General to do so, said:

...Here the members of the legislature who constitute a majority of the "board" and "committee"
respectively, are not charged with the performance of any legislative functions or with the doing of
anything which is in aid of performance of any such functions by the legislature. Putting aside for the
moment the question whether the duties devolved upon these members are vested by the Organic Act in
the Governor-General, it is clear that they are not legislative in character, and still more clear that they are
not judicial. The fact that they do not fall within the authority of either of these two constitutes logical
ground for concluding that they do fall within that of the remaining one among which the powers of
government are divided ....[At 202-203; Emphasis supplied.]

We are not unmindful of Justice Holmes' strong dissent. But in his enduring words of dissent we find reinforcement for
the view that it would indeed be a folly to construe the powers of a branch of government to embrace only what are
specifically mentioned in the Constitution:

The great ordinances of the Constitution do not establish and divide fields of black and white. Even the
more specific of them are found to terminate in a penumbra shading gradually from one extreme to the
other. ....

xxx xxx xxx

It does not seem to need argument to show that however we may disguise it by veiling words we do not
and cannot carry out the distinction between legislative and executive action with mathematical precision
and divide the branches into watertight compartments, were it ever so desirable to do so, which I am far
from believing that it is, or that the Constitution requires. [At 210- 211.]

The Power Involved

The Constitution declares among the guiding principles that "[t]he prime duty of theGovernment is to serve and protect
the people" and that "[t]he maintenance of peace and order,the protection of life, liberty, and property, and the promotion
of the general welfare are essential for the enjoyment by all the people of the blessings of democracy." [Art. II, Secs. 4
and 5.]

Admittedly, service and protection of the people, the maintenance of peace and order, the protection of life, liberty and
property, and the promotion of the general welfare are essentially ideals to guide governmental action. But such does not
mean that they are empty words. Thus, in the exercise of presidential functions, in drawing a plan of government, and in
directing implementing action for these plans, or from another point of view, in making any decision as President of the
Republic, the President has to consider these principles, among other things, and adhere to them.

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the Philippines, the President
is, under the Constitution, constrained to consider these basic principles in arriving at a decision. More than that, having
sworn to defend and uphold the Constitution, the President has the obligation under the Constitution to protect the people,
promote their welfare and advance the national interest. It must be borne in mind that the Constitution, aside from being
an allocation of power is also a social contract whereby the people have surrendered their sovereign powers to the State
for the common good. Hence, lest the officers of the Government exercising the powers delegated by the people forget
and the servants of the people become rulers, the Constitution reminds everyone that "[s]overeignty resides in the people
and all government authority emanates from them." [Art. II, Sec. 1.]

The resolution of the problem is made difficult because the persons who seek to return to the country are the deposed
dictator and his family at whose door the travails of the country are laid and from whom billions of dollars believed to be
ill-gotten wealth are sought to be recovered. The constitutional guarantees they invoke are neither absolute nor inflexible.
For the exercise of even the preferred freedoms of speech and ofexpression, although couched in absolute terms, admits of
limits and must be adjusted to the requirements of equally important public interests [Zaldivar v. Sandiganbayan, G.R.
Nos. 79690-707, October 7, 1981.]

To the President, the problem is one of balancing the general welfare and the common good against the exercise of rights
of certain individuals. The power involved is the President's residual power to protect the general welfare of the people. It
is founded on the duty of the President, as steward of the people. To paraphrase Theodore Roosevelt, it is not only the
power of the President but also his duty to do anything not forbidden by the Constitution or the laws that the needs of the
nation demand [See Corwin, supra, at 153]. It is a power borne by the President's duty to preserve and defend the
Constitution. It also may be viewed as a power implicit in the President's duty to take care that the laws are faithfully
executed [see Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President].

More particularly, this case calls for the exercise of the President's powers as protector of the peace. Rossiter The
American Presidency].The power of the President to keep the peace is not limited merely to exercising the commander-in-
chief powers in times of emergency or to leading the State against external and internal threats to its existence. The
President is not only clothed with extraordinary powers in times of emergency, but is also tasked with attending to the
day-to-day problems of maintaining peace and order and ensuring domestic tranquility in times when no foreign foe
appears on the horizon. Wide discretion, within the bounds of law, in fulfilling presidential duties in times of peace is not
in any way diminished by the relative want of an emergency specified in the commander-in-chief provision. For in
making the President commander-in-chief the enumeration of powers that follow cannot be said to exclude the President's
exercising as Commander-in- Chief powers short of the calling of the armed forces, or suspending the privilege of the writ
of habeas corpus or declaring martial law, in order to keep the peace, and maintain public order and security.

That the President has the power under the Constitution to bar the Marcose's from returning has been recognized by
memembers of the Legislature, and is manifested by the Resolution proposed in the House of Representatives and signed
by 103 of its members urging the President to allow Mr. Marcos to return to the Philippines "as a genuine unselfish
gesture for true national reconciliation and as irrevocable proof of our collective adherence to uncompromising respect for
human rights under the Constitution and our laws." [House Resolution No. 1342, Rollo, p. 321.1 The Resolution does not
question the President's power to bar the Marcoses from returning to the Philippines, rather, it appeals to the President's
sense of compassion to allow a man to come home to die in his country.

What we are saying in effect is that the request or demand of the Marcoses to be allowed to return to the Philippines
cannot be considered in the light solely of the constitutional provisions guaranteeing liberty of abode and the right to
travel, subject to certain exceptions, or of case law which clearly never contemplated situations even remotely similar to
the present one. It must be treated as a matter that is appropriately addressed to those residual unstated powers of the
President which are implicit in and correlative to the paramount duty residing in that office to safeguard and protect
general welfare. In that context, such request or demand should submit to the exercise of a broader discretion on the part
of the President to determine whether it must be granted or denied.

The Extent of Review

Under the Constitution, judicial power includes the duty 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."
[Art. VIII, Sec. 1] Given this wording, we cannot agree with the Solicitor General that the issue constitutes a political
question which is beyond the jurisdiction of the Court to decide.

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. But
nonetheless there remain issues beyond the Court's jurisdiction the determination of which is exclusively for the President,
for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the
President's recognition of a foreign government, no matter how premature or improvident such action may appear. We
cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant.
Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved
to the people.
There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The
deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of
judicial review but they did not intend courts of justice to settle all actual controversies before them. 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. In this light, it would appear clear that the second paragraph
of Article VIII, Section 1 of the Constitution, defining "judicial power," which specifically empowers the courts to
determine whether or not there has been a grave abuse of discretion on the part of any branch or instrumentality of the
government, incorporates in the fundamental law the ruling in Lansang v. Garcia [G.R. No. L-33964, December 11, 1971,
42 SCRA 4481 that:]

Article VII of the [1935] Constitution vests in the Executive the power to suspend the privilege of the writ
of habeas corpus under specified conditions. Pursuant to the principle of separation of powers underlying
our system of government, the Executive is supreme within his own sphere. However, the separation of
powers, under the Constitution, is not absolute. What is more, it goes hand in hand with the system of
checks and balances, under which the Executive is supreme, as regards the suspension of the privilege,
but only if and when he acts within the sphere alloted to him by the Basic Law, and the authority to
determine whether or not he has so acted is vested in the Judicial Department, which, in this respect, is, in
turn, constitutionally supreme. In the exercise of such authority, the function of the Court is merely to
check — not to supplant the Executive, or to ascertain merely whether he has gone beyond the
constitutional limits of his jurisdiction, not to exercise the power vested in him or to determine the
wisdom of his act [At 479-480.]

Accordingly, the question for the Court to determine is whether or not there exist factual bases for the President to
conclude that it was in the national interest to bar the return of the Marcoses to the Philippines. If such postulates do exist,
it cannot be said that she has acted, or acts, arbitrarily or that she has gravely abused her discretion in deciding to bar their
return.

We find that from the pleadings filed by the parties, from their oral arguments, and the facts revealed during the briefing
in chambers by the Chief of Staff of the Armed Forces of the Philippines and the National Security Adviser, wherein
petitioners and respondents were represented, there exist factual bases for the President's decision..

The Court cannot close its eyes to present realities and pretend that the country is not besieged from within by a well-
organized communist insurgency, a separatist movement in Mindanao, rightist conspiracies to grab power, urban
terrorism, the murder with impunity of military men, police officers and civilian officials, to mention only a few. The
documented history of the efforts of the Marcose's and their followers to destabilize the country, as earlier narrated in this
ponencia bolsters the conclusion that the return of the Marcoses at this time would only exacerbate and intensify the
violence directed against the State and instigate more chaos.

As divergent and discordant forces, the enemies of the State may be contained. The military establishment has given
assurances that it could handle the threats posed by particular groups. But it is the catalytic effect of the return of the
Marcoses that may prove to be the proverbial final straw that would break the camel's back. With these before her, the
President cannot be said to have acted arbitrarily and capriciously and whimsically in determining that the return of the
Marcoses poses a serious threat to the national interest and welfare and in prohibiting their return.

It will not do to argue that if the return of the Marcoses to the Philippines will cause the escalation of violence against the
State, that would be the time for the President to step in and exercise the commander-in-chief powers granted her by the
Constitution to suppress or stamp out such violence. The State, acting through the Government, is not precluded from
taking pre- emptive action against threats to its existence if, though still nascent they are perceived as apt to become
serious and direct. Protection of the people is the essence of the duty of government. The preservation of the State the
fruition of the people's sovereignty is an obligation in the highest order. The President, sworn to preserve and defend the
Constitution and to see the faithful execution the laws, cannot shirk from that responsibility.

We cannot also lose sight of the fact that the country is only now beginning to recover from the hardships brought about
by the plunder of the economy attributed to the Marcoses and their close associates and relatives, many of whom are still
here in the Philippines in a position to destabilize the country, while the Government has barely scratched the surface, so
to speak, in its efforts to recover the enormous wealth stashed away by the Marcoses in foreign jurisdictions. Then, We
cannot ignore the continually increasing burden imposed on the economy by the excessive foreign borrowing during the
Marcos regime, which stifles and stagnates development and is one of the root causes of widespread poverty and all its
attendant ills. The resulting precarious state of our economy is of common knowledge and is easily within the ambit of
judicial notice.

The President has determined that the destabilization caused by the return of the Marcoses would wipe away the gains
achieved during the past few years and lead to total economic collapse. Given what is within our individual and common
knowledge of the state of the economy, we cannot argue with that determination.

WHEREFORE, and it being our well-considered opinion that the President did not act arbitrarily or with grave abuse of
discretion in determining that the return of former President Marcos and his family at the present time and under present
circumstances poses a serious threat to national interest and welfare and in prohibiting their return to the Philippines, the
instant petition is hereby DISMISSED.

SO ORDERED.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a simmering separatist
movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these threats is an explosive
ingredient in a steaming cauldron which could blow up if not handled properly." 1

These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E. Gutierrez, Jr. But
they express eloquently the basis of my full concurrence to the exhaustive and well-written ponencia of Mme. Justice
Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of law. History and time-honored principles of
constitutional law have conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
"emergency." whatever they may be called, the fact is that these powers exist, as they must if the governance function of
the Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the President to
allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on national peace
and order in these admittedly critical times, said question cannot be withdrawn from the competence of the Executive
Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to public
order and safety. One needs only to recall the series of destabilizing actions attempted by the so-called Marcos loyalists as
well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The most publicized of these
offensives is the Manila Hotel incident which occurred barely five (5) months after the People's Power Revolution.
Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of
the Philippines. The public disorder and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.
Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military rebels waged
simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took
over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group
struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy hostage. Troops on
board several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through Gate 1 of
Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated members to unite in
their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government? Launched not by
Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who remains
at large to date, this most serious attempt to wrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms and ammunition from
the Camp Crame Armory during a raid conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the
return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to mobilize civilians
from nearby provinces to act as blockading forces at different Metro Manila areas for the projected link-up of Marcos
military loyalist troops with the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates heavily
against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden their followers
toward similar actions, but any such action would be seized upon as an opportunity by other enemies of the State, such as
the Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to
wage an offensive against the government. Certainly, the state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to its safety from arising.

Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor, which
albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the requested return. I refer to
the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and money to
put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines was a
moral victory for the Filipino people; and the installation of the present administration, a realization of and obedience to
the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy, compassion and
even Filipino tradition. The political and economic gains we have achieved during the past three years are however too
valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and
safety be sacrificed for an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the
Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection
all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was
ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])
Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident truth. But
faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court has permitted a basic
freedom enshrined in the Bill of Rights to be taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for both
unloved and despised persons on one hand and the rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are interpreting the
Constitution for only one person and constituting him into a class by himself. The Constitution is a law for all classes of
men at all times. To have a person as one class by himself smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of power. Mr.
Marcos is insensate and would not live if separated from the machines which have taken over the functions of his kidneys
and other organs. To treat him at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and punish him. But does it have the
power to deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 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. (Emphasis
supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public safety
which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under
martial law. There is, however, no showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious of which were totally
unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any grave
exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to consider. They
contend that the decision to ban former President Marcos, and his family on grounds of national security and public safety
is vested by the Constitution in the President alone. The determination should not be questioned before this Court. The
President's finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxx xxx xxx

It is a well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it means those questions which, under
the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:
 In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to 'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure.

The most often quoted definition of political question was made by Justice William J. Brennan Jr., who penned the
decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The
ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a political question, which identifies it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of
a court's undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already
made; or potentiality of embarrassment from multifarious pronouncements by various departments on one
question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the President or Congress,
the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power against a civil right
which claim is not found in a specific provision is dangerous. Neither should we validate a roving commission allowing
public officials to strike where they please and to override everything which to them represents evil. The entire
Government is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the determination of the
question raised to us solely in the President.

The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying
the circumstances when the right may be impaired in the interest of national security or public safety. The power is in
Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the commander-in-chief
clause which allows the President to call out the armed forces in case of lawless violence, invasion or rebellion and to
suspend the privilege of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the
public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in rebellion
or that he is in a position to lead them. Neither is it claimed that there is a need to suspend the privilege of the writ of
habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there may be
disturbances but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability and to ignore
a plea for the enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The constant
insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the "loyalists" engaging in
rallies and demonstrations have to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of Filipino
customs and traditions to allow a dying person to return to his home and breath his last in his native surroundings. Out of
the 103 Congressmen who passed the House resolution urging permission for his return, there are those who dislike Mr.
Marcos intensely or who suffered under his regime. There are also many Filipinos who believe that in the spirit of national
unity and reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that such a return
would deprive his fanatic followers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional
guarantee of liberty of abode and the citizen's right to travel as against the respondents' contention that national security
and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there is likewise
no dearth of decisional data, no unmanageable standards which stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the limits
prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the
President. Section 6 further provides that the right to travel, and this obviously includes the right to travel out of or back
into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, as may
be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or from the
Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor General
immigration, health, quarantine, passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the
return of Mr. Marcos and family is concerned. There is absolutely no showing how any of these statutes and regulations
could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply be applying the
Constitution, in the preservation and defense of which all of us in Government, the President and Congress included, are
sworn to participate. Significantly, the President herself has stated that the Court has the last word when it comes to
constitutional liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political question
doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).

Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary criticized
this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience. Every major
challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial law, the
ratification of a new constitution, the arrest and detention of "enemies of the State" without charges being filed against
them, the dissolution of Congress and the exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of
newspaper offices, radio and television stations and other forms of media, the proposals to amend the Constitution, etc.
was invariably met by an invocation that the petition involved a political question. It is indeed poetic justice that the
political question doctrine so often invoked by then President Marcos to justify his acts is now being used against him and
his family. Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound by the
Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition of judicial
power was added to the vesting in the Supreme Court and statutory courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.
This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid
having to make decisions simply because they are too controversial, displeasing to the President or Congress, inordinately
unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences or
a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down an
exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the most
vigorous critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution was
accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have been non-justiceable under our
decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to resolve. There are still some
political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not
one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national security do not
readily lend themselves to the presentation of proof before a court of justice. The vital information essential to an
objective determination is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It posed a
rhetorical question. If after investigating conditions in the Archipelago or any part thereof, the President finds that public
safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the
same facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII of the
Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual briefing with a
lawyer for the petitioners and a lawyer for the respondents present.

The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile, (121
SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the president
acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the
Executive Branch which has the appropriate civil and military machinery for the facts. This was the
method which had to be used in Lansang. This Court relied heavily on classified information supplied by
the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of
the government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them. It
was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the suspension
is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in
 effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it
lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for
determining the clear and present danger to national security and public safety. The majority of the Court has taken
judicial notice of the Communist rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is
it fair to blame the present day Marcos for these incidents? All these problems are totally unrelated to the Marcos of today
and, in fact, are led by people who have always opposed him. If we use the problems of Government as excuses for
denying a person's right to come home, we will never run out of justifying reasons. These problems or others like them
will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or not
the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present danger to national
security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only after
the present petition was filed that the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to — (1) national
welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability. (See
page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and public
safety. The President has been quoted as stating that the vast majority of Filipinos support her position. (The Journal,
front page, January 24,1989) We cannot validate their stance simply because it is a popular one. Supreme Court decisions
do not have to be popular as long as they follow the Constitution and the law. The President's original position "that it is
not in the interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times, front page,
February 7, 1989). On February 11, 1989, the President is reported to have stated that "considerations of the highest
national good dictate that we preserve the substantial economic and political gains of the past three years" in justifying her
firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989).
"Interest of the nation national good," and "preserving economic and political gains," cannot be equated with national
security or public order. They are too generic and sweeping to serve as grounds for the denial of a constitutional right. The
Bill of Rights commands that the right to travel may not be impaired except on the stated grounds of national security,
public safety, or public health and with the added requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on injustice,
ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest and most present
danger to national security and constitutional freedoms. Nobody has suggested that one way to quell it would be to catch
and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples' power." Yet, there is no
move to arrest and exile the leaders of student groups, teachers' organizations, pea ant and labor federations, transport
workers, and government unions whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists, and other
dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a constitutional right. It is not shown how extremists from the right
and the left who loathe each other could find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the
claim of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome
person can be substituted for the Marcos threat as the catalysing factor. The alleged confluence of NPAs, secessionists,
radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of rebel forces and proceed to ride roughshod over civil
liberties in the name of national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public
assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino,
Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I
deeply regret that the Court's decision to use the political question doctrine in a situation where it does not apply raises all
kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured the Court
that a rebellion of the above combined groups will not succeed and that the military is on top of the situation. Where then
is the clear danger to national security? The Court has taken judicial notice of something which even the military denies.
There would be severe strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can be successfully
contained by the military. I must stress that no reference was made to a clear and present danger to national security as
would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the right to
travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too reminiscent of
Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to
issue decrees whenever the Batasang Pambansa failed or was unable to act adequately on any matter for any reason that in
his judgment required immediate action. When the Bill of Rights provides that a right may not be impaired except in the
interest of national security, public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress does not give reason for the
respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling against an
unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We have to be true to our
own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up to
machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The physical
condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is. But he invokes a constitutional
right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a
constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel documents or
any formal lifting of the Marcos ban as would allow international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we should
differentiate the right to return home from the right to go abroad or to move around in the Philippines. If at all, the right to
come home must be more preferred than any other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and
"threats to national security" during that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have a
freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who were barred
by their successors from returning to their respective countries. There is no showing that the countries involved have
constitutions which guarantee the liberty of abode and the freedom to travel and that despite such constitutional
protections, the courts have validated the "ban a return" policy. Neither is it shown that the successors of the listed
dictators are as deeply committed to democratic principles and as observant of constitutional protections as President
Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord and to
divide the nation. Opposition to the government no matter how odious or disgusting is, however, insufficient ground to
ignore a constitutional guarantee.
During the protracted deliberations on this case, the question was asked is the Government helpless to defend itself against
a threat to national security? Does the President have to suspend the privilege of the writ of habeas corpus or proclaim
martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has more than
ample powers under eixisting law to deal with a person who transgresses the peace and imperils public safety. But the
denial of travel papers is not one of those powers because the Bill of Rights says so. There is no law prescribing exile in a
foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live — and die — in his own
country. I say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit simply because
many believe Marcos to be beneath contempt and undeserving of the very liberties he flounted when he was the absolute
ruler of this land.

The right of the United States government to detain him is not the question before us, nor can we resolve it. The question
we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which may depend on the action
we take today), the respondents have acted with grave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not, that the
petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government was prepared
to prove the justification for opposing the herein petition, i.e. that it had not acted arbitrarily. He said it was. Accordingly,
the Court, appreciating the classified nature of the information expected, scheduled a closed-door hearing on July
25,1988. The Solicitor General and three representatives from the military appeared for the respondents, together with
former Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive would pose
a threat to the national security as it had alleged. The fears expressed by its representatives were based on mere
conjectures of political and economic destabilization without any single piece of concrete evidence to back up their
apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's decision"
to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.

In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v. Gil
(67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was precisely to
limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the
President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add
several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter
stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the most
detested man in the entire history of our country. But we are not concerned here with popularity and personalities. As a
judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.
The issue before us must be resolved with total objectivity, on the basis only of the established facts and the applicable
law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear is a phantom. That
phantom did not rise when the people stood fast at EDSA against the threat of total massacre in defense at last of their
freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of Constitutional Law.
These principles have not changed simply because I am now on the Court or a new administration is in power and the
shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of the
government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary invoked. These
rights are guaranteed by the Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a society without
compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the Philippines may
be resolved by answering two simple questions: Does he have the right to return to his own country and should national
safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration of Human
Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country except only if prevented
by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on is sheer
speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by popular will, can
arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should be allowed
to return to our country under the conditions that he and the members of his family be under house arrest in his hometown
in Ilocos Norte, and should President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline, and for
human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right of a Filipino,
Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly justiciable involving, as it does, colliding
assertions of individual right and governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987
Constitution, the new provision on the power of Judicial Review, viz:
 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. Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel which, in the
language of the Constitution, shall not be impaired "except in the interest of national security, public safety, or public
health, as may be provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel within the
country, to travel out of the country and to return to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises in the interpretation of the qualifications attached
by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not agree. It is my
view that, with or without restricting legislation, the interest of national security, public safety or public health can justify
and even require restrictions on the right to travel, and that the clause "as may be provided by law" contained in Article
III, Section 6 of the 1987 Constitution merely declares a constitutional leave or permission for Congress to enact laws that
may restrict the right to travel in the interest of national security, public safety or public health. I do not, therefore, accept
the petitioners' submission that, in the absence of enabling legislation, the Philippine Government is powerless to restrict
travel even when such restriction is demanded by national security, public safety or public health, The power of the State,
in particular cases, to restrict travel of its citizens finds abundant support in the police power of the state wich may be
exercised to preserve and maintain government as well as promote the general welfare of the greatest number of people.

And yet, the power of the State, acting through a government in authority at any given time, to restrict travel, even if
founded on police power, cannot be absolute and unlimited under all circumstances, much less, can it be arbitrary and
irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to return
to the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise of this right invoked
by Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and data which would
justify their reliance on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the
Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain, for convincing
evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those conveyed through the military, do
not, with all due respect, escalate to proportions of national security or public safety. They appear to be more speculative
than real, obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be "under
control," as admitted to the Court by said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will know how to handle any situation brought
about by a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in short,
should not accept respondents' general apprehensions, concerns and perceptions at face value, in the light of a
countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to justify
derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the generally accepted
principles of international law as part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine
government cannot just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides
that everyone has the right to leave any country, including his own, and to return to his country. This guarantee is
reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was
specifically chosen by the drafters of the Covenant 3 hoping to protect an individual against unexpected, irresponsible or
excessive encroachment on his rights by the state based on national traditions or a particular sense of justice which falls
short of international law or standards. 4
The Solicitor General maintains that because the respondents, as alter egos of the President, have raised the argument of
"national security" and "public safety," it is the duty of this Court to unquestioningly yield thereto, thus casting the
controversy to the realm of a political question. I do not agree. I believe that it is one case where the human and
constitutional light invoked by one party is so specific, substantial and clear that it cannot be overshadowed, much less,
nullified by simplistic generalities; worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right of former
Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same time, credibly deny the
right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to that
question. Instead, it has become clearer by the day that the drama today is the same drama in 1983 with the only
difference that the actors are in opposite roles, which really makes one hope, in the national interest, that the mistake in
1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise, the following
are the cogent and decisive propositions in this case —

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or convincing proof why his right as a Filipino to
return should be denied him. All we have are general conclusions of "national security" and "public
safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to
return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the Constitution,
the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take exception to allusions 2 anent
"the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing
judgment on the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds of
judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to return to one's
country," pitted against "the right of travel and freedom of abode", and their supposed distinctions under international law,
as if such distinctions, under international law in truth and in fact exist. There is only one right involved here, whether
under municipal or international law: the light of travel, whether within one's own country, or to another, and the right to
return thereto. The Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish
nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a citizen his
right to travel (back to the country or to another)? It is a question that, in essence, involves the application, and no more,
of the provisions of the 1987 Constitution:
 Sec. 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. 4

The majority says, with ample help from American precedents, that the President is possessed of the power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power
is also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.

First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by constitutional
implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights. Precisely a constitution exists
to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly
safeguarded. To be true to its primordial aim a constitution must lay down the boundaries beyond which he's forbidden
territory for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct mandate of the
fundamental law. It will not suffice, so I submit, to say that the President's plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express constitutional commands. "Clearly," so I borrow
J.B.L. Reyes, in his own right, a titan in the field of public law, "this argument ... rests ... not upon the text of the
(Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and of changing the same other than what
it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial
mandate. Had the Constitution intended a third exception, that is, by Presidential initiative, it could have so averred. It
would also have made the Constitution, as far as limits to the said right are concerned, come full circle: Limits by
legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is there any
court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. 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. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the interest of
national security, public safety, or public health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so appears,
the right may be impaired only "within the limits provided by law . 15 The President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign affairs; 17 the
Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a formidable barrier against
Presidential action. (Even on matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been proved that
Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public health?" What
appears in the records are vehement insistences that Marcos does pose a threat to the national good and yet, at the same
time, we have persistent claims, made by the military top brass during the lengthy closed-door hearing on July 25, 1989,
that "this Government will not fall" should the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court itself must
be content that the threat is not only clear, but more so, present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open to no doubt.
But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we unravel chinks in our
political armor. It also flies in the face of claims, so confidently asserted, that "this Government will not fall" even if we
allowed Marcos to return.

It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial law, and
pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices, and or at the helm of
its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I indicated,
not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as far as Philippine society is concerned,
Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as protector of peace.
21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also means that we
are no better than he has.
That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and internal threats to its existence" 22 is a bigger fantasy: It not
only summons the martial law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is
inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of Marcos, the
writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly criticized the dictator, his
associates, and his military machinery. He would pay dearly for it; he was arrested and detained, without judicial warrant
or decision, for seven months and seven days. He was held incommunicado a greater part of the time, in the military
stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and confined for
chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14, 1979, he was,
along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia,
charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering " 24 in the midst of the
distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule,
published by him and former Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having violated the human rights of
dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set
them free from house arrest and these political offenses. I am for Marcos' return not because I have a score to settle with
him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for his crimes
to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial and accord him due
process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the liberty of
abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his constitutional right, a right that
can not be abridged by personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity" "to stir
trouble" Now that the shoe is on the other foot, let no more of human rights violations be repeated against any one, friend
or foe. In a democratic framework, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the present Constitution and
existing laws, does not have it. Mandamus, I submit, lies.

Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

Feliciano, J., is on leave.

Separate Opinions

FERNAN, C.J., concurring:

"The threats to national security and public order are real the mounting Communist insurgency, a simmering separatist
movement, a restive studentry, widespread labor disputes, militant farmer groups. . . . Each of these threats is an explosive
ingredient in a steaming cauldron which could blow up if not handled properly." 1
These are not my words. They belong to my distinguished colleague in the Court, Mr. Justice Hugo E. Gutierrez, Jr. But
they express eloquently the basis of my full concurrence to the exhaustive and well-written ponencia of Mme. Justice
Irene R. Cortes.

Presidential powers and prerogatives are not fixed but fluctuate. They are not derived solely from a particular
constitutional clause or article or from an express statutory grant. Their limits are likely to depend on the imperatives of
events and contemporary imponderables rather than on abstract theories of law. History and time-honored principles of
constitutional law have conceded to the Executive Branch certain powers in times of crisis or grave and imperative
national emergency. Many terms are applied to these powers: "residual," "inherent," 44 moral," "implied," "aggregate,"
'emergency." whatever they may be called, the fact is that these powers exist, as they must if the governance function of
the Executive Branch is to be carried out effectively and efficiently. It is in this context that the power of the President to
allow or disallow the Marcoses to return to the Philippines should be viewed. By reason of its impact on national peace
and order in these admittedly critical times, said question cannot be withdrawn from the competence of the Executive
Branch to decide.

And indeed, the return of the deposed President, his wife and children cannot but pose a clear and present danger to public
order and safety. One needs only to recall the series of destabilizing actions attempted by the so-called Marcos loyalists as
well as the ultra-rightist groups during the EDSA Revolution's aftermath to realize this. The most publicized of these
offensives is the Manila Hotel incident which occurred barely five (5) months after the People's Power Revolution.
Around 10,000 Marcos supporters, backed by 300 loyalist soldiers led by Brigadier General Jose Zumel and Lt. Col.
Reynaldo Cabauatan converged at the Manila Hotel to witness the oath-taking of Arturo Tolentino as acting president of
the Philippines. The public disorder and peril to life and limb of the citizens engendered by this event subsided only upon
the eventual surrender of the loyalist soldiers to the authorities.

Then followed the Channel 7, Sangley, Villamor, Horseshoe Drive and Camp Aguinaldo incidents. Military rebels waged
simultaneous offensives in different parts of Metro Manila and Sangley Point in Cavite. A hundred rebel soldiers took
over Channel 7 and its radio station DZBB. About 74 soldier rebels attacked Villamor Air Base, while another group
struck at Sangley Point in Cavite and held the 15th Air Force Strike wing commander and his deputy hostage. Troops on
board several vehicles attempted to enter Gate I of Camp Aguinaldo even as another batch of 200 soldiers encamped at
Horseshoe Village.

Another destabilization plot was carried out in April, 1987 by enlisted personnel who forced their way through Gate 1 of
Fort Bonifacio. They stormed into the army stockade but having failed to convince their incarcerated members to unite in
their cause, had to give up nine (9) hours later.

And who can forget the August 28, 1987 coup attempt which almost toppled the Aquino Government? Launched not by
Marcos loyalists, but by another ultra-rightist group in the military led by Col. Gregorio "Gringo" Honasan who remains
at large to date, this most serious attempt to wrest control of the government resulted in the death of many civilians.

Members of the so-called Black Forest Commando were able to cart away high-powered firearms and ammunition from
the Camp Crame Armory during a raid conducted in June 1988. Most of the group members were, however, captured in
Antipolo, Rizal. The same group was involved in an unsuccessful plot known as Oplan Balik Saya which sought the
return of Marcos to the country.

A more recent threat to public order, peace and safety was the attempt of a group named CEDECOR to mobilize civilians
from nearby provinces to act as blockading forces at different Metro Manila areas for the projected link-up of Marcos
military loyalist troops with the group of Honasan. The pseudo "people power" movement was neutralized thru
checkpoints set up by the authorities along major road arteries where the members were arrested or forced to turn back.

While not all of these disruptive incidents may be traced directly to the Marcoses, their occurrence militates heavily
against the wisdom of allowing the Marcoses' return. Not only will the Marcoses' presence embolden their followers
toward similar actions, but any such action would be seized upon as an opportunity by other enemies of the State, such as
the Communist Party of the Philippines and the NPA'S, the Muslim secessionists and extreme rightists of the RAM, to
wage an offensive against the government. Certainly, the state through its executive branch has the power, nay, the
responsibility and obligation, to prevent a grave and serious threat to its safety from arising.
Apparently lost amidst the debate on whether or not to allow the Marcoses to return to the Philippines is one factor, which
albeit, at first blush appears to be extra legal, constitutes a valid justification for disallowing the requested return. I refer to
the public pulse. It must be remembered that the ouster of the Marcoses from the Philippines came about as an
unexpected, but certainly welcomed, result of the unprecedented peoples power" revolution. Millions of our people braved
military tanks and firepower, kept vigil, prayed, and in countless manner and ways contributed time, effort and money to
put an end to an evidently untenable claim to power of a dictator. The removal of the Marcoses from the Philippines was a
moral victory for the Filipino people; and the installation of the present administration, a realization of and obedience to
the people's Will.

Failing in legal arguments for the allowance of the Marcoses' return, appeal is being made to sympathy, compassion and
even Filipino tradition. The political and economic gains we have achieved during the past three years are however too
valuable and precious to gamble away on purely compassionate considerations. Neither could public peace, order and
safety be sacrificed for an individual's wish to die in his own country. Verily in the balancing of interests, the scales tilt in
favor of presidential prerogative, which we do not find to have been gravely abused or arbitrarily exercised, to ban the
Marcoses from returning to the Philippines.

GUTIERREZ, JR., J., dissenting

"The Constitution ... is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection
all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was
ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of
government." (Ex Parte Milligan, 4 Wall. 2; 18 L. Ed. 281 [1866])

Since our days as law students, we have proclaimed the stirring words of Ex Parte Milligan as self-evident truth. But
faced with a hard and delicate case, we now hesitate to qive substance to their meaning. The Court has permitted a basic
freedom enshrined in the Bill of Rights to be taken away by Government.

There is only one Bill of Rights with the same interpretation of liberty and the same guarantee of freedom for both
unloved and despised persons on one hand and the rest who are not so stigmatized on the other.

I am, therefore, disturbed by the majority ruling which declares that it should not be a precedent. We are interpreting the
Constitution for only one person and constituting him into a class by himself. The Constitution is a law for all classes of
men at all times. To have a person as one class by himself smacks of unequal protection of the laws.

With all due respect for the majority in the Court, I believe that the issue before us is one of rights and not of power. Mr.
Marcos is insensate and would not live if separated from the machines which have taken over the functions of his kidneys
and other organs. To treat him at this point as one with full panoply of power against whom the forces of Government
should be marshalled is totally unrealistic. The Government has the power to arrest and punish him. But does it have the
power to deny him his right to come home and die among familiar surroundings?

Hence, this dissent.

The Bill of Rights provides:

Sec. 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. (Emphasis
supplied, Section 6, Art. 111, Constitution)

To have the petition dismissed, the Solicitor General repeats a ritual invocation of national security and public safety
which is hauntingly familiar because it was pleaded so often by petitioner Ferdinand E. Marcos to justify his acts under
martial law. There is, however, no showing of the existence of a law prescribing the limits of the power to impair and the
occasions for its exercise. And except for citing breaches of law and order, the more serious of which were totally
unrelated to Mr. Marcos and which the military was able to readily quell, the respondents have not pointed to any grave
exigency which permits the use of untrammeled Governmental power in this case and the indefinite suspension of the
constitutional right to travel.

The respondents' basic argument is that the issue before us is a political question beyond our jurisdiction to consider. They
contend that the decision to ban former President Marcos, and his family on grounds of national security and public safety
is vested by the Constitution in the President alone. The determination should not be questioned before this Court. The
President's finding of danger to the nation should be conclusive on the Court.

What is a political question?

In Vera v. Avelino (77 Phil. 192, 223 [1946], the Court stated:

xxxxxxxxx

It is a well-settled doctrine that political questions are not within the province of the judiciary, except to
the extent that power to deal with such questions has been conferred on the courts by express
constitutional or statutory provisions. It is not so easy, however, to define the phrase political question,
nor to determine what matters fall within its scope. It is frequently used to designate all questions that he
outside the scope of the judicial power. More properly, however, it means those questions which, under
the constitution, are to be decided by the people in their sovereign capacity, or in regard to which full
discretionary authority has been delegated to the legislative or executive branch of the government.

We defined a political question in Taniada v. Cuenco (103 Phil. 1051, 1066 [1957]), as follows:

In short, the term 'Political question' connotes, in legal parlance, what it means in ordinary parlance,
namely, a question of policy. In other words, in the language of Corpus Juris Secundum (supra), it refers
to 'those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the Legislature or
executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality,
of a particular measure.

The most often quoted definition of political question was made by Justice Wilham J. Brennan Jr., who penned the
decision of the United States Supreme Court in Baker v. Carr (369 US 186,82, S. Ct. 691, L. Ed. 2d. 663 [1962]). The
ingredients of a political question as formulated in Baker v. Carr are:

It is apparent that several formulations which vary slightly according to the settings in which the
questions arise may describe a political question, which Identifies it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a political question is found a
textually demonstrable constitutional commitment of the issue to a coordinate political department; or a
lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding
without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of
a court's undertaking independent resolution without expressing lack of the respect due coordinate
branches of government; or an unusual need for unquestioning adherence to a political decision already
made; or potentiality of embarrassment from multifarious pronouncements by various departments on one
question.

For a political question to exist, there must be in the Constitution a power vested exclusively in the President or Congress,
the exercise of which the court should not examine or prohibit. A claim of plenary or inherent power against a civil right
which claim is not found in a specific provision is dangerous. Neither should we validate a roving commission allowing
public officials to strike where they please and to override everything which to them represents evil. The entire Govern
ment is bound by the rule of law.

The respondents have not pointed to any provision of the Constitution which commits or vests the determination of the
question raised to us solely in the President.
The authority implied in Section 6 of the Bill of Rights itself does not exist because no law has been enacted specifying
the circumstances when the right may be impaired in the interest of national security or public safety. The power is in
Congress, not the Executive.

The closest resort to a textile demonstrable constitutional commitment of power may be found in the commander-in-chief
clause which allows the President to call out the armed forces in case of lawless violence, invasion or rebellion and to
suspend the privilege of the writ of habeas corpus or proclaim martial law in the event of invasion or rebellion, when the
public safety requires it.

There is, however, no showing, not even a claim that the followers of former President Marcos are engaging in rebellion
or that he is in a position to lead them. Neither is it claimed that there is a need to suspend the privilege of the writ of
habeas corpus or proclaim martial law because of the arrival of Mr. Marcos and his family. To be sure, there may be
disturbances but not of a magnitude as would compel this Court to resort to a doctrine of non- justiceability and to ignore
a plea for the enforcement of an express Bill of Rights guarantee.

The respondents themselves are hard-pressed to state who or what constitutes a Marcos "loyalist." The constant
insinuations that the "loyalist" group is heavily funded by Mr. Marcos and his cronies and that the "loyalists" engaging in
rallies and demonstrations have to be paid individual allowances to do so constitute the strongest indication that the hard
core "loyalists" who would follow Marcos right or wrong are so few in number that they could not possibly destabilize the
government, much less mount a serious attempt to overthrow it.

Not every person who would allow Mr. Marcos to come home can be tagged a "loyalist." It is in the best of Filipino
customs and traditions to allow a dying person to return to his home and breath his last in his native surroundings. Out of
the 103 Congressmen who passed the House resolution urging permission for his return, there are those who dislike Mr.
Marcos intensely or who suffered under his regime. There are also many Filipinos who believe that in the spirit of national
unity and reconciliation Mr. Marcos and his family should be permitted to return to the Philippines and that such a return
would deprive his fanatic followers of any further reason to engage in rallies and demonstrations.

The Court, however, should view the return of Mr. Marcos and his family solely in the light of the constitutional
guarantee of liberty of abode and the citizen's right to travel as against the respondents' contention that national security
and public safety would be endangered by a grant of the petition.

Apart from the absence of any text in the Constitution committing the issue exclusively to the President, there is likewise
no dearth of decisional data, no unmanageable standards which stand in the way of a judicial determination.

Section 6 of the Bill of Rights states categorically that the liberty of abode and of changing the same within the limits
prescribed by law may be impaired only upon a lawful order of a court. Not by an executive officer. Not even by the
President. Section 6 further provides that the right to travel, and this obviously includes the right to travel out of or back
into the Philippines, cannot be impaired except in the interest of national security, public safety, or public health, as may
be provided by law.

There is no law setting the limits on a citizen's right to move from one part of the country to another or from the
Philippines to a foreign country or from a foreign country to the Philippines. The laws cited by the Solicitor General
immigration, health, quarantine, passports, motor vehicle, destierro probation, and parole are all inapplicable insofar as the
return of Mr. Marcos and family is concerned. There is absolutely no showing how any of these statutes and regulations
could serve as a basis to bar their coming home.

There is also no disrespect for a Presidential determination if we grant the petition. We would simply be applying the
Constitution, in the preservation and defense of which all of us in Government, the President and Congress included, are
sworn to participate. Significantly, the President herself has stated that the Court has the last word when it comes to
constitutional liberties and that she would abide by our decision.

As early as 1983, it was noted that this Court has not been very receptive to the invocation of the political question
doctrine by government lawyers. (See Morales, Jr. .v Ponce Enrile, 121 SCRA 538 [1983]).
Many of those now occupying the highest positions in the executive departments, Congress, and the judiciary criticized
this Court for using what they felt was a doctrine of convenience, expediency, utility or subservience. Every major
challenge to the acts of petitioner Ferdinand E. Marcos under his authoritarian regime the proclamation of martial law, the
ratification of a new constitution, the arrest and detention of "enemies of the State" without charges being filed against
them, the dissolution of Congress and the exercise by the President of legislative powers, the trial of civilians for civil
offenses by military tribunals, the seizure of some of the country's biggest corporations, the taking over or closure of
newspaper offices, radio and television stations and other forms of media, the proposals to amend the Constitution, etc.
was invariably met by an invocation that the petition involved a political question. It is indeed poetic justice that the
political question doctrine so often invoked by then President Marcos to justify his acts is now being used against him and
his family. Unfortunately, the Court should not and is not allowed to indulge in such a persiflage. We are bound by the
Constitution.

The dim view of the doctrine's use was such that when the present Constitution was drafted, a broad definition of judicial
power was added to the vesting in the Supreme Court and statutory courts of said power.

The second paragraph of Section 1, Article VIII of the Constitution provides:

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.

This new provision was enacted to preclude this Court from using the political question doctrine as a means to avoid
having to make decisions simply because they are too controversial, displeasing to the President or Congress, inordinately
unpopular, or which may be ignored and not enforced.

The framers of the Constitution believed that the free use of the political question doctrine allowed the Court during the
Marcos years to fall back on prudence, institutional difficulties, complexity of issues, momentousness of consequences or
a fear that it was extravagantly extending judicial power in the cases where it refused to examine and strike down an
exercise of authoritarian power. Parenthetically, at least two of the respondents and their counsel were among the most
vigorous critics of Mr. Marcos (the main petitioner) and his use of the political question doctrine. The Constitution was
accordingly amended. We are now precluded by its mandate from refusing to invalidate a political use of power through a
convenient resort to the question doctrine. We are compelled to decide what would have been non-justiceable under our
decisions interpreting earlier fundamental charters.

This is not to state that there can be no more political questions which we may refuse to resolve. There are still some
political questions which only the President, Congress, or a plebiscite may decide. Definitely, the issue before us is not
one of them.

The Constitution requires the Court "to determine whether or not there has been a grave abuse of discretion amounting to
lack or excess of jurisdiction."

How do we determine a grave abuse of discretion?

The tested procedure is to require the parties to present evidence. Unfortunately, considerations of national security do not
readily lend themselves to the presentation of proof before a court of justice. The vital information essential to an
objective determination is usually highly classified and it cannot be rebutted by those who seek to overthrow the
government. As early as Barcelon v. Baker (5 Phil. 87, 93 [19051), the Court was faced with a similar situation. It posed a
rhetorical question. If after investigating conditions in the Archipelago or any part thereof, the President finds that public
safety requires the suspension of the privilege of the writ of habeas corpus, can the judicial department investigate the
same facts and declare that no such conditions exist?

In the effort to follow the "grave abuse of discretion" formula in the second paragraph of Section 1, Article VIII of the
Constitution, the court granted the Solicitor General's offer that the military give us a closed door factual briefing with a
lawyer for the petitioners and a lawyer for the respondents present.
The results of the briefing call to mind the concurrence of Justice Vicente Abad Santos in Morales, Jr. v. Enrile, (121
SCRA 538, 592 [19831):

How can this Court determine the factual basis in order that it can ascertain whether or not the president
acted arbitrarily in suspending the writ when, in the truth words of Montenegro, with its very limited
machinery fit] cannot be in better position [than the Executive Branch] to ascertain or evaluate the
conditions prevailing in the Archipelago? (At p. 887). The answer is obvious. It must rely on the
Executive Branch which has the appropriate civil and military machinery for the facts. This was the
method which had to be used in Lansang. This Court relied heavily on classified information supplied by
the military. Accordingly, an incongruous situation obtained. For this Court, relied on the very branch of
the government whose act was in question to obtain the facts. And as should be expected the Executive
Branch supplied information to support its position and this Court was in no situation to disprove them. It
was a case of the defendant judging the suit. After all is said and done, the attempt by its Court to
determine whether or not the President acted arbitrarily in suspending the writ was a useless and futile
exercise.

There is still another reason why this Court should maintain a detached attitude and refrain from giving
the seal of approval to the act of the Executive Branch. For it is possible that the suspension of the writ
lacks popular support because of one reason or another. But when this Court declares that the suspension
is not arbitrary (because it cannot do otherwise upon the facts given to it by the Executive Branch) it in
effect participates in the decision-making process. It assumes a task which it is not equipped to handle; it
lends its prestige and credibility to an unpopular act.

The other method is to avail of judicial notice. In this particular case, judicial notice would be the only basis for
determining the clear and present danger to national security and public safety. The majority of the Court has taken
judicial notice of the Communist rebellion, the separatist movement, the rightist conspiracies, and urban terrorism. But is
it fair to blame the present day Marcos for these incidents? All these problems are totally unrelated to the Marcos of today
and, in fact, are led by people who have always opposed him. If we use the problems of Government as excuses for
denying a person's right to come home, we will never run out of justifying reasons. These problems or others like them
will always be with us.

Significantly, we do not have to look into the factual bases of the ban Marcos policy in order to ascertain whether or not
the respondents acted with grave abuse of discretion. Nor are we forced to fall back upon judicial notice of the
implications of a Marcos return to his home to buttress a conclusion.

In the first place, there has never been a pronouncement by the President that a clear and present danger to national
security and public safety will arise if Mr. Marcos and his family are allowed to return to the Philippines. It was only after
the present petition was filed that the alleged danger to national security and public safety conveniently surfaced in the
respondents' pleadings. Secondly, President Aquino herself limits the reason for the ban Marcos policy to-41) national
welfare and interest and (2) the continuing need to preserve the gains achieved in terms of recovery and stability. (See
page 7, respondents' Comment at page 73 of Rollo). Neither ground satisfies the criteria of national security and public
safety. The President has been quoted as stating that the vast majority of Filipinos support her position. (The Journal,
front page, January 24,1989) We cannot validate their stance simply because it is a popular one. Supreme Court decisions
do not have to be popular as long as they follow the Constitution and the law. The President's original position "that it is
not in the interest of the nation that Marcos be allowed to return at this time" has not changed. (Manila Times, front page,
February 7, 1989). On February 11, 1989, the President is reported to have stated that "considerations of the highest
national good dictate that we preserve the substantial economic and political gains of the past three years" in justifying her
firm refusal to allow the return of Mr. Marcos despite his failing health. (Daily Globe, front page, February 15, 1989).
"Interest of the nation national good," and "preserving economic and political gains," cannot be equated with national
security or public order. They are too generic and sweeping to serve as grounds for the denial of a constitutional right. The
Bill of Rights commands that the right to travel may not be impaired except on the stated grounds of national security,
public safety, or public health and with the added requirement that such impairment must be "as provided by law." The
constitutional command cannot be negated by mere generalizations.

There is an actual rebellion not by Marcos followers but by the New Peoples' Army. Feeding as it does on injustice,
ignorance, poverty, and other aspects at under-development, the Communist rebellion is the clearest and most present
danger to national security and constitutional freedoms. Nobody has suggested that one way to quell it would be to catch
and exile its leaders, Mr. Marcos himself was forced to flee the country because of "peoples' power." Yet, there is no
move to arrest and exile the leaders of student groups, teachers' organizations, pea ant and labor federations, transport
workers, and government unions whose threatened mass actions would definitely endanger national security and the
stability of government. We fail to see how Mr. Marcos could be a greater danger.

The fear that Communist rebels, Bangsa Moro secessionists, the Honasan ex-soldiers, the hard core loyalists, and other
dissatisfied elements would suddenly unite to overthrow the Republic should a dying Marcos come home is too
speculative and unsubstantial a ground for denying a constitutional right. It is not shown how extremists from the right
and the left who loathe each other could find a rallying point in the coming of Mr. Marcos.

The "confluence theory" of the Solicitor General or what the majority calls "catalytic effect," which alone sustains the
claim of danger to national security is fraught with perilous implications. Any difficult problem or any troublesome
person can be substituted for the Marcos threat as the catalysing factor. The alleged confluence of NPAS, secessionists,
radical elements, renegade soldiers, etc., would still be present. Challenged by any critic or any serious problem, the
Government can state that the situation threatens a confluence of rebel forces and proceed to ride roughshod over civil
liberties in the name of national security. Today, a passport is denied. Tomorrow, a newspaper may be closed. Public
assemblies may be prohibited. Human rights may be violated. Yesterday, the right to travel of Senators Benigno Aquino,
Jr. and Jovito Salonga was curtailed. Today, it is the right of Mr. Marcos and family. Who will be tomorrow's pariahs I
deeply regret that the Court's decision to use the political question doctrine in a situation where it does not apply raises all
kinds of disturbing possibilities.

I must emphasize that General Renato de Villa, the Chief of Staff of the Armed Forces, has personally assured the Court
that a rebellion of the above combined groups will not succeed and that the military is on top of the situation. Where then
is the clear danger to national security? The Court has taken judicial notice of something which even the military denies.
There would be severe strains on military capabilities according to General de Villa. There would be set-backs in the
expected eradication of the Communist threat. There would be other serious problems but all can be successfully
contained by the military. I must stress that no reference was made to a clear and present danger to national security as
would allow an overriding of the Bill of Rights.

The Solicitor General's argument that the failure of Congress to enact a statute defining the parameters of the right to
travel and to freely choose one's abode has constrained the President to fill in the vacuum, is too reminiscent of
Amendment No. 6 of the martial law Constitution to warrant serious consideration. Amendment No. 6 allowed Marcos to
issue decrees whenever the Batasang Pambansa failed or was unable to act adequately on any matter for any reason that in
his judgment required immediate action. When the Bill of Rights provides that a right may not be impaired except in the
interest of national security, public safety, or public health and further requires that a law must provide when such
specifically defined interests are prejudiced or require protection, the inaction of Congress does not give reason for the
respondents to assume the grounds for its impairment.

The fact that the Marcoses have been indicted before American federal courts does not obstruct us from ruling against an
unconstitutional assertion of power by Philippine officials. Let the United States apply its laws. We have to be true to our
own.

Mr. Marcos may be too ill to withstand the rigors of a transpacific flight. The agony of traveling while hooked up to
machines which have taken over the functions of his heart, lungs, and kidneys may hasten his death. The physical
condition of Mr. Marcos does not justify our ignoring or refusing to act on his claim to a basic right which is legally
demandable and enforceable. For his own good, it might be preferable to stay where he is. But he invokes a constitutional
right. We have no power to deny it to him.

The issuance of a passport may be discretionary but it should not be withheld if to do so would run counter to a
constitutional guarantee. Besides, the petitioners are not asking for passports and nothing else. Any travel documents or
any formal lifting of the Marcos ban as would allow international airlines to sell them tickets would suffice.

With all due respect for the majority opinion, I disagree with its dictum on the right to travel. I do not think we should
differentiate the right to return home from the right to go abroad or to move around in the Philippines. If at all, the right to
come home must be more preferred than any other aspect of the right to travel. It was precisely the banning by Mr.
Marcos of the right to travel by Senators Benigno Aquino, Jr., Jovito Salonga, and scores of other "undesirables" and
"threats to national security" during that unfortunate period which led the framers of our present Constitution not only to
re-enact but to strengthen the declaration of this right. Media often asks, "what else is new?" I submit that we now have a
freedom loving and humane regime. I regret that the Court's decision in this case sets back the gains that our country has
achieved in terms of human rights, especially human rights for those whom we do not like or those who are against us.

The respondent Secretary of Foreign Affairs, Raul S. Manglapus has disclosed a list of former dictators who were barred
by their successors from returning to their respective countries. There is no showing that the countries involved have
constitutions which guarantee the liberty of abode and the freedom to travel and that despite such constitutional
protections, the courts have validated the "ban a return" policy. Neither is it shown that the successors of the listed
dictators are as deeply committed to democratic principles and as observant of constitutional protections as President
Aquino.

It is indeed regrettable that some followers of the former President are conducting a campaign to sow discord and to
divide the nation. Opposition to the government no matter how odious or disgusting is, however, insufficient ground to
ignore a constitutional guarantee.

During the protracted deliberations on this case, the question was asked is the Government helpless to defend itself against
a threat to national security? Does the President have to suspend the privilege of the writ of habeas corpus or proclaim
martial law? Can she not take less drastic measures?

Of course, the Government can act. It can have Mr. Marcos arrested and tried in court. The Government has more than
ample powers under eixisting law to deal with a person who transgresses the peace and imperils public safety. But the
denial of travel papers is not one of those powers because the Bill of Rights says so. There is no law prescribing exile in a
foreign land as the penalty for hurting the Nation.

Considering all the foregoing, I vote to GRANT the petition.

CRUZ, J., dissenting:

It is my belief that the petitioner, as a citizen of the Philippines, is entitled to return to and live-and die-in his own country.
I say this with a heavy heart but say it nonetheless. That conviction is not diminished one whit simply because many
believe Marcos to be beneath contempt and undeserving of the very liberties he flounted when he was the absolute ruler of
this land.

The right of the United States government to detain him is not the question before us, nor can we resolve it. The question
we must answer is whether or not, assuming that Marcos is permitted to leave Hawaii (which may depend on the action
we take today), the respondents have acted with grave abuse of discretion in barring him from his own country.

My reluctant conclusion is that they have, absent the proof they said they were prepared to offer, but could not, that the
petitioner's return would prejudice the security of the State.

I was the one who, in the open hearing held on June 27,1989, asked the Solicitor General if the government was prepared
to prove the justification for opposing the herein petition, i. that it had not acted arbitrarily. He said it was. Accordingly,
the Court, appreciating the classified nature of the information expected, scheduled a closed-door hearing on July
25,1988. The Solicitor General and three representatives from the military appeared for the respondents, together with
former Senator Arturo M. Tolentino, representing the petitioners.

In about two hours of briefing, the government failed dismally to show that the return of Marcos dead or alive would pose
a threat to the national security as it had alleged. The fears expressed by its representatives were based on mere
conjectures of political and economic destabilization without any single piece of concrete evidence to back up their
apprehensions.

Amazingly, however, the majority has come to the conclusion that there exist "factual bases for the President's decision"
to bar Marcos's return. That is not my recollection of the impressions of the Court after that hearing.
In holding that the President of the Philippines has residual powers in addition to the specific powers granted by the
Constitution, the Court is taking a great leap backward and reinstating the discredited doctrine announced in Planas v. Gil
(67 Phil. 62). This does not square with the announced policy of the Constitutional Commission, which was precisely to
limit rather than expand presidential powers, as a reaction to the excesses of the past dictatorship.

I can only repeat Justice Black's wry observation in the Steel Seizure Case (343 U.S. 579) that if it was true that the
President had been granted the totality of executive power, "it is difficult to see why our forefathers bothered to add
several specific items, including some trifling ones, . . . I cannot accept the view that this clause is a grant in bulk of all
conceivable executive power but regard it as an allocation to the presidential office of the generic powers thereafter
stated."

I have no illusion that the stand I am taking will be met with paeans of praise, considering that Marcos is perhaps the most
detested man in the entire history of our country. But we are not concerned here with popularity and personalities. As a
judge, I am not swayed by what Justice Cardozo called the "hooting throng" that may make us see things through the
prisms of prejudice. I bear in mind that when I sit in judgment as a member of this Court, I must cast all personal feelings
aside.

The issue before us must be resolved with total objectivity, on the basis only of the established facts and the applicable
law and not of wounds that still fester and scars that have not healed. And not even of fear, for fear is a phantom. That
phantom did not rise when the people stood fast at EDSA against the threat of total massacre in defense at last of their
freedom.

I cannot turn back on the lessons of liberty that I taught for more than three decades as a professor of Constitutional Law.
These principles have not changed simply because I am now on the Court or a new administration is in power and the
shoe is on the other foot.

Like the martyred Ninoy Aquino who also wanted to come back to the Philippines against the prohibitions of the
government then, Marcos is entitled to the same right to travel and the liberty of abode that his adversary invoked. These
rights are guaranteed by the Constitution to all individuals, including the patriot and the homesick and the prodigal son
returning, and tyrants and charlatans and scoundrels of every stripe.

I vote to grant the petition.

PARAS, J., dissenting:

I dissent. Already, some people refer to us as a nation without discipline. Are we ready to be also called a society without
compassion?

The issue as to whether or not former President Ferdinand E. Marcos should be allowed to return to the Philippines may
be resolved by answering two simple questions: Does he have the right to return to his own country and should national
safety and security deny him this right?

There is no dispute that the former President is still a Filipino citizen and both under the Universal Declaration of Human
Rights and the 1987 Constitution of the Philippines, he has the right to return to his own country except only if prevented
by the demands of national safety and national security.

Our Armed Forces have failed to prove this danger. They are bereft of hard evidence, and all they can rely on is sheer
speculation. True, there is some danger but there is no showing as to the extent.

It is incredible that one man alone together with his family, who had been ousted from this country by popular will, can
arouse an entire country to rise in morbid sympathy for the cause he once espoused.

It is therefore clear to me, all other opinions to the contrary notwithstanding, that the former President should be allowed
to return to our country under the conditions that he and the members of his family be under house arrest in his hometown
in Ilocos Norte, and should President Marcos or any member of his family die, the body should not be taken out of the
municipality of confinement and should be buried within ten (10) days from date.

If we do this, our country shall have maintained its regard for fundamental human rights, for national discipline, and for
human compassion.

PADILLA, J., dissenting:

I dissent. As I see it, the core issue in this case is, which right will prevail in the conflict between the right of a Filipino,
Ferdinand E. Marcos, to return to the Philippines, and the right of the Philippine Government to bar such return in the
interest of national security and public safety. In this context, the issue is clearly justiciable involving, as it does, colliding
assertions of individual right and governmental power. Issues of this nature more than explain why the 1986
Constitutional Commission, led by the illustrious former Chief Justice Roberto Concepcion, incorporated in the 1987
Constitution, the new provision on the power of Judicial Review, viz:

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. Article VIII, Section 1, par. 2; (Emphasis supplied)

Mr. Marcos invokes in his favor the specific and precise constitutional right of every Filipino to travel which, in the
language of the Constitution, shall not be impaired "except in the interest of national security, public safety, or public
health, as may be provided by law" (Art. III, Sec. 6). That the right to travel comprises the right to travel within the
country, to travel out of the country and to return to the country (Philippines), is hardly disputable. Short of all such
components, the right to travel is meaningless. The real question arises in the interpretation of the qualifications attached
by the Constitution to such right to travel.

Petitioners contend that, in the absence of restricting legislation, the right to travel is absolute. I do not agree. It is my
view that, with or without restricting legislation, the interest of national security, public safety or public health can justify
and even require restrictions on the right to travel, and that the clause "as may be provided by law" contained in Article
III, Section 6 of the 1987 Constitution merely declares a constitutional leave or permission for Congress to enact laws that
may restrict the right to travel in the interest of national security, public safety or public health. I do not, therefore, accept
the petitioners' submission that, in the absence of enabling legislation, the Philippine Government is powerless to restrict
travel even when such restriction is demanded by national security, public safety or public health, The power of the State,
in particular cases, to restrict travel of its citizens finds abundant support in the police power of the state wich may be
exercised to preserve and maintain government as well as promote the general welfare of the greatest number of people.

And yet, the power of the State, acting through a government in authority at any given time, to restrict travel, even if
founded on police power, cannot be absolute and unlimited under all circumstances, much less, can it be arbitrary and
irrational.

Mr. Marcos, I repeat, comes before the Court as a Filipino, invoking a specific constitutional right, i.e., the right to return
to the country. 1 Have the respondents presented sufficient evidence to offset or override the exercise of this right invoked
by Mr. Marcos? Stated differently, have the respondents shown to the Court sufficient factual bases and data which would
justify their reliance on national security and public safety in negating the right to return invoked by Mr. Marcos?

I have given these questions a searching examination. I have carefully weighed and assessed the "briefing" given the
Court by the highest military authorities of the land last 28 July 1989. 1 have searched, but in vain, for convincing
evidence that would defeat and overcome the right of Mr. Marcos as a Filipino to return to this country. It appears to me
that the apprehensions entertained and expressed by the respondents, including those conveyed through the military, do
not, with all due respect, escalate to proportions of national security or public safety. They appear to be more speculative
than real, obsessive rather than factual. Moreover, such apprehensions even if translated into realities, would be "under
control," as admitted to the Court by said military authorities, given the resources and facilities at the command of
government. But, above all, the Filipino people themselves, in my opinion, will know how to handle any situation brought
about by a political recognition of Mr. Marcos' right to return, and his actual return, to this country. The Court, in short,
should not accept respondents' general apprehensions, concerns and perceptions at face value, in the light of a
countervailing and even irresistible, specific, clear, demandable, and enforceable right asserted by a Filipino.

Deteriorating political, social, economic or exceptional conditions, if any, are not to be used as a pretext to justify
derogation of human rights. 2

As a member of the United Nations, the Philippines has obligations under its charter. By adopting the generally accepted
principles of international law as part of the law of the land, (Art. II, Sec. 2 of the Constitution), the Philippine
government cannot just pay lip service to Art. 13, par. 2 of the Universal Declaration of Human Rights which provides
that everyone has the right to leave any country, including his own, and to return to his country. This guarantee is
reiterated in Art. XII, par. 2 of the International Covenant on Civil and Political Rights which states that "no one shall be
arbitrarily deprived of the right to enter his own country." (Emphasis supplied) "Arbitrary" or "arbitrarily" was
specifically chosen by the drafters of the Covenant 3 hoping to protect an individual against unexpected, irresponsible or
excessive encroachment on his rights by the state based on national traditions or a particular sense of justice which falls
short of international law or standards. 4

The Solicitor General maintains that because the respondents, as alter egos of the President, have raised the argument of
"national security" and "public safety," it is the duty of this Court to unquestioningly yield thereto, thus casting the
controversy to the realm of a political question. I do not agree. I believe that it is one case where the human and
constitutional light invoked by one party is so specific, substantial and clear that it cannot be overshadowed, much less,
nullified by simplistic generalities; worse, the Court neglects its duty under the Constitution when it allows the theory of
political question to serve as a convenient, and yet, lame excuse for evading what, to me, is its clearly pressing and
demandable duty to the Constitution.

During the oral arguments in this case, I asked the Solicitor General how one could validly defend the right of former
Senator Benigno S. Aquino, Jr., a Filipino, to return to the Philippines in 1983 and, at the same time, credibly deny the
right of Mr. Marcos, also a Filipino, to return to the Philippines in 1989. I still have not found a satisfactory answer to that
question. Instead, it has become clearer by the day that the drama today is the same drama in 1983 with the only
difference that the actors are in opposite roles, which really makes one hope, in the national interest, that the mistake in
1983 should not be made to persist in 1989.

To one who owes Mr. Marcos, his wife and followers absolutely nothing, personal, political or otherwise, the following
are the cogent and decisive propositions in this case-

1. Mr. Marcos is a Filipino and, as such, entitled to return to die and be buried in this country;

2. respondents have not shown any "hard evidence" or con- vincing proof why his right as a Filipino to
return should be denied him. All we have are general conclusions of "national security" and "public
safety" in avoidance of a specific demandable and enforceable constitutional and basic human right to
return;

3. the issue of Marcos' return to the Philippines, perhaps more than any issue today, requires of all
members of the Court, in what appears to be an extended political contest, the "cold neutrality of an
impartial judge." It is only thus that we fortify the independence of this Court, with fidelity, not to any
person, party or group but to the Constitution and only to the Constitution.

ACCORDINGLY, I vote to GRANT the petition.

SARMIENTO, J., dissenting:

I vote to grant the petition.

The only issue that saddles the Court is simply: "whether or not, in the exercise of the powers granted by the Constitution,
the President may prohibit the Marcoses from returning to the Philippines." 1 I therefore take exception to allusions 2 anent
"the capacity of the Marcoses to stir trouble even from afar." 3 I have legitimate reason to fear that my brethren, in passing
judgment on the Marcoses (insofar as their "capacity to stir trouble" is concerned), have overstepped the bounds of
judicial restraint, or even worse, convicted them without trial.

I also find quite strained what the majority would have as the "real issues" facing the Court: "The right to return to one's
country," pitted against "the right of travel and freedom of abode", and their supposed distinctions under international law,
as if such distinctions, under international law in truth and in fact exist. There is only one right involved here, whether
under municipal or international law: the light of travel, whether within one's own country, or to another, and the right to
return thereto. The Constitution itself makes no distinctions; let then, no one make a distinction. Ubi lex non distinguish
nec nos distinguere debemus.

As the majority would indeed have it, the issue is one of power: Does the Executive have the power to deny a citizen his
right to travel (back to the country or to another)? It is a question that, in essence, involves the application, and no more,
of the provisions of the 1987 Constitution:

Sec. 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. 4

The majority says, with ample help from American precedents, that the President is possessed of the power, thus:

On these premises, we hold the view that although the 1987 Constitution imposes limitations on the
exercise of specific powers of the President, it maintains intact what is traditionally considered as within
the scope of "executive power." Corollarily, the powers of the President cannot be said to be limited only
to the specific powers enumerated in the Constitution. In other words, executive power is more than the
sum of specific powers so enumerated. 5

So also:

Faced with the problem of whether or not the time is right to allow the Marcoses to return to the
Philippines, the President is, under the Constitution, constrained to consider these basic principles in
arriving at a decision. More than that, having sworn to defend and uphold the Constitution, the President
has the obligation under the Constitution to protect the people, promote their welfare and advance the
national interest. It must be borne in mind that the Constitution, aside from being an allocation of power
is also a social contract whereby the people have surrendered their sovereign powers to the State for the
common good. Hence, lest the officers of the Government exercising the powers delegated by the people
forget and the servants of the people become rulers, the Constitution reminds everyone that "sovereignty
resides in the people and all government authority emanates from them." [Art. II, Sec. 1 . ] 6

And finally:

To the President, the problem is one of balancing the general welfare and the common good against the
exercise of rights of certain individuals. The power involved is the President's residual power to protect
the general welfare of the people. It is founded on the duty of the President, as steward of the people. To
paraphrase Theodore Roosevelt, it is not only the power of the President but also his duty to do anything
not forbidden by the Constitution or the laws that the needs of the nation demanded [See Corwin, supra,
at 153]. It is a power borne by the President's duty to preserve and defend the Constitution. It also may be
viewed as a power implicit in the President's duty to take care that the laws are faithfully executed [See
Hyman, The American President, where the author advances the view that an allowance of discretionary
power is unavoidable in any government and is best lodged in the President]. 7

I am not persuaded.

I
First: While the Chief Executive exercises powers not found expressly in the Charter, but has them by constitutional
implication* the latter must yield to the paramountcy of the Bill of Rights. According to Fernando: "A regime of
constitutionalism is thus unthinkable without an assurance of the primacy of a big of rights. Precisely a constitution exists
to assure that in the discharge of the governmental functions, the dignity that is the birthright of every human being is duly
safeguarded. To be true to its primordial aim a constitution must lay down the boundaries beyond which he's forbidden
territory for state action" 8

My brethren have not demonstrated, to my satisfaction, how the President may override the direct mandate of the
fundamental law. It will not suffice, so I submit, to say that the President's plenitude of powers, as provided in the
Constitution, or by sheer constitutional implication, prevail over express constitutional commands. "Clearly," so I borrow
J.B.L. Reyes, in Ms own right, a titan in the field of public law, "this argument ... rests ... not upon the text of the
(Constitution] ... but upon a mere inference therefrom." 9 For if it were, indeed, the intent of the Charter to create an
exception, that is, by Presidential action, to the right of travel or liberty of abode and of changing the same other than what
it explicitly says already ("limits prescribed by law" 10 or "upon lawful order of the court" 11 the Charter could have
specifically declared so. As it is, the lone deterrents to the right in question are: (1) decree of statute, or (2) lawful judicial
mandate. Had the Constitution intended a third exception, that is, by Presidential initiative, it could have so averred. It
would also have made the Constitution, as far as limits to the said right are concerned, come full circle: Limits by
legislative, judicial, and executive processes.

Obviously, none of the twin legal bars exist. There is no law banning the Marcoses from the country; neither is there any
court decree banishing him from Philippine territory.

It is to be noted that under the 1973 Constitution, the right to travel is worded as follows:

Sec. 5. 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. 12

Under this provision, the right may be abated: (1) upon a lawful court order, or (2) "when necessary in the interest of
national security, public safety, or public health. 13 Arguably, the provision enabled the Chief Executive (Marcos) to
moderate movement of citizens, which, Bernas says, justified such practices as "hamletting", forced relocations, or the
establishment of free-fire zones. 14

The new Constitution, however, so it clearly appears, has divested the Executive's implied power. And, as it so appears,
the right may be impaired only "within the limits provided by law . 15 The President is out of the picture.

Admittedly, the Chief Executive is the "sole" judge of all matters affecting national security 16 and foreign affairs; 17 the
Bill of Rights precisely, a form of check against excesses of officialdom is, in this case, a formidable barrier against
Presidential action. (Even on matters of State security, this Constitution prescribes limits to Executive's powers as
Commander-in-Chief.)

Second: Assuming, ex hypothesis that the President may legally act, the question that emerges is: Has it been proved that
Marcos, or his return, will, in fact, interpose a threat to the national security , public safety, or public health?" What
appears in the records are vehement insistences that Marcos does pose a threat to the national good and yet, at the same
time, we have persistent claims, made by the military top brass during the lengthy closed-door hearing on July 25, 1989,
that "this Government will not fall" should the former first family in exile step on Philippine soil. which is which?

At any rate, it is my opinion that we can not leave that determination solely to the Chief Executive. The Court itself must
be content that the threat is not only clear, but more so, present. 18

That the President "has the obligation under the Constitution to protect the people ... " 19 is an obligation open to no doubt.
But the question, and so I ask again and again, is: From whom? If we say "from Marcos," we unravel chinks in our
political armor. It also flies in the face of claims, so confidently asserted, that "this Government will not fall" even if we
allowed Marcos to return.
It flies, finally, in the face of the fact that a good number of the henchmen trusted allies, implementors of martial law, and
pathetic parasites of the ex-first couple are, in fact, in the Government, in the comfort of its offices, and or at the helm of
its key agencies. Let us not, therefore, joke ourselves of moral factors warranting the continued banishment of Marcos.
Morality is the last refuge of the self-righteous.

Third: The problem is not of balancing the general welfare against the exercise of individual liberties. 20 As I indicated,
not one shred of evidence, let alone solid evidence, other than surmises of possibilities, has been shown to justify the
'balancing act" referred to. Worse, these conjectures contradict contentions that as far as Philippine society is concerned,
Marcos is "history".

The power of the President, so my brethren declaim, "calls for the exercise of the President's power as protector of peace.
21

This is the self-same falsehood Marcos foisted on the Filipino people to justify the authoritarian rule. It also means that we
are no better than he has.

That "[t]he power of the President to keep the peace is not limited merely to exercising the commander-in-chief powers in
times of emergency or to leading the State against external and internal threats to its existence" 22 is a bigger fantasy: It not
only summons the martial law decisions of pre-"EDSA" (especially with respect to the detestable Amendment No. 6), it is
inconsistent with the express provisions of the commander-in-chief clause of the 1987 Charter, a Charter that has
perceptibly reduced the Executive's powers vis-a-vis its 1973 counterpart. 23

II.

The undersigned would be lacking in candor to conceal his dislike, to say the least, for Marcos. Because of Marcos, the
writer of it's dissent lost a son His son's only "offense" was that he openly and unabatedly criticized the dictator, his
associates, and his military machinery. He would pay dearly for it; he was arrested and detained, without judicial warrant
or decision, for seven months and seven days. He was held incommunicado a greater part of the time, in the military
stockade of Camp Crame. In his last week in detention, he was, grudgingly, hospitalized (prison hospital) and confined for
chronic asthma. The deplorable conditions of his imprisonment exacerbated his delicate health beyond cure. He died, on
November 11, 1977, a martyr on the altar of the martial law apparatus.

The undersigned also counts himself as one of the victims of Marcos' ruthless apparatchiki. On August 14, 1979, he was,
along with former President Diosdado Macapagal, and Congressmen Rogaciano Mercado and Manuel Concordia,
charged, "ASSOed"and placed under house arrest, for "inciting to sedition" and "rumor mongering " 24 in the midst of the
distribution of Ang Demokrasya Sa Pilipinas (Democracy In the Philippines), a book extremely critical of martial rule,
published by him and former Congressman Concordia, authored by President Macapagal and translated into Tagalog by
Congressman Rogaciano Mercado. In addition, they were also all accused of libel in more than two dozens of criminal
complaints filed by the several military officers named in the "condemned" book as having violated the human rights of
dissenters, and for other crimes, in the office of the Provincial Fiscal of Rizal. It had to take the events at "EDSA" to set
them free from house arrest and these political offenses. I am for Marcos' return not because I have a score to settle with
him. Ditto's death or my arrest are scores that can not be settled.

I feel the ex-President's death abroad (presented in the dailies as 'imminent") would leave him 'unpunished for Ms crimes
to country and countrymen. If punishment is due, let this leadership inflict it. But let him stand trial and accord him due
process.

Modesty aside, I have staunchly and consistently advocated the human right of travel and movement and the liberty of
abode. 25 We would have betrayed our own Ideals if we denied Marcos his rights. It is his constitutional right, a right that
can not be abridged by personal hatred, fear, founded or unfounded, and by speculations of the "man's "capacity" "to stir
trouble" Now that the shoe is on the other foot, let no more of human rights violations be repeated against any one, friend
or foe. In a democratic framwork, there is no this as getting even.

The majority started this inquiry on the question of power. I hold that the President, under the present Constitution and
existing laws, does not have it. Mandamus, I submit, lies.
Narvasa, Melencio-Herrera, Gancayco, Griño- Aquino, Medialdea and Regalado, JJ., concur.

PEOPLE V. ZOSIMO CRISOLOGO, alias "AMANG" (PADILLA, J.)

Appeal from a decision of the CFI of Davao del Sur in Criminal Case No. 92 (76) convicting the defendant of robbery with homicide,
sentencing him to the death penalty, and ordering him to indemnity the heirs of Martin Francisco the sums of P35,000.00 for loss of
life, P25,000.00 for funeral expenses, P30,000.00 for loss of earnings and P20,000.00 for moral damages.

On 5 May 1976, a criminal complaint was filed by the Station Commander with the Municipal Court of Magsaysay,
Davao del Sur against the accused Zosimo Crisologo alias "Amang," a deaf-mute, for robbery and homicide alleged to
have been committed on 1 May 1976 between ten to eleven o'clock in the evening in Calamagoy, Poblacion Magsaysay,
Davao del Sur.

The following information was subsequently filed by the Provincial Fiscal against the accused on 16 September 1977:
That on or about the 1st day of May, 1976, in the Municipality of Magsaysay, Province of Davao del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, armed with a bladed weapon,
with violence against and intimidation upon persons, and with intent of gain, did then and there wilfully, unlawfully and
feloniously rob Martin Francisco of one (1) "Seiko 5 Actus" wrist watch valued at Four Hundred (P400.00) Pesos and a
two battery flashlight valued at Thirty (P30.00) Pesos in the total amount of Four Hundred Thirty (P430.00) Pesos, to the
damage and prejudice of the said owner in the amount aforesaid and on the same occasion, the above-named accused,
with intent to kill wilfully, unlawfully and feloniously attack[ed] and stab[bed] the said Martin Francisco with the same
bladed weapon, thereby inflicting upon him wounds which caused his death.
CONTRARY TO LAW with the aggravating circumstance of:
(a) disregard of the respect due the offended party on account of his age; and
(b) night time.
Digos, Davao del Sur, Philippines, September 15, 1977.

On 12 December 1977, arraignment was set. The accused was allegedly informed of the charge against him through sign
language by Special Policeman Alejandro Munoz a childhood acquaintance. Mr. Munoz subsequently entered a plea of
guilty on behalf of the accused. Upon objection of counsel, however, this plea was disregarded and arraignment was
rescheduled until such time as the Court could avail of the services of an expert in the sign language from the school of
the deaf and dumb.

On 26 June 1979 the Court through another presiding judge, upon insistent plea of defense counsel for a sign language
expert to assist the accused, again reset arraignment as no expert in sign language was available. The School for the Deaf
and Dumb in Pasay City was sent a copy of the court order to enable it to furnish the court with an expert in sign
language. No such expert was made available.

On 9 November 1982, or after five years from the date of filing of the information, and order through still another
presiding judge was entered directing that a representative of the School of the Deaf and Dumb in Bago Gallera, Talomo
District, Davao City be availed of to enable the accused to intelligently express his understanding of a plea of guilty or not
guilty.

Apparently no sign language expert or representative ever arrived.

On 6 April 1983, the accused through a counsel de oficio waived the reading of the information and pleaded not guilty.
Trial proceeded without any evidence being presented on his part. Finally, on 10 February 1986, without the services of
an expert in sign language ever being utilized at any stage of the proceedings, the accused was found guilty beyond
reasonable doubt of robbery with homicide and sentenced to die by electrocution. Executive clemency was recommended,
however, in view of the accused's infirmity and his nearly ten-year detention as a suspect.

Counsel for the accused and the Solicitor-General now ask for the reversal of the judgment of conviction due to the failure
of the trial court to safeguard the accused's right to due process of law and the insufficiency of the purely circumstantial
evidence presented to overcome the constitutional presumption of innocence in favor of the accused.
We find their position to be well-taken.

The absence of an interpreter in sign language who could have conveyed to the accused, a deaf-mute, the full facts of the
offense with which he was charged and who could also have communicated the accused's own version of the
circumstances which led to his implication in the crime, deprived the accused of a full and fair trial and a reasonable
opportunity to defend himself. Not even the accused's final plea of not guilty can excuse these inherently unjust
circumstances.

The absence of a qualified interpreter in sign language and of any other means, whether in writing or otherwise, to inform
the accused of the charges against him denied the accused his fundamental right to due process of law. 1 The accuracy and
fairness of the factual process by which the guilt or innocence of the accused was determined was not safeguarded. The
accused could not be said to have enjoyed the right to be heard by himself and counsel, and to be informed of the nature
and cause of the accusation against him 2 in the proceedings where his life and liberty were at stake.

In Terry v. State, 3 where a deaf-mute accused of manslaughter was not provided with an interpreter despite repeated
requests from counsel, it was held: ... The Constitution of this state expressly provides that an accused has a right to be heard by
himself and counsel, also, to demand the nature and cause of the accusation; against him, and, further to be confronted by the
witnesses, who are to testify against him. In constructing this constitutional provision it needs no discussion in deciding that all this
must be done in a manner by which the accused can know, the nature and the cause of the accusation he is called upon to answer, and
all necessary means must be provided, and the law so contemplates, that the accused must not only be confronted by the witnesses
against him, but he must be accorded all necessary means to know and understand the testimony given by said witnesses, and must be
placed in a condition where he can make his plea rebut such testimony, and give his own version of the transaction upon which the
accusation is based. This the fundamental law accords, and for this the law must provide. These humane provisions must not, and
cannot, be dependent upon the ability, financial or otherwise, of the accused ... [This] constitutional right ... would be meaningless and
a vain and useless provision unless the testimony of the witnesses against him could be understood by the accused. Mere confrontation
of the witnesses would be useless, bordering upon the farcical, if the accused could not hear or understand their testimony. So, also, as
to the nature and cause of the accusation. In the absence of an interpreter it would be a physical impossibility for the accused, a deaf-
mute, to know or to understand the nature and cause of the accusation against him, and, as here, he could only stand by helplessly,
take his medicine, or whatever may be coming to him, without knowing or understanding, and all this in the teeth of the mandatory
constitutional rights which apply to an unfortunate afflicted deafmute, just as it does to every person accused of a violation of the
criminal law. In other words the physical infirmity of this appellant can in no sense lessen his rights under the Constitution, and, in the
proper administration of its laws, this great and sovereign state must and will accord the means by which its citizens, humble and
afflicted though they may be, shall receive all the rights, benefits and privileges which the Constitution, laws, regulations, and rules of
practice provide. 4

The basic constitutional infirmity alone in the conduct of the case against the accused is, in our candid assessment, fatal to
the judgment of conviction meted out against him.

Aside from the unfair setting and circumstance in which the accused was convicted, insufficiency of evidence to warrant a
finding of guilty beyond reasonable doubt also leads this Court to set aside the conviction. The following events and
circumstances are relevant in this regard:

On 1 May 1976, at past eight o'clock in the evening, the accused and the deceased were last seen walking away together
from a sari-sari store where they had been drinking tuba steadily in apparent harmony. At around eleven thirty of the
same evening, the accused suddenly appeared in the house of Wilson Evangelists, who was then with relatives butchering
a pig for the baptism of his child the following day. The accused was panting and trembling, and told Wilson Evangelista
in sign language that he had come from Calamagoy, at the side of the canal, where there were persons fighting on the
road. Evangelista later testified that he noticed the accused wearing a fatigue shirt with a blood-stain on it, and carrying a
flashlight.

On 2 May 1976, Patrolman Reynaldo Pinto, Jr., was told to investigate a case of robbery with homicide with the deceased
Martin Francisco as victim, and to arrest the accused on the basis of Wilson Evangelista's statement that he saw the
accused with a bloodstained shirt the previous evening when the crime could conceivably have occurred. Patrolman Pinto
did so that very day. Several days later, he was also able to recover the deceased's wristwatch and flashlight from the
house of the accused's father allegedly through the assistance of the accused himself.
Upon being asked who killed the deceased, the accused allegedly admitted to Pat. Pinto in sign language that it was he by
making gestures which Pat. Pinto interpreted to mean that the accused had been stoned by the deceased, thus impelling the
accused to stab the latter. This confession, however, was not included in Pat. Pinto's affidavit as he allegedly forgot to tell
the investigator. He also acknowledge his failure to notify the accused of his right to counsel before interrogation and
investigation due to difficulty in conveying the matter by sign language.

Based on the above circumstances and evidence, the trial court found the accused guilty beyond reasonable doubt of the
crime charged, reasoning as follows:
The prosecution proved and which this Court finds that the accused was the last person to be seen with the
deceased, and that he was drunk when he left the store of prosecution witness Salome del Socorro together with
the deceased. The Court also finds that the accused's clothes had bloodstain on it when he went to the house of
prosecution witness Wilson Evangelista at 11:30 in the evening of May 1, 1976, the night when the deceased was
robbed and killed. The seiko 5 actus wrist watch and the flashlight colored red and white both belonging to the
deceased Martin Francisco were recovered from the possession of the accused and which recovery was done with
his help, The unexplained possession by the accused of the properties belonging to the deceased proved that he
took these things unlawfully. The (15) stab wounds which were inflicted on the deceased, many of which were
fatal wounds proved that a much younger [man] than the deceased could have inflicted the same. In the case at
bar, the accused is very much younger than the deceased who was 63 years old at the time of his death, ... frail
and without physical attributes, unlike the accused who looks healthy, robust and young ...

While it is true that Pat. Pinto and his companion were able to get a statement from the accused without telling
him in advance of his constitutional rights, due to difficulty in explaining them in sign language, the accused's
statement by sign language was coupled with his voluntary help in recovering the things belonging to the
deceased. Furthermore, the court considered and took note of the plea of guilty which was entered into by the
accused on his first arraignment by sign language through Mr. Alejandro Munoz who is an associate of the
accused in their younger days. (Emphasis supplied.)

We find the trial court's decision essentially lacking in that degree of certainty in reason and conscience which is
necessary to establish guilt beyond reasonable doubt. As held in U.S. v. Lasada, 5 "By reasonable doubt is not meant that
which of possibility may arise, but it is that doubt engendered by an investigation of the whole proof and an inability, after
such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certainty of guilt is not demanded by the
law to convict of any criminal charge but moral certainty is required, and this. certainty is required as to every proposition
of proof requisite to constitute the offense." 6 Facts must be presented methodically and meticulously, contradictions must
be clarified, and gaps and loopholes in the evidence must be adequately explained "to the end that the court's mind may
not be tortured by doubts, the innocent [not] suffer and the guilty [go] unpunished." 7

Such standards, we believe, have not been met in this case.

Patrolman Pinto, the interrogator to whom the accused allegedly confessed the details which led to a presumption that lie
killed the deceased, expressly admitted that he could have misinterpreted the gestures made by the accused as he had only
a slight knowledge of sign language. Furthermore, the same witness did not give fully credible replies when questioned
about the possibility that he was ordered to proceed to the house of accused's father to get the incriminating watch and
flashlight which were delivered there earlier by a certain Nicolas.

The bloodstain on the accused's shirt could conceivably have come also from the fighting that the accused told Wilson
Evangelista he had witnessed. Considering that the deceased sustained fifteen (15) stab wounds, twelve (12) of which
could have separately caused death, according to the medical officer who examined the body of the deceased, the presence
of a single bloodstain on the front of accused's shirt hardly supports the conclusion reached by the trial court, especially
when related to the high degree of intoxication appreciated against the accused. As testified to by the medical officer who,
as stated, examined the body of the deceased, the stab wounds could also have been inflicted by several assailants using
different weapons. That the accused looked much more robust than the deceased and thus could have committed the crime
does not by itself deserve the weight and consideration that the trial court gave to it. Furthermore, the rubber slippers and
eyeglasses found near the scene of the crime were never Identified or explained.

The trial court's appreciation of the plea of guilty earlier entered for the accused by Special Policeman Alejandro Munoz,
which the first presiding judge earlier discarded, is regrettable, to say the least, especially when considered with the
admittedly limited knowledge in sign language on the part of Pat. Munoz and in relation to the investigator's own
admission that the accused was never informed of his right to counsel. 8

WHEREFORE, the appealed decision is hereby reversed. The accused is acquitted, on the ground that his guilt has not
been proved beyond reasonable doubt. The Court hereby orders his immediate release from confinement, unless he is
legally detained for some other cause or offense.

PEOPLE V. LINSANGAN (SANDOVAL-GUTIERREZ, J.:)

For our resolution is a petition for certiorari, prohibition, and mandamus seeking to nullify and set aside the Order1 of the
RTC, Branch 40, Palayan City, Nueva Ecija dated June 26, 2002 in Criminal Cases Nos. 1316-P and 1317-P for having
been issued with grave abuse of discretion tantamount to lack or excess of jurisdiction.

The facts, as culled from the record, are as follows:

In an Information dated March 6, 2002, docketed as Criminal Case No. 1316-P, State Prosecutor Phillip I. Kimpo of the
Department of Justice charged Arthur Serna, Jong Linsangan, Ricardo Peralta alias "Ric," Crisanto dela Cruz, Joey Cena,
Jonny Diozon alias "Johnny," one alias "Boy" and (20) John Does with kidnapping for ransom defined and penalized
under Article 267 of the Revised Penal Code, as amended. The Information reads:

That on or about October 7, 2001, at Bongabon, Nueva Ecija, and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one another, with ARTHUR SERNA acting as the
mastermind in contracting, thru JONG LINSANGAN, his personal driver and long-time friend, a criminal gang from
Bongabon called the "Red Vigilante Group (RVG) composed of the herein accused and headed by RICARDO
PERALTA, alias "RIC," did then and there, by force and intimidation, and with the use of firearms, willfully, unlawfully,
and feloniously take, carry away and detain up to the present JULIO ALEJO and his son JULIUS against their will and
consent thereby depriving them of their liberty for the purpose of extorting ransom for their release in the original amount
of P5 million and later reduced to P3 million, which amount, however, could not be paid by the victims’ family, all to the
damage and prejudice of the two victims and their family in such amount as may be awarded to them under the provisions
of the Civil Code.

In another Information, also dated March 6, 2002, docketed as Criminal Case No. 1317-P, the same accused in Criminal
Case No. 1316-P were charged with robbery committed as follows:
That on or about October 7, 2001, at Bongabon, Nueva Ecija and within the jurisdiction of this Honorable Court, the
above-named accused, conspiring, confederating and mutually helping one another, and armed with different kinds of
firearms and caliber, with intent of gain and by means of violence or intimidation on the person, did, then and there,
willfully, unlawfully, and feloniously take and carry away from the kidnapped JULIO ALEJO the following personal
propert(ies): (a) grocery items worth P100,000.00; (b) BPI ATM card with more or less P250,000.00 account; (c) cash
money of P350,000.00, (d) licensed pistol Cal. 45, (e) Dia Star Rado wristwatch, (f) Polo sunglasses, (g) a college ring
with markings "BSF," (h) Equitable and PCIB checks worth P1.6M, and from complainant FRANCISCA ALEJO the
following personal propert(ies): (a) P3,000.00 cash money, and (b) Saudi gold necklace with pendant, to the damage and
prejudice of the aforesaid JULIO ALEJO and FRANCISCA ALEJO in the total sum of approximately (P 2,500,000.00),
Philippine currency.

On March 14, 2002, the above Informations were filed with the RTC of Palayan City which issued warrants of arrest
against the accused. On March 21, 2002, Arthur Serna and Jong Linsangan, private respondents, were arrested.

On April 22, 2002, petitioners Nida Alejo and Francisca Alejo filed with the Office of the Court Administrator a request
for transfer of venue in both criminal cases due to "threats to their personal safety" and that of their witnesses and the
possibility that the criminal gang from Bongabon, Nueva Ecija, known as the Red Vigilante Group (RVG), might pressure
then Presiding Judge Erlinda Pestaño-Buted,2 public respondent, in deciding the cases in favor of the accused.

When arraigned on April 23, 2002, private respondents pleaded not guilty to the charges. Thereupon, petitioners moved
for suspension of the proceedings pending resolution of their request for transfer of venue. However, respondent judge did
not act on the motion. The following day, private respondents filed a motion for bail in Criminal Case No. 1316-P.

Meanwhile, the police arrested one Miguel De la Cruz, a suspected RVG member, for illegal possession of firearms.
During the custodial investigation, he disclosed to the law enforcers that he was present at the RVG "safehouse" in Jaen,
Nueva Ecija where the abductors detained Julio Alejo and Julius Alejo; that the duo were killed two days later; and that he
even helped in digging their common grave. De la Cruz also informed the police of the real names of the 17 John Does
impleaded in Criminal Cases Nos. 1316-P and 1317-P. He agreed to testify against the accused and applied for protection
under the Witness Protection Program pursuant to Republic Act No. 6981. Nonetheless, he was still charged with illegal
possession of firearms in an Information docketed as Criminal Case No. 1338-P. He was taken into protective custody by
the (PNP) at Camp Olivas, San Fernando City.

Upon motion of the State Prosecutor, respondent judge ordered that the Information in Criminal Case No. 1317-P be
amended in the sense that the charge of robbery be changed to robbery with double homicide.

On June 11, 2002, respondent judge issued a verbal order directing the immediate release of De la Cruz from the PNP’s
custody on the following grounds: (a) no warrant of arrest had been issued against him in Criminal Cases Nos. 1316-P and
1317-P; (b) he is not a witness for the prosecution; and (c) he posted bail in Criminal Case No. 1338-P. The private
prosecutor vehemently objected to the release of De la Cruz considering that he is a potential witness for the prosecution.
But respondent judge ignored the objection.

On July 2, 2002, petitioners, with the conformity of the State Prosecutor, filed a Motion to Inhibit respondent judge from
further hearing Criminal Cases Nos. 1316-P and 1317-P on the following grounds:
A. During the hearing of the above-captioned cases, the Honorable Court motu proprio brought out the matter of the
bail bond posted by or for Miguel dela Cruz in a case for illegal possession of firearms, docketed as Criminal Case
No. 1338-P, pending before this Honorable Court, directing that Miguel de la Cruz be released from custody, despite
the fact that the Honorable Court has not yet acquired jurisdiction over the said Miguel de la Cruz since no warrant
for his arrest has been issued in the above-captioned cases, nor has he voluntarily surrendered.

B. The Honorable Court made it appear that the said order concerning Miguel de la Cruz was issued in Criminal Case
No. 1338-P. when the truth of the matter is that it was issued in open court during the hearing of the above-captioned
cases.

C. The Honorable Court ordered the immediate release of Miguel de la Cruz "if indeed he is detained" without
granting the bonding company concerned and/or the PNP Regional Command at Camp Olivas the opportunity to be
heard.

D. The Honorable Court has, time and again, even during the hearing in the above-captioned cases on 11 June 2002,
expressed dismay, if not anger, at the PNP officers from Camp Olivas who are handling the investigation of the above-
captioned cases as well as the illegal possession case against Miguel de la Cruz.

E. The Honorable Court has continued to conduct proceedings in the above-captioned cases despite the pending
petition for transfer of venue filed by private complainants with the Supreme Court.

F. The Honorable Court ordered the immediate release of ELIAS MINGOY, one of the accused in the above-captioned
cases, in a habeas corpus case in violation of Section 15, Rule 102 of the Revised Rules of Court.

On July 11, 2002, the prosecution filed its Reply to the said Comment/Opposition.

On the same day, the State Prosecutor reiterated his motion for the suspension of the proceedings pending resolution of
his motion to inhibit respondent judge. However, she did not act on the motion and instead, she directed the prosecution to
present evidence in support of its opposition to accused’s motion to be admitted to bail.

Petitioners are now before this Court contending that respondent judge committed grave abuse of discretion tantamount to
lack or excess of jurisdiction in refusing to act on their Motion to Inhibit.

Eventually, after the present petition was filed with this Court, respondent judge issued an Order 3 dated August 9, 2002
denying the petitioners’ Motion to Inhibit for lack of "just and valid reason."
Section 1, Rule 137 of the Revised Rules of Court, provides: Disqualification of judges. – No judge or judicial officer shall sit
in any case in which he, or his wife, or child is pecuniarily interested as heir, legatee, creditor, or otherwise, or in which he is related to
either party within the sixth degree of consanguinity or affinity, or to counsel within the fourth degree, computed according to the
rules of the civil law, or in which he has been executor, administrator, guardian, trustee or counsel, or in which he has presided in any
inferior court when his ruling or decision is the subject of review, without the written consent of all parties in interest, signed by them
and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from sitting in a case, for just or valid reasons other than those
mentioned above.

In People v. Kho,4 this Court held that the foregoing Rule contemplates two kinds of inhibitions – compulsory and
voluntary. The first paragraph provides that compulsory disqualification conclusively presumes that the judge cannot
actively or impartially sit on a case. The second paragraph, in turn, leaves to the judge’s discretion whether he should
desist from sitting in a case for other just and valid reasons. A judge, however, does not enjoy a wide latitude in the
exercise of his discretion to inhibit himself from hearing a case, as the inhibition must be for just and valid causes.5

In 1964, this Court, in People v. Gomez6 and Mateo, Jr. v. Villaluz,7 held that a judge may voluntarily inhibit himself on
grounds other than those mentioned in paragraph 1, Section 1, Rule 137 and these grounds include bias and partiality. In
Pimentel v. Salonga,8 the Court laid the following guideposts for voluntary inhibition of judges: A judge may not be legally
prohibited from sitting in a litigation. But when suggestion is made of record that he might be induced to act in favor of one party or
with bias or prejudice against a litigant arising out of circumstance reasonably capable of inciting such a state of mind, he should
conduct a careful self-examination. He should exercise his discretion in a way that the people’s faith in the courts of justice is not
impaired. A salutary norm is that he reflects on the probability that a losing party might nurture at the back of his mind the thought
that the judge had unmeritoriously tilted the scales of justice against him.

In a long line of cases,9 this Court has unceasingly re-affirmed the standards laid down in Pimentel.

It may be recalled that at the onset of the proceedings, petitioners sought a change of venue in Criminal Cases Nos. 1316-
P and 1317-P from Palayan City to Metro Manila, due to fear for their lives and those of their witnesses. The prosecution
also pointed out that the RVG has the capability of pressuring respondent judge. Despite its pending request for change of
venue, respondent judge opted to continue with the proceedings. Significantly, the grounds specified by movants in their
Motion to Inhibit are obviously meritorious.

Under the foregoing circumstances, the Salonga doctrine that judicial "discretion should be exercised in a way that the
people’s faith in courts of justice should not be impaired" becomes relevant. Given the prosecution’s apparent lack of faith
in respondent judge, she was placed in a difficult position. Should she acquit the accused, her decision will appear to be
tainted with bias. Such a situation is highly detrimental, not only to the image of the trial court, but to the integrity of the
judicial system. Like Caesar’s wife, a judge must be beyond suspicion and that he should maintain nothing less than cold
neutrality and impartiality. Otherwise, the wisest course for a judge would be to disqualify himself. Thus, respondent
judge should have inhibited herself from further hearing Criminal Cases Nos. 1316-P and 1317-P. At any rate, this issue
has become moot considering that she had retired from the service on January 7, 2006.

WHEREFORE, for being moot, the petition is DISMISSED.

OPLE v. TORRES (PUNO, J.)

The petition at bar is a commendable effort on the part of Senator Blas F. Ople to prevent the shrinking of the right to
privacy, which the revered Mr. Justice Brandeis considered as "the most comprehensive of rights and the right most
valued by civilized men." 1 Petitioner Ople prays that we invalidate Administrative Order No. 308 entitled "Adoption of a
National Computerized Identification Reference System" on two important constitutional grounds, viz: one, it is a
usurpation of the power of Congress to legislate, and two, it impermissibly intrudes on our citizenry's protected zone of
privacy. We grant the petition for the rights sought to be vindicated by the petitioner need stronger barriers against further
erosion.
A.O. No. 308 was issued by President Fidel V. Ramos On December 12, 1996 and reads as follows:
ADOPTION OF A NATIONAL COMPUTERIZED
IDENTIFICATION REFERENCE SYSTEM
 WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact
business with basic service and social security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic
services on social security and reduce, if not totally eradicate fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services and social security providing
agencies and other government intrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Republic of the Philippines, by virtue of the powers
vested in me by law, do hereby direct the following:
Sec. 1. Establishment of a National Compoterized Identification Reference System. A decentralized Identification
Reference System among the key basic services and social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head, Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System,
Administrator, Social Security System,
Administrator, National Statistics Office
Managing Director, National Computer Center.
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such
shall provide administrative and technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the
common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate
with the different Social Security and Services Agencies to establish the standards in the use of Biometrics
Technology and in computer application designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the
National Statistics Office, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a massive
tri-media information dissemination campaign to educate and raise public awareness on the importance and use of the
PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective
budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the
President through the IACC, on the status of implementation of this undertaking.
Sec. 8. Effectivity. This Administrative Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six.
(SGD.) FIDEL V. RAMOS

A.O. No. 308 was published in four newspapers of general circulation on January 22, 1997 and January 23, 1997. On
January 24, 1997, petitioner filed the instant petition against respondents, then Executive Secretary Ruben Torres and the
heads of the government agencies, who as members of the Inter-Agency Coordinating Committee, are charged with the
implementation of A.O. No. 308. On April 8, 1997, we issued a temporary restraining order enjoining its implementation.

Petitioner contends:

A. THE ESTABLISNMENT OF A NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A

LEGISLATIVE ACT. THE ISSUANCE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS,
THEREFORE, AN UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE
REPUBLIC OF THE PHILIPPINES.

B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS
FOR EXPENDITURE.

C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL
VIOLATE THE BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION.
Respondents counter-argue:
A. THE INSTANT PETITION IS NOT A JUSTICIABLE CASE AS WOULD WARRANT A JUDICIAL REVIEW;
B. A.O. NO. 308 [1996] WAS ISSUED WITHIN THE EXECUTIVE AND ADMINISTRATIVE POWERS OF THE PRESIDENT
WITHOUT ENCROACHING ON THE LEGISLATIVE POWERS OF CONGRESS;
C. THE FUNDS NECESSARY FOR THE IMPLEMENTATION OF THE IDENTIFICATION REFERENCE SYSTEM MAY BE
SOURCED FROM THE BUDGETS OF THE CONCERNED AGENCIES;
D. A.O. NO. 308 [1996] PROTECTS AN INDIVIDUAL'S INTEREST IN PRIVACY. 3

We now resolve.

I. As is usual in constitutional litigation, respondents raise the threshold issues relating to the standing to sue of the
petitioner and the justiciability of the case at bar. More specifically, respondents aver that petitioner has no legal interest
to uphold and that the implementing rules of A.O. No. 308 have yet to be promulgated.

These submissions do not deserve our sympathetic ear. Petitioner Ople is a distinguished member of our Senate. As a
Senator, petitioner is possessed of the requisite standing to bring suit raising the issue that the issuance of A.O. No. 308 is
a usurpation of legislative power. 4 As taxpayer and member of the Government Service Insurance System (GSIS),
petitioner can also impugn the legality of the misalignment of public funds and the misuse of GSIS funds to implement
A.O. No. 308. 5

The ripeness for adjudication of the Petition at bar is not affected by the fact that the implementing rules of A.O. No. 308
have yet to be promulgated. Petitioner Ople assails A.O. No. 308 as invalid per se and as infirmed on its face. His action
is not premature for the rules yet to be promulgated cannot cure its fatal defects. Moreover, the respondents themselves
have started the implementation of A.O. No. 308 without waiting for the rules. As early as January 19, 1997, respondent
(SSS) caused the publication of a notice to bid for the manufacture of the National Identification (ID) card. 6 Respondent
Executive Secretary Torres has publicly announced that representatives from the GSIS and the SSS have completed the
guidelines for the national identification system. 7 All signals from the respondents show their unswerving will to
implement A.O. No. 308 and we need not wait for the formality of the rules to pass judgment on its constitutionality. In
this light, the dissenters insistence that we tighten the rule on standing is not a commendable stance as its result would be
to throttle an important constitutional principle and a fundamental right.

II. We now come to the core issues. Petitioner claims that A.O. No. 308 is not a mere administrative order but a law and
hence, beyond the power of the President to issue. He alleges that A.O. No. 308 establishes a system of identification that
is all-encompassing in scope, affects the life and liberty of every Filipino citizen and foreign resident, and more
particularly, violates their right to privacy.

Petitioner's sedulous concern for the Executive not to trespass on the lawmaking domain of Congress is understandable.
The blurring of the demarcation line between the power of the Legislature to make laws and the power of the Executive to
execute laws will disturb their delicate balance of power and cannot be allowed. Hence, the exercise by one branch of
government of power belonging to another will be given a stricter scrutiny by this Court.

The line that delineates Legislative and Executive power is not indistinct. Legislative power is "the authority, under the
Constitution, to make laws, and to alter and repeal them." 8 The Constitution, as the will of the people in their original,
sovereign and unlimited capacity, has vested this power in the Congress of the Philippines. 9 The grant of legislative
power to Congress is broad, general and comprehensive. 10 The legislative body possesses plenary power for all purposes
of civil government. 11 Any power, deemed to be legislative by usage and tradition, is necessarily possessed by Congress,
unless the Constitution has lodged it elsewhere. 12 In fine, except as limited by the Constitution, either expressly or
impliedly, legislative power embraces all subjects and extends to matters of general concern or common interest. 13

While Congress is vested with the power to enact laws, the President executes the laws. 14 The executive power is vested
in the Presidents. 15 It is generally defined as the power to enforce and administer the laws. 16 It is the power of carrying
the laws into practical operation and enforcing their due observance. 17

As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and
sees to it that all laws are enforced by the officials and employees of his department. 18 He has control over the executive
department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive
department, bureau and office or interfere with the discretion of its officials. 19 Corollary to the power of control, the
President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order.
Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties
effectively. 20

Administrative power is concerned with the work of applying policies and enforcing orders as determined by proper
governmental organs. 21 It enables the President to fix a uniform standard of administrative efficiency and check the
official conduct of his agents. 22 To this end, he can issue administrative orders, rules and regulations.

Prescinding from these precepts, we hold that A.O. No. 308 involves a subject that is not appropriate to be covered by an
administrative order. An administrative order is: Sec. 3. Administrative Orders. — Acts of the President which relate to
particular aspects of governmental operation in pursuance of his duties as administrative head shall be promulgated in
administrative orders.

An administrative order is an ordinance issued by the President which relates to specific aspects in the administrative
operation of government. It must be in harmony with the law and should be for the sole purpose of implementing the law
and carrying out the legislative policy. 24 We reject the argument that A.O. No. 308 implements the legislative policy of
the Administrative Code of 1987. The Code is a general law and "incorporates in a unified document the major structural,
functional and procedural principles of governance." 25 and "embodies changes in administrative structure and procedures
designed to serve the people." The Code is divided into (7) Books: Book I deals with Sovereignty and General
Administration, Book II with the Distribution of Powers of the three branches of Government, Book III on the Office of
the President, Book IV on the Executive Branch, Book V on Constitutional Commissions, Book VI on National
Government Budgeting, and Book VII on Administrative Procedure. These Books contain provisions on the organization,
powers and general administration of the executive, legislative and judicial branches of government, the organization and
administration of departments, bureaus and offices under the executive branch, the organization and functions of the
Constitutional Commissions and other constitutional bodies, the rules on the national government budget, as well as
guideline for the exercise by administrative agencies of quasi-legislative and quasi-judicial powers. The Code covers both
the internal administration of government, i.e, internal organization, personnel and recruitment, supervision and discipline,
and the effects of the functions performed by administrative officials on private individuals or parties outside government.

It cannot be simplistically argued that A.O. No. 308 merely implements the Administrative Code of 1987. It establishes
for the first time a National Computerized Identification Reference System. Such a System requires a delicate adjustment
of various contending state policies — the primacy of national security, the extent of privacy interest against dossier-
gathering by government, the choice of policies, etc. Indeed, the dissent of Mr. Justice Mendoza states that the A.O. No.
308 involves the all-important freedom of thought. As said administrative order redefines the parameters of some basic
rights of our citizenry vis-a-vis the State as well as the line that separates the administrative power of the President to
make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered
by law.

Nor is it correct to argue as the dissenters do that A.D. No. 308 is not a law because it confers no right, imposes no duty,
affords no proctection, and creates no office. Under A.O. No. 308, a citizen cannot transact business with government
agencies delivering basic services to the people without the contemplated identification card. No citizen will refuse to get
this identification card for no one can avoid dealing with government. It is thus clear as daylight that without the ID, a
citizen will have difficulty exercising his rights and enjoying his privileges. Given this reality, the contention that A.O.
No. 308 gives no right and imposes no duty cannot stand.

Again, with due respect, the dissenting opinions unduly expand the limits of administrative legislation and consequently
erodes the plenary power of Congress to make laws. This is contrary to the established approach defining the traditional
limits of administrative legislation. As well stated by Fisher: ". . . Many regulations however, bear directly on the public.
It is here that administrative legislation must he restricted in its scope and application. Regulations are not supposed to be
a substitute for the general policy-making that Congress enacts in the form of a public law. Although administrative
regulations are entitled to respect, the authority to prescribe rules and regulations is not an independent source of power to
make laws." 28

III.Assuming, arguendo, that A.O. No. 308 need not be the subject of a law, still it cannot pass constitutional muster as an
administrative legislation because facially it violates the right to privacy. The essence of privacy is the "right to be let
alone." 29 In the 1965 case of Griswold v. Connecticut, 30 the United States Supreme Court gave more substance to the
right of privacy when it ruled that the right has a constitutional foundation. It held that there is a right of privacy which
can be found within the penumbras of the First, Third, Fourth, Fifth and Ninth Amendments, 31 viz: Specific guarantees in
the Bill of Rights have penumbras formed by emanations from these guarantees that help give them life and substance . . . various
guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have
seen. The Third Amendment in its prohibition against the quartering of soldiers "in any house" in time of peace without the consent of
the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ''right of the people to be secure in their
persons, houses and effects, against unreasonable searches and seizures." The Fifth Amendment in its Self-Incrimination Clause
enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth
Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people."

In the 1968 case of Morfe v. Mutuc, 32 we adopted the Griswold ruling that there is a constitutional right to privacy.
Speaking thru Mr. Justice, later Chief Justice, Enrique Fernando, we held: xxx xxx xxx
The Griswold case invalidated a Connecticut statute which made the use of contraceptives a criminal offence on the
ground of its amounting to an unconstitutional invasion of the right of privacy of married persons; rightfully it
stressed "a relationship lying within the zone of privacy created by several fundamental constitutional guarantees." It
has wider implications though. The constitutional right to privacy has come into its own.
So it is likewise in our jurisdiction. The right to privacy as such is accorded recognition independently of its
identification with liberty; in itself, it is fully deserving of constitutional protection. The language of Prof. Emerson is
particularly apt: "The concept of limited government has always included the idea that governmental powers stop
short of certain intrusions into the personal life of the citizen. This is indeed one of the basic distinctions between
absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the
hallmark of the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs
to the individual, firmly distinguishing it from the public sector, which the state can control. Protection of this private
sector — protection, in other words, of the dignity and integrity of the individual — has become increasingly
important as modern society has developed. All the forces of a technological age — industrialization, urbanization,
and organization — operate to narrow the area of privacy and facilitate intrusion into it. In modern terms, the capacity
to maintain and support this enclave of private life marks the difference between a democratic and a totalitarian
society."

Indeed, if we extend our judicial gaze we will find that the right of privacy is recognized and enshrined in several
provisions of our Constitution. 33 It is expressly recognized in section 3 (1) of the Bill of Rights: Sec. 3. (1) The privacy of
communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad in various provisions of the Bill of Rights, viz: 34
Sec. 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.
Sec. 2. The right of the people to be secure in their persons, houses papers, and effects against unreasonable searches and
seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.
Sec. 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.
Sec. 8. The right of the people, including those employed in the public and private sectors, to form unions, associations, or
societies for purposes not contrary to law shall not be abridged.
Sec. 17. No person shall be compelled to be a witness against himself.

Zones of privacy are likewise recognized and protected in our laws. The Civil Code provides that "[e]very person shall
respect the dignity, personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable
torts several acts by a person of meddling and prying into the privacy of another. 35 It also holds a public officer or
employee or any private individual liable for damages for any violation of the rights and liberties of another person, 36 and
recognizes the privacy of letters and other private communications. 37 The Revised Penal Code makes a crime the
violation of secrets by an officer, 38 the revelation of trade and industrial secrets, 39 and trespass to dwelling. 40 Invasion of
privacy is an offense in special laws like the Anti-Wiretapping Law, 41 the Secrecy of Bank Deposits Act 42 and the
Intellectual Property Code. 43 The Rules of Court on privileged communication likewise recognize the privacy of certain
information. 44
Unlike the dissenters, we prescind from the premise that the right to privacy is a fundamental right guaranteed by the
Constitution, hence, it is the burden of government to show that A.O. No. 308 is justified by some compelling state
interest and that it is narrowly drawn. A.O. No. 308 is predicated on two considerations: (1) the need to provides our
citizens and foreigners with the facility to conveniently transact business with basic service and social security providers
and other government instrumentalities and (2) the need to reduce, if not totally eradicate, fraudulent transactions and
misrepresentations by persons seeking basic services. It is debatable whether these interests are compelling enough to
warrant the issuance of A.O. No. 308. But what is not arguable is the broadness, the vagueness, the overbreadth of A.O.
No. 308 which if implemented will put our people's right to privacy in clear and present danger.

The heart of A.O. No. 308 lies in its Section 4 which provides for a Population Reference Number (PRN) as a "common
reference number to establish a linkage among concerned agencies" through the use of "Biometrics Technology" and
"computer application designs."

Biometry or biometrics is "the science of the applicatin of statistical methods to biological facts; a mathematical analysis
of biological data." 45 The term "biometrics" has evolved into a broad category of technologies which provide precise
confirmation of an individual's identity through the use of the individual's own physiological and behavioral
characteristics. 46 A physiological characteristic is a relatively stable physical characteristic such as a fingerprint, retinal
scan, hand geometry or facial features. A behavioral characteristic is influenced by the individual's personality and
includes voice print, signature and keystroke. 47 Most biometric idenfication systems use a card or personal identificatin
number (PIN) for initial identification. The biometric measurement is used to verify that the individual holding the card or
entering the PIN is the legitimate owner of the card or PIN. 48

A most common form of biological encoding is finger-scanning where technology scans a fingertip and turns the unique
pattern therein into an individual number which is called a biocrypt. The biocrypt is stored in computer data banks 49 and
becomes a means of identifying an individual using a service. This technology requires one's fingertip to be scanned every
time service or access is provided. 50 Another method is the retinal scan. Retinal scan technology employs optical
technology to map the capillary pattern of the retina of the eye. This technology produces a unique print similar to a finger
print. 51 Another biometric method is known as the "artificial nose." This device chemically analyzes the unique
combination of substances excreted from the skin of people. 52 The latest on the list of biometric achievements is the
thermogram. Scientists have found that by taking pictures of a face using infra-red cameras, a unique heat distribution
pattern is seen. The different densities of bone, skin, fat and blood vessels all contribute to the individual's personal "heat
signature." 53

In the last few decades, technology has progressed at a galloping rate. Some science fictions are now science facts. Today,
biometrics is no longer limited to the use of fingerprint to identify an individual. It is a new science that uses various
technologies in encoding any and all biological characteristics of an individual for identification. It is noteworthy that
A.O. No. 308 does not state what specific biological characteristics and what particular biometrics technology shall be
used to identify people who will seek its coverage. Considering the banquest of options available to the implementors of
A.O. No. 308, the fear that it threatens the right to privacy of our people is not groundless.

A.O. No. 308 should also raise our antennas for a further look will show that it does not state whether encoding of data is
limited to biological information alone for identification purposes. In fact, the Solicitor General claims that the adoption
of the Identification Reference System will contribute to the "generation of population data for development planning."
This is an admission that the PRN will not be used solely for identification but the generation of other data with remote
relation to the avowed purposes of A.O. No. 308. Clearly, the indefiniteness of A.O. No. 308 can give the government the
roving authority to store and retrieve information for a purpose other than the identification of the individual through his
PRN.

The potential for misuse of the data to be gathered under A.O. No. 308 cannot be undarplayed as the dissenters do.
Pursuant to said administrative order, an individual must present his PRN everytime he deals with a government agency to
avail of basic services and security. His transactions with the government agency will necessarily be recorded — whether
it be in the computer or in the documentary file of the agency. The individual's file may include his transactions for loan
availments, income tax returns, statement of assets and liabilities, reimbursements for medication, hospitalization, etc. The
more frequent the use of the PRN, the better the chance of building a huge formidable informatin base through the
electronic linkage of the files. 55 The data may be gathered for gainful and useful government purposes; but the existence
of this vast reservoir of personal information constitutes a covert invitation to misuse, a temptation that may be too great
for some of our authorities to resist. 56

We can even grant, arguendo, that the computer data file will be limited to the name, address and other basic personal
infomation about the individual. 57 Even that hospitable assumption will not save A.O. No. 308 from constitutional
infirmity for again said order does not tell us in clear and categorical terms how these information gathered shall he
handled. It does not provide who shall control and access the data, under what circumstances and for what purpose. These
factors are essential to safeguard the privacy and guaranty the integrity of the information. 58 Well to note, the computer
linkage gives other government agencies access to the information. Yet, there are no controls to guard against leakage of
information. When the access code of the control programs of the particular computer system is broken, an intruder,
without fear of sanction or penalty, can make use of the data for whatever purpose, or worse, manipulate the data stored
within the system. 59

It is plain and we hold that A.O. No. 308 falls short of assuring that personal information which will be gathered about our
people will only be processed for unequivocally specified purposes. 60 The lack of proper safeguards in this regard of A.O.
No. 308 may interfere with the individual's liberty of abode and travel by enabling authorities to track down his
movement; it may also enable unscrupulous persons to access confidential information and circumvent the right against
self-incrimination; it may pave the way for "fishing expeditions" by government authorities and evade the right against
unreasonable searches and seizures. 61 The possibilities of abuse and misuse of the PRN, biometrics and computer
technology are accentuated when we consider that the individual lacks control over what can be read or placed on his ID,
much less verify the correctness of the data encoded. 62 They threaten the very abuses that the Bill of Rights seeks to
prevent. 63

The ability of sophisticated data center to generate a comprehensive cradle-to-grave dossier on an individual and transmit
it over a national network is one of the most graphic threats of the computer revolution. 64 The computer is capable of
producing a comprehensive dossier on individuals out of information given at different times and for varied purposes. 65 It
can continue adding to the stored data and keeping the information up to date. Retrieval of stored date is simple. When
information of a privileged character finds its way into the computer, it can be extracted together with other data on the
subject. 66 Once extracted, the information is putty in the hands of any person. The end of privacy begins.

Though A.O. No. 308 is undoubtedly not narrowly drawn, the dissenting opinions would dismiss its danger to the right to
privacy as speculative and hypothetical. Again, we cannot countenance such a laidback posture. The Court will not be true
to its role as the ultimate guardian of the people's liberty if it would not immediately smother the sparks that endanger
their rights but would rather wait for the fire that could consume them.

We reject the argument of the Solicitor General that an individual has a reasonable expectation of privacy with regard to
the Natioal ID and the use of biometrics technology as it stands on quicksand. The reasonableness of a person's
expectation of privacy depends on a two-part test: (1) whether by his conduct, the individual has exhibited an expectation
of privacy; and (2) whether this expectation is one that society recognizes as reasonable. 67 The factual circumstances of
the case determines the reasonableness of the expectation. 68 However, other factors, such as customs, physical
surroundings and practices of a particular activity, may serve to create or diminish this expectation. 69 The use of
biometrics and computer technology in A.O. No. 308 does not assure the individual of a reasonable expectation of
privacy. 70 As technology advances, the level of reasonably expected privacy decreases. 71 The measure of protection
granted by the reasonable expectation diminishes as relevant technology becomes more widely accepted. 72 The security
of the computer data file depends not only on the physical inaccessibility of the file but also on the advances in hardware
and software computer technology. A.O. No. 308 is so widely drawn that a minimum standard for a reasonable
expectation of privacy, regardless of technology used, cannot be inferred from its provisions.

The rules and regulations to be by the IACC cannot remedy this fatal defect. Rules and regulations merely implement the
policy of the law or order. On its face, A.O. No. gives the IACC virtually infettered discretion to determine the metes and
bounds of the ID System.

Nor do your present laws prvide adequate safeguards for a reasonable expectation of privacy. Commonwealth Act. No.
591 penalizes the disclosure by any person of data furnished by the individual to the NSO with imprisonment and fine. 73
Republic Act. No. 1161 prohibits public disclosure of SSS employment records and reports. 74 These laws, however, apply
to records and data with the NSO and the SSS. It is not clear whether they may be applied to data with the other
government agencies forming part of the National ID System. The need to clarify the penal aspect of A.O. No. 308 is
another reason why its enactment should be given to Congress.

Next, the Solicitor General urges us to validate A.O. No. 308's abridgment of the right of privacy by using the rational
relationship test. 75 He stressed that the purposes of A.O. No. 308 are: (1) to streamline and speed up the implementation
of basic government services, (2) eradicate fraud by avoiding duplication of services, and (3) generate population data for
development planning. He cocludes that these purposes justify the incursions into the right to privacy for the means are
rationally related to the end. 76

We are not impressed by the argument. In Morfe v. Mutuc, 77 we upheld the constitutionality of R.A. 3019, the Anti-Graft
and Corrupt Practices Act, as a valid police power measure. We declared that the law, in compelling a public officer to
make an annual report disclosing his assets and liabilities, his sources of income and expenses, did not infringe on the
individual's right to privacy. The law was enacted to promote morality in public administration by curtailing and
minimizing the opportunities for official corruption and maintaining a standard of honesty in the public service. 78

The same circumstances do not obtain in the case at bar. For one, R.A. 3019 is a statute, not an administrative order.
Secondly, R.A. 3019 itself is sufficiently detailed. The law is clear on what practices were prohibited and penalized, and it
was narrowly drawn to avoid abuses. IN the case at bar, A.O. No. 308 may have been impelled by a worthy purpose, but,
it cannot pass constitutional scrutiny for it is not narrowly drawn. And we now hod that when the integrity of a
fundamental right is at stake, this court will give the challenged law, administrative order, rule or regulation a stricter
scrutiny. It will not do for the authorities to invoke the presumption of regularity in the performance of official duties. Nor
is it enough for the authorities to prove that their act is not irrational for a basic right can be diminished, if not defeated,
even when the government does not act irrationally. They must satisfactorily show the presence of compelling state
interests and that the law, rule or regulation is narrowly drawn to preclude abuses. This approach is demanded by the 1987
Constitution whose entire matrix is designed to protect human rights and to prevent authoritarianism. In case of doubt, the
least we can do is to lean towards the stance that will not put in danger the rights protected by the Constitutions.

The case of Whalen v. Roe 79 cited by the Solicitor General is also off-line. In Whalen, the United States Supreme Court
was presented with the question of whether the State of New York could keep a centralized computer record of the names
and addresses of all persons who obtained certain drugs pursuant to a doctor's prescription. The New York State
Controlled Substance Act of 1972 required physicians to identify parties obtaining prescription drugs enumerated in the
statute, i.e., drugs with a recognized medical use but with a potential for abuse, so that the names and addresses of the
patients can be recorded in a centralized computer file of the State Department of Health. The plaintiffs, who were
patients and doctors, claimed that some people might decline necessary medication because of their fear that the
computerized data may be readily available and open to public disclosure; and that once disclosed, it may stigmatize them
as drug addicts. 80 The plaintiffs alleged that the statute invaded a constitutionally protected zone of privacy, i.e., the
individual interest in avoiding disclosure of personal matters, and the interest in independence in making certain kinds of
important decisions. The U.S. Supreme Court held that while an individual's interest in avoiding disclosuer of personal
matter is an aspect of the right to privacy, the statute did not pose a grievous threat to establish a constitutional violation.
The Court found that the statute was necessary to aid in the enforcement of laws designed to minimize the misuse of
dangerous drugs. The patient-identification requirement was a product of an orderly and rational legislative decision made
upon recommmendation by a specially appointed commission which held extensive hearings on the matter. Moreover, the
statute was narrowly drawn and contained numerous safeguards against indiscriminate disclosure. The statute laid down
the procedure and requirements for the gathering, storage and retrieval of the informatin. It ebumerated who were
authorized to access the data. It also prohibited public disclosure of the data by imposing penalties for its violation. In
view of these safeguards, the infringement of the patients' right to privacy was justified by a valid exercise of police
power. As we discussed above, A.O. No. 308 lacks these vital safeguards.

Even while we strike down A.O. No. 308, we spell out in neon that the Court is not per se agains the use of computers to
accumulate, store, process, retvieve and transmit data to improve our bureaucracy. Computers work wonders to achieve
the efficiency which both government and private industry seek. Many information system in different countries make use
of the computer to facilitate important social objective, such as better law enforcement, faster delivery of public services,
more efficient management of credit and insurance programs, improvement of telecommunications and streamlining of
financial activities. 81 Used wisely, data stored in the computer could help good administration by making accurate and
comprehensive information for those who have to frame policy and make key decisions. 82 The benefits of the computer
has revolutionized information technology. It developed the internet, 83 introduced the concept of cyberspace 84 and the
information superhighway where the individual, armed only with his personal computer, may surf and search all kinds and
classes of information from libraries and databases connected to the net.

In no uncertain terms, we also underscore that the right to privacy does not bar all incursions into individual privacy. The
right is not intended to stifle scientific and technological advancements that enhance public service and the common good.
It merely requires that the law be narrowly focused 85 and a compelling interest justify such intrusions. 86 Intrusions into
the right must be accompanied by proper safeguards and well-defined standards to prevent unconstitutional invasions. We
reiterate that any law or order that invades individual privacy will be subjected by this Court to strict scrutiny. The reason
for this stance was laid down in Morfe v. Mutuc, to wit: The concept of limited government has always included the idea that
governmental powers stop short of certain intrusions into the personal life of the citizen. This is indeed one of the basic disctinctions
between absolute and limited government. Ultimate and pervasive control of the individual, in all aspects of his life, is the hallmark of
the absolute state. In contrast, a system of limited government safeguards a private sector, which belongs to the individual, firmly
distinguishing it from the public sector, which the state can control. Protection of this private sector — protection, in other words, of
the dignity and integrity of the individual — has become increasingly important as modern society has developed. All the forces of a
technological age — industrialization, urbanization, and organization — operate to narrow the area of privacy and facilitate intrusion
into it. In modern terms, the capacity to maintain and support this enclave of private life marks the difference between a democratic
and a totalitarian society. 87

IV. The right to privacy is one of the most threatened rights of man living in a mass society. The threats emanate from
various sources — governments, journalists, employers, social scientists, etc. 88 In th case at bar, the threat comes from the
executive branch of government which by issuing A.O. No. 308 pressures the people to surrender their privacy by giving
information about themselves on the pretext that it will facilitate delivery of basic services. Given the record-keeping
power of the computer, only the indifferent fail to perceive the danger that A.O. No. 308 gives the government the power
to compile a devastating dossier against unsuspecting citizens. It is timely to take note of the well-worded warning of
Kalvin, Jr., "the disturbing result could be that everyone will live burdened by an unerasable record of his past and his
limitations. In a way, the threat is that because of its record-keeping, the society will have lost its benign capacity to
forget." 89 Oblivious to this counsel, the dissents still say we should not be too quick in labelling the right to privacy as a
fundamental right. We close with the statement that the right to privacy was not engraved in our Constitution for flattery.

IN VIEW WHEREOF, the petition is granted and Adminisrative Order No. 308 entitled "Adoption of a National
Computerized Identification Reference System" declared null and void for being unconstitutional.
Separate Opinions

ROMERO, J., separate opinion;

What marks offs man from a beast?

Aside from the distinguishing physical characteristics, man is a rational being, one who is endowed with intellect which
allows him to apply reasoned judgment to problems at hand; he has the innate spiritual faculty which can tell, not only
what is right but, as well, what is moral and ethical. Because of his sensibilities, emotions and feelings, he likewise
possesses a sense of shame. In varying degrees as dictated by diverse cultures, he erects a wall between himself and the
outside world wherein he can retreat in solitude, protecting himself from prying eyes and ears and their extensions,
whether form individuals, or much later, from authoritarian intrusions.

Piercing through the mists of time, we find the original Man and Woman defying the injunction of God by eating of the
forbidden fruit in the Garden. And when their eyes were "opened" forthwith "they sewed fig leaves together, and made
themselves aprons." 1 Down the corridors of time, we find man fashioning "fig leaves" of sorts or setting up figurative
walls, the better to insulate themselves from the rest of humanity.

Such vague stirrings of the desire "to be left alone," considered "anti-social" by some, led to the development of the
concept of "privacy," unheard of among beasts. Different branches of science, have made their own studies of this craving
of the human spirit — psychological, anthropological sociological and philosophical, with the legal finally giving its
imprimatur by elevating it to the status ofa right, specifically a private right.

Initially recognized as an aspect of tort law, it created giant waves in legal circles with the publication in the Harvard Law
Review 2 of the trail-blazing article, "The Right to Privacy," by Samuel D. Warren and Louis D. Brandeis.

Whether viewed as a personal or a property right, it found its way in Philippine Constitutions and statutes; this, in spite of
the fact that Philippine culture can hardly be said to provide a fertile field for the burgeoning of said right. In fact, our
lexicographers have yet to coin a word for it in the Filipino language. Customs and practices, being what they have always
been, Filipinos think it perfectly natural and in good taste to inquire into each other's intimate affairs.

One has only to sit through a televised talk show to be convinced that what passes for wholesome entertainment is
actually an invasion into one's private life, leaving the interviewee embarrassed and outraged by turns.

With the overarching influence of common law and the recent advent of the Information Age with its high-tech devices,
the right to privacy has expanded to embrace its public law aspect. The Bill of Rights of our evolving Charters, a direct
transplant from that of the United States, contains in essence facets of the right to privacy which constitute limitations on
the far-reaching powers of government.

So terrifying are the possibilities of a law such as Administrative Order No. 308 in making inroads into the private lives of
the citizens, a virtual Big Brother looking over our shoulder, that it must, without delay, be "slain upon sight" before our
society turns totalitarian with each of us, a mindless robot.

I, therefore, VOTE for the nullification of A.O. No. 308.

VITUG, J., separate opinion;

One can appreciate the concern expressed by my esteemed colleague, Mr. Justice Reynato S. Puno, echoing that of the
petitioner, the Honorable Blas F. Ople, on the issuance of Administrative Order No. 308 by the President of the
Philippines and the dangers its implementation could bring. I find it hard, nevertheless, to peremptorily assume at this
time that the administrative order will be misused and to thereby ignore the possible benefits that can be derived from, or
the merits of, a nationwide computerized identification reference system. The great strides and swift advances in
technology render it inescapable that one day we will, at all events, have to face up with the reality of seeing extremely
sophisticated methods of personal identification and any attempt to stop the inevitable may either be short-lived or even
futile. The imperatives, I believe, would instead be to now install specific safeguards and control measures that may be
calculated best to ward-off probable ill effects of any such device. Here, it may be apropos to recall the pronouncement of
this Court in People vs. Nazario 1 that —

As a rule, a statute or [an] act may be said to be vague 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 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. 2

Administrative Order No. 308 appears to be so extensively drawn that could, indeed, allow unbridled options to
become available to its implementors beyond the reasonable comfort of the citizens and of residents alike.

Prescinding from the foregoing, and most importantly to this instance, the subject covered by the questioned
administrative order can have far-reaching consequences that can tell on all individuals, their liberty and privacy, that, to
my mind, should make it indispensable and appropriate to have the matter specifically addressed by the Congress of the
Philippines, the policy-making body of our government, to which the task should initially belong and to which the
authority to formulate and promulgate that policy is constitutionally lodged.

WHEREFORE, I vote for the nullification of Administrative Order No. 308 for being an undue and impermissible
exercise of legislative power by the Executive.

PANGANIBAN, J., separate opinion;

I concur only in the result and only on the ground that an executive issuance is not legally sufficient to establish an all-
encompassing computerized system of identification in the country. The subject matter contained in AO 308 is beyond the
powers of the President to regulate without a legislative enactment.

I reserve judgmeht on the issue of wherher a national ID system is an infringement of the constitutional right to privacy or
the freedom of thought until after Congress passes, if ever, a law to this effect. Only then, and upon the filing of a proper
petition, may the provisions of the statute be scrutinized by the judiciary to determine their constitutional foundation.
Until such time, the issue is premature; and any decision thereon, speculative and academic. 1

Be that as it may, the scholarly discussions of Justices Romero, Puno, Kapunan and Mendoza on the constitutional right to
privacy and freedom of thought may stil become useful guides to our lawmakers, when and if Congress should deliberate
on a bill establishing a national identification system.

Let it be noted that this Court, as shown by the voting of the justices, has not definitively ruled on these points. The voting
is decisive only on the need for the appropriate legislation, and it is only on this ground that the petition is granted by this
Court.

 KAPUNAN, J., dissenting opinion;

The pioneering efforts of the executive to adopt a national computerized identification reference system has met fierce
opposition. It has spun dark predictions of sinister government ploys to tamper with the citizen's right to privacy and
ominous forecasts of a return to authoritarianism. Lost in the uproar, however, is the simple fact that there is nothing in
the whole breadth and lenght of Administrative Order No. 308 that suggests a taint constitutional infirmity.

A.O. No. 308 issued by President Fidel V. Ramos on 12 December 1996 reads:
ADMTNISTRATIVE ORDER NO. 308
ADOPTION OF A NATIONAL COMPUTERIZED
 IDENTIFICATION REFERENCE SYSTEM
WHEREAS, there is a need to provide Filipino citizens and foreign residents with the facility to conveniently transact
business with basic services and social security providers and other government instrumentalities;
WHEREAS, this will require a computerized system to properly and efficiently identify persons seeking basic
services and social security and reduce, if not totally eradicate, fraudulent transactions and misrepresentations;
WHEREAS, a concerted and collaborative effort among the various basic services and social security providing
agencies and other government instrumentalities is required to achieve such a system;
NOW, THEREFORE, I, FIDEL V. RAMOS, President of the Repubic of the Philippines, by virtue of the powers
vested in me by law, do hereby direct the following:
Sec. 1 Establishment of a National Computerized Identification Reference System. A decentralized Identification
Reference System among the key basic services and social security providers is hereby established.
Sec. 2. Inter-Agency Coordinating Committee. An Inter-Agency Coordinating Committee (IACC) to draw-up the
implementing guidelines and oversee the implementation of the System is hereby created, chaired by the Executive
Secretary, with the following as members:
Head Presidential Management Staff
Secretary, National Economic Development Authority
Secretary, Department of the Interior and Local Government
Secretary, Department of Health
Administrator, Government Service Insurance System
Administrator, Social Security System
Administrator, National Statistics Office
Managing Director, National Computer Center
Sec. 3. Secretariat. The National Computer Center (NCC) is hereby designated as secretariat to the IACC and as such
shall provide administrative and technical support to the IACC.
Sec. 4. Linkage Among Agencies. The Population Reference Number (PRN) generated by the NSO shall serve as the
common reference number to establish a linkage among concerned agencies. The IACC Secretariat shall coordinate
with the different Social Security and Services Agencies to establish the standards in the use of Biometrics
Technology and in computer application designs of their respective systems.
Sec. 5. Conduct of Information Dissemination Campaign. The Office of the Press Secretary, in coordination with the
National Statistics Offices, the GSIS and SSS as lead agencies and other concerned agencies shall undertake a
massive tri-media information dissemination campaign to educate and raise public awareness on the importance and
use of the PRN and the Social Security Identification Reference.
Sec. 6. Funding. The funds necessary for the implementation of the system shall be sourced from the respective
budgets of the concerned agencies.
Sec. 7. Submission of Regular Reports. The NSO, GSIS and SSS shall submit regular reports to the Office of the
President, through the IACC, on the status of implementation of this undertaking.
Sec. 8 Effectivity. This Administartive Order shall take effect immediately.
DONE in the City of Manila, this 12th day of December in the year of Our Lord, Nineteen Hundred and Ninety-Six.

In seeking to strike down A.O. No. 308 as unconstitutional, petitioner argues:

A. THE ESTABLISHMENT OF NATIONAL COMPUTERIZED IDENTIFICATION REFERENCE SYSTEM REQUIRES A LEGISLATIVE
ACT. THE ISSUACE OF A.O. NO. 308 BY THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES IS, THEREFORE, AN
UNCONSTITUTIONAL USURPATION OF THE LEGISLATIVE POWERS OF THE CONGRESS OF THE REPUBLIC OF THE PHILIPPINES.
B. THE APPROPRIATION OF PUBLIC FUNDS BY THE PRESIDENT FOR THE IMPLEMENTATION OF A.O. NO. 308 IS AN
UNCONSTITUTIONAL USURPATION OF THE EXCLUSIVE RIGHT OF CONGRESS TO APPROPRIATE PUBLIC FUNDS FOR
EXPENDITURE.
C. THE IMPLEMENTATION OF A.O. NO. 308 INSIDIOUSLY LAYS THE GROUNDWORK FOR A SYSTEM WHICH WILL VIOLATE THE
BILL OF RIGHTS ENSHRINED IN THE CONSTITUTION.
The National Computerized Identification Reference system to which the NSO, GSIS and SSS are linked as lead members
of the IACC is intended to establish uniform standards for ID cards isssued by key government agencies (like the SSS) 1
for the "efficient identification of persons." 2 Under the new system, only one reliable and tamper-proof I.D. need be
presented by the cardholder instead of several identification papers such as passports and driver's license, 3 to able to
transact with government agencies. The improved ID can be used to facilitate public transactions such as:
1. Payment of SSS and GSIS benefits
2. Applications for driver's license, BIR TIN, passport, marriage license, death certificate, NBI and police
clearances, and business permits
3. Availment of Medicare services in hospitals
4. Availment of welfare services
 5. Application for work/employment
6. Pre-requisite for Voter's ID. 4
The card may also be used for private transactions such as:
1. Opening of bank accounts
2. Encashment of checks
3. Applications for loans, credit cards, water, power, telephones, pagers, etc.
4. Purchase of stocks
5. Application for work/employment
6. Insurance claims
7. Receipt of payments, checks, letters, valuables, etc. 5

The new identification system would tremendously improve and uplift public service in our country to the benefit of
Filipino citizens and resident aliens. It would promote, facilitate and speed up legitimate transactions with government
offices as well as with private and business entities. Experience tells us of the constant delays and inconveniences the
public has to suffer in availing of basic public services and social security benefits because of inefficient and not too
reliable means of identification of the beneficiaries.

Thus, in the "Primer on the Social Security Card and Administrative Order No. 308" issued by the SSS, a lead agency in
the implementation of the said order, the following salient features are mentioned:
1. A.O. 308 merely establishes the standards for I.D. cards issued by key government agencies such as SSS and GSIS.
2. It does not establish a national I.D. system neither does it require a national I.D. card for every person.
3. The use of the I.D. is voluntary.
4. The I.D. is not required for delivery of any government service. Everyone has the right to basic government
services as long as he is qualified under existing laws.
5. The LD. cannot and will not in any way be used to prevent one to travel.
6. There will be no discrimination Non-holders of the improved I.D. are still entitled to the same services but will be
subjected to the usual rigid identification and verification beforehand.

I. The issue that must first be hurdled is: was the issuance of A.O. No. 308 an exercise by the President of legislative
power properly belonging to Congress? It is not.

The Administrative Code of 1987 has unequivocally vested the President with quasi-legislative powers in the form of
executive orders, administrative orders, proclamations, memorandum orders and circulars and general or special orders. 6
An administrative order, like the one under which the new identification system is embodied, has its peculiar meaning
under the 1987 Administrative Code: Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspects
of governmental operations in pursuance of his duties as administrative head shall be promulgated in administrative orders.

The National Computerized Identification Reference System was established pursuant to the aforaquoted provision
precisely because its principal purpose, as expressly stated in the order, is to provide the people with "the facility to
conveniently transact business" with the various government agencies providing basic services. Being the "administrative
head," it is unquestionably the responsibility of the President to find ways and means to improve the government
bureaucracy, and make it more professional, efficient and reliable, specially those government agencies and
instrumentalities which provide basic services and which the citizenry constantly transact with, like the (GSIS), (SSS) and
(NSO). The national computerized ID system is one such advancement. To emphasize, the new identification reference
system is created to streamline the bureaucracy, cut the red tape and ultimately achieve administrative efficiency. The
project, therefore, relates to, is an appropriate subject and falls squarely within the ambit of the Chief Executive's
administrative power under which, in order to successfully carry out his administrative duties, he has been granted by law
quasi-legislative powers, quoted above.

Understandably, strict adherence to the doctrine of separation of power spawns differences of opinion. For we cannot
divide the branches of government into water-tight compartment. Even if such is possible, it is neither desirable nor
feasible. Bernard Schwartz, in his work Administrative Law, A Casebook, thus states: To be sure, if we think of the
separation of powers as carrying out the distinction between legislation and administration with mathematical precision and as
dividing the branches of government into watertight compartments, we would probably have to conclude that any exercise of
lawmaking authority by an agency is automatically invalid. Such a rigorous application of the constitutional doctrine is neither
desirable nor feasible; the only absolute separation that has ever been possible was that in the theoretical writings of a Montesquieu,
who looked across at foggy England from his sunny Gascon vineyards and completely misconstrued what he saw. 7

A mingling of powers among the three branches of government is not a novel concept. This blending of powers has
become necessary to properly address the complexities brought about by a rapidly developing society and which the
traditional branches of government have difficulty coping with. 8

It has been said that:

The true meaning of the general doctrine of the separation of powers seems to be that the whole power of one
department should not be exercised by the same hands which possess the whole power of either of the other department,
and that no one department ought to possess directly or indirectly an overruling influence over the others. And it has been
that this doctrine should be applied only to the powers which because of their nature are assigned by the constitution itself
to one of the departments exclusively. Hence, it does not necessarily follow that an entire and complete separation is
either desirable of was ever intended, for such a complete separation would be impracticable if not impossible; there may
be-and frequently are-areas in which executive, legislative, and judicial powers blend or overlap; and many officers whose
duties cannot be exclusively placed under any one of these heads.

The courts have perceived the necessity of avoiding a narrow construction of a state constitutional provision for
the division of the powers of the government into three distinct departments, for it is impractical to view the provision
from the standpoint of a doctrinaire. Thus, the modern view of separation of powers rejects the metaphysical abstractions
and reverts instead to more pragmatic, flexible, functional approach, giving recognition to the fact that then may be a
certain degree of blending or admixture of the three powers of the government. Moreover, the doctrine of separation of
powers has never been strictly or rigidly applied, and indeed could not be, to all the ramifications of state or national
governments; government would prove abortive if it were attempted to follow the policy of separation to the letter. 9

In any case A.O. No. 308 was promulgated by the President pursuant to the quasi-legislative powers expressly granted to
him by law and in accordance with his duty as administrative head. Hence, the contention that the President usurped the
legislative prerogatives of Congress has no firm basis.

II. Having resolved that the President has the authority and prerogative to issue A.O. No. 308, I submit that it is premature
for the Court to determine the constitutionality or unconstitutionality of the National Computerized Identification
Reference System.

Basic in constitutional law is the rule that before the court assumes jurisdiction over and decide constitutional issues, the
following requisites must first be satisfied:
1) there must be an actual case or controversy involving a conflict of rights susceptible of judicial determination;
2) the constitutional question must be raised by a proper party;
3) the constitutional question must be raised at the earliest opportunity; and
4) the resolution of the constitutional question must be necessary to the resolution of the case. 10

In this case, it is evident that the first element is missing. Judicial intervention calls for an actual case or controversy
which is defined as "an existing case or controversy that is appropriate or ripe for determination, not conjectural or
anticipatory." 11 Justice Isagani A. Cruz further expounds that "(a) justifiable controversy is thus distinguished from a
difference or dispute of a hypothetical or abstract character or from one that is academic or moot. The controversy must be
definite and concrete, touching the legal relations of parties having adverse legal interests. It must be a real and substantial
controversy admitting of special relief through a decree that is conclusive in character, as distinguished from an opinion
advising what the law would be upon a hypothetical state of facts. . . ." 12 A.O. No. 308 does not create any concrete or
substantial controversy. It provides the general framework of the National Computerized Identification Reference System
and lays down the basic standards (efficiency, convenience and prevention of fraudulent transactions) for its cretion. But
as manifestly indicated in the subject order, it is the Inter-Agency Coordinating Committee (IACC) which is tasked to
research, study and formulate the guidelines and parameters for the use of Biometrics Technology and in computer
application designs that will and define give substance to the new system.

TOYOTO v. RAMOS (ABAD SANTOS, J:)

This is a petition for habeas corpus and the problem posed is whether the State can "reserve" the power to re-arrest the petitioners even
after they had been acquitted by a court of competent jurisdiction for the offense for which they had been previously arrested.

The following are taken from the petition and have not been contradicted by the respondents:
Gerry Toyoto, Eddie Gonzales and Dominador Gabiana belong to a group called the "Urban Poor" which conducted a
march, demonstration and rally along Northbay Boulevard in Navotas, Metro Manila, on October 23, 1983.

Subsequently, Toyoto, Gonzales and Gabiana (among others) were accused of violating Presidential Decree No. 1835
(Codifying the Various Laws on Anti-Subversion and Increasing the Penalties for Membership in Subversive
Organizations [January 16, 1981]) in Criminal Case No. 1496-MN of the Regional Trial Court of Malabon. No bail was
recommended for their provisional liberty.

On July 9, 1984, the petitioners were arraigned and they pleaded not guilty to the offense charged.

The prosecution was able to present only one witness despite repeated postponements. This prompted the accused to move
for the dismissal of the case. In granting the motion, Judge Vicente B, Echaves, Jr. said inter alia:
1. Since on cross-examination, prosecution witness Dagui testified that the primary reason of the marching group
was to air their grievances to the government to allow them to transfer to the Dagat- dagatan government project for
squatters, it is doubtful that the marchers had, as alleged in the information, the 'intention to undermine the faith of the
people in the duly constituted government and authorities of the Republic of the Philippines';
2. Since Dagui testified on cross-examination that before the dispersal of the marchers there were no speeches,
and he did not see accused Toyoto, Gabiana or Gonzales deliver speeches, there is no proof at all of the allegation in the
information that the accused "uttered speeches tending to discredit the government;
3. Considering the testimony of witness Dagui on direct examination that during that rally, accused Eddie Boy
Gonzales was holding a placard, but that he did not remember the words thereon, and that he did not see co- accused
Dominador Gabiana and Gerry Toyoto holding a placard, there is no proof of the allegation in the information that said
accused did 'use and display placards, banners and other subversive leaflets;
4. It is alleged IN the information that the accused held a public rally 'without securing the necessary permit from
the proper authorities' but the 'proper authorities' were not presented to prove this allegation. In any event, considering
that, as admitted by witness Dagui, the primary purpose of the marchers was to air their grievances to the government to
allow them to transfer to the Dagat-dagatan government project for squatters, it is doubtful if the 'proper authorities' could
withhold the permit for such a rally and thereby render violence to the Constitutional 'right of the people peaceably to
assemble and petition the government for redress of grievances. (Rollo, pp. 8-9.)

The order of dismissal was dated November 9, 1984, but on December 5, 1984, when the petition for habeas corpus was
filed, the respondents had not released and they refused to release the petitioners on the ground that a Preventive
Detention Action had been issued against them. It is to be noted that the petitioners had been in detention for over one
year for they were arrested on October 23, 1983.

We thus have the sorry spectacle of persons arrested, charged and tried for merely exercising their constitutional rights.
And the injury was compounded when the over zealous minions of the government refused to release them even after they
had been acquitted by a court of competent jurisdiction because they were covered by a PDA. To be sure it cannot be
denied that there was a flagrant violation of human rights.

The return filed by the respondents states that petitioners Toyoto, Gonzales and Gabiana were released to their relatives on
December 8, 1984, pursuant to the order of the Minister of National Defense. The order (Annex 1) is dated November 30,
1984, and orders the "temporary release" of the petitioners. The respondents pray that the petition be dismissed for having
become moot and academic in view of the release of the petitioners from detention.

The petitioners would have their case considered moot and academic only "if their release would be permanent."

We sustain the petitioners.

Ordinarily, a petition for habeas corpus becomes moot and academic when the restraint on the liberty of the petitioners is
lifted either temporarily or permanently. We have so held in a number of cases. But the instant case presents a different
situation. The question to be resolved is whether the State can reserve the power to re-arrest a person for an offense after a
court of competent jurisdiction has absolved him of the offense. An affirmative answer is the one suggested by the
respondents because the release of the petitioners being merely "temporary" it follows that they can be re-arrested at
anytime despite their acquittal by a court of competent jurisdiction. We hold that such a reservation is repugnant to the
government of laws and not of men principle. Under this principle the moment a person is acquitted on a criminal charge
he can no longer be detained or re-arrested for the same offense. This concept is so basic and elementary that it needs no
elaboration.

WHEREFORE, the petition is granted; the release of the petitioners is hereby declared to be permanent. No costs.

CONDE v. RIVERA (MALCOLM, J.:)

Aurelia Conde, formerly a municipal midwife in Lucena, Tayabas, has been forced to respond to no less than five
informations for various crimes and misdemeanors, has appeared with her witnesses and counsel at hearings no less than
on eight different occasions only to see the cause postponed, has twice been required to come to the Supreme Court for
protection, and now, after the passage of more than one year from the time when the first information was filed, seems as
far away from a definite resolution of her troubles as she was when originally charged.

Philippine organic and statutory law expressly guarantee that in all criminal prosecutions the accused shall enjoy the right
to have a speedy trial. Aurelia Conde, like all other accused persons, has a right to a speedy trial in order that if innocent
she may go free, and she has been deprived of that right in defiance of law. Dismissed from her humble position, and
compelled to dance attendance on courts while investigations and trials are arbitrarily postponed without her consent, is
palpably and openly unjust to her and a detriment to the public. By the use of reasonable diligence, the prosecution could
have settled upon the appropriate information, could have attended to the formal preliminary examination, and could have
prepared the case for a trial free from vexatious, capricious, and oppressive delays.

Once before, as intimidated, the petitioner had to come to us for redress of her grievances. We thought then we had
pointed out the way for the parties. But it seems not. Once again therefore and finally, we hope, we propose to do all in
our power to assist this poor woman to obtain justice. On the one hand has been the petitioner, of humble station, without
resources, but fortunately assisted by a persistent lawyer, while on the other hand has been the Government of the
Philippine Islands which should be the last to set an example of delay and oppression in the administration of justice. The
Court is thus under a moral and legal obligation to see that these proceedings come to an end and that the accused is
discharged from the custody of the law.

We lay down the legal proposition that, where a prosecuting officer, without good cause, secures postponements of the
trial of a defendant against his protest beyond a reasonable period of time, as in this instance for more than a year, the
accused is entitled to relief by a proceeding in mandamus to compel a dismissal of the information, or if he be restrained
of his liberty, by habeas corpus to obtain his freedom. (16 C.J., 439 et seq.; In the matter of Ford [1911], 160 Cal., 334;
U.S. vs. Fox [1880], 3 Montana, 512. See further our previous decision in Conde vs. Judge of First Instance, Fourteenth
Judicial District, and the Provincial Fiscal of Tayabas, No. 21236.1

The writ prayed for shall issue and the Provincial Fiscal of Tayabas shall abstain from further attempts to prosecute the
accused pursuant to informations growing out of the facts set forth in previous informations, and the charges now pending
before the justice of the peace of Lucena, Tayabas, are ordered dismissed, with cost against the respondent fiscal. We
append to our order the observation that, without doubt, the Attorney-General, being fully cognizant of the facts of record,
will take such administrative action as to him seems proper to the end that incidents of this character may not recur. So
ordered.

NATIONAL PRESS CLUB v. COMELEC (FELICIANO, J.:)

In the 3 consolidated Petitions before us, the common question raised by petitioners is the constitutionality of Section 11 (b) of RA
No. 6646.
Petitioners in these cases consist of representatives of the mass media which are prevented from selling or donating space
and time for political advertisements; two (2) individuals who are candidates for office (one for national and the other for
provincial office) in the coming May 1992 elections; and taxpayers and voters who claim that their right to be informed of
election issues and of credentials of the candidates is being curtailed.

It is principally argued by petitioners that Section 11 (b) of Republic Act No. 6646 invades and violates the constitutional
guarantees comprising freedom of expression. Petitioners maintain that the prohibition imposed by Section 11 (b)
amounts to censorship, because it selects and singles out for suppression and repression with criminal sanctions, only
publications of a particular content, namely, media-based election or political propaganda during the election period of
1992. It is asserted that the prohibition is in derogation of media's role, function and duty to provide adequate channels of
public information and public opinion relevant to election issues. Further, petitioners contend that Section 11 (b) abridges
the freedom of speech of candidates, and that the suppression of media-based campaign or political propaganda except
those appearing in the Comelec space of the newspapers and on Comelec time of radio and television broadcasts, would
bring about a substantial reduction in the quantity or volume of information concerning candidates and issues in the
election thereby curtailing and limiting the right of voters to information and opinion.

The statutory text that petitioners ask us to strike down as unconstitutional is that of Section 11 (b) of Republic Act No.
6646, known as the Electoral Reforms Law of 1987:
Sec. 11 Prohibited Forms of Election Propaganda. — In addition to the forms of election propaganda prohibited
under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful; xxx xxx xxx
b) for any newspapers, radio broadcasting or television station, other mass media, or any person making use of
the mass media to sell or to give free of charge print space or air time for campaign or other political purposes except to
the Commission as provided under Sections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist,
commentator, announcer or personality who is a candidate for any elective public office shall take a leave of absence from
his work as such during the campaign period.

Section 11 (b) of Republic Act No. 6646 should be taken together with Sections 90 and 92 of B.P. Blg. 881, known as the
Omnibus Election Code of the Philippines, which provide respectively as follows:
Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general circulation in
every province or city: Provided, however, That in the absence of said newspaper, publication shall be done in any
other magazine or periodical in said province or city, which shall be known as "Comelec Space" wherein candidates
can announce their candidacy. Said space shall be allocated, free of charge, equally and impartially by the
Commission among all candidates within the area in which the newspaper is circulated. xxx xxx xxx
Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as "Comelec Time"
which shall be allocated equally and impartially among the candidates within the area of coverage of all radio and
television stations. For this purpose, the franchise of all radio broadcasting and television stations are hereby amended
so as to provide radio or television time, free of charge, during the period of the campaign.

The objective which animates Section 11 (b) is the equalizing, as far as practicable, the situations of rich and poor
candidates by preventing the former from enjoying the undue advantage offered by huge campaign "war chests." Section
11 (b) prohibits the sale or donation of print space and air time "for campaign or other political purposes" except to the
Commission on Elections ("Comelec"). Upon the other hand, Sections 90 and 92 of the Omnibus Election Code require
the Comelec to procure "Comelec space" in newspapers of general circulation in every province or city and "Comelec
time" on radio and television stations. Further, the Comelec is statutorily commanded to allocate "Comelec space" and
"Comelec time" on a free of charge, equal and impartial basis among all candidates within the area served by the
newspaper or radio and television station involved.

No one seriously disputes the legitimacy or the importance of the objective sought to be secured by Section 11 (b) (of
Republic Act No. 6646) in relation to Sections 90 and 92 (of the Omnibus Election Code). That objective is of special
importance and urgency in a country which, like ours, is characterized by extreme disparity in income distribution
between the economic elite and the rest of society, and by the prevalence of poverty, with the bulk of our population
falling below that "poverty line." It is supremely important, however, to note that objective is not only a concededly
legitimate one; it has also been given constitutional status by the terms of Article IX(C) (4) of the 1987 Constitution
which provides as follows: Sec. 4. The Commission [on Elections] 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)

The Comelec has thus been expressly authorized by the Constitution to supervise or regulate the enjoyment or utilization
of the franchises or permits for the operation of media of communication and information. The fundamental purpose of
such "supervision or regulation" has been spelled out in the Constitution as the ensuring of "equal opportunity, time, and
space, and the right to reply," as well as uniform and reasonable rates of charges for the use of such media facilities, in
connection with "public information campaigns and forums among candidates." 1

It seems a modest proposition that the provision of the Bill of Rights which enshrines freedom of speech, freedom of
expression and freedom of the press (Article III [4], Constitution) has to be taken in conjunction with Article IX (C) (4)
which may be seen to be a special provision applicable during a specific limited period — i.e., "during the election
period." It is difficult to overemphasize the special importance of the rights of freedom of speech and freedom of the press
in a democratic polity, in particular when they relate to the purity and integrity of the electoral process itself, the process
by which the people identify those who shall have governance over them. Thus, it is frequently said that these rights are
accorded a preferred status in our constitutional hierarchy. Withal, the rights of free speech and free press are not
unlimited rights for they are not the only important and relevant values even in the most democratic of polities. In our own
society, equality of opportunity to proffer oneself for public office, without regard to the level of financial resources that
one may have at one's disposal, is clearly an important value. One of the basic state policies given constitutional rank by
Article II, Section 26 of the Constitution is the egalitarian demand that "the State shall guarantee equal access to
opportunities for public service and prohibit political dynasties as may be defined by law." 2

The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no presumption of invalidity arises in
respect of exercises of supervisory or regulatory authority on the part of the Comelec for the purpose of securing equal
opportunity among candidates for political office, although such supervision or regulation may result in some limitation of
the rights of free speech and free press. For supervision or regulation of the operations of media enterprises is scarcely
conceivable without such accompanying limitation. Thus, the applicable rule is the general, time-honored one — that a
statute is presumed to be constitutional and that the party asserting its unconstitutionality must discharge the burden of
clearly and convincingly proving that assertion. 3

Put in slightly different terms, there appears no present necessity to fall back upon basic principles relating to the police
power of the State and the requisites for constitutionally valid exercise of that power. The essential question is whether or
not the assailed legislative or administrative provisions constitute a permissible exercise of the power of supervision or
regulation of the operations of communication and information enterprises during an election period, or whether such act
has gone beyond permissible supervision or regulation of media operations so as to constitute unconstitutional repression
of freedom of speech and freedom of the press. The Court considers that Section 11 (b) has not gone outside the
permissible bounds of supervision or regulation of media operations during election periods.

In the constitutional assaying of legislative provisions like Section 11 (b), the character and extent of the limitations
resulting from the particular measure being assayed upon freedom of speech and freedom of the press are essential
considerations. It is important to note that the restrictive impact upon freedom of speech and freedom of the press of
Section 11 (b) is circumscribed by certain important limitations.

Firstly, Section 11 (b) is limited in the duration of its applicability and enforceability. By virtue of the operation of Article
IX (C) (4) of the Constitution, Section 11 (b) is limited in its applicability in time to election periods. By its Resolution
No. 2328 dated 2 January 1992, the Comelec, acting under another specific grant of authority by the Constitution (Article
IX [C] [9]), has defined the period from 12 January 1992 until 10 June 1992 as the relevant election period.

Secondly, and more importantly, Section 11 (b) is limited in its scope of application. Analysis of Section 11 (b) shows that
it purports to apply only to the purchase and sale, including purchase and sale disguised as a donation, 4 of print space and
air time for "campaign or other political purposes." Section 11 (b) does not purport in any way to restrict the reporting by
newspapers or radio or television stations of news or news-worthy events relating to candidates, their qualifications,
political parties and programs of government. Moreover, Section 11 (b) does not reach commentaries and expressions of
belief or opinion by reporters or broadcasters or editors or commentators or columnists in respect of candidates, their
qualifications, and programs and so forth, so long at least as such comments, opinions and beliefs are not in fact
advertisements for particular candidates covertly paid for. In sum, Section 11 (b) is not to be read as reaching any report
or commentary other coverage that, in responsible media, is not paid for by candidates for political office. We read
Section 11 (b) as designed to cover only paid political advertisements of particular candidates.

The above limitation in scope of application of Section 11 (b) — that it does not restrict either the reporting of or the
expression of belief or opinion or comment upon the qualifications and programs and activities of any and all candidates
for office — constitutes the critical distinction which must be made between the instant case and that of Sanidad v.
Commission on Elections. 5 In Sanidad, the Court declared unconstitutional Section 19 of Comelec Resolution No. 2167
which provided as follows: Sec. 19. Prohibition on Columnists, Commentators or Announcers — During the plebiscite
campaign period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or
personality shall use his column or radio or television time to campaign for or against the plebiscite issues.

Resolution No. 2167 had been promulgated by the Comelec in connection with the plebiscite mandated by R.A. No. 6766
on the ratification or adoption of the Organic Act for the Cordillera Autonomous Region. The Court held that Resolution
No. 2167 constituted a restriction of the freedom of expression of petitioner Sanidad, a newspaper columnist of the
Baguio Midland Courier, "for no justifiable reason." The Court, through Medialdea, J., said: . . . [N]either Article, IX-C of
the Constitution nor Section 11 [b], 2nd par. of R.A. 6646 can be construed to mean that the Comelec has also been granted the right
to supervise and regulate the exercise by media practitioners themselves of their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holders nor the candidates. In
fact, there are no candidates involved in the plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has no statutory basis."

There is a third limitation upon the scope of application of Section 11 (b). Section 11 (b) exempts from its prohibition the
purchase by or donation to the Comelec of print space or air time, which space and time Comelec is then affirmatively
required to allocate on a fair and equal basis, free of charge, among the individual candidates for elective public offices in
the province or city served by the newspaper or radio or television station. Some of the petitioners are apparently
apprehensive that Comelec might not allocate "Comelec time" or "Comelec space" on a fair and equal basis among the
several candidates. Should such apprehensions materialize, candidates who are in fact prejudiced by unequal or unfair
allocations effected by Comelec will have appropriate judicial remedies available, so long at least as this Court sits. Until
such time, however, the Comelec is entitled to the benefit of the presumption that official duty will be or is being regularly
carried out. It seems appropriate here to recall what Justice Laurel taught in Angara v. Electoral Commission 7 that the
possibility of abuse is no argument against the concession of the power or authority involved, for there is no power or
authority in human society that is not susceptible of being abused. Should it be objected that the Comelec might refrain
from procuring "Comelec time" and "Comelec space," much the same considerations should be borne in mind. As earlier
noted, the Comelec is commanded by statute to buy or "procure" "Comelec time" and "Comelec space" in mass media,
and it must be presumed that Comelec will carry out that statutory duty in this connection, and if it does fail to do so, once
again, the candidate or candidates who feel aggrieved have judicial remedies at their disposal.

The points that may appropriately be underscored are that Section 11 (b) does not cut off the flow of media reporting,
opinion or commentary about candidates, their qualifications and platforms and promises. Newspaper, radio broadcasting
and television stations remain quite free to carry out their regular and normal information and communication operations.
Section 11 (b) does not authorize any intervention and much less control on the part of Comelec in respect of the content
of the normal operations of media, nor in respect of the content of political advertisements which the individual candidates
are quite free to present within their respective allocated Comelec time and Comelec space. There is here no "officious
functionary of [a] repressive government" dictating what events or ideas reporters, broadcasters, editors or commentators
may talk or write about or display on TV screens. There is here no censorship, whether disguised or otherwise. What
Section 11 (b), viewed in context, in fact does is to limit paid partisan political advertisements to for a other than modern
mass media, and to "Comelec time" and "Comelec space" in such mass media.

Section 11 (b) does, of course, limit the right of free speech and of access to mass media of the candidates themselves.
The limitation, however, bears a clear and reasonable connection with the constitutional objective set out in Article IX(C)
(4) and Article II (26) of the Constitution. For it is precisely in the unlimited purchase of print space and radio and
television time that the resources of the financially affluent candidates are likely to make a crucial difference. Here lies the
core problem of equalization of the situations of the candidates with deep pockets and the candidates with shallow or
empty pockets that Article IX(C) (4) of the Constitution and Section 11 (b) seek to address. That the statutory mechanism
which Section 11 (b) brings into operation is designed and may be expected to bring about or promote equal opportunity,
and equal time and space, for political candidates to inform all and sundry about themselves, cannot be gainsaid.
My learned brother in the Court Cruz, J. remonstrates, however, that "t[he] financial disparity among the candidates is a
fact of life that cannot be corrected by legislation except only by the limitation of their respective expenses to a common
maximum. The flaw in the prohibition under challenge is that while the rich candidate is barred from buying mass media
coverage, it nevertheless allows him to spend his funds on other campaign activities also inaccessible to his strained
rival." True enough Section 11 (b) does not, by itself or in conjunction with Sections 90 and 92 of the Omnibus Election
Code, place political candidates on complete and perfect equality inter se without regard to their financial affluence or
lack thereof. But a regulatory measure that is less than perfectly comprehensive or which does not completely obliterate
the evil sought to be remedied, is not for that reason alone constitutionally infirm. The Constitution does not, as it cannot,
exact perfection in governmental regulation. All it requires, in accepted doctrine, is that the regulatory measure under
challenge bear a reasonable nexus with the constitutionally sanctioned objective. That the supervision or regulation of
communication and information media is not, in itself, a forbidden modality is made clear by the Constitution itself in
Article IX (C) (4).

It is believed that, when so viewed, the limiting impact of Section 11 (b) upon the right to free speech of the candidates
themselves may be seen to be not unduly repressive or unreasonable. For, once again, there is nothing in Section 11 (b) to
prevent media reporting of and commentary on pronouncements, activities, written statements of the candidates
themselves. All other fora remain accessible to candidates, even for political advertisements. The requisites of fairness and
equal opportunity are, after all, designed to benefit the candidates themselves.

Finally, the nature and characteristics of modern mass media, especially electronic media, cannot be totally disregarded.
Realistically, the only limitation upon the free speech of candidates imposed is on the right of candidates to bombard the
helpless electorate with paid advertisements commonly repeated in the mass media ad nauseam. Frequently, such
repetitive political commercials when fed into the electronic media themselves constitute invasions of the privacy of the
general electorate. It might be supposed that it is easy enough for a person at home simply to flick off his radio of
television set. But it is rarely that simple. For the candidates with deep pockets may purchase radio or television time in
many, if not all, the major stations or channels. Or they may directly or indirectly own or control the stations or channels
themselves. The contemporary reality in the Philippines is that, in a very real sense, listeners and viewers constitute a
"captive audience." 8

The paid political advertisement introjected into the electronic media and repeated with mind-deadening frequency, are
commonly intended and crafted, not so much to inform and educate as to condition and manipulate, not so much to
provoke rational and objective appraisal of candidates' qualifications or programs as to appeal to the non-intellective
faculties of the captive and passive audience. The right of the general listening and viewing public to be free from such
intrusions and their subliminal effects is at least as important as the right of candidates to advertise themselves through
modern electronic media and the right of media enterprises to maximize their revenues from the marketing of "packaged"
candidates.

WHEREFORE, the Petitions should be, as they are hereby, DISMISSED for lack of merit. No pronouncement as to costs.

 
 Separate Opinions

DAVIDE, JR., J.: concurring:

I fully concur with the majority opinion. I wish, however, to express my thoughts on some material points.

The constitutional issue raised in these cases must be decided in the light of the provisions of our own Constitution and
not on orthodox principles or classical definitions of certain rights which have, in the course of time and as a result of the
interplay of societal forces requiring the balancing of interests and values, been unchained from their absolutist moorings.

It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is not
an absolute right.

Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the right or privilege of
free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its
limitations; the right is not absolute at all times and under all circumstances, although limitations are recognized only in
exceptional cases. Freedom of speech does not comprehend the right to speak whenever, however, and wherever one
pleases, and the manner, and place, or time of public discussion can be constitutionally controlled." 1

The foregoing rule proceeds from the principle that every right or freedom carries with it the correlative duty to exercise it
responsibly and with due regard for the right and freedoms of others. In short, freedom is not freedom from responsibility,
but with responsibility.

I respectfully submit that there can be no higher form of limitation to a right than what the Constitution itself authorizes.
On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of speech or expression and of the press
vis-a-vis the electoral process, the present Constitution lays downs certain principles authorizing allowable restraints
thereon. I refer to the. following provisions of the 1987 Constitution, to wit:

(1) Section 26 of Article II. (Declaration of Principle and other Policies) which reads:

The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (emphasis supplied)

(2) Section 1 of Article XIII (Social Justice and Human rights) which reads:

The congress shall give highiest 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 power for the common good. (emphasis supplied)

(3) Section 4 of Article IX-C which provides:

The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges, or
concessions granted by the government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of holding
free, orderly, honest, peaceful, and credible elections. (emphasis supplied)
There can be no doubt that the first two (2) provisions contemplate measures that would bridge the gap between the rich
and the poor in our society. In the past, the equilibrium sought to be achieved was only in the economic and social fields.
Thus, before the advent of the 1987 Constitution, social justice was defined as:

Social Justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of
laws and the equalization of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of measures calculated to insure economic
stability of all the competent elements of society, through the maintenance of a proper economic and
social equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments on the time-honored principle of salus populi est suprema
lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among
divers and diverse units of a society and of the protection that should be equally and evenly extended to
all groups as a combined force in our social and economic life, consistent with the fundamental and
paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of
bringing about "the greatest good to the greatest number." 2

Aware of the lamentable fact that in the Philippines, no gap between these two unavoidable extremes of society is more
pronounced than in the field of politics, and ever mindful of the dire consequences thereof, the framers of the present
Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the elite, the
rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an exception.
Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and competent, does
not stand a fighting
chance. Of course, there have been isolated instances — but yet so few and far between — when poor candidates made it.

Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focusing strictly on the
legitimate aspect of the electoral struggle, propaganda, through the various forms of media, provides the most
sophisticated and effective means of reaching the electorate and convincing voters to vote for a particular candidate. It is
in this area, particularly in the use of television, radio and newspaper, that a poor candidate will not be able to compete
with his opulent opponents who have all the resources to buy prime television and radio time and full pages of leading
newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely relax in their homes,
offices or hotel suites, can reach every nook and cranny of their municipality, city, province, district or even the entire
Philippines and be seen or heard at any time of the day and night. During the contracted hours, their paid hacks can
concentrate on dishonoring the poor and hapless opponent by hurling innuendoes of defects or vice. With newspaper
advertisements, the wealthy candidates can reach thousands of readers daily. A worse scenario obtains where the rich
candidates themselves fully or substantially own or operate a television or radio station, or publish newspapers. On the
other hand, to a poor candidate, the campaign period would sadly prove to be insufficient for him to campaign in every
barangay, even if he is running for a municipal position. Thus, not only would he already be at a disadvantage insofar as
visibility and presentation of his issues or program of government are concerned, he would have no opportunity to rebut
whatever lies his opponents may spread nor the chance to clear himself of false accusations.

Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress passed a measure, R.A.
No. 6646, otherwise known as the Electoral Reforms Law of 1987, 3 introducing additional reforms to the electoral system
which, inter alia, not only seeks to enhance the purity of the electoral process, but also aspires to ensure even just an
approximation of equality among all candidates in their use of media for propaganda purposes. The latter is best
evidenced by the provision challenged in this case, Section 11 (b), which reads:

Section 11. Prohibited forms of election propaganda. — In addition to the forms of propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

 (b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality who is
a candidate for any elective public office shall take a leave of absence from his work as such during the
campaign period.

This provision, understood in the light of Section 4, Article IX-C of the Constitution, is a reasonable regulation enacted to
accomplish the desired objectives and purposes earlier mentioned. It neither constitutes proscribed abridgment of the
freedom of expression nor prohibits free speech; it merely provides the rules as to the manner, time and place for its
exercise during a very limited period. It makes reference to Sections 90 and 92 of Batas Pambansa Blg. 881 on
"COMELEC time" and "COMELEC space." Said sections read in full as follows:

Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission among all candidates within the area
in which the newspaper is circulated. (Sec. 45, 1978 EC)

xxx xxx xxx

Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the area of
coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and
television stations are hereby amended so as to provide radio or television time, free of charge, during the
period of the campaign. (Sec. 46, 1978 EC)

Obviously then, the airing and printing of a candidate's political advertisements can be done — and is even encouraged to
be done — during the "COMELEC time" and within the "COMELEC space." This authority of the COMELEC is no
longer purely statutory. It is now constitutional pursuant to the clear mandate of Section 4 of Article IX-C, which is
quoted above. This constitutional grant removes whatever doubt one may have on the split verdict of this Court in Badoy
vs. Ferrer, et al., 4 Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially
among all candidates within the area in which the newspapers are circulated. Outside of said Comelec
space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid
comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or
mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other
candidates in the district in which the candidate is running are also mentioned with equal prominence.

this Court ruled:

Against the background of such facilities accorded by the law for all candidates, rich and poor alike, and
the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration and the
equality or chances among the candidates, the restriction on the freedom of expression of the candidate or
any other individual prescribed in par. F of Sec. 12 is so narrow as not to affect the substance and vitality
of his freedom of expression itself.

xxx xxx xxx

Hence, consistent with out opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs.
Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F Sec. 12, it only one of the many devices employed by the law to
 prevent a clear and present danger of the perversion or prostitution of the electoral apparatus and of the
denial of the equal protection of the laws.

The fears and apprehensions of petitioner concerning his liberty of expression in these two cases,
applying the less stringent balancing -of-interests criterion, are far outweighed by the all important
substantive interests of the State to preserve the purity of the ballot and to render more meaningful and
real the guarantee of the equal protection of the laws.

In the fairly recent case of Sanidad vs. Commission on Elections, 5 this Court sustained, in effect, the validity of Section
11(b) of R.A. No. 6646. Thus:

However, it is clear from Act. IX-C of the 1987 Constitution that what was granted to the Comelec was
the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued
for the operation of transportation or other public utilities, media of communication or information to the
end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among candidates are ensured. The evil sought to
be prevented by this provision is the possibility that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or radio or television time. This is also the reason
why a columnist, commentator, announcer or personality, who is a candidate for any elective office is
required to take a leave of absence from his work during the campaign period (2nd par. Section 11 (b)
R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more
exposed to the voters to the prejudice of other candidates unless required to take a leave of absence.

However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise
by media practitioners themselves of their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during plebiscite periods are neither the franchise
holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19
of Comelec Resolution No. 2167 has no statutory basis.

In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a
valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral
apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election
which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an
area on some special political matter unlike in an election where votes are cast in favor of specific persons
for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a
plebiscite.

Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged provision, the doubt
must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs. Executive Secretary,
et al.: 6

. . . it is in accordance with the settled doctrine that between two possible constructions, one avoiding a
finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That
which will save, not that which will destroy, commends itself for acceptance. After all, the basic
presumption all these years is one of validity. The onerous task of proving otherwise is on the party
seeking to nullify a statute. It must be proved by clear and convincing evidence that there is an
infringement of a constitutional provision, save in those cases where the challenged act is void on its face.
Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded,
does not suffice. Justice Malcolm's aphorism is apropos: "To doubt is to sustain." 7

The reason for this is that an act of the legislature approved by the executive is presumed to be within constitutional
bounds. The responsibility of upholding the Constitution rests not only on the courts, but also on the legislature and the
executive as well.
For the Court to strike our their acts as unconstitutional, nothing less than clear and convincing evidence of such breach of
the Constitution must be shown.

Petitioners have not acquitted themselves of that duty. The petitions then must be dismissed for lack of merit.

PADILLA, J.: concurring:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.

Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987," challenged in these
petitions, states that:

Sec. 11. Prohibited Forms of Election Propaganda — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality who is
a candidate for any elective public office shall take a leave of absence from his work as such during the
campaign period.

Petitioners contend that the provision is void because it is violative of the freedoms of the press, speech and expression as
guaranteed by Article III, Section 4 of the Constitution.

But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate exercise of its police
power.

The concept of police power is well-established in this jurisdiction. It has been defined as the state
authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in
order to foster the common good.

xxx xxx xxx

It constitutes an implied limitation on the Bill of Rights. According to Fernando, 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 and 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." Significantly, 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. 1

Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this
reason, it is co-extensive with the necessities of the case and the safeguards of public interest. 2

In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal access to
opportunities for public service. 3 Opportunity to hold a public office for public service, particularly elective public offices
must be equally accessible to qualified and deserving citizens. Corollary to this, the legislature also recognizes the power
of the Commission on Elections (COMELEC) to supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of media of communication or information granted by the government or any subdivision,
agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefore, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections." 4

In Pablito V. Sanidad vs. The Commission on Elections, 5 we held that the evil sought to be prevented by Art. IX-C,
Section 4 of the Constitution 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.

In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act as an
equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a myriad of
campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign would result
in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print space and air
time, and yet, they may be equally qualified and deserving candidates. In Anacleto D. Badoy, Jr. vs. Jaime N. Ferrer, et
al., G.R. NO.
L-32546, October 17, 1970, 35 SCRA 285, this Court declared Section 12(F) of R.A. No. 6132 valid and constitutional,
recognizing that the purpose of the limitation, on the freedom of the candidate or his sympathizer to spend his own money
for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give the poor candidates a
fighting chance in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize, if not approximate,
equality of chances among the various candidates for elective public office.

Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space or air time for
campaign or other political purposes, access to print space and air time would be given equally to all candidates.
Nevertheless, as opined by the COMELEC, the means to gain access to said time and space would be unequal among all
candidates. Hence, there would be in the final analysis, inequality.

Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign purposes will open the
floodgates to corruption in public office because a winning candidate who overspends during the election period must
necessarily recover his campaign expenses by "hook or crook". Section 11 of R.A. No. 6646 would indirectly constitute a
positive and effective measure against corruption in public office.

Petitioners also contend that the challenged provision is "violative of the people's right to information particularly about
the conduct of public officials including the character and qualifications of candidates seeking public office."

I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision in expressing its
mandate — no sufficient fora to detect and decide for themselves who, among the candidates truly deserve their votes. 6

Aside from Sec. 11 (b) of R.A. No. 6646 providing for Comelec space and Comelec time, Sections 9 and 10 of the same
law afford a candidate several venues by which the can fully exercise his freedom of expression, including freedom of
assembly. The electorate, in turn, are given opportunities to know the candidates and be informed of their qualifications
and platforms.

As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan private or civic
organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for the same
office may simultaneously and personally participate to present, explain, and/or debate on their campaign platforms and
programs and other like issues. Section 10, on the other hand, allows the candidates the use of the designated common
poster areas to post, display and exhibit election propaganda to announce or further their candidacy; not to mentioned the
right to hold political caucuses. conferences, meetings, rallies, parades, or other assemblies for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for a candidate; publishing or distributing campaign literature or
materials designed to support the election of any candidate; and directly or indirectly solicit votes, pledges or support for a
candidate. 7

In short, the law in question (Sec. 11, Rep. Act No. 6646) has been enacted for a legitimate public purpose and the means
it employs to achieve such purpose are reasonable and even timely.
Based on all the foregoing consideration, I vote to sustain the validity and constitutionality of Section II of R.A. No. 6646.

GUTIERREZ, JR., J., dissenting:

I am saddened by the readiness with which Congress, Comelec, and the members of this Court are willing to sacrifice not
only that most precious clause of the Bill of Rights — freedom of speech and of the press — but also the right of every
citizen to be informed in every way possible about the qualifications and programs of those running for public office.

Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the voters ignorant of who the candidates are and
what they stand for.

With elections fast approaching, the surveys show that almost half of the nation's voters are undecided as to the
Presidency. Certainly, they do not know who are running for the Senate.

The implementation of Section 11 (b) will result in gross inequality. A cabinet member, an incumbent official, a movie
star, a basketball player, or a conspicuous clown enjoys an unfair advantage over a candidate many times better qualified
but lesser known.

I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio, former NBI Director;
Estelito P. Mendoza, former Solicitor General and Governor; and Florangel Rosario Braid, member of the Constitutional
Commission and distinguished mass communication personality (to name only three) are also running for the Senate. We
owe it to the masses to open all forms of communication to them during this limited campaign period. A candidate to
whom columnists and radio-television commentators owe past favors or who share their personal biases and convictions
will get an undue amount of publicity. Those who incur the ire of opinion makers cannot counteract negative reporting by
buying his own newspaper space or airtime for the airing of his refutations.

Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to the task keeping
registration lists clean and had to repeat the exercise in critical areas. It should now husband its resources for its real
function — insuring the integrity of the voting process and safeguarding the true results of the elections.

Why Comelec should also supervise the publicity campaigns of almost 100,00 candidates running for 17,000 national and
local positions is beyond my poor power to comprehend.

I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the fresh, imaginative,
and personal appeal of advertisements espousing a cause or reaching a particular audience.

Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed during
the limited period of the election campaign when information is most needed. Moreover, the mere thought that published
materials are supervised by a government office is enough to turn the reader off. Only faithful followers who already
know for whom they are voting will bother to read the statements of their chosen candidate in the Comelec corner of the
newspapers.

The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited period. The
amount which a political party or candidate may spend is restricted. Added to the confines of the limited period and
restricted expenses, the law now imposes a violation of the candidates' freedom of speech and the voters' freedom to
know.

I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant style. We should not
allow the basic freedom of expression to be sacrificed at the alter of infinitely lesser fears and concerns. Under the clear
and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided
must be so substantive as to justify a clamp over one's mouth or, a writing instrument to be stilled.

In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one short of the 2/3
majority needed to invalidate the law) deemed a less restrictive statute as unconstitutional. The four (4) Justices who
allowed the law to remain did so only because there were various safeguards and provisos. Section 11(b) of R.A. No.
6646 now removes one of those safeguards.

The then Justice Fred Ruiz Castro stated:

What of the social value and importance of the freedoms impaired by Section 50-B? The legislation
strikes at the most basic political right of the citizens in a republican system, which is the right actively to
participate in the establishment or administration of government. This right finds expression in multiple
forms but it certainly embraces that right to influence the shape of policy and law directly by the use of
ballot. It has been said so many times it scarcely needs to be said again, that the realization of the
democratic ideal of self-government depends upon an informed and committed electorate. This can be
accomplished only by allowing the fullest measure of freedom in the public discussion of candidates and
the issues behind which they rally; to this end, all avenues of persuasion — speech, press, assembly,
organization — must be kept always open. It is in the context of the electoral process that these
fundamental rights secured by the Constitution assume the highest social importance. (at page 904;
Emphasis supplied)

I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the choice of the nation's
leaders. I vote to declare the challenged legislation unconstitutional.

CRUZ, J., dissenting:

It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is nothing
more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty in another
obeisance to the police state, which we so despised during the days of martial law. I cannot share in the excuses of the
Court because I firmly believe that the highest function of authority is to insure liberty.

In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. May quarrel
is with the way the objective is being pursued for I find the method a most indefensible repression. It does little good, I
should think, to invoke the regularity authority of the Commission on Elections, for that power is not a license to violate
the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject to the requirements of
the police power which the ponencia seems to disdain.

It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the challenged at
is presumed to be valid in deference to the political departments. But not — and this represents a singular exception —
where the act is claimed to violate individual liberty, most importantly the freedom of expression. In such a vital and
exceptional case, as in the case now before us, I respectfully submit that the presumption must be reversed in favor of the
challenge.

Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above all
liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the
communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights include
the equally important freedom of the press, the right of assembly and petition, the right to information on matters of public
concern, the freedom of religion insofar as it affects the right to form associations as an instrument for the ventilation of
views bearing on the public welfare.

Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the
quaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the
hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most
cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that is
first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of the
press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972. The
reason for this precaution is that freedom
of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be wielded
by every citizen in the
land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart to
use it.

As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and
suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a duty.
From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full
deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to be
the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options, let
alone the latitude with which they are considered, can insure a far better choice than that made by the heedless dictator in
the narrow confines of his mind and the loneliness of his pinnacle of power.

The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are
communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression
protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify
meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of belligerence.
The individual can convey his message in a poem or a novel or a tract or in a public speech or through a moving picture or
a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be heeded, for a
acceptability will depend on the quilty of his thoughts and of his persona, as well as the mood and motivation of his
audience. But whatever form he employs, he is entitled to the protection of the Constitution against any attempt to muzzle
his thoughts.

There is one especially significant way by which the citizen can express his views, and that is through the ballot. By the
votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the various
elective offices in the government, from the highest position of President of the Philippines to that of the lowly member of
the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his intelligence (or lack of
it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any other candidate with no
known distinction except the presumptuousness to seek elective office. Fortunately, there are also other candidates
deserving of the support of the circumspect and thinking citizens who will use their suffrages conscientiously with only
the public interest as their criterion and guide.

It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they are
allowed to campaign during the election period. Such campaign includes their personally visiting the voters in house-to-
house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-serving leaflets
extolling their virtues, giving away buttons and stickers and sample ballots and other compaign materials, and holding
caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to do in the specified places
and at the proper time provided only that they do not exceed the maximum limit of election expenses prescribed by the
Election Code at the rate of P1.50 for every voter currently registered in the constituency where they filed their certificate
of candidacy. 1

It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the
prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or placards
or posters or meetings to reach the electorate, incurring for this purposes a not inconsiderable amount of his or his
supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of mass
communications, even for free. Employment of these facilities is allowed only through the respondent Commission on
Elections, which is directed by the Election Code to procure newspaper space and radio and television time to be
distributed among the thousands of candidates vying throughout the land for the thousands of public offices to be filled in
the coming elections.

There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights, the
freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason is the
language of Article III, Section 4, of the Constitution, which provides without qualification:

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.
This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated by
law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better policy is to
assume that every right, including even the freedom of expression, must be exercised in accordance with law and with due
regard for the rights of others.

In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully
questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that
wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting them
to certain places and hours and under specified conditions, in the interest of peace and security, public convenience, and in
one case, even to prevent disturbance of the rites in a nearby church. 2 Under the Public Assembly Act, a permit from the
mayor shall be necessary for the holding of a public meeting except where the gathering is to be held in a private place or
the campus of a government-owned or controlled educational institution or a freedom park.

All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to
restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as established
by this Court in a long line of decisions. These requisites are:
1) the interests of the public generally as distinguished from those of a particular class require the exercise of the police
power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sough to be achieved
and not unduly oppressive upon individuals. 3 In simpler terms, the police measure, to be valid, must have a lawful
objective and a lawful method of achieving it.

The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent disparity
between the rich and the poor candidates by denying both of them access to the mass media and thus preventing the
former from enjoying an undue advantage over the latter. There is no question that this is a laudable goal. Equality among
the candidates in this regard should be assiduously pursued by the government if the aspirant with limited resources is to
have any chance at all against an opulent opponent who will not hesitate to use his wealth to make up for his lack of
competence.

But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may be
employed even if it may not be the best among the suggested options. In my own view, the method here applied falls far
short of the constitutional criterion. I believe that the necessary reasonable link between the means employed and the
purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.

The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the
limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that while
the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other
campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies and
meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited mass
media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot be
matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By the same
token, the rich candidates may visit more houses, send more letters, make more telephone appeals, distribute more
campaign materials, incurring for all these more expenses than the poor candidates can afford. But these advantages are
allowed by the law because they do not involve the use of mass media space and time.

And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is raised
for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would be
prohibited under the law although the rich candidates clearly has in this case no advantage over his adversary.

And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio commentator
who is apparently expressing his own opinion without financial consideration or inducement? This is not prohibited by
Section 11(b) simply because the endorsement does not appear to have been purchased by the candidates or given to him
for free.

The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of
candidates running all over the country for the offices of President of the Philippines, Vice-President, senators,
representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and
councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the candidates
would involve administrative work of unmanageable proportions, and the possibility as well of unequal distribution,
whether deliberate or unintentional, that might create more serious problems than the problem at hand.

It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to resolve
and its resolution may not be reviewed by the courts of justice. In the case of the police power, however, it is required that
there be a plausible nexus between the method employed and the purpose sought to be achieved, and determination of this
link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as remarked by Justice
Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that what the law has done
was valid to begin with. The trouble with the challenged law is that it has exceeded what it should have done, thereby
becoming both inefficacious and arbitrary. As such, it must be slain.

But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In a
word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak
only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so
rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility of finding a
man base enough to accept the office of censor and at the same time good enough to perform its duties. Yet a pretender to
that meddler is in our midst today, smugly brandishing the threat of this miserable law.

One could perhaps concede some permissible instances of censorship, as where private mail is screened during wartime to
prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the national security or
where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded theater. But these exceptions
merely make and bolster the rule that there should be no prior restraint upon a person's right to express his ideas on any
subject of public interest. The rule applies whether the censorship be in the form of outright prohibition, as in the cases
before us, or in more subtle forms like the imposition of tax upon periodicals exceeding a prescribed maximum number of
copies per issue 4 or allowing the circulation of books only if they are judged to be fit for minors, thus reducing the
reading tastes of adults to the level of juvenile morality. 5

I remind the Court of the doctrine announced in Bantam Books v.

Sullivan 6 that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its
validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision appears
quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to justify it in the
name of social justice and clean elections cannot prevail over the self-evident fact that what we have here is an illegal
intent to suppress free speech by denying access to the mass media as the most convenient instruments for the molding of
public opinion. And it does not matter that the use of these facilities may involve financial transactions, for the element of
the commercial does not remove them from the protection of the Constitution. 7

The law is no less oppressive on the candidates themselves who want and have the right to address the greatest number of
voters through the modern facilities of the press, radio and television. Equally injured are the ordinary citizens, who are
also entitled to be informed, through these mass media, of the qualifications and platforms of the various candidates
aspiring for public office, that they may be guided in the choice they must make when they cast they ballots. 8

I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on
the choice of our elective officials. It is truly alarming that elections in a growing number of cases have become no more
than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce. The offer
of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the
elemental struggle for survival. That there are millions of such persons can only compound this terrible situation. But
what makes it especially revolting is the way these helpless persons are manipulated and imposed upon and tantalized to
surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy
themselves into elective office — these are the real saboteurs of democracy. These are the scoundrels who would stain the
pristine ballot in their cynical scheme to usurp public office by falsifying the will of the people. Section 11(b) aims to
minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on
Elections relies heavily on Badoy v. Commission on Elections 9 to sustain the exercise of its authority to regulate and
supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the
present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No. 6132
providing as follows:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially
among all candidates within the areas in which the newspapers are circulated. Outside of said Comelec
space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid
comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or
mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other
candidates in the district in which the candidate is running are also mentioned with equal prominence.

The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo), declared:

Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of R.A.
No. 6132 designed to maximize, if not approximate, equality of chances among the various candidates in
the same district, the said restriction on the freedom of expression appears too insignificant to create any
appreciable dent on the individual's liberty of expression.

What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the
candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What Section
11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that finds no
justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass media as a
vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to create any
appreciable dent on the individual's liberty of expression."

What is in point is Sanidad v. Commission on Elections, 10 where this Court, through Mr. Justice Medialdea, unanimously
declared unconstitutional a regulation of the Commission on Elections providing as follows:

Sec. 19. Prohibition on columnists, commentators or announcer. — During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or
personality shall use his column or radio or television time to campaign for or against the plebiscite
issues.

On the argument that the said persons could still express their views through the air time and newspaper space to be
allocated by the respondent, the Court declared:

Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not absolutely
bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic act
because he may do so through the Comelec space and/or Comelec radio/television time, the same is not
meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still
restriction on his choice of the forum where he may express his view. No reason was advanced by
respondent to justify such abridgment. We hold that this form of regulation is tantamount to a restriction
of petitioner's freedom of expression for no justifiable reason. (Emphasis supplied)

This decision was promulgated without a single dissent, even from the incumbent members then who are now sustaining
Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in this decision
upholding the prohibition in question.

The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight of
the poor candidate thus:

Respondent Commission invites appreciation of the realities of present-day political campaigns. In today's
election competitions the success of one's candidacy rests to a great extent on the candidate's ability to
match the financial and material resources of the other. Where a candidate is given limitless opportunity
to take his campaign to areas of persuasion through the media, what is left of a winning chance for a poor,
 if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act No. 6646, a wealthy
candidate could block off an opponent of lesser means from the public view by buying all print space in
newspapers and air time in radio and television.

I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the
poor candidates vis-a-vis a wealthy opponent determined to win at all cost (which he can afford). However, for all its
anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the
Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.

The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or
could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not be
carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the Constitution
to supervise or regulate the operations of the mass media in connection with election matters, and we may expect that it
will use this power to prevent the monopoly it fears, which conceivably will consume all the funds the candidate is
allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as long as he does not
exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere fact that the poor
candidate can spend only a small fraction of that amount does not prevent the rich candidate from spending all of it if he is
so minded. This may be a heartless way of putting it, but that is in fact how the law should be interpreted. The Election
Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the rich candidate shall spend only
the same amount as the poor candidates can afford.

I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be
exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our intelligence
and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the free society. As
part of the larger picture, these impositions are only minor irritations that, placed in proper perspective, should not justify
the withdrawal of the great an inalienable liberty that is the bedrock of this Republic. It is best to remember in this regard
that freedom of expression exists not only for the though that agrees with us, to paraphrase Justice Holmes, but a also for
the thought that we abhor.

I submit that all the channels of communication should be kept open to insure the widest dissemination of information
bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the
officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is
important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for public
office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible aberration
of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume of victory.

For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the challenged
law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the Constitution that
will ruthlessly bleed it white, and with it this most cherished of our freedoms.

PARAS, J., dissenting:

In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like efficiency, rendered a
decision which in the interest of accuracy and candidness, I would like to turn — the serious attack on our freedom of
expression. It is sad but I have no choice except to say that I dissent.

The freedom to advertise one's political candidacy in the various forms of media is clearly a significant part of our
freedom of expression and of our right of access to information. Freedom of expression in turn in includes among other
things, freedom of speech and freedom of the press. Restrict these freedoms without rhyme or reason, and you violate the
most valuable feature of the democratic way of life.

The majority says that the purpose of the political advertisement provision is to prevent those who have much money from
completely overwhelming those who have little. This is gross errors because should the campaign for votes be carried out
in other fora (for example, rallies and meetings) the rich candidate can always be at a great advantage over his less
fortunate opponent. And so the disparity feared will likewise appear in campaigns other than through media. It is alleged
also that the candidate with money can purchase for himself several full page advertisements, making his poor opponents
really poor in more ways than one. This is not realistic for the poor opponents may, for certain reasons be given or favored
with advertisements free of charge, and money will not be needed in this case. And yet under the statute in question, even
free or gratuitous advertisements in print, in radio or in television are included in the prohibition. And then again, it is
contended by the majority that a poor candidate can still make use of media by consenting to interviews and news reports
about this campaign, which interviews and reports are, according to the majority still allowable. But then these interviews
and news reports are still subtle advertisements and they can be had if a candidate deliberately looks for media
practitioners to inner view him or to write about him. If the majority is to be consistent, these interviews and news reports
should also be disallowed. A case in point is the senatorial candidate who was interviewed on television last Tuesday
(March 3, 1992). Portions of the interview follow:

Q In 19___, were you not the Secretary of _____________?

A Yes, I was.

Q When you were Secretary, did you not accomplish the following?

A (Interviewer then enumerated various accomplishments.)

Q Yes, I did.

There can be no doubt that this interview is disguised propaganda, and yet, if we follow the majority opinion, this is
allowable. Is this not
illogical — that is , if the ban stays?

And then again, if we were to consider the ban as constitutional, the "unknown" or "lesser known" candidates would be at
a distinct disadvantage. They will have to hold numerous rallies (spending oodles and oodles of money). And only those
who had previously received public exposure by dint of government service or by prominence in the movies, in music, in
sports, etc. will be the ones "recalled" by the voters. This will indeed be unfortunate for our country.

It is true that freedom of speech and freedom of the press are not absolute, and that they have their own limitations. But I
do not see how these limitations can make the disputed prohibition valid and constitutional.

I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and eminently
unconstitutional.

Separate Opinions

DAVIDE, JR., J., concurring:

I fully concur with the majority opinion. I wish, however, to express my thoughts on some material points.

The constitutional issue raised in these cases must be decided in the light of the provisions of our own Constitution and
not on orthodox principles or classical definitions of certain rights which have, in the course of time and as a result of the
interplay of societal forces requiring the balancing of interests and values, been unchained from their absolutist moorings.

It is now settled that the freedom of speech and of the press, or of expression, which the Bill of Rights guarantees, is not
an absolute right.

Indeed, even in American jurisprudence, the overwhelming weight of authority maintains that "the right or privilege of
free speech and publication, guaranteed by the Constitutions of the United States and of the several states, has its
limitations; the right is not absolute at all times and under all circumstances, although limitations are recognized only in
exceptional cases. Freedom of speech does not comprehend the right to speak whenever, however, and wherever one
pleases, and the manner, and place, or time of public discussion can be constitutionally controlled." 1

The foregoing rule proceeds from the principle that every right or freedom carries with it the correlative duty to exercise it
responsibly and with due regard for the right and freedoms of others. In short, freedom is not freedom from responsibility,
but with responsibility.

I respectfully submit that there can be no higher form of limitation to a right than what the Constitution itself authorizes.
On this, both the lettered and the unlettered cannot quarrel. In respect to freedom of speech or expression and of the press
vis-a-vis the electoral process, the present Constitution lays downs certain principles authorizing allowable restraints
thereon. I refer to the. following provisions of the 1987 Constitution, to wit:

(1) Section 26 of Article II. (Declaration of Principle and other Policies) which reads:

The State shall guarantee equal access to opportunities for public service, and prohibit
political dynasties as may be defined by law. (emphasis supplied)

(2) Sec 1 of Article XIII (Social Justice and Human rights) which reads:

The congress shall give highiest 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 power for the common good. (emphasis supplied)

(3) Section 4 of Article IX-C which provides:

The Commission may, during the election period, supervise or regulate the enjoyment or
utilization of all franchises or permits for the operation of transportation and other public
utilities, media of communication or information, all grants, special privileges, or
concessions granted by the government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled corporation or its subsidiary.
Such supervision or regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with the objective of holding
free, orderly, honest, peaceful, and credible elections. (emphasis supplied)

There can be no doubt that the first two (2) provisions contemplate measures that would bridge the gap between the rich
and the poor in our society. In the past, the equilibrium sought to be achieved was only in the economic and social fields.
Thus, before the advent of the 1987 Constitution, social justice was defined as:

Social Justice is "neither communism, nor despotism, nor atomism, nor anarchy," but the humanization of
laws and the equalization of social and economic forces by the State so that justice in its rational and
objectively secular conception may at least be approximated. Social justice means the promotion of the
welfare of all the people, the adoption by the Government of measures calculated to insure economic
stability of all the competent elements of society, through the maintenance of a proper economic and
social equilibrium in the interrelations of the members of the community, constitutionally, through the
adoption of measures legally justifiable, or extra-constitutionally, through the exercise of powers
underlying the existence of all governments on the time-honored principle of salus populi est suprema
lex.

Social justice, therefore, must be founded on the recognition of the necessity of interdependence among
divers and diverse units of a society and of the protection that should be equally and evenly extended to
all groups as a combined force in our social and economic life, consistent with the fundamental and
paramount objective of the state of promoting the health, comfort, and quiet of all persons, and of
bringing about "the greatest good to the greatest number." 2
Aware of the lamentable fact that in the Philippines, no gap between these two unavoidable extremes of society is more
pronounced than in the field of politics, and ever mindful of the dire consequences thereof, the framers of the present
Constitution saw it fit to diffuse political power in the social justice provisions. Ours has been a politics of the elite, the
rich, the powerful and the pedigreed. The victory of a poor candidate in an election is almost always an exception.
Arrayed against the vast resources of a wealthy opponent, the former, even if he is the most qualified and competent, does
not stand a fighting
chance. Of course, there have been isolated instances — but yet so few and far between — when poor candidates made it.

Forgetting first the evil use of gold, guns and goons which only the rich have access to, and focusing strictly on the
legitimate aspect of the electoral struggle, propaganda, through the various forms of media, provides the most
sophisticated and effective means of reaching the electorate and convincing voters to vote for a particular candidate. It is
in this area, particularly in the use of television, radio and newspaper, that a poor candidate will not be able to compete
with his opulent opponents who have all the resources to buy prime television and radio time and full pages of leading
newspapers. With radio and television propaganda, the wealthy candidates, even as they leisurely relax in their homes,
offices or hotel suites, can reach every nook and cranny of their municipality, city, province, district or even the entire
Philippines and be seen or heard at any time of the day and night. During the contracted hours, their paid hacks can
concentrate on dishonoring the poor and hapless opponent by hurling innuendoes of defects or vice. With newspaper
advertisements, the wealthy candidates can reach thousands of readers daily. A worse scenario obtains where the rich
candidates themselves fully or substantially own or operate a television or radio station, or publish newspapers. On the
other hand, to a poor candidate, the campaign period would sadly prove to be insufficient for him to campaign in every
barangay, even if he is running for a municipal position. Thus, not only would he already be at a disadvantage insofar as
visibility and presentation of his issues or program of government are concerned, he would have no opportunity to rebut
whatever lies his opponents may spread nor the chance to clear himself of false accusations.

Accordingly, in response to the urgent mandate of Section 1 of Article XIII aforequoted, Congress passed a measure, R.A.
No. 6646, otherwise known as the Electoral Reforms Law of 1987, 3 introducing additional reforms to the electoral system
which, inter alia, not only seeks to enhance the purity of the electoral process, but also aspires to ensure even just an
approximation of equality among all candidates in their use of media for propaganda purposes. The latter is best
evidenced by the provision challenged in this case, Section 11 (b), which reads:

Section 11. Prohibited forms of election propaganda. — In addition to the forms of propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality who is
a candidate for any elective public office shall take a leave of absence from his work as such during the
campaign period.

This provision, understood in the light of Section 4, Article IX-C of the Constitution, is a reasonable regulation enacted to
accomplish the desired objectives and purposes earlier mentioned. It neither constitutes proscribed abridgment of the
freedom of expression nor prohibits free speech; it merely provides the rules as to the manner, time and place for its
exercise during a very limited period. It makes reference to Sections 90 and 92 of Batas Pambansa Blg. 881 on
"COMELEC time" and "COMELEC space." Said sections read in full as follows:

Sec. 90. Comelec space. — The Commission shall procure space in at least one newspaper of general
circulation in every province or city: Provided, however, That in the absence of said newspaper,
publication shall be done in any other magazine or periodical in said province or city, which shall be
known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be
allocated, free of charge, equally and impartially by the Commission among all candidates within the area
in which the newspaper is circulated. (Sec. 45, 1978 EC)

xxx xxx xxx

 Sec. 92. Comelec time. — The Commission shall procure radio and television time to be known as
"Comelec Time" which shall be allocated equally and impartially among the candidates within the area of
coverage of all radio and television stations. For this purpose, the franchise of all radio broadcasting and
television stations are hereby amended so as to provide radio or television time, free of charge, during the
period of the campaign. (Sec. 46, 1978 EC)

Obviously then, the airing and printing of a candidate's political advertisements can be done — and is even encouraged to
be done — during the "COMELEC time" and within the "COMELEC space." This authority of the COMELEC is no
longer purely statutory. It is now constitutional pursuant to the clear mandate of Section 4 of Article IX-C, which is
quoted above. This constitutional grant removes whatever doubt one may have on the split verdict of this Court in Badoy
vs. Ferrer, et al., 4 Interpreting a related provision, Section 12(f) of R.A. No. 6132, reading:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially
among all candidates within the area in which the newspapers are circulated. Outside of said Comelec
space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid
comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or
mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other
candidates in the district in which the candidate is running are also mentioned with equal prominence.

this Court ruled:

Against the background of such facilities accorded by the law for all candidates, rich and poor alike, and
the prohibitions as well as penal sanctions to insure the sanctity of the ballot against desecration and the
equality or chances among the candidates, the restriction on the freedom of expression of the candidate or
any other individual prescribed in par. F of Sec. 12 is so narrow as not to affect the substance and vitality
of his freedom of expression itself.

xxx xxx xxx

Hence, consistent with out opinion expressed in the cases of Imbong vs. Comelec and Gonzales vs.
Comelec [35 SCRA 28], this slight limitation of the freedom of expression of the individual, whether
candidate or not, as expressed in par. F Sec. 12, it only one of the many devices employed by the law to
prevent a clear and present danger of the perversion or prostitution of the electoral apparatus and of the
denial of the equal protection of the laws.

The fears and apprehensions of petitioner concerning his liberty of expression in these two cases,
applying the less stringent balancing -of-interests criterion, are far outweighed by the all important
substantive interests of the State to preserve the purity of the ballot and to render more meaningful and
real the guarantee of the equal protection of the laws.

In the fairly recent case of Sanidad vs. Commission on Elections, 5 this Court sustained, in effect, the validity of Section
11(b) of R.A. No. 6646. Thus:

However, it is clear from Act. IX-C of the 1987 Constitution that what was granted to the Comelec was
the power to supervise and regulate the use and enjoyment of franchises, permits or other grants issued
for the operation of transportation or other public utilities, media of communication or information to the
end that equal opportunity, time and space, and the right to reply, including reasonable, equal rates
therefor, for public information campaigns and forums among candidates are ensured. The evil sought to
be prevented by this provision is the possibility that a franchise holder may favor or give any undue
advantage to a candidate in terms of advertising space or radio or television time. This is also the reason
why a columnist, commentator, announcer or personality, who is a candidate for any elective office is
required to take a leave of absence from his work during the campaign period (2nd par. Section 11 (b)
R.A. 6646). It cannot be gainsaid that a columnist or commentator who is also a candidate would be more
exposed to the voters to the prejudice of other candidates unless required to take a leave of absence.
 However, neither Article IX-C of the Constitution nor Section 11 (b), 2nd par. of R.A. 6646 can be
construed to mean that the Comelec has also been granted the right to supervise and regulate the exercise
by media practitioners themselves of their right to expression during plebiscite periods. Media
practitioners exercising their freedom of expression during plebiscite periods are neither the franchise
holders nor the candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19
of Comelec Resolution No. 2167 has no statutory basis.

In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the
prohibition of certain forms of election propaganda was assailed, We ruled therein that the prohibition is a
valid exercise of the police power of the state "to prevent the perversion and prostitution of the electoral
apparatus and of the denial of equal protection of the laws." The evil sought to be prevented in an election
which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an
area on some special political matter unlike in an election where votes are cast in favor of specific persons
for some office. In other words, the electorate is asked to vote for or against issues, not candidates in a
plebiscite.

Even granting for the sake of argument that a doubt exists as to the constitutionality of the challenged provision, the doubt
must be resolved in favor of its validity. As this Court stated in Paredes, et al. vs. Executive Secretary,
et al.: 6

. . . it is in accordance with the settled doctrine that between two possible constructions, one avoiding a
finding of unconstitutionality and the other yielding such a result, the former is to be preferred. That
which will save, not that which will destroy, commends itself for acceptance. After all, the basic
presumption all these years is one of validity. The onerous task of proving otherwise is on the party
seeking to nullify a statute. It must be proved by clear and convincing evidence that there is an
infringement of a constitutional provision, save in those cases where the challenged act is void on its face.
Absent such a showing, there can be no finding of unconstitutionality. A doubt, even if well-founded,
does not suffice. Justice Malcolm's aphorism is apropos: "To doubt is to sustain." 7

The reason for this is that an act of the legislature approved by the executive is presumed to be within constitutional
bounds. The responsibility of upholding the Constitution rests not only on the courts, but also on the legislature and the
executive as well.

For the Court to strike our their acts as unconstitutional, nothing less than clear and convincing evidence of such breach of
the Constitution must be shown.

Petitioners have not acquitted themselves of that duty. The petitions then must be dismissed for lack of merit.

PADILLA, J.: concurring:

I will state in language as simple as I can muster why I believe the challenged law is constitutional.

Sec. 11 of Republic Act No. 6646, otherwise known as the "Electoral Reforms Law of 1987," challenged in these
petitions, states that:

Sec. 11. Prohibited Forms of Election Propaganda — In addition to the forms of election propaganda
prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspaper, radio broadcasting or television station, or other mass media, or any person
making use of the mass media to sell or to give free of charge print space or air time for campaign or
other political purposes except to the Commission as provided under Sections 90 and 92 of Batas
 Pambansa Blg. 881. Any mass media columnist, commentator, announcement (sic) or personality who is
a candidate for any elective public office shall take a leave of absence from his work as such during the
campaign period.

Petitioners contend that the provision is void because it is violative of the freedoms of the press, speech and expression as
guaranteed by Article III, Section 4 of the Constitution.

But it is fundamental that these freedoms are not immune to regulation by the State in the legitimate exercise of its police
power.

The concept of police power is well-established in this jurisdiction. It has been defined as the state
authority to enact legislation that may interfere with personal liberty or property in order to promote the
general welfare." As defined, it consists of (1) an imposition of restraint upon liberty or property, (2) in
order to foster the common good.

xxx xxx xxx

It constitutes an implied limitation on the Bill of Rights. According to Fernando, 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 and 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." Significantly, 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. 1

Police power rests upon public necessity and upon the right of the State and of the public to self-protection. For this
reason, it is co-extensive with the necessities of the case and the safeguards of public interest. 2

In Section 11 of R.A. No. 6646, the legislature aims to uphold the State's policy of guaranteeing equal access to
opportunities for public service. 3 Opportunity to hold a public office for public service, particularly elective public offices
must be equally accessible to qualified and deserving citizens. Corollary to this, the legislature also recognizes the power
of the Commission on Elections (COMELEC) to supervise or regulate the enjoyment or utilization of all franchises or
permits for the operation of media of communication or information granted by the government or any subdivision,
agency or instrumentality thereof. "Such supervision or regulation shall aim to ensure equal opportunity, time, and space,
and the right to reply, including reasonable, equal rates therefore, for public information campaigns and forums among
candidates in connection with the objective of holding free, orderly, honest, peaceful and credible elections." 4

In Pablito V. Sanidad vs. The Commission on Elections, 5 we held that the evil sought to be prevented by Art. IX-C,
Section 4 of the Constitution 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.

In line with the objective of providing equal opportunity to all candidates, the questioned provision is intended to act as an
equalizer between the rich and poor candidates. As it is, the moneyed candidate has the funds to engage in a myriad of
campaign activities. To allow the rich candidates to have free reign over the use of media for their campaign would result
in an unfair advantage over the poor candidates who have no funds or have meager funds to secure print space and air
time, and yet, they may be equally qualified and deserving candidates. In Anacleto D. Badoy, Jr. vs. Jaime N. Ferrer, et
al., G.R. NO.
L-32546, October 17, 1970, 35 SCRA 285, this Court declared Section 12(F) of R.A. No. 6132 valid and constitutional,
recognizing that the purpose of the limitation, on the freedom of the candidate or his sympathizer to spend his own money
for his candidacy alone and not for the furtherance of the candidacy of his opponents, is to give the poor candidates a
fighting chance in the election. In the same manner, Sec. 11 of R.A. No. 6646 aims to maximize, if not approximate,
equality of chances among the various candidates for elective public office.
Petitioners aver that by restoring to the print and broadcast media industry the right to sell print space or air time for
campaign or other political purposes, access to print space and air time would be given equally to all candidates.
Nevertheless, as opined by the COMELEC, the means to gain access to said time and space would be unequal among all
candidates. Hence, there would be in the final analysis, inequality.

Furthermore, to tolerate even indirectly over-spending in print space or air time for campaign purposes will open the
floodgates to corruption in public office because a winning candidate who overspends during the election period must
necessarily recover his campaign expenses by "hook or crook". Section 11 of R.A. No. 6646 would indirectly constitute a
positive and effective measure against corruption in public office.

Petitioners also contend that the challenged provision is "violative of the people's right to information particularly about
the conduct of public officials including the character and qualifications of candidates seeking public office."

I do not adhere to the proposition that "the electorate will not have the opportunity for quality decision in expressing its
mandate — no sufficient fora to detect and decide for themselves who, among the candidates truly deserve their votes. 6

Aside from Sec. 11 (b) of R.A. No. 6646 providing for Comelec space and Comelec time, Sections 9 and 10 of the same
law afford a candidate several venues by which the can fully exercise his freedom of expression, including freedom of
assembly. The electorate, in turn, are given opportunities to know the candidates and be informed of their qualifications
and platforms.

As provided in Section 9 of R.A. No. 6646, the COMELEC shall encourage non-political, non-partisan private or civic
organizations to initiate and hold in every city and municipality, public fora at which all registered candidates for the same
office may simultaneously and personally participate to present, explain, and/or debate on their campaign platforms and
programs and other like issues. Section 10, on the other hand, allows the candidates the use of the designated common
poster areas to post, display and exhibit election propaganda to announce or further their candidacy; not to mentioned the
right to hold political caucuses. conferences, meetings, rallies, parades, or other assemblies for the purpose of soliciting
votes and/or undertaking any campaign or propaganda for a candidate; publishing or distributing campaign literature or
materials designed to support the election of any candidate; and directly or indirectly solicit votes, pledges or support for a
candidate. 7

In short, the law in question (Sec. 11, Rep. Act No. 6646) has been enacted for a legitimate public purpose and the means
it employs to achieve such purpose are reasonable and even timely.

Based on all the foregoing consideration, I vote to sustain the validity and constitutionality of Section II of R.A. No. 6646.

GUTIERREZ, JR., J., dissenting:

I am saddened by the readiness with which Congress, Comelec, and the members of this Court are willing to sacrifice not
only that most precious clause of the Bill of Rights — freedom of speech and of the press — but also the right of every
citizen to be informed in every way possible about the qualifications and programs of those running for public office.

Section 11(b) of R.A. No. 6646 will certainly achieve one result — keep the voters ignorant of who the candidates are and
what they stand for.

With elections fast approaching, the surveys show that almost half of the nation's voters are undecided as to the
Presidency. Certainly, they do not know who are running for the Senate.

The implementation of Section 11 (b) will result in gross inequality. A cabinet member, an incumbent official, a movie
star, a basketball player, or a conspicuous clown enjoys an unfair advantage over a candidate many times better qualified
but lesser known.

I am shocked to find out that even the most knowledgeable people do not know that Antonio Carpio, former NBI Director;
Estelito P. Mendoza, former Solicitor General and Governor; and Florangel Rosario Braid, member of the Constitutional
Commission and distinguished mass communication personality (to name only three) are also running for the Senate. We
owe it to the masses to open all forms of communication to them during this limited campaign period. A candidate to
whom columnists and radio-television commentators owe past favors or who share their personal biases and convictions
will get an undue amount of publicity. Those who incur the ire of opinion makers cannot counteract negative reporting by
buying his own newspaper space or airtime for the airing of his refutations.

Comelec is already overburdened with the conduct of elections. Only recently it proved unequal to the task keeping
registration lists clean and had to repeat the exercise in critical areas. It should now husband its resources for its real
function — insuring the integrity of the voting process and safeguarding the true results of the elections.

Why Comelec should also supervise the publicity campaigns of almost 100,00 candidates running for 17,000 national and
local positions is beyond my poor power to comprehend.

I reject the idea that canned publicity in a so-called Comelec hour or Comelec corner can replace the fresh, imaginative,
and personal appeal of advertisements espousing a cause or reaching a particular audience.

Section 11(b) of R.A. No. 6646 is censorship pure and simple. It is particularly reprehensible because it is imposed during
the limited period of the election campaign when information is most needed. Moreover, the mere thought that published
materials are supervised by a government office is enough to turn the reader off. Only faithful followers who already
know for whom they are voting will bother to read the statements of their chosen candidate in the Comelec corner of the
newspapers.

The existing restrictions are more than sufficient. Political campaigns are allowed only within a limited period. The
amount which a political party or candidate may spend is restricted. Added to the confines of the limited period and
restricted expenses, the law now imposes a violation of the candidates' freedom of speech and the voters' freedom to
know.

I concur fully in the views expressed by Mr. Justice Isagani A. Cruz in his usual eloquently brilliant style. We should not
allow the basic freedom of expression to be sacrificed at the alter of infinitely lesser fears and concerns. Under the clear
and present danger rule not only must the danger be patently clear and pressingly present but the evil sought to be avoided
must be so substantive as to justify a clamp over one's mouth or, a writing instrument to be stilled.

In the precedent setting case of Gonzales v. Comelec (27 SCRA 835 [1969]), seven (7) Justices (one short of the 2/3
majority needed to invalidate the law) deemed a less restrictive statute as unconstitutional. The four (4) Justices who
allowed the law to remain did so only because there were various safeguards and provisos. Section 11(b) of R.A. No.
6646 now removes one of those safeguards.

The then Justice Fred Ruiz Castro stated:

What of the social value and importance of the freedoms impaired by Section 50-B? The legislation
strikes at the most basic political right of the citizens in a republican system, which is the right actively to
participate in the establishment or administration of government. This right finds expression in multiple
forms but it certainly embraces that right to influence the shape of policy and law directly by the use of
ballot. It has been said so many times it scarcely needs to be said again, that the realization of the
democratic ideal of self-government depends upon an informed and committed electorate. This can be
accomplished only by allowing the fullest measure of freedom in the public discussion of candidates
and the issues behind which they rally; to this end, all avenues of persuasion — speech, press, assembly,
organization — must be kept always open. It is in the context of the electoral process that these
fundamental rights secured by the Constitution assume the highest social importance. (at page 904;
Emphasis supplied)

I, therefore, vote for the right to have the widest possible expression of ideas preparatory to the choice of the nation's
leaders. I vote to declare the challenged legislation unconstitutional.

CRUZ, J., dissenting:

It has become increasingly clear that the grandiose description of this Court as the bulwark of individual liberty is nothing
more than an ironic euphemism. In the decision it makes today, the majority has exalted authority over liberty in another
obeisance to the police state, which we so despised during the days of martial law. I cannot share in the excuses of the
Court because I firmly believe that the highest function of authority is to insure liberty.

In sustaining the challenged law, the majority invokes the legislative goal, about which there can be no cavil. May quarrel
is with the way the objective is being pursued for I find the method a most indefensible repression. It does little good, I
should think, to invoke the regularity authority of the Commission on Elections, for that power is not a license to violate
the Bill of Rights. The respondent, no less than the legislature that enacted Section 11(b), is subject to the requirements of
the police power which the ponencia seems to disdain.

It is true that a declaration of constitutionality must be reached only after the most careful deliberation as the challenged at
is presumed to be valid in deference to the political departments. But not — and this represents a singular exception —
where the act is claimed to violate individual liberty, most importantly the freedom of expression. In such a vital and
exceptional case, as in the case now before us, I respectfully submit that the presumption must be reversed in favor of the
challenge.

Milton defined freedom of speech as "the liberty to know, to utter, and to argue freely according to conscience, above all
liberties." In this context, the definition is understood to embrace all the other cognate rights involved in the
communication of ideas and falling under the more comprehensive concept of freedom of expression. These rights include
the equally important freedom of the press, the right of assembly and petition, the right to information on matters of public
concern, the freedom of religion insofar as it affects the right to form associations as an instrument for the ventilation of
views bearing on the public welfare.

Wendell Philips offered his own reverence for freedom of expression when he called it "at once the instrument and the
quaranty and the bright consummate flower of all liberty." Like Milton, he was according it an honored place in the
hierarchy of fundamental liberties recognized in the Bill of Rights. And well they might, for this is truly the most
cherished and vital of all individual liberties in the democratic milieu. It is no happenstance that it is this freedom that is
first curtailed when the free society falls under a repressive regime, as demonstrated by the government take-over of the
press, radio and television when martial law was declared in this country on that tragic day of September 21, 1972. The
reason for this precaution is that freedom
of expression is the sharpest and handiest weapon to blunt the edge of oppression. No less significantly, it may be wielded
by every citizen in the
land, be he peasant or poet — and, regrettably, including the demagogue and the dolt — who has the will and the heart to
use it.

As an individual particle of sovereignty, to use Justice Laurel's words, every citizen has a right to offer his opinion and
suggestions in the discussion of the problems confronting the community or the nation. This is not only a right but a duty.
From the mass of various and disparate ideas proposed, the people can, in their collective wisdom and after full
deliberation, choose what they may consider the best remedies to the difficulties they face. These may not turn out to be
the best solutions, as we have learned often enough from past bitter experience. But the scope alone of the options, let
alone the latitude with which they are considered, can insure a far better choice than that made by the heedless dictator in
the narrow confines of his mind and the loneliness of his pinnacle of power.

The citizen can articulate his views, for whatever they may be worth, through the many methods by which ideas are
communicated from mind to mind. Thus, he may speak or write or sing or dance, for all these are forms of expression
protected by the Constitution. So is silence, which "persuades when speaking fails." Symbolisms can also signify
meanings without words, like the open hand of friendship or the clenched fist of defiance or the red flag of belligerence.
The individual can convey his message in a poem or a novel or a tract or in a public speech or through a moving picture or
a stage play. In such diverse ways may he be heard. There is of course no guaranty that he will be heeded, for a
acceptability will depend on the quilty of his thoughts and of his persona, as well as the mood and motivation of his
audience. But whatever form he employs, he is entitled to the protection of the Constitution against any attempt to muzzle
his thoughts.

There is one especially significant way by which the citizen can express his views, and that is through the ballot. By the
votes he casts, he is able to participate in the selection of the persons who shall serve as his representatives in the various
elective offices in the government, from the highest position of President of the Philippines to that of the lowly member of
the Sangguniang Barangay. In the exercise of this right, he is free to choose whoever appeals to his intelligence (or lack of
it), whether it be a professional comedian or a pretentious moron or an unrepentant thief or any other candidate with no
known distinction except the presumptuousness to seek elective office. Fortunately, there are also other candidates
deserving of the support of the circumspect and thinking citizens who will use their suffrages conscientiously with only
the public interest as their criterion and guide.

It is for the purpose of properly informing the electorate of the credentials and platforms of the candidates that they are
allowed to campaign during the election period. Such campaign includes their personally visiting the voters in house-to-
house sorties, calling on the telephone for their support, sending them letters of appeal, distributing self-serving leaflets
extolling their virtues, giving away buttons and stickers and sample ballots and other compaign materials, and holding
caucuses, rallies, parades, public meetings and similar gatherings. All these they are allowed to do in the specified places
and at the proper time provided only that they do not exceed the maximum limit of election expenses prescribed by the
Election Code at the rate of P1.50 for every voter currently registered in the constituency where they filed their certificate
of candidacy. 1

It is curious, however, that such allowable campaign activities do not include the use of the mass media because of the
prohibition in Section 11(b) of Rep. Act. No. 6646. The candidate may employ letters or leaflets or billboards or placards
or posters or meetings to reach the electorate, incurring for this purposes a not inconsiderable amount of his or his
supporters' money. But he may not utilize for the same purpose periodicals, radio, television or other forms of mass
communications, even for free. Employment of these facilities is allowed only through the respondent Commission on
Elections, which is directed by the Election Code to procure newspaper space and radio and television time to be
distributed among the thousands of candidates vying throughout the land for the thousands of public offices to be filled in
the coming elections.

There are some students of the Constitution who believe that unlike the other liberties guaranteed in the Bill of Rights, the
freedom of speech and of the press is absolute and not subject to any kind of regulation whatsoever. Their reason is the
language of Article III, Section 4, of the Constitution, which provides without qualification:

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.

This Court does not accept this extreme theory for the liberty we recognize is not liberty untamed but liberty regulated by
law. The concept of absolute rights must be approached with utmost caution if not rejected outright. The better policy is to
assume that every right, including even the freedom of expression, must be exercised in accordance with law and with due
regard for the rights of others.

In fact, laws punishing crimes like slander and libel and inciting to sedition have never been seriously or successfully
questioned. Contemptuous language is not allowed in judicial proceedings. Obscenity is proscribed, as so are acts that
wound religious sensibilities. This Court has regulated the exercise of the right to hold rallies and meetings, limiting them
to certain places and hours and under specified conditions, in the interest of peace and security, public convenience, and in
one case, even to prevent disturbance of the rites in a nearby church. 2 Under the Public Assembly Act, a permit from the
mayor shall be necessary for the holding of a public meeting except where the gathering is to be held in a private place or
the campus of a government-owned or controlled educational institution or a freedom park.

All this is not meant to suggest that every government regulation is a valid regulation. On the contrary, any attempt to
restrict the exercise of a right must be tested by the strict requisites of the valid exercise of the police power as established
by this Court in a long line of decisions. These requisites are:
1) the interests of the public generally as distinguished from those of a particular class require the exercise of the police
power; and 2) the means employed are reasonably necessary to the accomplishment of the purpose sough to be achieved
and not unduly oppressive upon individuals. 3 In simpler terms, the police measure, to be valid, must have a lawful
objective and a lawful method of achieving it.

The lawful objective of Section 11(b) may be readily conceded. The announced purpose of the law is to prevent disparity
between the rich and the poor candidates by denying both of them access to the mass media and thus preventing the
former from enjoying an undue advantage over the latter. There is no question that this is a laudable goal. Equality among
the candidates in this regard should be assiduously pursued by the government if the aspirant with limited resources is to
have any chance at all against an opulent opponent who will not hesitate to use his wealth to make up for his lack of
competence.

But in constitutional law, the end does not justify the means. To pursue a lawful objective, only a lawful method may be
employed even if it may not be the best among the suggested options. In my own view, the method here applied falls far
short of the constitutional criterion. I believe that the necessary reasonable link between the means employed and the
purpose sought to be achieved has not been proved and that the method employed is unduly oppressive.

The financial disparity among the candidates is a fact of life that cannot be corrected by legislation except only by the
limitation of their respective expenses to a common maximum. The flaw in the prohibition under challenge is that while
the rich candidate is barred from buying mass media coverage, it nevertheless allows him to spend his funds on other
campaign activities also inaccessible to his straitened rival. Thus, the rich candidate may hold as many rallies and
meetings as he may desire or can afford, using for the purpose the funds he would have spent for the prohibited mass
media time and space. The number of these rallies and meetings, which also require tremendous expense, cannot be
matched by the poor candidate, but the advantage of the rich candidate in this case is not similarly prohibited. By the same
token, the rich candidates may visit more houses, send more letters, make more telephone appeals, distribute more
campaign materials, incurring for all these more expenses than the poor candidates can afford. But these advantages are
allowed by the law because they do not involve the use of mass media space and time.

And what if the rich candidate pays P25,000 from his own funds to buy media advertising and the same amount is raised
for the same purpose by 250 supporters of the poor candidate contributing P100 each? Both transactions would be
prohibited under the law although the rich candidates clearly has in this case no advantage over his adversary.

And what if a candidate is endorsed not in a paid advertisement or commercial but by a columnist or a radio commentator
who is apparently expressing his own opinion without financial consideration or inducement? This is not prohibited by
Section 11(b) simply because the endorsement does not appear to have been purchased by the candidates or given to him
for free.

The proposed distribution of COMELEC time and space is hardly workable, considering the tremendous number of
candidates running all over the country for the offices of President of the Philippines, Vice-President, senators,
representatives, provincial governors, vice-governors, provincial board members, city mayors, vice-mayors and
councilors, and municipal mayors, vice-mayors and councilors. Allocation of equal time and space among the candidates
would involve administrative work of unmanageable proportions, and the possibility as well of unequal distribution,
whether deliberate or unintentional, that might create more serious problems than the problem at hand.

It is indeed the settled rule that questions regarding the necessity or wisdom of the law are for the legislature to resolve
and its resolution may not be reviewed by the courts of justice. In the case of the police power, however, it is required that
there be a plausible nexus between the method employed and the purpose sought to be achieved, and determination of this
link involves a judicial inquiry into the reasonableness of the challenged measure. It is true, as remarked by Justice
Holmes, that a law has done all it can if it has done all it should, but this is on the assumption that what the law has done
was valid to begin with. The trouble with the challenged law is that it has exceeded what it should have done, thereby
becoming both inefficacious and arbitrary. As such, it must be slain.

But the most important objection to Section 11(b) is that it constitutes prior restraint on the dissemination of ideas. In a
word, it is censorship. It is that officious functionary of the repressive government who tells the citizen that he may speak
only if allowed to do so, and no more and no less than what he is permitted to say on pain of punishment should he be so
rash as to disobey. In his "Appeal for the Liberty of Unlicensed Printing," Milton deplored the impossibility of finding a
man base enough to accept the office of censor and at the same time good enough to perform its duties. Yet a pretender to
that meddler is in our midst today, smugly brandishing the threat of this miserable law.

One could perhaps concede some permissible instances of censorship, as where private mail is screened during wartime to
prevent deliberate or unwitting disclosure of sensitive or classified matters that might prejudice the national security or
where, to take a famous example, a person is prohibited from shouting "Fire!" in a crowded theater. But these exceptions
merely make and bolster the rule that there should be no prior restraint upon a person's right to express his ideas on any
subject of public interest. The rule applies whether the censorship be in the form of outright prohibition, as in the cases
before us, or in more subtle forms like the imposition of tax upon periodicals exceeding a prescribed maximum number of
copies per issue 4 or allowing the circulation of books only if they are judged to be fit for minors, thus reducing the
reading tastes of adults to the level of juvenile morality. 5

I remind the Court of the doctrine announced in Bantam Books v.

Sullivan 6 that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its
validity." That presumption has not been refuted in the cases sub judice. On the contrary, the challenged provision appears
quite clearly to be invalid on its face because of its undisguised attempt at censorship. The feeble effort to justify it in the
name of social justice and clean elections cannot prevail over the self-evident fact that what we have here is an illegal
intent to suppress free speech by denying access to the mass media as the most convenient instruments for the molding of
public opinion. And it does not matter that the use of these facilities may involve financial transactions, for the element of
the commercial does not remove them from the protection of the Constitution. 7

The law is no less oppressive on the candidates themselves who want and have the right to address the greatest number of
voters through the modern facilities of the press, radio and television. Equally injured are the ordinary citizens, who are
also entitled to be informed, through these mass media, of the qualifications and platforms of the various candidates
aspiring for public office, that they may be guided in the choice they must make when they cast they ballots. 8

I am as deeply concerned as the rest of the nation over the unabated if not aggravated influence of material persuasions on
the choice of our elective officials. It is truly alarming that elections in a growing number of cases have become no more
than auction sales, where the public office is awarded to the highest bidder as if it were an article of commerce. The offer
of cash in exchange for his vote would be virtually irresistible to a person mired in poverty and in the throes of the
elemental struggle for survival. That there are millions of such persons can only compound this terrible situation. But
what makes it especially revolting is the way these helpless persons are manipulated and imposed upon and tantalized to
surrender their birthright for a mess of pottage. The unscrupulous candidates who do not hesitate to use their wealth to buy
themselves into elective office — these are the real saboteurs of democracy. These are the scoundrels who would stain the
pristine ballot in their cynical scheme to usurp public office by falsifying the will of the people. Section 11(b) aims to
minimize this malignancy, it is true, but unfortunately by a method not allowed by the Constitution.

In the Comment it submitted after the Solicitor General expressed support for the petitioners, the Commission on
Elections relies heavily on Badoy v. Commission on Elections 9 to sustain the exercise of its authority to regulate and
supervise the mass media during the election period as conferred upon it by what is now Section 4 of Article IX in the
present Constitution. However, that case is not in point for what was upheld there was Section 12(f) of Rep. Act No. 6132
providing as follows:

The Commission on Elections shall endeavor to obtain free space from newspapers, magazines and
periodicals which shall be known as Comelec space, and shall allocate this space equally and impartially
among all candidates within the areas in which the newspapers are circulated. Outside of said Comelec
space, it shall be unlawful to print or publish, or cause to be printed or published, any advertisement, paid
comment or paid article in furtherance of or in opposition to the candidacy of any person for delegate, or
mentioning the name of any candidate and the fact of his candidacy, unless all the names of all other
candidates in the district in which the candidate is running are also mentioned with equal prominence.

The Court, through Justice Makasiar (but over strong dissents from Justices Fernando, Teehankee and Barredo), declared:

Considering the foregoing limitation in paragraph F, Sec. 12 in the light of the other provisions of R.A.
No. 6132 designed to maximize, if not approximate, equality of chances among the various candidates in
the same district, the said restriction on the freedom of expression appears too insignificant to create any
appreciable dent on the individual's liberty of expression.

What is challenged in the case at bar is not that law but Section 11(b), which does not merely require mention of the
candidate's rivals in the paid advertisement or commercial, an innocuous enough requirement, to be sure. What Section
11(b) does is prohibit the advertisement or commercial itself in what is unmistakably an act of censorship that finds no
justification in the circumstances here presented. Surely, that blanket and absolute prohibition to use the mass media as a
vehicle for the articulation of ideas cannot, by the standards of Badoy, be considered "too insignificant to create any
appreciable dent on the individual's liberty of expression."
What is in point is Sanidad v. Commission on Elections, 10 where this Court, through Mr. Justice Medialdea, unanimously
declared unconstitutional a regulation of the Commission on Elections providing as follows:

Sec. 19. Prohibition on columnists, commentators or announcer. — During the plebiscite campaign
period, on the day before and on plebiscite day, no mass media columnist, commentator, announcer or
personality shall use his column or radio or television time to campaign for or against the plebiscite
issues.

On the argument that the said persons could still express their views through the air time and newspaper space to be
allocated by the respondent, the Court declared:

Anent respondent Comelec's argument that Section 19 of Comelec resolution 2167 does not absolutely
bar petitioner-columnist from expressing his views and/or from campaigning for or against the organic act
because he may do so through the Comelec space and/or Comelec radio/television time, the same is not
meritorious. While the limitation does not absolutely bar petitioner's freedom of expression, it is still
restriction on his choice of the forum where he may express his view. No reason was advanced by
respondent to justify such abridgment. We hold that this form of regulation is tantamount to a restriction
of petitioner's freedom of expression for no justifiable reason. (Emphasis supplied)

This decision was promulgated without a single dissent, even from the incumbent members then who are now sustaining
Section 11(b) of Rep. Act No. 6646. Contrary to Justice Davide's contention, there is not a single word in this decision
upholding the prohibition in question.

The respondent also paints a distressing picture of the current political scene and expresses its despair over the plight of
the poor candidate thus:

Respondent Commission invites appreciation of the realities of present-day political campaigns. In today's
election competitions the success of one's candidacy rests to a great extent on the candidate's ability to
match the financial and material resources of the other. Where a candidate is given limitless opportunity
to take his campaign to areas of persuasion through the media, what is left of a winning chance for a poor,
if deserving, candidate? But for the regulatory power of Sec. 11(b) of Republic Act No. 6646, a wealthy
candidate could block off an opponent of lesser means from the public view by buying all print space in
newspapers and air time in radio and television.

I am certain the Court shares the apprehensions of the sober elements of our society over the acute disadvantage of the
poor candidates vis-a-vis a wealthy opponent determined to win at all cost (which he can afford). However, for all its
anxiety to solve this disturbingly widespread difficulty, it is inhibited, as all of us must be, by the mandate of the
Constitution to give untrammeled rein to the dissemination and exchange of ideas concerning the elections.

The problem is not really as bad as the respondent would imagine it, for it is unlikely that the rich candidate would or
could buy "all print space in newspapers and air time in radio and television" to "block off" his opponents. Let us not be
carried away by hyperbolic speculations. After all, as the respondent itself points out, it is empowered by the Constitution
to supervise or regulate the operations of the mass media in connection with election matters, and we may expect that it
will use this power to prevent the monopoly it fears, which conceivably will consume all the funds the candidate is
allowed to spend for his campaign. It should be pointed out that the rich candidate violates no law as long as he does not
exceed the maximum amount prescribed by the Election Code for campaign expenses. The mere fact that the poor
candidate can spend only a small fraction of that amount does not prevent the rich candidate from spending all of it if he is
so minded. This may be a heartless way of putting it, but that is in fact how the law should be interpreted. The Election
Code fixes a maximum limit for all candidates, rich or poor alike; it does not say that the rich candidate shall spend only
the same amount as the poor candidates can afford.

I realize only too well that the ideas that may be conveyed by the prohibited media advertisements will mostly be
exaggerations or distortions or plain poppycock and may intrude upon our leisure hours if not also offend our intelligence
and exhaust our patience. We may indeed be opening a Pandora's box. But these are unavoidable in the free society. As
part of the larger picture, these impositions are only minor irritations that, placed in proper perspective, should not justify
the withdrawal of the great an inalienable liberty that is the bedrock of this Republic. It is best to remember in this regard
that freedom of expression exists not only for the though that agrees with us, to paraphrase Justice Holmes, but a also for
the thought that we abhor.

I submit that all the channels of communication should be kept open to insure the widest dissemination of information
bearing on the forthcoming elections. An uninformed electorate is not likely to be circumspect in the choice of the
officials who will represent them in the councils of government. That they may exercise their suffrages wisely, it is
important that they be apprised of the election issues, including the credentials, if any, of the various aspirants for public
office. This is especially necessary now in view of the dismaying number of mediocrities who, by an incredible aberration
of ego, are relying on their money, or their tinsel popularity, or their private armies, to give them the plume of victory.

For violating the "liberty to know, to utter and to argue freely according to conscience, above all liberties," the challenged
law must be struck down. For blandly sustaining it instead, the majority has inflicted a deep cut on the Constitution that
will ruthlessly bleed it white, and with it this most cherished of our freedoms.

PARAS, J., dissenting:

In a ghastly blow against our cherished liberties, the Supreme Court, with insensate, guillotine-like efficiency, rendered a
decision which in the interest of accuracy and candidness, I would like to turn — the serious attack on our freedom of
expression. It is sad but I have no choice except to say that I dissent.

The freedom to advertise one's political candidacy in the various forms of media is clearly a significant part of our
freedom of expression and of our right of access to information. Freedom of expression in turn in includes among other
things, freedom of speech and freedom of the press. Restrict these freedoms without rhyme or reason, and you violate the
most valuable feature of the democratic way of life.

The majority says that the purpose of the political advertisement provision is to prevent those who have much money from
completely overwhelming those who have little. This is gross errors because should the campaign for votes be carried out
in other fora (for example, rallies and meetings) the rich candidate can always be at a great advantage over his less
fortunate opponent. And so the disparity feared will likewise appear in campaigns other than through media. It is alleged
also that the candidate with money can purchase for himself several full page advertisements, making his poor opponents
really poor in more ways than one. This is not realistic for the poor opponents may, for certain reasons be given or favored
with advertisements free of charge, and money will not be needed in this case. And yet under the statute in question, even
free or gratuitous advertisements in print, in radio or in television are included in the prohibition. And then again, it is
contended by the majority that a poor candidate can still make use of media by consenting to interviews and news reports
about this campaign, which interviews and reports are, according to the majority still allowable. But then these interviews
and news reports are still subtle advertisements and they can be had if a candidate deliberately looks for media
practitioners to inner view him or to write about him. If the majority is to be consistent, these interviews and news reports
should also be disallowed. A case in point is the senatorial candidate who was interviewed on television last Tuesday
(March 3, 1992). Portions of the interview follow:

Q In 19___, were you not the Secretary of _____________?

A Yes, I was.

Q When you were Secretary, did you not accomplish the following?

A (Interviewer then enumerated various accomplishments.)

Q Yes, I did.

There can be no doubt that this interview is disguised propaganda, and yet, if we follow the majority opinion, this is
allowable. Is this not
illogical — that is , if the ban stays?
And then again, if we were to consider the ban as constitutional, the "unknown" or "lesser known" candidates would be at
a distinct disadvantage. They will have to hold numerous rallies (spending oodles and oodles of money). And only those
who had previously received public exposure by dint of government service or by prominence in the movies, in music, in
sports, etc. will be the ones "recalled" by the voters. This will indeed be unfortunate for our country.

It is true that freedom of speech and freedom of the press are not absolute, and that they have their own limitations. But I
do not see how these limitations can make the disputed prohibition valid and constitutional.

I therefore reiterate my opinion that this political ads prohibition is grossly unfair, politically inept and eminently
unconstitutional.

cigarette advertising, Judge Bazelon, writing for a unanimous Court of Appeals, noted some of the effects
of the ubiquitous commercial:

Written messages are not communicated unless they are read, and reading requires an affirmative act.
Broadcast messages, in contrast, are "in the air." In an age of omnipresent radio, there scarcely breathes a
citizen who does not know some part of a leading cigarette jingle by heart. Similarly, an ordinary
habitual television watcher can avoid these commercials only by frequently leaving the room, changing
the channel, or doing some other such affirmative act. It is difficult to calculate the subliminal impact of
this pervasive propaganda, which may be heard even if not listened to, but it may reasonably be thought
greater than the impact of the written word. Banzhaf v. FCC, 132

MANILA PUBLIC SCHOOL TEACHERS ASSOCIATION, FIDEL FABABIER MERLIN ANONUEVO,

MINDA GALANG and other teacher-members so numerous similarly situated, petitioners-appellants,
vs.
THE HON. PERFECTO LAGUIO JR., in his capacity as Presiding Judge of the Regional Trial Court of Manila,
Branch 18, HON. ISIDRO CARIÑO, in his capacity as Secretary of Education, Culture and Sports and the HON.
ERLINDA LOLARGA in her capacity as Manila City Schools Superintendent, respondents-appellees.

G.R No. 95590 August 6, 1991

ALLIANCE OF CONCERNED TEACHERS (ACT), ENRIQUE D. TORRES, RODRIGO G. NATIVIDAD,

FRANCISCO A. NERECINA, EVA V. FERIA, LUCIA R. CARRASCO, LEO R. RAMBOYONG, ZENEIDA
PEREZ, MARIA ACEJO AND OTHER SIMILARLY SITUATED PUBLIC SCHOOL TEACHERS TOO
NUMEROUS TO BE IMPLEADED, petitioners,
vs.
HON. ISIDRO CARIÑO in his capacity as Secretary of Education, Culture and Sports and HON. GUILLERMO
CARAGUE, in his capacity as Secretary of Budget and Management, respondents. (NARVASA, J.:)

The series of events that touched off these cases started with the so-called "mass action" undertaken by some 800 public
school teachers, among them members of the petitioning associations in both cases, on September 17, 1990 to "dramatize
and highlight" 1 the teachers' plight resulting from the alleged failure of the public authorities to act upon grievances that
had time and again been brought to the latter's attention.

The petition in G.R. No. 95590 alleges in great detail the character and origins of those grievances as perceived by the
petitioners, and the attempts to negotiate their correction; 2 these are more briefly, but quite adequately and with no
sacrifice of relevant content, set forth in the petition in G.R. No. 954451, portions of which are quoted hereunder without
necessarily affirming their objective truth or correctness:

3. Together with other teachers embracing the Teachers and Employees Consultative Council (TECC)
and the Alliance of Concerned Teachers, the petitioners, in accordance with their Constitution and By-
Laws, resolved to engage in mass concerted actions, after peaceful dialogues with the heads of the
Department of the Budget and Management, Senate and House of Representatives in public hearings as
 well as after exhausting all administrative remedies, to press for, among other things, the immediate
payment of due chalk, clothing allowances, 13th month pay for 1989 arising from the implementation of
the Salary Standardization Law, the recall of DECS Order 39 s. 1990 directing the oversizing of classes
and overloading of teachers pursuant to the cost-cutting measures of the government, the hiring of 47,000
new teachers to ease the overload of existing teachers, the return of the additional 1% real property taxes
collected by local government units to education purposes to be administered by the Local School Boards,
and consequent recall of DBM Circulars Nos. 904 and 9011 and local budget circular No. 47 consistent
with RA 5447 and the new Constitution mandating that education shall enjoy the highest budgetary
priority in the national budget, and other equally important demands; The dialogues and conferences
initiated by the petitioners and other teacher organizations were as early as March 14, 1989, March 14,
1990, April 23, 1990, May 28, 1990, June 5, 1990, September 3, 1990 and September 14, 1990 with the
Civil Service Commission, the Senate and House of Representatives, Department of Budget and
Management and the Department of Education, Culture and Sports, but all these did not result in the
granting of the demands of the petitioners, leaving them with no other recourse but to take direct mass
action such as the one they engaged in three weeks ago.

4. On September 14, 1990, the petitioners and other teachers in other cities and municipalities in Metro
Manila, staged a protest rally at the DECS premises without disrupting classes as a last call for the
government to negotiate the granting of demands. No response was made by the respondent Secretary of
Education, despite the demonstration, so the petitioners began the ongoing protest mass actions on
September, 17,1990. ... 3

September 17, 1990 fell on a Monday, which was also a regular school day. There is no question that the some 800
teachers who joined the mass action did not conduct their classes on that day; instead, as alleged in the petition in G.R.
No. 95590, 4 they converged at the Liwasang Bonifacio in the morning whence they proceeded to the National Office of
the Department of Education, Culture and Sport (DECS) for a whole-day assembly. At about 1:00 o'clock p.m., three
representatives of the group were allowed to see the respondent Secretary of Education who "brushed aside their
grievances," warned them that they would lose their jobs for going on illegal and unauthorized mass leave. Upon leaving
said respondent's presence, they were handed an order directing all participants in the mass action to return to work in 24
hours or face dismissal, and a memorandum directing the DECS officials concerned to initiate dismissal proceedings
against those who did not comply and to hire their replacements. 5 Those directives notwithstanding, the mass actions
continued into the week, with more teachers joining in the days that followed. In its issue of September 19, 1990, the
newspaper Manila Standard reported that the day previous, the respondent Secretary of Education had relieved 292
teachers who did not return to their classes. The next day, however, another daily, Newsday, reported that the Secretary
had revoked its dismissal order and instead placed 56 of the 292 teachers under preventive suspension, despite which the
protesters' numbers had swelled to 4,000. 6

On the record, what did happen was that, based on reports submitted by the principals of the various public schools in
Metro Manila, the respondent Secretary of Education had filed motu proprio administrative complaints against the
teachers who had taken part in the mass actions and defied the return-to-work order on assorted charges like grave
misconduct, gross neglect of duty, gross violation of the Civil Service Law, absence without official leave, etc., and
placed them under 90-day preventive suspension. The respondents were served copies of the charge sheets and given five
(5) days to submit answer or explanation. Later, on October 8, 1990, the respondent Secretary constituted an investigating
committee of four (4) to determine and take the appropriate course of action on the formal charges and designated the
special prosecutors on detail with the DECS to handle their prosecution during the formal hearings. 7

On October 11, 1990, the respondent Secretary of Education rendered the first of his now questioned decisions on the
administrative complaints. In Case No. DECS 90-002, he found twenty (20) respondent teachers guilty of the charges
preferred against them and dismissed them from office, effective immediately. 8 In the other investigations that followed
and as of December 3, 1990, 658 teachers were dismissed, 40 were suspended for one (1) year, 33 for nine (9) months,
and 122 for six (6) months; 398 were exonerated. 9

Earlier, on September 19, 1990, the petitioners in G.R. No. 95445 had filed with the Regional Trial Court of Manila
Branch 18, a petition 10 for prohibition, declaratory relief and preliminary mandatory injunction to restrain the
implementation of the return-to-work order of September 17, 1990 and the suspension or dismissal of any teacher
pursuant thereto and to declare said order null and void. Issuance ex-parte of a temporary restraining order was sought,
but seeing no compelling reason therefor, the Regional Trial Court instead set the application for preliminary injunction
for hearing, and heard the same, on September 24, 1990. Thereafter and following the submission of memorandums by
the parties, said Court rendered judgment declaring the assailed return-to-work order valid and binding, and dismissing
the petition for lack of merit. 11

Review of said judgment is sought in G. R. No. 95445.

G.R. No. 95590 is a parallel original proceeding for prohibition, mandamus and certiorari grounded on the same state of
facts and instituted for substantially the same purpose i.e., the invalidation of the return-to-work order of the respondent
Secretary of Education and all orders of suspension and/or dismissal thereafter issued by said respondent against the
teachers who had taken part in the mass actions of September 17, 1990 and the days that followed.

Both cases were ordered consolidated by Resolution issued on October 25, 1990, 12 and separate comments were filed by
the Solicitor General on behalf of the public respondents, in G.R. No. 95445 on October 31, 1990, and in G.R. No. 95590
on December 5, 1990. 13 On November 20, 1990 the parties were heard in oral argument on the petitioners' united pleas for
a temporary restraining order/mandatory injunction to restore the status quo ante and enjoin the public respondents from
continuing with the issuance of suspension orders and proceeding with the administrative cases against the teachers
involved in the mass actions.

Said pleas were denied by the Court in its Resolution of December 18, 1990, 14 and a motion for reconsideration filed by
the petitioners in G.R. No. 95590 was likewise denied.

In two separate but identically-worded motions filed on their behalf by Atty. Froilan M. Bacungan, 15 the following
persons, to wit: Florita D. Guazon, Elisea G. Lazo, Gonzala G. Sioson, Esperanza Valero, Nenita Pangilinan, Ramon
David, Aurora Bosi, Encarnita David, Socorro Sentin, Crispulo Santos, Rodriguez Bagana, Rodolfo D. Bacsal, Ruben
Bersamina, Rodolfo Arroyo, Irene Gadil, Rebecca Roldan, Rosita Samson, Priscilla Avendia, Arturo Cabuhat, Rosalinda
Caoili, Angelina Corpuz, Purisima Lena, Elsie Somera, Dedaica Jusay, Teresita Partoza, Gloria Salvador, Catherine San
Agustin, Nestor Aguirre, Lorenzo Real, Celia Ronquillo, Vicente Carranza, Jessie Villanueva, Yolanda Alura, Clara
Alvarez, Danilo Llamas, Ladera Panita Myrna, Sena, Zenaida Ligon, Daisy S. Conti, Danilo Caballes, Susan Maragat,
Roberto Manlangit and Elizabeth T. Aguirre, seek leave to withdraw as parties in G.R. No. 95590. These movants claim
that they are such parties although not individually so named in the petition in said case, being among those referred to in
its title as "other similarly situated public school teachers too numerous to be impleaded," who had been administratively
charged, then preventively suspended and/or dismissed in the wake of the mass actions of September 1990. They assert
that since this Court is not a trier of facts, they have opted to appeal the questioned decisions or actuations of the
respondent Secretary of Education to the Civil Service Commission where they believe they will have "... all the
opportunity to introduce evidence on how (Secretary) Cariño violated their constitutional rights to due process of law ...
security of tenure and ... peaceably to assemble and petition the government for redress of grievances ...."

An opposition to the first motion was filed 16 which, briefly, contended that, as this Court had already found that the
petitioners had gone on an unlawful strike and that public respondent Cariño's acts were prima facie lawful, the motion
was either an attempt at forum-shopping or meant to avoid the "inevitable outcome" of issues already pending final
determination by the Court.

The Court's Resolution of December 18, 1990, supra, denying the petitioners' plea for restoration of the status quo ante
and to restrain/enjoin further suspensions of, and the initiation or continuation of, administrative proceedings against the
teachers involved, is based on the following postulates:

(1) the undenied indeed, the pleaded and admitted fact that about 800 teachers, among them the individual
petitioners and other unnamed but "similarly situated" members of the petitioning associations in both
cases, unauthorizedly absented themselves from their classes on a regular schoolday, September 17, 1990,
in order to participate in a "mass action" to dramatize their grievances concerning, in the main, the alleged
failure of the public authorities, either to implement at all or to implement in a just and correct manner,
certain laws and measures intended to benefit them materially;
 (2) the fact, too, that in the days that followed, more mass actions for the same purpose were undertaken,
notwithstanding a return-to-work order issued by the respondent Secretary of Education; more teachers
joined the so-called "peaceful assemblies" on September 18, 1990 and the number rising to 4,000 on
September 19, 1990; 17

(3) that from the pleaded and admitted facts, these "mass actions" were to all intents and purposes a
strike; they constituted a concerted and unauthorized stoppage of, or absence from, work which it was the
teachers' duty to perform, undertaken for essentially economic reasons;

(4) that this court had already definitively ruled that employees in the public (civil) service, unlike those
in the private sector, do not have the right to strike, although guaranteed the right to self-organization, to
petition Congress for the betterment of employment terms and conditions and to negotiate with
appropriate government agencies for the improvement of such working conditions as are not fixed by law;
18

(5) that upon the foregoing premises, it was prima facie lawful and within his statutory authority for the
respondent Secretary of Education to take the actions complained of, to wit: issue a return-to-work order,
prefer administrative charges against, and place under preventive suspension, those who failed to comply
with said order, and dismiss from the service those who failed to answer or controvert the charges; 19

The Court has not since been presented with any consideration of law or established fact that would impair the validity of
these postulates or preclude continued reliance thereon for the purpose of resolving the present petitions on their merits.

The underlying issue here is due process; not whether the petitioners have a right to strike, which it is clear they do not,
however justifiable their reasons, nor whether or not there was in fact such a strike, it being equally evident from the
pleadings that there was, and there being no dispute about this. What therefore, is brought before the Court is the question
of whether or not any rights of the petitioners under the due process clause of the Constitution as it applies to
administrative proceedings were violated in the initiation, conduct, or disposition of the investigations complained of.

Indeed, what the petitioners in G.R. No. 95590 proclaim about denial of due process being their "paramount complaint" ...
"central to their prayer for interlocutory relief' 20 could as well be said of the merits of their main cause as of their plea for
a restraining order pendente lite or a preliminary injunction.

There are, however, insuperable obstacles to the Court's taking up that issue and resolving it in these cases. Said issue is
not ripe for adjudication by this Court in the exercise of its review jurisdiction; and this, for the obvious reason that it is
one of fact. The petitions and subsequent pleadings of the petitioners allege facts and circumstances which, it is claimed,
show denial of due process, citing as supposedly "representative samples" 21 among others: (a) that teachers were
dismissed on the sole basis of unsworn reports of their principals and without evidence of their alleged failure to obey the
return-to-work order; (b) that the charge sheets failed to specify the particular charges or offenses allegedly committed; (c)
that some teachers were not furnished sworn complaints, and others were suspended without any formal charges; (d) that
teachers who attempted to return within a reasonable time after notice of the return-to-work order were not accepted back;
and similar allegations.

These are however denied and disputed by the public respondents, who set forth their own version, initially in their
separate Comments in both cases and, later and in greater detail, in their Consolidated Memorandum of December 3,
1990, supra, from which the following passages are quoted:

(6) Petitioners in G.R. No. 95545 and G.R. No. 95590 admit engaging in a strike (referred by semantic
interplay as "concerted activity" or "mass action") directed against public respondent Cariño beginning
September 17, 1990, MPSTA Petition, pp. 3, 9; ACT Petition, pp. 1516).

To avoid the disruption of classes, public respondent Cariño, also on September 17, 1990, issued a 'return
to work order' reminding striking workers that in law, they cannot engage in strike and warning them that
dismissal proceedings will be instituted against them if they do not return to work with 24 hours from
their walkout (MPSTA Petition, p. 4; ACT Petition, p. 15) and a memorandum to DECS officials
instructing them to notify the striking teachers to return to work within 24 hours from their walkout and to
initiate dismissal proceedings against those who defy the return to work order as well as to hire temporary
replacements, MPSTA Petition, p. 4; ACT Petition, pp. 15-16).

The striking teachers who did not heed the return-to-work order were administratively charged and
preventively suspended for ninety days for grave misconduct, gross neglect of duty, insubordination,
refusal to perform official duty, absence without leave beginning September 17, 1990 and other violations
of Civil Service Law, rules and regulations. All of striking teachers were served with the suspension
orders and the change sheets notifying them of the charges and giving them five (5) days from receipt of
the charge sheets within which to file their respective answers.

With the filing of the administrative complaints and the receipt of the answers of some of the teachers
involved, public respondent Carino on October 8, 1990 issued a Memorandum forming an Investigation
Committee composed of Atty, Reno Capinpin of DECS Administrative Services as Chairman Dr. Alberto
Mendoza, representing the Division Supervisors, Atty. Evangeline de Castro, representing the City
Superintendent of Schools of Manila, and Atty. Isaias Meleto representing the National PPSTA
Organization, as members. Copy of the aforesaid Memorandum is hereto attached as Annex "I."

The committee was authorized to meet everyday, even as Special Prosecutors from the Department of
justice on detail with the DECS were designated to handle the prosecution during the formal hearings.
(Ibid.)

Petitioners in GR No. 95545' and 'G.R. No. 95590' admit having received the charge sheets and notices
of preventive suspension wherein they were given five days from receipt of the charges within which to
file their answers (MPSTA Petition, p. 4-1 ACT Petition, p. 16, Annexes x , to , AA ).

xxx xxx xxx

... Many striking teachers received their preventive suspension orders and the charge sheets from their
respective principals when they visited their schools. Many refused to receive and sign receipt therefor;
others tore up the preventive suspension orders and charge sheets in front of their principals. Instead,
they took the occasion to belittle and insult the substitute teachers who took over their classrooms
temporarily.

The striking teachers were given a period of five days to file their Answers in line with Sec. 8, Rule III of
Rules on Administrative Disciplinary Cases in CSC Memorandum Circular No. 46, s. 1989. The motion
for extension of time to file Answer was denied by DECS Task Force because it was dilatory the alleged
reason being that Atty. Fabros is handling 2,000 cases of teachers. The DECS was constrained by Sec.
38(d) of P.D. 807 and Sec. 8 of the Memorandum Circular mentioned which mandate that administrative
cases must be decided within 30 days from the filing of the charges. Another reason was that many
refused to receive the notice of charges. Also, to delay the resolution of the cases was to their
disadvantage.

Moreover, another reason proferred was that the Regional Trial Court (RTC) of Manila still had to act on
the petition before it. However, the Motion was filed AFTER the RTC Manila had already dismissed the
Petition.

Nevertheless, answers to the administrative complaints started pouring in at the DECS, as prepared
personally by the striking teachers or by their lawyers.

After initial assessments of the reports coming in from the principals of the schools concerned and the
answers of the striking teachers, the DECS Special Task Force prepared on October 9, 1990 and
submitted to respondent Secretary Carino the Guidelines and Criteria as to the nature of the evidence to
be assessed and the corresponding penalty to be imposed against the striking teachers, which was
approved by respondent Secretary Carino on the same day. A copy of the aforesaid Guidelines and
 Criteria is hereto attached as Annex "2." Thereafter, the DECS Special Task Force proceeded with its task
of investigating the cases against the striking teachers.

Those who refused to sign the DECS return-to-work order, the preventive suspension orders and the
charge sheets, some even tearing up the documents presented to them by their principals were considered
by the DECS Special Task Force as having waived their right to be heard; their cases had to be resolved
on the basis of the records. Nevertheless, the DECS Special Task Force summoned the principals
concerned, who then testified under oath confirming their reports on the absences of the striking teachers.
Some clarificatory questions were asked of them on the manner of the service of the DECS orders and the
situation obtaining in their schools.

For those who answered the charge sheets, the DECS Special Task Force set the administrative cases for
hearing. Many of the striking teachers refused to appear at the hearings but preferred to submit their case
on the basis of their answers.

With regard to those who attended the hearings, each of the absent or striking teachers was investigated
and asked questions under oath on their answers and the reasons for their absences and/or joining the
teachers' strike. Some teachers reiterated their answers to the charge sheets, either giving justifiable
reasons for their absences on the days mentioned or maintaining their stubborn stand that they have all the
right to absent themselves from classes in the exercise of their constitutional right to join mass action to
demand from the government what are supposedly due them. Still the DECS Special Task Force was not
satisfied with their written answers and explanation during the hearings. The principals of the striking
teachers were summoned and they confirmed under oath their reports of absences and/or on teachers
joining the strike.

After having conducted fully their investigations, the DECS Special Task Force submitted in series their
investigation reports and recommendation for each category of striking teachers to respondent Secretary
Carino. The investigation reports, together with their supporting documents, submitted by the DECS
Special Task Force indicated clearly the manner and conduct of the administrative hearings, the nature
and weight of the evidence adduced, and the correspondingly penalty or exoneration recommended.

On the bases of the investigation reports and recommendations of the DECS Special Task Force, and after
evaluating the reports and its documents attached, respondent Secretary Carino promulgated the decisions
either for exoneration, suspension or dismissal. Copies of the DECS decisions of exoneration, suspension
or dismissal were forwarded to the principals of the striking teachers concerned. Those exonerated were
allowed to resume their duties and received their back salaries. Some of the teachers either suspended or
dismissed have already received the copies of the decisions, either personally or through mail.

xxx xxx xxx 22

This copious citation is made, not to suggest that the Court finds what is stated therein to be true and the contrary
averments of the petitions to be false, but precisely to stress that the facts upon which the question of alleged denial of due
process would turn are still in issue, actively controverted, hence not yet established.

It is not for the Court, which is not a trier of facts, as the petitioners who would now withdraw correctly put it, to make the
crucial determination of what in truth transpired concerning the disputed incidents. Even if that were within its
competence, it would be at best a monumental task. At any rate, the petitioners cannot-as it seems they have done lump
together into what amounts to a class action hundreds of individual cases, each with its own peculiar set of facts, and
expect a ruling that would justly and correctly resolve each and everyone of those cases upon little more than general
allegations, frontally disputed as already pointed out, of incidents supposedly "representative" of each case or group of
cases.

This case illustrates the error of precipitate recourse to the Supreme Court, especially when numerous parties desparately
situated as far as the facts are concerned gather under the umbrella of a common plea, and generalization of what should
be alleged with particularity becomes unavoidable. The petitioners' obvious remedy was NOT to halt the administrative
proceedings but, on the contrary, to take part, assert and vindicate their rights therein, see those proceedings through to
judgment and if adjudged guilty, appeal to the Civil Service Commission; or if, pending said proceedings, immediate
recourse to judicial authority was believed necessary because the respondent Secretary or those acting under him or on his
instructions were acting without or in excess of jurisdiction, or with grave abuse of discretion, to apply, not directly to the
Supreme Court, but to the Regional Trial Court, where there would be an opportunity to prove the relevant facts
warranting corrective relief.

Parties-litigant are duty bound to observe the proper order of recourse through the judicial hierarchy; they by-pass the
rungs of the judicial ladder at the peril of their own causes. 23 This Court is a court of last resort. Its review jurisdiction is
limited to resolving questions of law where there is no dispute of the facts or the facts have already been determined by
lower tribunals, except only in criminal actions where capital penalties have been imposed.

WHEREFORE, both petitioners are DISMISSED, without prejudice to any appeals, if still timely, that the individual
petitioners may take to the Civil Service Commission on the matters complained of. The motions to withdraw, supra, are
merely NOTED, this disposition rendering any express ruling thereon unnecessary. No pronouncement as to costs.

SO ORDERED.

Fernan, C.J. (Chairman), Melencio-Herrera, Gancayco, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ.,
concur.

Separate Opinions

GUTIERREZ, JR., J., dissenting:

In dissenting from the majority opinion, I draw certain conclusions from the records which I feel should guide any
adjudication of the issues in these petitions.

My first conclusion refers to the denial of basic rights of an indispensably essential segment of our society the teachers
who educate our children.

The second refers to the cold hearted punishment which we allow to be inflicted upon our poor school teachers. By
skirting the fundamental issue involved, the Court is denying the petitioners fairness, substantive due process, and simple
humanity. The so-called investigations which led to the initial dismissals were a farce. Instead of 90 day preventive
suspensions, the Department of Education, Culture, and Sports (DECS) immediately imposed punitive dismissals with no
semblance of rudimentary due process. All other civil service employees undergoing investigation are reinstated after
ninety days. Our teachers have been out of work for more than ten (10) months without income while still undergoing
administrative investigation. The suspension is indefinite if not permanent.

Patience has its limits. There are times when even the most constant and dedicated public servants must given vent to their
feelings and express their grievances at an unfeeling and inept bureaucracy which seems to be incapable of attending to
their officials needs. Professional agitators may have infiltrated the teachers and muddled their demands with such
outlandish calls as the closure of foreign military bases, a cap on the payments of foreign debts and other issues not
pressingly relevant to teachers. But the basic demands are legitimate and few.

Teachers need a decent living wage, one in keeping with the dignity and worth of their profession. Not only are their
salaries unbelievably low but payment is often unreasonably delayed. When the national government gives a little
increase, a corresponding amount is reduced from the city share. Teachers have to beg for allowances to be restored. The
latest examples are the PERA adjustments. As of July 12, 1991, most employees of the government had received and
spent their PERA allowances. Our public school teachers were still waiting. whatever the payment signifies salary, bonus,
allowance and even retirement or death benefits the last one to receive what all government employees are entitled to, is
the public school teacher. It is no small wonder that thousands of school teachers swallow their dignity and accept
employment as domestic servants overseas. I am not aware of any government program which seeks to reverse the new
definition of "Filipina" as a domestic servant of foreigners whose education is often lower than that of their maids. Neither
am I aware of any determined effort to see to it that school teachers always get their salaries, allowances, and benefits on
time.

I mention the unconcern because it is what forced the petitioners to engage in mass concerted action.

We agree that employees in the civil service may not engage in strikes, walk-outs and temporary work stoppages like
workers in the private sector. (Social Security System Employees Association v. Court of Appeals, 175 SCRA 686, 698
[1989]). Employment in the Government is governed by law. Government workers cannot use the same weapons
employed by workers in the private sector to secure concessions from their employers. The terms and conditions of
employment are effected through statutes and administrative rules and regulations, not through collective bargaining
agreements. (Alliance of Government Workers, et al. v. Minister of Labor and Employment, 124 SCRA 1, 13 [1983]).

The above rulings remain good law.

In the first place, if this Court uses the word "strike" to describe what the petitioners staged, it tends to unfairly color and
pre-judge their case. "Strike" becomes a pejorative epithet that leads to a certain result not so much because of facts but
because of its semantic connotations. The teachers were in the main not asking for terms and conditions greater than those
accorded by law. Their basic demand was to be given on time what the law already provides for them. It was only after
certain elements penetrated their ranks and in the heat of the peaceful assembly that such demands as closure of military
bases and laws increasing salaries formed part of the leaders' statements. The concerted action was more of a peaceful
assembly, an exercise of speech by a gathering, not a strike.

In the second place, when Government is deaf, when bureaucracy denies to our teachers the timely payment of the
pittances provided by law, should any ban still be enforced? And enforced in a peremptory and oppressive manner?
Should not the most basic freedom of speech and assembly in these particular cases outweigh all considerations which ban
strikes by civil service employees?

We agree with Justice Cardozo in Palko v. Connecticut, 302 US 319 [1937] that freedom of speech is the matrix, the
indispensable condition of nearly every other form of freedom.

We have cited with approbation Justice Brennan's stressing a "profound national commitment to the principle that debate
on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials". (New York Times, Co. v. Sullivan, 376 US
254 [1964])

Teachers have legitimate and pressing grievances. When Government consistently fails to act on these grievances, the
teachers have a right to speak in an effective manner. For speech to be effective, it must be forceful enough to make the
intended recipients listen.

I view the issue in these cases as more transcendent than the simple one of whether or not public school teachers may go
on strike. To me, the issue is the freedom to effectively speak. When the members of a noble profession are demeaned by
low salaries and inattention to their needs, surely their freedom to speak in a manner and at a time as is most effective far
outweighs conventional adherence to orthodox civil service rules on proper conduct and correct behavior.

My other point has to do with an anomalous investigation procedure and considering the nature of the offense, what is
tantamount to cruel punishment.

I gather from the records and the majority opinion that the cases of individual teachers are still being investigated and may
be the subject of appeals to the Civil Service Commission.
If that is so, I cannot understand why the petitioners remain suspended up to the present. They should have been reinstated
after 90 days of preventive suspension. It is axiomatic that civil service employees and even elected officials cannot be
preventively suspended for more than 90 days (Section 42, P.D. 807; Deloso v. Sandiganbayan, 173 SCRA 409 [1989];
Doromal v. Sandiganbayan, 177 SCRA 354 [1989]).

If the suspension is preventive, it has lasted too long. If punitive, it is illegal and violative of due process.

There are anywhere from 800 to 2,000 teachers involved perhaps even more, once the unwieldy procedures of DECS can
arrive at accurate figures.

On October 8, 1990, the Department Secretary constituted an investigating committee of four, repeat, four members to act
on the formal charges.

Three days later, on October 11, 1990, the DECS found 20 teachers guilty and dismissed them. On December 3, 1990,
658 teachers were dismissed, 40 were suspended for one year, 33 for 9 months, and 122 for six months. There were 398
exonerations. I understand there were scores who had to hurriedly look for medical certificates that they were "sick" while
hundreds were urged to cringe and grovel with humiliating mea culpas.

Even if the investigating committee or committees were staffed by supermen and superwomen, it is inconceivable that
658 capital sentences of dismissal could be made in so short a time. Any officer who has conducted an honest to goodness
administrative investigation cannot but conclude that the procedures which were followed violated the norms of fair play
and due process. The decisions were the products of prejudgment based on perfunctory paper investigations. Surely our
public school teachers deserve better treatment.

If subsequent to the sentences of dismissal, the teachers were properly served with summons, given time to secure the
services of competent counsel, allowed to defend themselves and cross-examine witnesses against them, punished on the
basis of reasoned decisions stating the facts and the law, and otherwise given their rights to due process, the initial illegal
actions should be set aside and the teachers reinstated in the meantime.

Considering the circumstances which led the teachers to engage in mass action, the penalty of dismissal is too grave. It is
punishment which is cruel.

The officers and men of the Armed Forces who started a coup at the Manila Hotel were punished by being made to do a
few push-ups. The coup attempt in December, 1989 was almost successful. And yet, only the officers are meted
significant punishment. The enlisted men are readily pardoned. I see no reason why similar treatment cannot be given our
public school teachers. Their only offense was to speak out in an effective manner against studied neglect.

Even if all requirements of due process in administrative investigations are followed and the evidence points unerringly to
guilt, a public school teacher should not be meted out a penalty harsher than a few months suspension. In Labor Law,
dismissals are imposed only against a handful of leaders who committed acts of violence or instigated illegal strikes. (De
Ocampo, Jr. v. NLRC, 186 SCRA 360 [1990]) As earlier stated, the word "strike" under Labor Law should not be used in
pejoration to denigrate a peaceful assembly.

I repeat that equitable considerations call for compassion. Public school teachers are the most hard-working,
uncomplaining, easy to satisfy, and dutiful segment of our public service. They are also the most underpaid professionals
with a take home pay of a little over one hundred pesos a day, ** which is the income of an unskilled laborer. They
deserve justice and compassion.

CONSIDERING THE FOREGOING, I vote to GRANT the petition, to set aside the questioned orders of the Secretary of
Education, Culture, and Sports, to order reinstatement of the petitioners, and to direct the payments of their salaries and
backpay.

CRUZ, J., dissenting:

It appears to me from my reading of the ponencia and the several dissents that the petitioners have established a prima
facie case of arbitrariness on the part of the government that would justify direct and immediate action from the Court as
an exception to the regular procedure.

While I do agree that there are many factual matters to be ascertained and that this task belongs in the first instance to the
administrative authorities, I feel that precisely because of the number and proximity of these issues, let alone the hundreds
if not thousands of teachers involved, this Court must grant the petitioners at least temporary relief pending the
termination of the proceedings below. These proceedings have been dragging on for months and will continue even
longer, perhaps for years. In the meantime, the petitioning teachers are out in the cold, without employment or income and
with only their hope, grown forlorn, I am afraid, in the justice of this Court.

I can understand Justice Narvasa's concern over the disarrangement of the well-ordered system of judicial review and the
resultant heavy burden that will be laid on the Court. However, I do not propose that we assume the role of the trier of
facts and encumber ourselves with the task of deciding the hundreds of administrative cases being heard (or better heard)
below by the DECS or the Civil Service Commission. I am not prepared at this point to say that the Court should simply
pronounce the dismissal of the petitioners as arbitrary and to order their reinstatement with back salaries. I would instead
join Justice Padilla's suggestion that the teachers be ordered reinstated in the meantime, without prejudice to their
investigation in accordance with the prescribed procedure.

I am not unaware of the decision of the Court in the SSS case prohibiting members of the Civil Service from engaging in
strikes and similar acts. I submit, however that this ruling, assuming it to be correct, is no license for the authorities to
treat their employees with disdain and to flatly ignore their legitimate complaints, with the expressed threat that they
would be removed if they should be so rash as to insist on their demands. In my view, that is what Secretary Carino has
done.

Government workers, whatever their category or status, have as much right as any person in the land to voice their
protests against what they believe to be a violation of their interests. The fact that they belong to the Civil Service has not
deprived them of their freedom of expression, which is guaranteed to every individual in this country, including even the
alien. It would be ridiculous to even suggest that by accepting public employment, the members of the Civil Service
automatically and impliedly renounce this basic liberty. This freedom can at best be regulated only but never completely
withdrawn.

When their first feeble complaints were not acted upon, the teachers had a light to speak loudly and more insistently, and
to show that their protests did not come from only a disgruntled few but from a considerable number of them. They did
this through their mass action in hopes that this way they would be better heard and ultimately heeded. They were not.
Instead, they were threatened with dismissal and some were in fact dismissed. In effect, they were told to shut up or face
the consequences. I regard the return- to-work order as merely secondary and incidental, for the primary purpose of the
DECS authorities was to break up the demonstration and muzzle the demonstrators. unquestionably, these individual
teachers could not speak as effectively in their controlled classrooms. What the Secretary sought was to deny the teachers
the light to assemble and petition the government for redress of their grievances on the sanctimonious excuse that they
were needed by their students.

I for one believe that the prohibition of members of the Civil Service from striking which, significantly, is not found in the
Constitution requires a careful re-examination. It is so easy, as the present case has demonstrated, to use it as a bludgeon
to silence complaint, however legitimate. Complaint is a weapon of the worker, and it is more effective if manifested not
by him alone but with his co-owners. Under the present ruling, the workers in the private sector may complain collectively
and if necessary declare a strike to enforce their demands, but this recourse is denied the public employees even if their
demands are no less valid. In this sense, the freedom of expression of the civil servant is diminished and his right to
improve the conditions of his employment is correspondingly reduced, and order because he belongs to the public sector.

It is so easy to say that the education of the youth should not be disrupted but we should not forget that the protection of
freedom of expression is no less important. Indeed, the quality of education would deteriorate in an atmosphere of
repression, when the very teachers who are supposed to provide an example of courage and self-assertiveness to their
pupils can speak only in timorous whispers. The classrooms should be an incubator of freedom, not fear.

PARAS, J., concurring

I concur. Public school teachers have the right to peaceably assemble for redress of grievances but NOT during class
hours, for then this would be a strike, which is illegal for them.

FELICIANO, J., dissenting:

With regret, I find myself unable to concur in the majority opinion. I would associate myself with the reasoning and
conclusions (though not necessarily with all the adjectives and adverbs) of the dissenting opinion of Gutierrez, J. as well
as the conclusions reached by Padilla and Sarmiento, JJ., in their respective dissenting opinion.

Here I merely wish to underscore the constitutional issue which appears to me to be raised in the instant case by the
contraposition of, on the one hand, the prohibition against employees in the public sector going on strikes and, on the
other hand, the rights of free speech and of assembly and petition of those same employees. In Social Security System
Employees Association (SSSEA) v. Court of Appeals (175 SCRA 686 [1989]), the Court, through Cortes, J., pointed out
that the prohibition against strikes in the public sector is presently founded upon Memorandum Circular No. 6, Series of
1987, of the Civil Service Commission dated 21 April 1987, and indirectly and impliedly, upon Executive Order No. 180
dated 1 June 1987 which provides guidelines for the exercise of the constitutional right of government employees to
organize themselves. The prohibition is not, in other words, even statutory in nature but merely administrative or
regulatory in character and the Court took explicit note of the absence of legislation either prohibiting or allowing strikes,
or even merely regulating the exercise of a right to strike by government employees. The policy embodied in that
prohibition is admittedly a legitimate and important one: to prevent or minimize the disruption and paralysis of the
operations of government, especially the essential services rendered by it to society at large. At the same time, that the
rights of free speech and of peaceful assembly and petition for redress of grievances are at least equally important and
critical for the maintenance of a free, open and democratic polity, is not disputed by any one.

It seems to me that the majority opinion has considered the administrative prohibition of strikes in the government sector
as an absolute given. There appears no visible evidence of an effort to explore the scope and limits of applicability of that
prohibition. It would seem reasonably clear, however, that we cannot semper et ubique give exclusive relevance to that
simple prohibition, that there are at stake here also the competing public values and interests implicit in free speech and
peaceable assembly and petition, and that those rights too cannot be treated as absolutes without any regard to the
necessities of orderly and efficient governance of a developing country with obviously finite resources. The requirements
of both desiderata must be balanced, consciously, with realism and sensitivity, in particular situations such as that
presented in the instant case and points or lines of equilibrium drawn, however tentatively. 1

My concern, and this is submitted with great respect, is that in the instant case, the Court has not sufficiently engaged in
the required balancing operation and had instead acted and spoken as if the order societal interest involved is that of the
government in the maintenance of its operations and activities. The teaching of school children is obviously important,
indeed fundamental. Some of the leaders of some of the teachers' organizations may be non-teachers and possibly
professional agitators. But the refusal to meet with and discuss the pleas and grievances of the genuine public school
teachers and the summary and mass disciplinary sanctions with which the respondent DECS officials have responded may
produce, and appear in fact to have produced, the very stoppage and prolonged disruption which Memorandum Circular
No. 6 seeks to avoid.

There is, of course, no facile formula by which the competing interests may be adjusted and balanced, one with the other,
in very specific contexts like the one here existing. But adjustments and compromise there must be. It seems to me very
difficult to suppose that government service may be rendered only at the cost of foregoing the exercise (or, as Gutierrez, J.
puts it, the effective exercise) of the rights of free speech and assembly and petition. To require civil servants in general,
and public school teachers in particular, to leave at home their constitutional rights when they go to work, is to exact
mindless conformity and ductility, no matter how immediate serious and pervasive the problems and grievances may be,
as the cost of serving the Republic. That those problems and grievances may at bottom be economic rather than political
certainly does not change the legal equation. Such an exaction is not to be counternanced in our constitutional system: it
imposes oppressive costs upon the individual human spirit and intolerable burdens on national development. I vote to
GRANT the Petitions.

PADILLA, J., dissenting:

The majority opinion has compressed the issue to whether there has been a denial of due process to the teachers,
disregarding altogether the constitutional right to peaceably assemble and petition the government for redress of
grievances (Art. III, par. 4 Bill of Rights of the 1987 Constitution). But even limiting oneself to the issue of denial of due
process, the majority opinion asserts that it is not ripe for adjudication by the Court in the exercise of its review
jurisdiction because the issue involves questions of fact. But why then does the majority opinion proceed to
declare/recognize the mass action of the teachers as illegal? Does this not constitute a categorical finding of fact leaving
the dismissed or suspended teachers without any other recourse?

Due process prior to termination or suspension consisted of, according to the majority opinion, the following —

On the record, what did happen was that, based on reports submitted by the principals of the various
public schools in Metro Manila, the respondent Secretary of Education had filed motu propio
administrative complaints against the teachers who had taken part in the mass actions and defied the
return-to-work order on assorted charges like grave misconduct, gross neglect of duty, gross violation of
the Civil Service Law, absence without official leave, etc., and placed then under 90-day preventive
suspension. The respondents were served copies of the charge sheets and given five (5) days to submit
answer or explanation. Later, on October 8, 1990, the respondent Secretary constituted an investigating
committee of four (4) to determine and take the appropriate course of action on the formal charges and
designated the special prosecutors on detail with the DECS to handle their prosecution during the formal
hearings.

On October 11, 1990, the respondent Secretary of Education rendered the first of his now questioned
decisions on the administrative complaints. In Case No. DECS 90-002, he found twenty (20) respondent
teachers guilty of the charges proferred against them and dismissed them from office, effective
immediately. In the other investigations that followed and as of December 3, 1990, 658 teachers were
dismissed, 40 were suspended for one (1) year, 33 for nine (9) months, and 122 for six (6) months; 398
were exonerated. (pp. 4-5)

It is to be noted that the above proceedings took place in a charged atmosphere. Objective and dispassionate appraisal of
the merits of each case could hardly be expected in such a setting.

Whenever a governmental body acts so as to injure an individual, the Constitution requires that the act be
consonant with due process of law. The minimum procedural requirements necessary to satisfy due
process depend upon the circumstances and the interests of the parties involved. As stated by Mr. Justice
Frankfurter concurring in Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 163:

Whether the ex parte procedure to which the petitioners were subjected duly observed
'the rudiments of fair play' ... cannot ... be tested by mere generalities or sentiments
abstractly appealing. The precise nature of the interest that has been adversely affected,
the manner in which this was done, the reasons for doing it, the available alternatives to
the procedure that was followed, the protection implicit in the office of the functionary
whose conduct is challenged, the balance of hurt complained of and good accomplished
these are some of the considerations that must enter into the judicial judgment. 1
(Emphasis supplied)

The nature of the hearings should vary depending upon the circumstances of the particular case. 2 The constitutional
guarantee of due process means concurrence of substantive and procedural due process. The narration in the majority
opinion speaks only of the latter, completely disregarding the substance of petitioners' claims. It would appear that
dismissals and suspensions of the teachers were meted out de rigor and in rapid succession, evidently in retaliation for
airing their grievances against the government. It is not to suggest an elaborate procedural mechanism, but only fidelity to
the minimum safeguards untainted by arbitrariness and undue haste.

In my view, the public school teachers are the silent and unsung heroes of our society. They deserve more compassion, if
not more understanding, when they break their silence to plead and press for benefits they perceive have been unjustly
denied them. For it can not be overlooked that public school teachers are terribly underpaid when related to the
responsibilities they discharge in moulding the character of our youth. The government should itself undergo an
introspective re-arraignment of its priorities and values in approaching the problem of how to treat the teachers with
fairness and justice.

Denial of due process is an issue which is ripe for adjudication right in this Court, and in this case. The petition should be
granted and the cases remanded to the DECS for proper redetermination of the culpability of each teacher, this time, in an
atmosphere compatible with due process. Meanwhile, they should be reinstated pending the outcome of such proceedings,
including a recourse by appeal to the Civil Service Commission.

SARMIENTO, J., dissenting:

Like Justice Gutierrez; I have difficulty concurring with the majority.

What I indeed find apparent is that a thousand or so of our countrymen will be out of work because the Supreme Court
can not supposedly try facts.

The duty of the Court, as the Constitution expresses it, is, among other things:

... to determine whether or not there has been a grave abuse of discretion ... on the part of any branch or instrumentality of
the Government. 1

It is a duty, so I submit, from which the Court can not shirk on the handy excuse that it is being made to try facts. I submit
that it is a duty that often requires, precisely, a factual inquiry.

If we are being asked to try facts, it is not the first time we would have been asked, and complied. In Lansang v. Garcia, 2
we did satisfy ourselves that the facts warranted an act of the Executive. We did go to great lengths to sift evidence.

The nagging fact (no pun intended) is that apparently, we are not truly talking about "facts" here. The nagging fact, as
Justice Gutierrez points out, is that the petitioners have been under suspension for the last ten months, and the sole
question, apparently, is whether or not in the midst of this fact, Secretary Carino acted arbitrarily.

I do not think that the majority has understood enough the gravity of teachers' condition. As Justice Gutierrez points out
our teachers have long been the most neglected, yet the most forebearing, members of the public service. "[I]t [the
Government's lack of concern] is what forced the petitioners," according to Justice Gutierrez, "to engage in mass
concerted action. 3 I would like to add that maybe, the Government had it coming.

As the majority avers, these cases are not all about whether the petitioners could have validly gone on a strike that
question has long been settled by this Court-but rather, whether or not they have been given due process as a result of
investigations arising from the strike. I submit that due process is a perfectly legitimate issue to debate in Court an issue
involving the mentors of the nation's children no less.

I also submit that it is to trivialize the noblest profession, if it is not to trivialize the serious crisis confronting the state of
Philippine education, to dismiss these complaints as if it involved simple personalities demanding money. If Carino acted
as if it were that, and as if it were a matter alone of "they struck so I fired them" I submit that we ought to know better.
The State assures education for all. 4 It also gives priority to education, as an indispensable process in nation-building. 5
There is no harm in listening to our educators. I therefore vote to grant both petitions.

Separate Opinions

GUTIERREZ, JR., J., dissenting:

In dissenting from the majority opinion, I draw certain conclusions from the records which I feel should guide any
adjudication of the issues in these petitions.

My first conclusion refers to the denial of basic rights of an indispensably essential segment of our society the teachers
who educate our children.

The second refers to the cold hearted punishment which we allow to be inflicted upon our poor school teachers. By
skirting the fundamental issue involved, the Court is denying the petitioners fairness, substantive due process, and simple
humanity. The so-called investigations which led to the initial dismissals were a farce. Instead of 90 day preventive
suspensions, the Department of Education, Culture, and Sports (DECS) immediately imposed punitive dismissals with no
semblance of rudimentary due process. All other civil service employees undergoing investigation are reinstated after
ninety days. Our teachers have been out of work for more than ten (10) months without income while still undergoing
administrative investigation. The suspension is indefinite if not permanent.

Patience has its limits. There are times when even the most constant and dedicated public servants must given vent to their
feelings and express their grievances at an unfeeling and inept bureaucracy which seems to be incapable of attending to
their officials needs. Professional agitators may have infiltrated the teachers and muddled their demands with such
outlandish calls as the closure of foreign military bases, a cap on the payments of foreign debts and other issues not
pressingly relevant to teachers. But the basic demands are legitimate and few.

Teachers need a decent living wage, one in keeping with the dignity and worth of their profession. Not only are their
salaries unbelievably low but payment is often unreasonably delayed. When the national government gives a little
increase, a corresponding amount is reduced from the city share. Teachers have to beg for allowances to be restored. The
latest examples are the PERA adjustments. As of July 12, 1991, most employees of the government had received and
spent their PERA allowances. Our public school teachers were still waiting. whatever the payment signifies salary, bonus,
allowance and even retirement or death benefits the last one to receive what all government employees are entitled to, is
the public school teacher. It is no small wonder that thousands of school teachers swallow their dignity and accept
employment as domestic servants overseas. I am not aware of any government program which seeks to reverse the new
definition of "Filipina" as a domestic servant of foreigners whose education is often lower than that of their maids. Neither
am I aware of any determined effort to see to it that school teachers always get their salaries, allowances, and benefits on
time.

I mention the unconcern because it is what forced the petitioners to engage in mass concerted action.

We agree that employees in the civil service may not engage in strikes, walk-outs and temporary work stoppages like
workers in the private sector. (Social Security System Employees Association v. Court of Appeals, 175 SCRA 686, 698
[1989]). Employment in the Government is governed by law. Government workers cannot use the same weapons
employed by workers in the private sector to secure concessions from their employers. The terms and conditions of
employment are effected through statutes and administrative rules and regulations, not through collective bargaining
agreements. (Alliance of Government Workers, et al. v. Minister of Labor and Employment, 124 SCRA 1, 13 [1983]).

The above rulings remain good law.

In the first place, if this Court uses the word "strike" to describe what the petitioners staged, it tends to unfairly color and
pre-judge their case. "Strike" becomes a pejorative epithet that leads to a certain result not so much because of facts but
because of its semantic connotations. The teachers were in the main not asking for terms and conditions greater than those
accorded by law. Their basic demand was to be given on time what the law already provides for them. It was only after
certain elements penetrated their ranks and in the heat of the peaceful assembly that such demands as closure of military
bases and laws increasing salaries formed part of the leaders' statements. The concerted action was more of a peaceful
assembly, an exercise of speech by a gathering, not a strike.

In the second place, when Government is deaf, when bureaucracy denies to our teachers the timely payment of the
pittances provided by law, should any ban still be enforced? And enforced in a peremptory and oppressive manner?
Should not the most basic freedom of speech and assembly in these particular cases outweigh all considerations which ban
strikes by civil service employees?
We agree with Justice Cardozo in Palko v. Connecticut, 302 US 319 [1937] that freedom of speech is the matrix, the
indispensable condition of nearly every other form of freedom.

We have cited with approbation Justice Brennan's stressing a "profound national commitment to the principle that debate
on public issues should be uninhibited, robust and wide open and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials". (New York Times, Co. v. Sullivan, 376 US
254 [1964])

Teachers have legitimate and pressing grievances. When Government consistently fails to act on these grievances, the
teachers have a right to speak in an effective manner. For speech to be effective, it must be forceful enough to make the
intended recipients listen.

I view the issue in these cases as more transcendent than the simple one of whether or not public school teachers may go
on strike. To me, the issue is the freedom to effectively speak. When the members of a noble profession are demeaned by
low salaries and inattention to their needs, surely their freedom to speak in a manner and at a time as is most effective far
outweighs conventional adherence to orthodox civil service rules on proper conduct and correct behavior.

My other point has to do with an anomalous investigation procedure and considering the nature of the offense, what is
tantamount to cruel punishment.

I gather from the records and the majority opinion that the cases of individual teachers are still being investigated and may
be the subject of appeals to the Civil Service Commission.

If that is so, I cannot understand why the petitioners remain suspended up to the present. They should have been reinstated
after 90 days of preventive suspension. It is axiomatic that civil service employees and even elected officials cannot be
preventively suspended for more than 90 days (Section 42, P.D. 807; Deloso v. Sandiganbayan, 173 SCRA 409 [1989];
Doromal v. Sandiganbayan, 177 SCRA 354 [1989]).

If the suspension is preventive, it has lasted too long. If punitive, it is illegal and violative of due process.

There are anywhere from 800 to 2,000 teachers involved perhaps even more, once the unwieldy procedures of DECS can
arrive at accurate figures.

On October 8, 1990, the Department Secretary constituted an investigating committee of four, repeat, four members to act
on the formal charges.

Three days later, on October 11, 1990, the DECS found 20 teachers guilty and dismissed them. On December 3, 1990,
658 teachers were dismissed, 40 were suspended for one year, 33 for 9 months, and 122 for six months. There were 398
exonerations. I understand there were scores who had to hurriedly look for medical certificates that they were "sick" while
hundreds were urged to cringe and grovel with humiliating mea culpas.

Even if the investigating committee or committees were staffed by supermen and superwomen, it is inconceivable that
658 capital sentences of dismissal could be made in so short a time. Any officer who has conducted an honest to goodness
administrative investigation cannot but conclude that the procedures which were followed violated the norms of fair play
and due process. The decisions were the products of prejudgment based on perfunctory paper investigations. Surely our
public school teachers deserve better treatment.

If subsequent to the sentences of dismissal, the teachers were properly served with summons, given time to secure the
services of competent counsel, allowed to defend themselves and cross-examine witnesses against them, punished on the
basis of reasoned decisions stating the facts and the law, and otherwise given their rights to due process, the initial illegal
actions should be set aside and the teachers reinstated in the meantime.

Considering the circumstances which led the teachers to engage in mass action, the penalty of dismissal is too grave. It is
punishment which is cruel.
The officers and men of the Armed Forces who started a coup at the Manila Hotel were punished by being made to do a
few push-ups. The coup attempt in December, 1989 was almost successful. And yet, only the officers are meted
significant punishment. The enlisted men are readily pardoned. I see no reason why similar treatment cannot be given our
public school teachers. Their only offense was to speak out in an effective manner against studied neglect.

Even if all requirements of due process in administrative investigations are followed and the evidence points unerringly to
guilt, a public school teacher should not be meted out a penalty harsher than a few months suspension. In Labor Law,
dismissals are imposed only against a handful of leaders who committed acts of violence or instigated illegal strikes. (De
Ocampo, Jr. v. NLRC, 186 SCRA 360 [1990]) As earlier stated, the word "strike" under Labor Law should not be used in
pejoration to denigrate a peaceful assembly.

I repeat that equitable considerations call for compassion. Public school teachers are the most hard-working,
uncomplaining, easy to satisfy, and dutiful segment of our public service. They are also the most underpaid professionals
with a take home pay of a little over one hundred pesos a day, ** which is the income of an unskilled laborer. They
deserve justice and compassion.

CONSIDERING THE FOREGOING, I vote to GRANT the petition, to set aside the questioned orders of the Secretary of
Education, Culture, and Sports, to order reinstatement of the petitioners, and to direct the payments of their salaries and
backpay.

CRUZ, J., dissenting:

It appears to me from my reading of the ponencia and the several dissents that the petitioners have established a prima
facie case of arbitrariness on the part of the government that would justify direct and immediate action from the Court as
an exception to the regular procedure.

While I do agree that there are many factual matters to be ascertained and that this task belongs in the first instance to the
administrative authorities, I feel that precisely because of the number and proximity of these issues, let alone the hundreds
if not thousands of teachers involved, this Court must grant the petitioners at least temporary relief pending the
termination of the proceedings below. These proceedings have been dragging on for months and will continue even
longer, perhaps for years. In the meantime, the petitioning teachers are out in the cold, without employment or income and
with only their hope, grown forlorn, I am afraid, in the justice of this Court.

I can understand Justice Narvasa's concern over the disarrangement of the well-ordered system of judicial review and the
resultant heavy burden that will be laid on the Court. However, I do not propose that we assume the role of the trier of
facts and encumber ourselves with the task of deciding the hundreds of administrative cases being heard (or better heard)
below by the DECS or the Civil Service Commission. I am not prepared at this point to say that the Court should simply
pronounce the dismissal of the petitioners as arbitrary and to order their reinstatement with back salaries. I would instead
join Justice Padilla's suggestion that the teachers be ordered reinstated in the meantime, without prejudice to their
investigation in accordance with the prescribed procedure.

I am not unaware of the decision of the Court in the SSS case prohibiting members of the Civil Service from engaging in
strikes and similar acts. I submit, however that this ruling, assuming it to be correct, is no license for the authorities to
treat their employees with disdain and to flatly ignore their legitimate complaints, with the expressed threat that they
would be removed if they should be so rash as to insist on their demands. In my view, that is what Secretary Carino has
done.

Government workers, whatever their category or status, have as much right as any person in the land to voice their
protests against what they believe to be a violation of their interests. The fact that they belong to the Civil Service has not
deprived them of their freedom of expression, which is guaranteed to every individual in this country, including even the
alien. It would be ridiculous to even suggest that by accepting public employment, the members of the Civil Service
automatically and impliedly renounce this basic liberty. This freedom can at best be regulated only but never completely
withdrawn.
When their first feeble complaints were not acted upon, the teachers had a light to speak loudly and more insistently, and
to show that their protests did not come from only a disgruntled few but from a considerable number of them. They did
this through their mass action in hopes that this way they would be better heard and ultimately heeded. They were not.
Instead, they were threatened with dismissal and some were in fact dismissed. In effect, they were told to shut up or face
the consequences. I regard the return- to-work order as merely secondary and incidental, for the primary purpose of the
DECS authorities was to break up the demonstration and muzzle the demonstrators. unquestionably, these individual
teachers could not speak as effectively in their controlled classrooms. What the Secretary sought was to deny the teachers
the light to assemble and petition the government for redress of their grievances on the sanctimonious excuse that they
were needed by their students.

I for one believe that the prohibition of members of the Civil Service from striking which, significantly, is not found in the
Constitution requires a careful re-examination. It is so easy, as the present case has demonstrated, to use it as a bludgeon
to silence complaint, however legitimate. Complaint is a weapon of the worker, and it is more effective if manifested not
by him alone but with his co-owners. Under the present ruling, the workers in the private sector may complain collectively
and if necessary declare a strike to enforce their demands, but this recourse is denied the public employees even if their
demands are no less valid. In this sense, the freedom of expression of the civil servant is diminished and his right to
improve the conditions of his employment is correspondingly reduced, and order because he belongs to the public sector.

It is so easy to say that the education of the youth should not be disrupted but we should not forget that the protection of
freedom of expression is no less important. Indeed, the quality of education would deteriorate in an atmosphere of
repression, when the very teachers who are supposed to provide an example of courage and self-assertiveness to their
pupils can speak only in timorous whispers. The classrooms should be an incubator of freedom, not fear.

PARAS, J., concurring

I concur. Public school teachers have the right to peaceably assemble for redress of grievances but NOT during class
hours, for then this would be a strike, which is illegal for them.

FELICIANO, J., dissenting:

With regret, I find myself unable to concur in the majority opinion. I would associate myself with the reasoning and
conclusions (though not necessarily with all the adjectives and adverbs) of the dissenting opinion of Gutierrez, J. as well
as the conclusions reached by Padilla and Sarmiento, JJ., in their respective dissenting opinion.

Here I merely wish to underscore the constitutional issue which appears to me to be raised in the instant case by the
contraposition of, on the one hand, the prohibition against employees in the public sector going on strikes and, on the
other hand, the rights of free speech and of assembly and petition of those same employees. In Social Security System
Employees Association (SSSEA) v. Court of Appeals (175 SCRA 686 [1989]), the Court, through Cortes, J., pointed out
that the prohibition against strikes in the public sector is presently founded upon Memorandum Circular No. 6, Series of
1987, of the Civil Service Commission dated 21 April 1987, and indirectly and impliedly, upon Executive Order No. 180
dated 1 June 1987 which provides guidelines for the exercise of the constitutional right of government employees to
organize themselves. The prohibition is not, in other words, even statutory in nature but merely administrative or
regulatory in character and the Court took explicit note of the absence of legislation either prohibiting or allowing strikes,
or even merely regulating the exercise of a right to strike by government employees. The policy embodied in that
prohibition is admittedly a legitimate and important one: to prevent or minimize the disruption and paralysis of the
operations of government, especially the essential services rendered by it to society at large. At the same time, that the
rights of free speech and of peaceful assembly and petition for redress of grievances are at least equally important and
critical for the maintenance of a free, open and democratic polity, is not disputed by any one.

It seems to me that the majority opinion has considered the administrative prohibition of strikes in the government sector
as an absolute given. There appears no visible evidence of an effort to explore the scope and limits of applicability of that
prohibition. It would seem reasonably clear, however, that we cannot semper et ubique give exclusive relevance to that
simple prohibition, that there are at stake here also the competing public values and interests implicit in free speech and
peaceable assembly and petition, and that those rights too cannot be treated as absolutes without any regard to the
necessities of orderly and efficient governance of a developing country with obviously finite resources. The requirements
of both desiderata must be balanced, consciously, with realism and sensitivity, in particular situations such as that
presented in the instant case and points or lines of equilibrium drawn, however tentatively. 1

My concern, and this is submitted with great respect, is that in the instant case, the Court has not sufficiently engaged in
the required balancing operation and had instead acted and spoken as if the order societal interest involved is that of the
government in the maintenance of its operations and activities. The teaching of school children is obviously important,
indeed fundamental. Some of the leaders of some of the teachers' organizations may be non-teachers and possibly
professional agitators. But the refusal to meet with and discuss the pleas and grievances of the genuine public school
teachers and the summary and mass disciplinary sanctions with which the respondent DECS officials have responded may
produce, and appear in fact to have produced, the very stoppage and prolonged disruption which Memorandum Circular
No. 6 seeks to avoid.

There is, of course, no facile formula by which the competing interests may be adjusted and balanced, one with the other,
in very specific contexts like the one here existing. But adjustments and compromise there must be. It seems to me very
difficult to suppose that government service may be rendered only at the cost of foregoing the exercise (or, as Gutierrez, J.
puts it, the effective exercise) of the rights of free speech and assembly and petition. To require civil servants in general,
and public school teachers in particular, to leave at home their constitutional rights when they go to work, is to exact
mindless conformity and ductility, no matter how immediate serious and pervasive the problems and grievances may be,
as the cost of serving the Republic. That those problems and grievances may at bottom be economic rather than political
certainly does not change the legal equation. Such an exaction is not to be counternanced in our constitutional system: it
imposes oppressive costs upon the individual human spirit and intolerable burdens on national development. I vote to
GRANT the Petitions.

PADILLA, J., dissenting:

The majority opinion has compressed the issue to whether there has been a denial of due process to the teachers,
disregarding altogether the constitutional right to peaceably assemble and petition the government for redress of
grievances (Art. III, par. 4 Bill of Rights of the 1987 Constitution). But even limiting oneself to the issue of denial of due
process, the majority opinion asserts that it is not ripe for adjudication by the Court in the exercise of its review
jurisdiction because the issue involves questions of fact. But why then does the majority opinion proceed to
declare/recognize the mass action of the teachers as illegal? Does this not constitute a categorical finding of fact leaving
the dismissed or suspended teachers without any other recourse?

Due process prior to termination or suspension consisted of, according to the majority opinion, the following —

On the record, what did happen was that, based on reports submitted by the principals of the various
public schools in Metro Manila, the respondent Secretary of Education had filed motu propio
administrative complaints against the teachers who had taken part in the mass actions and defied the
return-to-work order on assorted charges like grave misconduct, gross neglect of duty, gross violation of
the Civil Service Law, absence without official leave, etc., and placed then under 90-day preventive
suspension. The respondents were served copies of the charge sheets and given five (5) days to submit
answer or explanation. Later, on October 8, 1990, the respondent Secretary constituted an investigating
committee of four (4) to determine and take the appropriate course of action on the formal charges and
designated the special prosecutors on detail with the DECS to handle their prosecution during the formal
hearings.

On October 11, 1990, the respondent Secretary of Education rendered the first of his now questioned
decisions on the administrative complaints. In Case No. DECS 90-002, he found twenty (20) respondent
teachers guilty of the charges proferred against them and dismissed them from office, effective
immediately. In the other investigations that followed and as of December 3, 1990, 658 teachers were
dismissed, 40 were suspended for one (1) year, 33 for nine (9) months, and 122 for six (6) months; 398
were exonerated. (pp. 4-5)

It is to be noted that the above proceedings took place in a charged atmosphere. Objective and dispassionate appraisal of
the merits of each case could hardly be expected in such a setting.
 Whenever a governmental body acts so as to injure an individual, the Constitution requires that the act be
consonant with due process of law. The minimum procedural requirements necessary to satisfy due
process depend upon the circumstances and the interests of the parties involved. As stated by Mr. Justice
Frankfurter concurring in Joint Anti-Fascist Refugee Committee v. McGrath, 1951, 341 U.S. 123, 163:

Whether the ex parte procedure to which the petitioners were subjected duly observed
'the rudiments of fair play' ... cannot ... be tested by mere generalities or sentiments
abstractly appealing. The precise nature of the interest that has been adversely affected,
the manner in which this was done, the reasons for doing it, the available alternatives to
the procedure that was followed, the protection implicit in the office of the functionary
whose conduct is challenged, the balance of hurt complained of and good accomplished
these are some of the considerations that must enter into the judicial judgment. 1
(Emphasis supplied)

The nature of the hearings should vary depending upon the circumstances of the particular case. 2 The constitutional
guarantee of due process means concurrence of substantive and procedural due process. The narration in the majority
opinion speaks only of the latter, completely disregarding the substance of petitioners' claims. It would appear that
dismissals and suspensions of the teachers were meted out de rigor and in rapid succession, evidently in retaliation for
airing their grievances against the government. It is not to suggest an elaborate procedural mechanism, but only fidelity to
the minimum safeguards untainted by arbitrariness and undue haste.

In my view, the public school teachers are the silent and unsung heroes of our society. They deserve more compassion, if
not more understanding, when they break their silence to plead and press for benefits they perceive have been unjustly
denied them. For it can not be overlooked that public school teachers are terribly underpaid when related to the
responsibilities they discharge in moulding the character of our youth. The government should itself undergo an
introspective re-arraignment of its priorities and values in approaching the problem of how to treat the teachers with
fairness and justice.

Denial of due process is an issue which is ripe for adjudication right in this Court, and in this case. The petition should be
granted and the cases remanded to the DECS for proper redetermination of the culpability of each teacher, this time, in an
atmosphere compatible with due process. Meanwhile, they should be reinstated pending the outcome of such proceedings,
including a recourse by appeal to the Civil Service Commission.

SARMIENTO, J., dissenting:

Like Justice Gutierrez; I have difficulty concurring with the majority.

What I indeed find apparent is that a thousand or so of our countrymen will be out of work because the Supreme Court
can not supposedly try facts.

The duty of the Court, as the Constitution expresses it, is, among other things:

... to determine whether or not there has been a grave abuse of discretion ... on the part of any branch or instrumentality of
the Government. 1

It is a duty, so I submit, from which the Court can not shirk on the handy excuse that it is being made to try facts. I submit
that it is a duty that often requires, precisely, a factual inquiry.

If we are being asked to try facts, it is not the first time we would have been asked, and complied. In Lansang v. Garcia, 2
we did satisfy ourselves that the facts warranted an act of the Executive. We did go to great lengths to sift evidence.

The nagging fact (no pun intended) is that apparently, we are not truly talking about "facts" here. The nagging fact, as
Justice Gutierrez points out, is that the petitioners have been under suspension for the last ten months, and the sole
question, apparently, is whether or not in the midst of this fact, Secretary Carino acted arbitrarily.
I do not think that the majority has understood enough the gravity of teachers' condition. As Justice Gutierrez points out
our teachers have long been the most neglected, yet the most forebearing, members of the public service. "[I]t [the
Government's lack of concern] is what forced the petitioners," according to Justice Gutierrez, "to engage in mass
concerted action. 3 I would like to add that maybe, the Government had it coming.

As the majority avers, these cases are not all about whether the petitioners could have validly gone on a strike that
question has long been settled by this Court-but rather, whether or not they have been given due process as a result of
investigations arising from the strike. I submit that due process is a perfectly legitimate issue to debate in Court an issue
involving the mentors of the nation's children no less.

I also submit that it is to trivialize the noblest profession, if it is not to trivialize the serious crisis confronting the state of
Philippine education, to dismiss these complaints as if it involved simple personalities demanding money. If Carino acted
as if it were that, and as if it were a matter alone of "they struck so I fired them" I submit that we ought to know better.
The State assures education for all. 4 It also gives priority to education, as an indispensable process in nation-building. 5
There is no harm in listening to our educators. I therefore vote to grant both petitions.

G.R. No. L-65366 November 9, 1983

JOSE B.L. REYES, in behalf of the ANTI-BASES COALITION (ABC), petitioner,

vs.
RAMON BAGATSING, as Mayor of the City of Manila, respondent.

Lorenzo M. Tañada Jose W. Diokno and Haydee B. Yorac for petitioner.

The Solicitor General for respondent.

FERNANDO, C.J.:ñé+.£ªwph!1

This Court, in this case of first impression, at least as to some aspects, is called upon to delineate the boundaries of the
protected area of the cognate rights to free speech and peaceable assembly, 1 against an alleged intrusion by respondent
Mayor Ramon Bagatsing. Petitioner, retired Justice JB L. Reyes, on behalf of the Anti-Bases Coalition sought a permit
from the City of Manila to hold a peaceful march and rally on October 26, 1983 from 2:00 to 5:00 in the afternoon,
starting from the Luneta, a public park, to the gates of the United States Embassy, hardly two blocks away. Once there,
and in an open space of public property, a short program would be held. 2 During the course of the oral argument, 3 it was
stated that after the delivery of two brief speeches, a petition based on the resolution adopted on the last day by the
International Conference for General Disbarmament, World Peace and the Removal of All Foreign Military Bases held in
Manila, would be presented to a representative of the Embassy or any of its personnel who may be there so that it may be
delivered to the United States Ambassador. The march would be attended by the local and foreign participants of such
conference. There was likewise an assurance in the petition that in the exercise of the constitutional rights to free speech
and assembly, all the necessary steps would be taken by it "to ensure a peaceful march and rally." 4

The filing of this suit for mandamus with alternative prayer for writ of preliminary mandatory injunction on October 20,
1983 was due to the fact that as of that date, petitioner had not been informed of any action taken on his request on behalf
of the organization to hold a rally. On October 25, 1983, the answer of respondent Mayor was filed on his behalf by
Assistant Solicitor General Eduardo G. Montenegro. 5 It turned out that on October 19, such permit was denied. Petitioner
was unaware of such a fact as the denial was sent by ordinary mail. The reason for refusing a permit was due to police
intelligence reports which strongly militate against the advisability of issuing such permit at this time and at the place
applied for." 6 To be more specific, reference was made to persistent intelligence reports affirm[ing] the plans of
subversive/criminal elements to infiltrate and/or disrupt any assembly or congregations where a large number of people is
expected to attend." 7 Respondent Mayor suggested, however, in accordance with the recommendation of the police
authorities, that "a permit may be issued for the rally if it is to be held at the Rizal Coliseum or any other enclosed area
where the safety of the participants themselves and the general public may be ensured." 8

The oral argument was heard on October 25, 1983, the very same day the answer was filed. The Court then deliberated on
the matter. That same afternoon, a minute resolution was issued by the Court granting the mandatory injunction prayed for
on the ground that there was no showing of the existence of a clear and present danger of a substantive evil that could
justify the denial of a permit. On this point, the Court was unanimous, but there was a dissent by Justice Aquino on the
ground that the holding of a rally in front of the US Embassy would be violative of Ordinance No. 7295 of the City of
Manila. The last sentence of such minute resolution reads: "This resolution is without prejudice to a more extended
opinion." 9 Hence this detailed exposition of the Court's stand on the matter.

1. It is thus clear that the Court is called upon to protect the exercise of the cognate rights to free speech and peaceful
assembly, arising from the denial of a permit. The Constitution is quite explicit: "No law shall be passed abridging the
freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for
redress of grievances." 10 Free speech, like free press, may be Identified with the liberty to discuss publicly and truthfully
any matter of public concern without censorship or punishment. 11 There is to be then no previous restraint on the
communication of views or subsequent liability whether in libel suits, 12 prosecution for sedition, 13 or action for damages,
14
or contempt proceedings 15 unless there be a clear and present danger of a substantive evil that [the State] has a right to
prevent." 16 Freedom of assembly connotes the right people to meet peaceably for consultation and discussion of matters
Of public concern. 17 It is entitled to be accorded the utmost deference and respect. It is hot to be limited, much less
denied, except on a showing, as 's the case with freedom of expression, of a clear and present danger of a substantive evil
that the state has a right to prevent. 18 Even prior to the 1935 Constitution, Justice Maicolm had occasion to stress that it is
a necessary consequence of our republican institutions and complements the right of free speech. 19 To paraphrase opinion
of Justice Rutledge speaking for the majority of the American Supreme Court Thomas v. Collins, 20 it was not by accident
or coincidence that the right to freedom of speech and of the press were toupled in a single guarantee with the and to
petition the rights of the people peaceably to assemble and to petition the government for redress of grievances. All these
rights, while not Identical, are inseparable. the every case, therefo re there is a limitation placed on the exercise of this
right, the judiciary is called upon to examine the effects of the challenged governmental actuation. The sole justification
for a limitation on the exercise of this right, so fundamental to the maintenance of democratic institutions, is the danger, of
a character both grave and imminent, of a serious evil to public safety, public morals, public health, or any other
legitimate public interest. 21

2. Nowhere is the rationale that underlies the freedom of expression and peaceable assembly better expressed than in this
excerpt from an opinion of Justice Frankfurter: "It must never be forgotten, however, that the Bill of Rights was the child
of the Enlightenment. Back of the guaranty of free speech lay faith in the power of an appeal to reason by all the peaceful
means for gaining access to the mind. It was in order to avert force and explosions due to restrictions upon rational modes
of communication that the guaranty of free speech was given a generous scope. But utterance in a context of violence can
lose its significance as an appeal to reason and become part of an instrument of force. Such utterance was not meant to be
sheltered by the Constitution." 22 What was rightfully stressed is the abandonment of reason, the utterance, whether verbal
or printed, being in a context of violence. It must always be remembered that this right likewise provides for a safety
valve, allowing parties the opportunity to give vent to their-views, even if contrary to the prevailing climate of opinion.
For if the peaceful means of communication cannot be availed of, resort to non-peaceful means may be the only
alternative. Nor is this the sole reason for the expression of dissent. It means more than just the right to be heard of the
person who feels aggrieved or who is dissatisfied with things as they are. Its value may lie in the fact that there may be
something worth hearing from the dissenter. That is to ensure a true ferment of Ideas. There are, of course, well-defined
limits. What is guaranteed is peaceable assembly. One may not advocate disorder in the name of protest, much less preach
rebellion under the cloak of dissent. The Constitution frowns on disorder or tumult attending a rally or assembly. resort to
force is ruled out and outbreaks of violence to be avoided. The utmost calm though is not required. As pointed out in an
early Philippine case, penned in 1907 to be precise, United States v. Apurado: 23 "It is rather to be expected that more or
less disorder will mark the public assembly of the people to protest against grievances whether real or imaginary, because
on such occasions feeling is always wrought to a high pitch of excitement, and the greater the grievance and the more
intense the feeling, the less perfect, as a rule, will be the disciplinary control of the leaders over their irresponsible
followers." 24 It bears repeating that for the constitutional right to be invoked, riotous conduct, injury to property, and acts
of vandalism must be avoided, To give free rein to one's destructive urges is to call for condemnation. It is to make a
mockery of the high estate occupied by intellectual liberty in our scheme of values.
3. There can be no legal objection, absent the existence of a clear and present danger of a substantive evil, on the choice of
Luneta as the place where the peace rally would start. The Philippines is committed to the view expressed in the plurality
opinion, of 1939 vintage, of Justice Roberts in Hague v. CIO: 25 Whenever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public
places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a
citizen of the United States to use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general
comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be
abridged or denied. 26 The above excerpt was quoted with approval in Primicias v. Fugoso. 27 Primicias made explicit what
was implicit in Municipality of Cavite v. Rojas," 28 a 1915 decision, where this Court categorically affirmed that plazas or
parks and streets are outside the commerce of man and thus nullified a contract that leased Plaza Soledad of plaintiff-
municipality. Reference was made to such plaza "being a promenade for public use," 29 which certainly is not the only
purpose that it could serve. To repeat, there can be no valid reason why a permit should not be granted for the or oposed
march and rally starting from a public dark that is the Luneta.

4. Neither can there be any valid objection to the use of the streets, to the gates of the US Embassy, hardly two block-
away at the Roxas Boulevard. Primicias v. Fugoso has resolved any lurking doubt on the matter. In holding that the then
Mayor Fugoso of the City of Manila should grant a permit for a public meeting at Plaza Miranda in Quiapo, this Court
categorically declared: "Our conclusion finds support in the decision in the case of Willis Cox vs. State of New Hampshire,
312 U.S., 569. In that case, the statute of New Hampshire P. L. chap. 145, section 2, providing that 'no parade or
procession upon any ground abutting thereon, shall 'De permitted unless a special license therefor shall first be explained
from the selectmen of the town or from licensing committee,' was construed by the Supreme Court of New Hampshire as
not conferring upon the licensing board unfettered discretion to refuse to grant the license, and held valid. And the
Supreme Court of the United States, in its decision (1941) penned by Chief Justice Hughes affirming the judgment of the
State Supreme Court, held that 'a statute requiring persons using the public streets for a parade or procession to procure a
special license therefor from the local authorities is not an unconstitutional abridgment of the rights of assembly or of
freedom of speech and press, where, as the statute is construed by the state courts, the licensing authorities are strictly
limited, in the issuance of licenses, to a consideration of the time, place, and manner of the parade or procession, with a
view to conserving the public convenience and of affording an opportunity to provide proper policing, and are not
invested with arbitrary discretion to issue or refuse license, ... " 30 Nor should the point made by Chief Justice Hughes in a
subsequent portion of the opinion be ignored, "Civil liberties, as guaranteed by the Constitution, imply the existence of an
organized society maintaining public order without which liberty itself would be lost in the excesses of unrestricted
abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people
in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of
safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most
familiar illustration of this recognition of social need. Where a restriction of the use of highways in that relation is
designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of
some civil right which in other circumstances would be entitled to protection." 31

5. There is a novel aspect to this case, If the rally were confined to Luneta, no question, as noted, would have arisen. So,
too, if the march would end at another park. As previously mentioned though, there would be a short program upon
reaching the public space between the two gates of the United States Embassy at Roxas Boulevard. That would be
followed by the handing over of a petition based on the resolution adopted at the closing session of the Anti-Bases
Coalition. The Philippines is a signatory of the Vienna Convention on Diplomatic Relations adopted in 1961. It was
concurred in by the then Philippine Senate on May 3, 1965 and the instrument of ratification was signed by the President
on October 11, 1965, and was thereafter deposited with the Secretary General of the United Nations on November 15. As
of that date then, it was binding on the Philippines. The second paragraph of the Article 22 reads: "2. The receiving State
is under a special duty to take appropriate steps to protect the premises of the mission against any intrusion or damage and
to prevent any disturbance of the peace of the mission or impairment of its dignity. " 32 The Constitution "adopts the
generally accepted principles of international law as part of the law of the land. ..." 33 To the extent that the Vienna
Convention is a restatement of the generally accepted principles of international law, it should be a part of the law of the
land. 34 That being the case, if there were a clear and present danger of any intrusion or damage, or disturbance of the
peace of the mission, or impairment of its dignity, there would be a justification for the denial of the permit insofar as the
terminal point would be the Embassy. Moreover, respondent Mayor relied on Ordinance No. 7295 of the City of Manila
prohibiting the holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign
mission or chancery and for other purposes. Unless the ordinance is nullified, or declared ultra vires, its invocation as a
defense is understandable but not decisive, in view of the primacy accorded the constitutional rights of free speech and
peaceable assembly. Even if shown then to be applicable, that question the confronts this Court.

6. There is merit to the observation that except as to the novel aspects of a litigation, the judgment must be confined
within the limits of previous decisions. The law declared on past occasions is, on the whole, a safe guide, So it has been
here. Hence, as noted, on the afternoon of the hearing, October 25, 1983, this Court issued the minute resolution granting
the mandatory injunction allowing the proposed march and rally scheduled for the next day. That conclusion was
inevitable ill the absence of a clear and present danger of a substantive, evil to a legitimate public interest. There was no
justification then to deny the exercise of the constitutional rights of tree speech and peaceable assembly. These rights are
assured by our Constitution and the Universal Declaration of Human Rights. 35 The participants to such assembly,
composed primarily of those in attendance at the International Conference for General Disbarmament, World Peace and
the Removal of All Foreign Military Bases would start from the Luneta. proceeding through Roxas Boulevard to the gates
of the United States Embassy located at the same street. To repeat, it is settled law that as to public places, especially so as
to parks and streets, there is freedom of access. Nor is their use dependent on who is the applicant for the permit, whether
an individual or a group. If it were, then the freedom of access becomes discriminatory access, giving rise to an equal
protection question. The principle under American doctrines was given utterance by Chief Justice Hughes in these words:
"The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under
which the meeting is held but as to its purpose; not as to The relations of the speakers, but whether their utterances
transcend the bounds of the freedom of speech which the Constitution protects." 36 There could be danger to public peace
and safety if such a gathering were marked by turbulence. That would deprive it of its peaceful character. Even then, only
the guilty parties should be held accountable. It is true that the licensing official, here respondent Mayor, is not devoid of
discretion in determining whether or not a permit would be granted. It is not, however, unfettered discretion. While
prudence requires that there be a realistic appraisal not of what may possibly occur but of what may probably occur, given
all the relevant circumstances, still the assumption — especially so where the assembly is scheduled for a specific public
— place is that the permit must be for the assembly being held there. The exercise of such a right, in the language of
Justice Roberts, speaking for the American Supreme Court, is not to be "abridged on the plea that it may be exercised in
some other place." 37

7. In fairness to respondent Mayor, he acted on the belief that Navarro v. Villegas 38 and Pagkakaisa ng Manggagawang
Pilipino (PMP.) v. Bagatsing, 39 called for application. While the General rule is that a permit should recognize the right
of the applicants to hold their assembly at a public place of their choice, another place may be designated by the licensing
authority if it be shown that there is a clear and present danger of a substantive evil if no such change were made. In the
Navarro and the Pagkakaisa decisions, this Court was persuaded that the clear and present danger test was satisfied. The
present situation is quite different. Hence the decision reached by the Court. The mere assertion that subversives may
infiltrate the ranks of the demonstrators does not suffice. Not that it should be overlooked. There was in this case,
however, the assurance of General Narciso Cabrera, Superintendent, Western Police District, Metropolitan Police Force,
that the police force is in a position to cope with such emergency should it arise That is to comply with its duty to extend
protection to the participants of such peaceable assembly. Also from him came the commendable admission that there
were the least five previous demonstrations at the Bayview hotel Area and Plaza Ferguson in front of the United States
Embassy where no untoward event occurred. It was made clear by petitioner, through counsel, that no act offensive to the
dignity of the United States Mission in the Philippines would take place and that, as mentioned at the outset of this
opinion, "all the necessary steps would be taken by it 'to ensure a peaceful march and rally.' " 40 Assistant Solicitor
General Montenegro expressed the view that the presence of policemen may in itself be a provocation. It is a sufficient
answer that they should stay at a discreet distance, but ever ready and alert to cope with any contingency. There is no need
to repeat what was pointed out by Chief Justice Hughes in Cox that precisely, it is the duty of the city authorities to
provide the proper police protection to those exercising their right to peaceable assembly and freedom of expression.

8. By way of a summary The applicants for a permit to hold an assembly should inform the licensing authority of the date,
the public place where and the time when it will take place. If it were a private place, only the consent of the owner or the
one entitled to its legal possession is required. Such application should be filed well ahead in time to enable the public
official concerned to appraise whether there may be valid objections to the grant of the permit or to its grant but at another
public place. It is an indispensable condition to such refusal or modification that the clear and present danger test be the
standard for the decision reached. If he is of the view that there is such an imminent and grave danger of a substantive
evil, the applicants must be heard on the matter. Thereafter, his decision, whether favorable or adverse, must be
transmitted to them at the earliest opportunity. Thus if so minded, then, can have recourse to the proper judicial authority.
Free speech and peaceable assembly, along with the other intellectual freedoms, are highly ranked in our scheme of
constitutional values. It cannot be too strongly stressed that on the judiciary, — even more so than on the other
departments — rests the grave and delicate responsibility of assuring respect for and deference to such preferred rights.
No verbal formula, no sanctifying phrase can, of course, dispense with what has been so felicitiously termed by Justice
Holmes "as the sovereign prerogative of judgment." Nonetheless, the presumption must be to incline the weight of the
scales of justice on the side of such rights, enjoying as they do precedence and primacy. Clearly then, to the extent that
there may be inconsistencies between this resolution and that of Navarro v. Villegas, that case is pro tanto modified. So it
was made clear in the original resolution of October 25, 1983.

9. Respondent Mayor posed the issue of the applicability of Ordinance No. 7295 of the City of Manila prohibiting the
holding or staging of rallies or demonstrations within a radius of five hundred (500) feet from any foreign mission or
chancery and for other purposes. It is to be admitted that it finds support In the previously quoted Article 22 of the Vienna
Convention on Diplomatic Relations. There was no showing, however, that the distance between the chancery and the
embassy gate is less than 500 feet. Even if it could be shown that such a condition is satisfied. it does not follow that
respondent Mayor could legally act the way he did. The validity of his denial of the permit sought could still be
challenged. It could be argued that a case of unconstitutional application of such ordinance to the exercise of the right of
peaceable assembly presents itself. As in this case there was no proof that the distance is less than 500 feet, the need to
pass on that issue was obviated, Should it come, then the qualification and observation of Justices Makasiar and Plana
certainly cannot be summarily brushed aside. The high estate accorded the rights to free speech and peaceable assembly
demands nothing less.

10. Ordinarily, the remedy in cases of this character is to set aside the denial or the modification of the permit sought and
order the respondent official, to grant it. Nonetheless, as there was urgency in this case, the proposed march and rally
being scheduled for the next day after the hearing, this Court. in the exercise of its conceded authority, granted the
mandatory injunction in the resolution of October 25, 1983. It may be noted that the peaceful character of the peace march
and rally on October 26 was not marred by any untoward incident. So it has been in other assemblies held elsewhere. It is
quite reassuring such that both on the part of the national government and the citizens, reason and moderation have
prevailed. That is as it should be.

WHEREFORE, the mandatory injunction prayed for is granted. No costs.

Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova and Gutierrez, , Jr.,JJ., concur.

De Castro, J, is on leave.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "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" and that the city or town mayors
are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or
specify the streets or public places where the parade or procession may pass or the meeting may be held." The most recent
graphic demonstration of what this great right of peaceful assembly and petition for redress of grievances could
accomplish was the civil rights march on Washington twenty years ago under the late assassinated black leader Martin
Luther King, Jr. (whose birthday has now been declared an American national holiday) which subpoenaed the conscience
of the nation," and awakened the conscience of millions of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by the
Court Justice in paragraph 8 of the Court's opinion, with the injunction that "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," The exception of the clear
and present danger rule, which alone would warrant a limitation of these fundamental rights, is therein restated in
paragraph 1, thus: "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. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse action on
the application lies on the mayor as licensing authority. There must be objective and convincing, not subjective or
conjectural proof of the existence of such clear and present danger. As stated in our Resolution of October 25, 1983,
which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which
amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what
public welfare, peace or safety may require. To justify such a limitation there must be proof of such weight and sufficiency
to satisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators
is not enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs. California. 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches
and burned women. It is the function of speech to free men from the bondage of irrational fears. To
justify suppression of free speech there must be reasonable ground to fear that serious evil will result if
free speech is practiced. There must be reasonable ground to believe that the danger apprehended is
imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear political change.
They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for)
effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively
trivial harm to a society. * * * The fact that speech is likely to result in some violence or in destruction of
property is not enough to justify its suppression. There must be the probability of serious injury to the
state. Among freemen the deterrents ordinarily to be applied to prevent crimes are education and
punishment for violations of the law, not abridgment of the rights of free speech and assembly. (Emphasis
supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be exercised in
some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police protection to
those exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S. Supreme Court's
pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for the
use of the public and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets and public places has,
from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The
privilege of a citizen * * * to use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and good order; but
it must not, in the guise of regulation, be abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void upon its face. It does
not make comfort or convenience in the use of streets or parks the standard of official action. It enables
the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots,
disturbances or disorderly assemblage. It can thus, as the record discloses, be made the instrument of
 arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking
will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot
be made a substitute for the duty to maintain order in connection with the exercise of the right. (Emphasis
supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a peaceful march
and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same, concommitantly with the
duty of the police to extend protection to the participants "staying at a discreet distance, but ever ready and alert to
perform their duty." But should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well to
recall former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso, citing the 1907 case of U.S. vs.
Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized) as an excuse to
characterize the assembly as a seditious and tumultuous rising against the authorities" and render illusory the right of
peaceable assembly, thus: têñ.£îhqwâ£

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 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 tumultous rising against the
authorities, 'then the right to assemble and to petition for redress of grievances would become a delusion
and 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. (Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evil
result, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even if
there had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have been
wrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the unjustified
denial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights — should
prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for the
record that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a reservation
regarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent.
The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a foreign
embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was adopted, so it
is said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention on Diplomatic
Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked
whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or
expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance
No. 7295 of the City of Manila.

Separate Opinions

TEEHANKEE, J., concurring:

The Chief Justice's opinion of the Court reaffirms the doctrine of Primicias vs. Fugoso 1 that "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" and that the city or town mayors
are not conferred "the power to refuse to grant the permit, but only the discretion, in issuing the permit, to determine or
specify the streets or public places where the parade or procession may pass or the meeting may be held." The most recent
graphic demonstration of what this great right of peaceful assembly and petition for redress of grievances could
accomplish was the civil rights march on Washington twenty years ago under the late assassinated black leader Martin
Luther King, Jr. (whose birthday has now been declared an American national holiday) which subpoenaed the conscience
of the nation," and awakened the conscience of millions of previously indifferent Americans and eventually (after many
disorders and riots yet to come) was to put an end to segregation and discrimination against the American Negro.

The procedure for the securing of such permits for peaceable assembly is succintly set forth in the summary given by the
Court Justice in paragraph 8 of the Court's opinion, with the injunction that "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," The exception of the clear
and present danger rule, which alone would warrant a limitation of these fundamental rights, is therein restated in
paragraph 1, thus: "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. "

It bears emphasis that the burden to show the existence of grave and imminent danger that would justify adverse action on
the application lies on the mayor as licensing authority. There must be objective and convincing, not subjective or
conjectural proof of the existence of such clear and present danger. As stated in our Resolution of October 25, 1983,
which granted the mandatory injunction as prayed for, "It is essential for the validity of a denial of a permit which
amounts to a previous restraint or censorship that the licensing authority does not rely solely on his own appraisal of what
public welfare, peace or safety may require. To justify such a limitation there must be proof of such weight and sufficiency
to satisfy the clear and present danger test. The possibility that subversives may infiltrate the ranks of the demonstrators
is not enough." As stated by Justice Brandeis in his concurring opinion in Whitney vs. California. 2 têñ.£îhqwâ£

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches
and burned women. It is the function of speech to free men from the bondage of irrational fears. To
 justify suppression of free speech there must be reasonable ground to fear that serious evil will result if
free speech is practiced. There must be reasonable ground to believe that the danger apprehended is
imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one * * *.

Those who won our independence by revolution were not cowards. They did not fear political change.
They did not exalt order at the cost of liberty. * * *

Moreover, even imminent danger cannot justify resort to prohibition of these functions essential (for)
effective democracy, unless the evil apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as the means for averting a relatively
trivial harm to a society. * * * The fact that speech is likely to result in some violence or in destruction of
property is not enough to justify its suppression. There must be the probability of serious injury to the
state. Among freemen the deterrents ordinarily to be applied to prevent crimes are education and
punishment for violations of the law, not abridgment of the rights of free speech and assembly. (Emphasis
supplied)

The Court's opinion underscores that the exercise of the right is not to be "abridged on the plea that it may be exercised in
some other place" (paragraph 6), and that "it is the duty of the city authorities to provide the proper police protection to
those exercising their right to peaceable assembly and freedom of expression," (at page 14) The U.S. Supreme Court's
pronouncement in Hague vs. Committee for Industrial Organization 3 cited in Fugoso is worth repeating: têñ.£îhqwâ£

* * * Wherever the title of streets and parks may rest, they have immemorially been held in trust for the
use of the public and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions. Such use of the streets and public places has,
from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The
privilege of a citizen * * * to use the streets and parks for communication of views on national questions
may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in
subordination to the general comfort and convenience, and in consonance with peace and good order; but
it must not, in the guise of regulation, be abridged or denied.

We think the court below was right in holding the ordinance quoted in Note I void upon its face. It does
not make comfort or convenience in the use of streets or parks the standard of official action. It enables
the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent 'riots,
disturbances or disorderly assemblage. It can thus, as the record discloses, be made the instrument of
arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking
will undoubtedly 'prevent' such eventualities. But uncontrolled official suppression of the privilege cannot
be made a substitute for the duty to maintain order in connection with the exercise of the right. (Emphasis
supplied)

Needless to say, the leaders of the peaceable assembly should take all the necessary measures to ensure a peaceful march
and assembly and to avoid the possibility of infiltrators and troublemakers disrupting the same, concommitantly with the
duty of the police to extend protection to the participants "staying at a discreet distance, but ever ready and alert to
perform their duty." But should any disorderly conduct or incidents occur, whether provoked or otherwise, it is well to
recall former Chief Justice Ricardo Paras' injunction in his concurring opinion in Fugoso, citing the 1907 case of U.S. vs.
Apurado, 4 that such instances of "disorderly conduct by individual members of a crowd (be not seized) as an excuse to
characterize the assembly as a seditious and tumultuous rising against the authorities" and render illusory the right of
peaceable assembly, thus: têñ.£îhqwâ£

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 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 tumultous rising against the
authorities, 'then the right to assemble and to petition for redress of grievances would become a delusion
and 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. (Emphasis supplied).

As it turned out, the demonstration was held on October 26, 1983 peaceably and without any untoward event or evil
result, as pledged by the organizers (like at least five previous peaceful demonstrations in the area). However, even if
there had been any incidents of disorder, this would in no way show the Court's mandatory injunction to have been
wrongfully issued. The salutary desire on the part of respondent to prevent disorder cannot be pursued by the unjustified
denial and suppression of the people's basic rights, which would thereby turn out to be mere paper rights.

MAKASIAR, J., concurring:

With the justification that in case of conflict, the Philippine Constitution — particularly the Bill of Rights — should
prevail over the Vienna Convention.

ABAD SANTOS, J., concurring:

To add anything to the learned opinion of the Chief Justice is like bringing coal to Newcastle, I just want to state for the
record that I voted for the issuance ex-parte of a preliminary mandatory injunction.

PLANA, J., concurring:

On the whole, I concur in the learned views of the distinguished Chief Justice. I would like however to voice a reservation
regarding Ordinance No. 7295 of the City of Manila which has been invoked by the respondent.

The main opinion yields the implication that a rally or demonstration made within 500 feet from the chancery of a foreign
embassy would be banned for coming within the terms of the prohibition of the cited Ordinance which was adopted, so it
is said, precisely to implement a treaty obligation of the Philippines under the 1961 Vienna Convention on Diplomatic
Relations.

In my view, without saying that the Ordinance is obnoxious per se to the constitution, it cannot be validly invoked
whenever its application would collide with a constitutionally guaranteed right such as freedom of assembly and/or
expression, as in the case at bar, regardless of whether the chancery of any foreign embassy is beyond or within 500 feet
from the situs of the rally or demonstration.

AQUINO, J., dissenting:

Voted to dismiss the petition on the ground that the holding of the rally in front of the US Embassy violates Ordinance
No. 7295 of the City of Manila.

G.R. No. 95770 March 1, 1993

ROEL EBRALINAG, EMILY EBRALINAG, represented by their parents MR. & MRS. LEONARDO
EBRALINAG, JUSTINIANA TANTOG, represented by her father AMOS TANTOG; JEMILOYAO & JOEL
OYAO, represented by their parents MR. & MRS. ELIEZER OYAO; JANETH DIAMOS & JEREMIAS
DIAMOS, represented by parents MR. & MRS. GODOFREDO DIAMOS; SARA OSTIA & JONATHAN OSTIA,
represented by their parents MR. & MRS. FAUTO OSTIA; IRVIN SEQUINO & RENAN SEQUINO, represented
by their parents MR. & MRS. LYDIO SEQUINO; NAPTHALE TANACAO, represented by his parents MR. &
MRS. MANUEL TANACAO; PRECILA PINO, represented by her parents MR. & MRS. FELIPE PINO;
MARICRIS ALFAR, RUWINA ALFAR, represented by their parents MR. & MRS. HERMINIGILDO ALFAR;
FREDESMINDA ALFAR & GUMERSINDO ALFAR, represented by their parents ABDON ALFAR; ALBERTO
ALFAR & ARISTIO ALFAR, represented by their parents MR. & MRS. GENEROSO ALFAR; MARTINO
VILLAR, represented by his parents MR. & MRS. GENARO VILLAR; PERGEBRIEL GUINITA & CHAREN
GUINITA, represented by their parents MR. & MRS. CESAR GUINITA; ALVIN DOOP, represented by his
parents MR. & MRS. LEONIDES DOOP; RHILYN LAUDE, represented by her parents MR. & MRS. RENE
LAUDE; LEOREMINDA MONARES, represented by her parents, MR. & MRS. FLORENCIO MONARES;
MERCY MONTECILLO, represented by her parents MR. & MRS. MANUEL MONTECILLO; ROBERTO
TANGAHA, represented by his parent ILUMINADA TANGAHA; EVELYN, MARIA & FLORA TANGAHA,
represented by their parents MR. & MRS. ALBERTO TANGAHA; MAXIMO EBRALINAG, represented by his
parents, MR. & MRS. PAQUITO EBRALINAG; JUTA CUMON, GIDEON CUMON & JONATHAN CUMON,
represented by their father RAFAEL CUMON; EVIE LUMAKANG & JUNAR LUMAKANG, represented by
their parents MR. & MRS. LUMAKANG; EMILIO SARSOZO, PAZ AMOR SARSOZO & IGNA MARIE
SARSOZO, represented by their parents MR. & MRS. VIRGILIO SARSOZO; MICHAEL JOSEPH & HENRY
JOSEPH, represented by parent ANNIE JOSEPH; EMERSON TABLASON & MASTERLOU TABLASON,
represented by their parent EMERLITO TABLASON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU, respondent.

G.R. No. 95887 March 1, 1993

MAY AMOLO, represented by her parents MR. & MRS. ISAIAS AMOLO; REDFORD ALSADO, JOEBERT
ALSADO & RUDYARD ALSADO, represented by their parents MR. & MRS. ABELARDO ALSADO; NELIA
ALSADO, REU ALSADO & LILIBETH ALSADO, represented by their parents MR. & MRS. ROLANDO
ALSADO; SUZETTE NAPOLES, represented by her parents ISMAILITO NAPOLES & OPHELIA NAPOLES;
JESICA CARMELOTES, represented by her parents MR. & MRS. SERGIO CARMELOTES; BABY JEAN
MACAPAS, represented by her parents MR. & MRS. TORIBIO MACAPAS; GERALDINE ALSADO,
represented by her parents MR. & MRS. JOEL ALSADO; RAQUEL DEMOTOR & LEAH DEMOTOR,
represented by their parents MR. & MRS. LEONARDO DEMOTOR; JURELL VILLA & MELONEY VILLA,
represented by their parents MR. & MRS. JOVENIANO VILLA; JONELL HOPE MAHINAY, MARY GRACE
MAHINAY and MAGDALENE MAHINAY, represented by their parents MR. & MRS. FELIX MAHINAY;
JONALYN ANTIOLA and JERWIN ANTIOLA, represented by their parents FELIFE ANTIOLA and ANECITA
ANTIOLA; MARIA CONCEPCION CABUYAO, represented by her parents WENIFREDO CABUYAO and
ESTRELLITA CABUYAO, NOEMI TURNO represented by her parents MANUEL TURNO and VEVENCIA
TURNO; SOLOMON PALATULON, SALMERO PALATULON and ROSALINDA PALATULON, represented
by their parents MARTILLANO PALATULON and CARMILA PALATULON, petitioners,
vs.
THE DIVISION SUPERINTENDENT OF SCHOOLS OF CEBU and ANTONIO A. SANGUTAN, respondents.

Felino M. Ganal for petitioners.

The Solicitor General for respondents.

GRIÑO-AQUINO, J.:

These two special civil actions for certiorari, Mandamus and Prohibition were consolidated because they raise
essentially the same issue: whether school children who are members or a religious sect known as Jehovah's
Witnesses may be expelled from school (both public and private), for refusing, on account of their religious beliefs,
to take part in the flag ceremony which includes playing (by a band) or singing the Philippine national anthem,
saluting the Philippine flag and reciting the patriotic pledge.

In G.R. No. 95770 "Roel Ebralinag, et al. vs. Division Superintendent of Schools of Cebu and Manuel F. Biongcog,
Cebu District Supervisor," the petitioners are 43 high school and elementary school students in the towns of Daan
Bantayan, Pinamungajan, Carcar, and Taburan Cebu province. All minors, they are assisted by their parents who
belong to the religious group known as Jehovah's Witnesses which claims some 100,000 "baptized publishers" in
the Philippines.

In G.R. No. 95887, "May Amolo, et al. vs. Division Superintendent of Schools of Cebu and Antonio A. Sangutan,"
the petitioners are 25 high school and grade school students enrolled in public schools in Asturias, Cebu, whose
parents are Jehovah's Witnesses. Both petitions were prepared by the same counsel, Attorney Felino M. Ganal.

All the petitioners in these two cases were expelled from their classes by the public school authorities in Cebu for
refusing to salute the flag, sing the national anthem and recite the patriotic pledge as required by Republic Act No.
1265 of July 11, 1955, and by Department Order No. 8 dated July 21, 1955 of the Department of Education,
Culture and Sports (DECS) making the flag ceremony compulsory in all educational institutions. Republic Act No.
1265 provides:

Sec. 1. All educational institutions shall henceforth observe daily flag ceremony, which shall be simple
and dignified and shall include the playing or singing of the Philippine National anthem.

Sec. 2. The Secretary of Education is hereby authorized and directed to issue or cause to be issued
rules and regulations for the proper conduct of the flag ceremony herein provided.

Sec. 3. Failure or refusal to observe the flag ceremony provided by this Act and in accordance with
rules and regulations issued by the Secretary of Education, after proper notice and hearing, shall
subject the educational institution concerned and its head to public censure as an administrative
punishment which shall be published at least once in a newspaper of general circulation.

In case of failure to observe for the second time the flag-ceremony provided by this Act, the Secretary
of Education, after proper notice and hearing, shall cause the cancellation of the recognition or
permit of the private educational institution responsible for such failure.

The implementing rules and regulations in Department Order No. 8 provide:

RULES AND REGULATIONS FOR CONDUCTING THE FLAG CEREMONY IN ALL

EDUCATIONAL INSTITUTIONS.

1. The Filipino Flag shall be displayed by all educational institutions, public and private, every
school day throughout the year. It shall be raised at sunrise and lowered at sunset. The flag-staff
must be straight, slightly and gently tapering at the end, and of such height as would give the Flag a
commanding position in front of the building or within the compound.

2. Every public and private educational institution shall hold a flag-raising ceremony every morning
except when it is raining, in which event the ceremony may be conducted indoors in the best way
possible. A retreat shall be held in the afternoon of the same day. The flag-raising ceremony in the
morning shall be conducted in the following manner:

a. Pupils and teachers or students and faculty members who are in school and its
premises shall assemble in formation facing the flag. At command, books shall be put
away or held in the left hand and everybody shall come to attention. Those with hats
shall uncover. No one shall enter or leave the school grounds during the ceremony.
 b. The assembly shall sing the Philippine National Anthem accompanied by the school
band or without the accompaniment if it has none; or the anthem may be played by
the school band alone. At the first note of the Anthem, the flag shall be raised
briskly. While the flag is being raised, all persons present shall stand at attention and
execute a salute. Boys and men with hats shall salute by placing the hat over the
heart. Those without hat may stand with their arms and hands down and straight at
the sides. Those in military or Boy Scout uniform shall give the salute prescribed by
their regulations. The salute shall be started as the Flag rises, and completed upon
last note of the anthem.

c. Immediately following the singing of the Anthem, the assembly shall recite in
unison the following patriotic pledge (English or vernacular version), which may
bring the ceremony to a close. This is required of all public schools and of private
schools which are intended for Filipino students or whose population is
predominantly Filipino.

English Version

I love the Philippines.

It is the land of my birth;
It is the home of my people.
It protects me and helps me to be, strong, happy and useful.
In return, I will heed the counsel of my parents;
I will obey the rules of my school;
I will perform the duties of a patriotic, law-abiding citizen;
I will serve my country unselfishly and faithfully;
I will be a true, Filipino in thought, in word, in deed.

xxx xxx xxx

Jehovah's Witnesses admittedly teach their children not to salute the flag, sing the national anthem, and recite the
patriotic pledge for they believe that those are "acts of worship" or "religious devotion" (p. 10, Rollo) which they
"cannot conscientiously give . . . to anyone or anything except God" (p. 8, Rollo). They feel bound by the Bible's
command to "guard ourselves from
idols — 1 John 5:21" (p. 9, Rollo). They consider the flag as an image or idol representing the State (p. 10, Rollo).
They think the action of the local authorities in compelling the flag salute and pledge transcends constitutional
limitations on the State's power and invades the sphere of the intellect and spirit which the Constitution protect
against official control (p. 10, Rollo).

This is not the first time that the question, of whether the children of Jehovah's Witnesses may be expelled from
school for disobedience of R.A. No. 1265 and Department Order No. 8, series of 1955, has been raised before this
Court.

The same issue was raised in 1959 in Gerona, et al. vs. Secretary of Education, et al., 106 Phil. 2 (1959) and Balbuna,
et al. vs. Secretary of Education, 110 Phil. 150 (1960). This Court in the Gerona case upheld the expulsion of the
students, thus:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem of national
sovereignty, of national unity and cohesion and of freedom and liberty which it and the
Constitution guarantee and protect. Under a system of complete separation of church and state in
the government, the flag is utterly devoid of any religious significance. Saluting the flag does not
involve any religious ceremony. The flag salute is no more a religious ceremony than the taking of
an oath of office by a public official or by a candidate for admission to the bar.
 In requiring school pupils to participate in the flag salute, the State thru the Secretary of Education
is not imposing a religion or religious belief or a religious test on said students. It is merely
enforcing a
non-discriminatory school regulation applicable to all alike whether Christian, Moslem, Protestant
or Jehovah's Witness. The State is merely carrying out the duty imposed upon it by the
Constitution which charges it with supervision over and regulation of all educational institutions, to
establish and maintain a complete and adequate system of public education, and see to it that all
schools aim to develop, among other things, civic conscience and teach the duties of citizenship.

The children of Jehovah's Witnesses cannot be exempted from participation in the flag ceremony.
They have no valid right to such exemption. Moreover, exemption to the requirement will disrupt
school discipline and demoralize the rest of the school population which by far constitutes the great
majority.

The freedom of religious belief guaranteed by the Constitution does not and cannot mean
exemption from or non-compliance with reasonable and non-discriminatory laws, rules and
regulations promulgated by competent authority. (pp. 2-3).

Gerona was reiterated in Balbuna, as follows:

The Secretary of Education was duly authorized by the Legislature thru Republic Act 1265 to
promulgate said Department Order, and its provisions requiring the observance of the flag salute,
not being a religious ceremony but an act and profession of love and allegiance and pledge of
loyalty to the fatherland which the flag stands for, does not violate the constitutional provision on
freedom of religion. (Balbuna, et al. vs. Secretary of Education, et al., 110 Phil. 150).

Republic Act No. 1265 and the ruling in Gerona have been incorporated in Section 28, Title VI, Chapter 9 of the
Administrative Code of 1987 (Executive Order No. 292) which took effect on September 21, 1988 (one year after its
publication in the Official Gazette, Vol. 63, No. 38 of September 21, 1987). Paragraph 5 of Section 28 gives
legislative cachet to the ruling in Gerona, thus:

5. Any teacher or student or pupil who refuses to join or participate in the flag ceremony may be
dismissed after due investigation.

However, the petitioners herein have not raised in issue the constitutionality of the above provision of the new
Administrative Code of 1987. They have targeted only Republic Act No. 1265 and the implementing orders of the
DECS.

In 1989, the DECS Regional Office in Cebu received complaints about teachers and pupils belonging to the
Jehovah's Witnesses, and enrolled in various public and private schools, who refused to sing the Philippine
national anthem, salute the Philippine flag and recite the patriotic pledge. Division Superintendent of Schools,
Susana B. Cabahug of the Cebu Division of DECS, and Dr. Atty. Marcelo M. Bacalso, Assistant Division
Superintendent, recalling this Court's decision in Gerona, issued Division Memorandum No. 108, dated November
17, 1989 (pp. 147-148, Rollo of G.R. No. 95770) directing District Supervisors, High School Principals and Heads of
Private Educational institutions as follows:

1. Reports reaching this Office disclose that there are a number of teachers, pupils, students, and
school employees in public schools who refuse to salute the Philippine flag or participate in the
daily flag ceremony because of some religious belief.

2. Such refusal not only undermines Republic Act No. 1265 and the DECS Department Order No.
8, Series of 1955 (Implementing Rules and Regulations) but also strikes at the heart of the DECS
sustained effort to inculcate patriotism and nationalism.
 3. Let it be stressed that any belief that considers the flag as an image is not in any manner
whatever a justification for not saluting the Philippine flag or not participating in flag ceremony.
Thus, the Supreme Court of the Philippine says:

The flag is not an image but a symbol of the Republic of the Philippines, an emblem
of national sovereignty, of national unity and cohesion and freedom and liberty
which it and the Constitution guarantee and protect. (Gerona, et al. vs. Sec. of
Education, et al., 106 Phil. 11.)

4. As regards the claim for freedom of belief, which an objectionist may advance, the Supreme
Court asserts:

But between the freedom of belief and the exercise of said belief, there is quite a
stretch of road to travel. If the exercise of said religious belief clashes with the
established institutions of society and with the law, then the former must yield and
give way to the latter. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil. 11.)

5. Accordingly, teachers and school employees who choose not to participate in the daily flag ceremony
or to obey the flag salute regulation spelled out in Department Order No. 8, Series of 1955, shall be
considered removed from the service after due process.

6. In strong language about pupils and students who do the same the Supreme Court has this to
say:

If they choose not to obey the flag salute regulation, they merely lost the benefits of
public education being maintained at the expense of their fellow Citizens, nothing
more. According to a popular expression, they could take it or leave it! Having
elected not to comply with the regulation about the flag salute they forfeited their
right to attend public schools. (Gerona, et al. vs. Sec. of Education, et al., 106 Phil.
15.)

7. School administrators shall therefore submit to this Office a report on those who choose not to
participate in flag ceremony or salute the Philippine flag. (pp. 147-148, Rollo of G.R. No. 95770;
Emphasis supplied).

Cebu school officials resorted to a number of ways to persuade the children of Jehovah's Witnesses to obey the
memorandum. In the Buenavista Elementary School, the children were asked to sign an Agreement (Kasabutan) in
the Cebuano dialect promising to sing the national anthem, place their right hand on their breast until the end of
the song and recite the pledge of allegiance to the flag (Annex D, p. 46, Rollo of G.R. No. 95770 and p. 48, Rollo of
G.R. No. 95887), but they refused to sign the "Kasabutan" (p. 20, Rollo of G.R. No. 95770).

In Tubigmanok Elementary School, the Teacher-In-Charge, Antonio A. Sangutan, met with the Jehovah's
Witnesses' parents, as disclosed in his letter of October 17, 1990, excerpts from which reveal the following:

After two (2) fruitless confrontation meetings with the Jehovah's Witnesses' parents on October 2,
1990 and yesterday due to their firm stand not to salute the flag of the Republic of the Philippines
during Flag Ceremony and other occasions, as mandated by law specifically Republic Act No. 1265,
this Office hereby orders the dropping from the list in the School Register (BPS Form I) of all
teachers, all Jehovah Witness pupils from Grade I up to Grade VI effective today.

xxx xxx xxx

This order is in compliance with Division Memorandum No. 108 s. 1989 dated November 17, 1989
by virtue of Department Order No. 8 s. 1955 dated July 21, 1955 in accordance with Republic Act
No. 1265 and Supreme Court Decision of a case "Genaro Gerona, et al., Petitioners and Appellants
 vs. The Honorable Secretary of Education, et al., Respondents and Appellees' dated August 12,
1959 against their favor. (p. 149, Rollo of G.R. No. 95770.)

In the Daan Bantayan District, the District Supervisor, Manuel F. Biongcog, ordered the "dropping from the rolls"
of students who "opted to follow their religious belief which is against the Flag Salute Law" on the theory that
"they forfeited their right to attend public schools." (p. 47, Rollo of G.R. No. 95770.)

1st Indorsement
DAANBANTAYAN DISTRICT II
Daanbantayan, Cebu, July 24, 1990.

Respectfully returned to Mrs. Alicia A. Diaz, School In Charge [sic], Agujo Elementary School with
the information that this office is sad to order the dropping of Jeremias Diamos and Jeaneth Diamos,
Grades III and IV pupils respectively from the roll since they opted to follow their religious belief
which is against the Flag Salute Law (R.A. 1265) and DECS Order No. 8, series of 1955, having
elected not to comply with the regulation about the flag salute they forfeited their right to attend
public schools (Gerona, et al. vs. Sec. of Education, et al., 106 Philippines 15). However, should they
change their mind to respect and follow the Flag Salute Law they may be re-accepted.

(Sgd.) MANUEL F. BIONGCOG

District Supervisor

(p. 47, Rollo of G.R. No. 95770.)

The expulsion as of October 23, 1990 of the 43 petitioning students of the Daanbantayan National High School,
Agujo Elementary School, Calape Barangay National High School, Pinamungajan Provincial High School,
Tabuelan Central School, Canasojan Elementary School, Liboron Elementary School, Tagaytay Primary School,
San Juan Primary School and Northern Central Elementary School of San Fernando, Cebu, upon order of then
Acting Division Superintendent Marcelo Bacalso, prompted some Jehovah's Witnesses in Cebu to appeal to the
Secretary of Education Isidro Cariño but the latter did not answer their letter. (p. 21, Rollo.)

The petition in G.R. No. 95887 was filed by 25 students who were similarly expelled because Dr. Pablo Antopina,
who succeeded Susana Cabahug as Division Superintendent of Schools, would not recall the expulsion orders of his
predecessor. Instead, he verbally caused the expulsion of some more children of Jehovah's Witnesses.

On October 31, 1990, the students and their parents filed these special civil actions for Mandamus, Certiorari and
Prohibition alleging that the public respondents acted without or in excess of their jurisdiction and with grave
abuse of discretion — (1) in ordering their expulsion without prior notice and hearing, hence, in violation of their
right to due process, their right to free public education, and their right to freedom of speech, religion and worship
(p. 23, Rollo). The petitioners pray that:

c. Judgment be rendered:

i. declaring null and void the expulsion or dropping from the rolls of herein
petitioners from their respective schools;

ii. prohibiting and enjoining respondent from further barring the petitioners from
their classes or otherwise implementing the expulsion ordered on petitioners; and

iii. compelling the respondent and all persons acting for him to admit and order the
re-admission of petitioners to their respective schools. (p. 41, Rollo.)

and that pending the determination of the merits of these cases, a temporary restraining order be issued enjoining
the respondents from enforcing the expulsion of the petitioners and to re-admit them to their respective classes.
On November 27, 1990, the Court issued a temporary restraining order and a writ of preliminary mandatory
injunction commanding the respondents to immediately re-admit the petitioners to their respective classes until
further orders from this Court (p. 57, Rollo).

The Court also ordered the Secretary of Education and Cebu District Supervisor Manuel F. Biongcog to be
impleaded as respondents in these cases.

On May 13, 1991, the Solicitor General filed a consolidated comment to the petitions (p. 98, Rollo) defending the
expulsion orders issued by the public respondents on the grounds that:

1. Bizarre religious practices of the Jehovah's Witnesses produce rebellious and anti-social school
children and consequently disloyal and mutant Filipino citizens.

2. There are no new and valid grounds to sustain the charges of the Jehovah's Witnesses that the
DECS' rules and regulations on the flag salute ceremonies are violative of their freedom of religion
and worship.

3. The flag salute is devoid of any religious significance; instead, it inculcates respect and love of
country, for which the flag stands.

4. The State's compelling interests being pursued by the DECS' lawful regulations in question do
not warrant exemption of the school children of the Jehovah's Witnesses from the flag salute
ceremonies on the basis of their own self-perceived religious convictions.

5. The issue is not freedom of speech but enforcement of law and jurisprudence.

6. State's power to regulate repressive and unlawful religious practices justified, besides having
scriptural basis.

7. The penalty of expulsion is legal and valid, more so with the enactment of Executive Order No.
292 (The Administrative Code of 1987).

Our task here is extremely difficult, for the 30-year old decision of this court in Gerona upholding the flag salute
law and approving the expulsion of students who refuse to obey it, is not lightly to be trifled with.

It is somewhat ironic however, that after the Gerona ruling had received legislative cachet by its in corporation in
the Administrative Code of 1987, the present Court believes that the time has come to re-examine it. The idea that
one may be compelled to salute the flag, sing the national anthem, and recite the patriotic pledge, during a flag
ceremony on pain of being dismissed from one's job or of being expelled from school, is alien to the conscience of
the present generation of Filipinos who cut their teeth on the Bill of Rights which guarantees their rights to free
speech ** and the free exercise of religious profession and worship (Sec. 5, Article III, 1987 Constitution; Article
IV, Section 8, 1973 Constitution; Article III, Section 1[7], 1935 Constitution).

Religious freedom is a fundamental right which is entitled to the highest priority and the amplest protection among
human rights, for it involves the relationship of man to his Creator (Chief Justice Enrique M. Fernando's separate
opinion in German vs. Barangan, 135 SCRA 514, 530-531).

The right to religious profession and worship has a two-fold aspect, vis., freedom to believe and
freedom to act on one's belief. The first is absolute as long as the belief is confined within the realm
of thought. The second is subject to regulation where the belief is translated into external acts that
affect the public welfare (J. Cruz, Constitutional Law, 1991 Ed., pp. 176-177).

Petitioners stress, however, that while they do not take part in the compulsory flag ceremony, they do not engage in
"external acts" or behavior that would offend their countrymen who believe in expressing their love of country
through the observance of the flag ceremony. They quietly stand at attention during the flag ceremony to show
their respect for the right of those who choose to participate in the solemn proceedings (Annex F, Rollo of G.R. No.
95887, p. 50 and Rollo of G.R. No. 95770, p. 48). Since they do not engage in disruptive behavior, there is no
warrant for their expulsion.

The sole justification for a prior restraint or limitation on the exercise of religious freedom
(according to the late Chief Justice Claudio Teehankee in his dissenting opinion in German vs.
Barangan, 135 SCRA 514, 517) is the existence of a grave and present danger of a character both
grave and imminent, of a serious evil to public safety, public morals, public health or any other
legitimate public interest, that the State has a right (and duty) to prevent." Absent such a threat to
public safety, the expulsion of the petitioners from the schools is not justified.

The situation that the Court directly predicted in Gerona that:

The flag ceremony will become a thing of the past or perhaps conducted with very few participants,
and the time will come when we would have citizens untaught and uninculcated in and not imbued
with reverence for the flag and love of country, admiration for national heroes, and patriotism — a
pathetic, even tragic situation, and all because a small portion of the school population imposed its
will, demanded and was granted an exemption. (Gerona, p. 24.)

has not come to pass. We are not persuaded that by exempting the Jehovah's Witnesses from saluting the flag,
singing the national anthem and reciting the patriotic pledge, this religious group which admittedly comprises a
"small portion of the school population" will shake up our part of the globe and suddenly produce a nation
"untaught and uninculcated in and unimbued with reverence for the flag, patriotism, love of country and
admiration for national heroes" (Gerona vs. Sec. of Education, 106 Phil. 2, 24). After all, what the petitioners seek
only is exemption from the flag ceremony, not exclusion from the public schools where they may study the
Constitution, the democratic way of life and form of government, and learn not only the arts, sciences, Philippine
history and culture but also receive training for a vocation of profession and be taught the virtues of "patriotism,
respect for human rights, appreciation for national heroes, the rights and duties of citizenship, and moral and
spiritual values (Sec. 3[2], Art. XIV, 1987 Constitution) as part of the curricula. Expelling or banning the
petitioners from Philippine schools will bring about the very situation that this Court had feared in Gerona.
Forcing a small religious group, through the iron hand of the law, to participate in a ceremony that violates their
religious beliefs, will hardly be conducive to love of country or respect for dully constituted authorities.

As Mr. Justice Jackson remarked in West Virginia vs. Barnette, 319 U.S. 624 (1943):

. . . To believe that patriotism will not flourish if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of
our institutions to free minds. . . . When they [diversity] are so harmless to others or to the State as
those we deal with here, the price is not too great. But freedom to differ is not limited to things that
do not matter much. That would be a mere shadow of freedom. The test of its substance is the right
to differ as to things that touch the heart of the existing order.

Furthermore, let it be noted that coerced unity and loyalty even to the country, . . . — assuming
that such unity and loyalty can be attained through coercion — is not a goal that is constitutionally
obtainable at the expense of religious liberty. A desirable end cannot be promoted by prohibited
means. (Meyer vs. Nebraska, 262 U.S. 390, 67 L. ed. 1042, 1046.)

Moreover, the expulsion of members of Jehovah's Witnesses from the schools where they are enrolled will violate
their right as Philippine citizens, under the 1987 Constitution, to receive free education, for it is the duty of the
State to "protect and promote the right of all citizens to quality education . . . and to make such education
accessible to all (Sec. 1, Art. XIV).

In Victoriano vs. Elizalde Rope Workers' Union, 59 SCRA 54, 72-75, we upheld the exemption of members of the
Iglesia ni Cristo, from the coverage of a closed shop agreement between their employer and a union because it
would violate the teaching of their church not to join any labor group:
 . . . It is certain that not every conscience can be accommodated by all the laws of the land; but
when general laws conflict with scruples of conscience, exemptions ought to be granted unless some
"compelling state interests" intervenes. (Sherbert vs. Berner, 374 U.S. 398, 10 L. Ed. 2d 965, 970, 83
S. Ct. 1790.)

We hold that a similar exemption may be accorded to the Jehovah's Witnesses with regard to the observance of the
flag ceremony out of respect for their religious beliefs, however "bizarre" those beliefs may seem to others.
Nevertheless, their right not to participate in the flag ceremony does not give them a right to disrupt such patriotic
exercises. Paraphrasing the warning cited by this Court in Non vs. Dames II, 185 SCRA 523, 535, while the highest
regard must be afforded their right to the free exercise of their religion, "this should not be taken to mean that
school authorities are powerless to discipline them" if they should commit breaches of the peace by actions that
offend the sensibilities, both religious and patriotic, of other persons. If they quietly stand at attention during the
flag ceremony while their classmates and teachers salute the flag, sing the national anthem and recite the patriotic
pledge, we do not see how such conduct may possibly disturb the peace, or pose "a grave and present danger of a
serious evil to public safety, public morals, public health or any other legitimate public interest that the State has a
right (and duty) to prevent (German vs. Barangan, 135 SCRA 514, 517).

Before we close this decision, it is appropriate to recall the Japanese occupation of our country in 1942-1944 when
every Filipino, regardless of religious persuasion, in fear of the invader, saluted the Japanese flag and bowed
before every Japanese soldier. Perhaps, if petitioners had lived through that dark period of our history, they would
not quibble now about saluting the Philippine flag. For when liberation came in 1944 and our own flag was
proudly hoisted aloft again, it was a beautiful sight to behold that made our hearts pound with pride and joy over
the newly-regained freedom and sovereignty of our nation.

Although the Court upholds in this decision the petitioners' right under our Constitution to refuse to salute the
Philippine flag on account of their religious beliefs, we hope, nevertheless, that another foreign invasion of our
country will not be necessary in order for our countrymen to appreciate and cherish the Philippine flag.

WHEREFORE, the petition for certiorari and prohibition is GRANTED. The expulsion orders issued by the public
respondents against the petitioners are hereby ANNULLED AND SET ASIDE. The temporary restraining order
which was issued by this Court is hereby made permanent.

SO ORDERED.

Separate Opinions

CRUZ, J., concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent affirmation of a vital
postulate of freedom. I would only add my brief observations concerning Gerona v. Secretary of Education.

In my humble view, Gerona was based on an erroneous assumption. The Court that promulgated it was
apparently laboring under the conviction that the State had the right to determine what was religious and what
was not and to dictate to the individual what he could and could not worship. In pronouncing that the flag was not
a religious image but a symbol of the nation, it
was implying that no one had the right to worship it or — as the petitioners insisted — not to worship it. This was
no different from saying that the cult that reveres Rizal as a divinity should not and cannot do so because he is only
a civic figure deserving honor but not veneration.

It seems to me that every individual is entitled to choose for himself whom or what to worship or whether to
worship at all. This is a personal decision he alone can make. The individual may worship a spirit or a person or a
beast or a tree (or a flag), and the State cannot prevent him from doing so. For that matter, neither can it compel
him to do so. As long as his beliefs are not externalized in acts that offend the public interest, he cannot be
prohibited from harboring them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has declared ex cathedra that they
are not violating the Bible by saluting the flag. This is to me an unwarranted intrusion into their religious beliefs,
which tell them the opposite. The State cannot interpret the Bible for them; only they can read it as they see fit.
Right or wrong, the meaning they derive from it cannot be revised or reversed except perhaps by their own
acknowledged superiors. But certainly not the State. It has no competence in this matter. Religion is forbidden
territory that the State, for all its power and authority, cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of religious freedom
terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes with their own understanding
of their religious obligations. Significantly, as the ponencia notes, their intransigence does not disturb the peaceful
atmosphere of the school or otherwise prejudice the public order. Their refusal to salute the flag and recite the
patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it. The petitioners simply stand
at attention and keep quiet "to show their respect for the right of those who choose to participate in the solemn
proceedings." It is for this innocuous conduct that, pursuant to the challenged law and regulations, the teachers
have been dismissed and the students excelled.

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 message as 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 in this 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.

PADILLA, J., concurring:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that school teachers and
students who cannot salute the flag, sing the national anthem and recite the pledge of loyalty to the country, on
grounds of religious belief or conviction, may not on this ground alone be dismissed from the service or expelled
from the school.

At the same time, I am really concerned with what could be the

far-reaching consequences of our ruling in that, we may in effect be sanctioning a privileged or elite class of
teachers and students who will hereafter be exempt from participating, even when they are in the school premises,
in the flag ceremony in deference to their religious scruples. What happens, for instance, if some citizens, based
also on their religious beliefs, were to refuse to pay taxes and license fees to the government? Perhaps problems of
this nature should not be anticipated. They will be resolved when and if they ever arise. But with today's decision,
we may have created more problems than we have solved.

It cannot also be denied that the State has the right and even the duty to promote among its citizens, especially the
youth, love and country, respect for the flag and reverence for its national heroes. It cannot also be disputed that
the State has the right to adopt reasonable means by which these laudable objectives can be effectively pursued
and achieved. The flag ceremony is one such device intended to inspire patriotism and evoke the finest sentiments
of love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For a select few to be exempt
from the flag ceremony and all that it represent seven if the exemption is predicated on respect for religious
scruples, could be divisive in its impact on the school population or community.

I would therefore submit that, henceforth, teachers and students who because of religious scruples or beliefs
cannot actively participate in the flag ceremony conducted in the school premises should be excluded beforehand
from such ceremony. Instead of allowing the religious objector to attend the flag ceremony and display therein his
inability to salute the flag, sing the national anthem and recite the pledge of loyalty to the Republic, he or she should
remain in the classroom while honors to the flag are conducted and manifested in the "quadrangle" or equivalent
place within school premises; or if the flag ceremony must be held in a hall, the religious objector must take his or
her place at the rear of (or outside) the hall while those who actively participate in the ceremony must take the
front places. This arrangement can, in my view, achieve an accommodation and, to a certain extent, harmonization
of a citizen's constitutional right to freedom of religion and a valid exercise of the State's fundamental and
legitimate authority to require homage and honor to the flag as the symbol of the Nation.

# Separate Opinions

CRUZ, J., concurring:

I am happy to concur with Mme. Justice Carolina Griño-Aquino in her quietly eloquent affirmation of a vital
postulate of freedom. I would only add my brief observations concerning Gerona v. Secretary of Education.

In my humble view, Gerona was based on an erroneous assumption. The Court that promulgated it was
apparently laboring under the conviction that the State had the right to determine what was religious and what
was not and to dictate to the individual what he could and could not worship. In pronouncing that the flag was not
a religious image but a symbol of the nation, it
was implying that no one had the right to worship it or — as the petitioners insisted — not to worship it. This was
no different from saying that the cult that reveres Rizal as a divinity should not and cannot do so because he is only
a civic figure deserving honor but not veneration.

It seems to me that every individual is entitled to choose for himself whom or what to worship or whether to
worship at all. This is a personal decision he alone can make. The individual may worship a spirit or a person or a
beast or a tree (or a flag), and the State cannot prevent him from doing so. For that matter, neither can it compel
him to do so. As long as his beliefs are not externalized in acts that offend the public interest, he cannot be
prohibited from harboring them or punished for doing so.

In requiring the herein petitioners to participate in the flag ceremony, the State has declared ex cathedra that they
are not violating the Bible by saluting the flag. This is to me an unwarranted intrusion into their religious beliefs,
which tell them the opposite. The State cannot interpret the Bible for them; only they can read it as they see fit.
Right or wrong, the meaning they derive from it cannot be revised or reversed except perhaps by their own
acknowledged superiors. But certainly not the State. It has no competence in this matter. Religion is forbidden
territory that the State, for all its power and authority, cannot invade.

I am not unaware of Justice Frankfurter's admonition that "the constitutional protection of religious freedom
terminated disabilities, it did not create new privileges. It gave religious equality, not civil immunity. Its essence is
freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma."

But in the case at bar, the law to which the petitioners are made to conform clashes with their own understanding
of their religious obligations. Significantly, as the ponencia notes, their intransigence does not disturb the peaceful
atmosphere of the school or otherwise prejudice the public order. Their refusal to salute the flag and recite the
patriotic pledge does not disrupt the flag ceremony. They neither mock nor disdain it. The petitioners simply stand
at attention and keep quiet "to show their respect for the right of those who choose to participate in the solemn
proceedings." It is for this innocuous conduct that, pursuant to the challenged law and regulations, the teachers
have been dismissed and the students excelled.

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 message as 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 in this 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.

PADILLA, J., concurring:

I concur in the Court's decision penned by Madame Justice Carolina C. Griño-Aquino that school teachers and
students who cannot salute the flag, sing the national anthem and recite the pledge of loyalty to the country, on
grounds of religious belief or conviction, may not on this ground alone be dismissed from the service or expelled
from the school.

At the same time, I am really concerned with what could be the

far-reaching consequences of our ruling in that, we may in effect be sanctioning a privileged or elite class of
teachers and students who will hereafter be exempt from participating, even when they are in the school premises,
in the flag ceremony in deference to their religious scruples. What happens, for instance, if some citizens, based
also on their religious beliefs, were to refuse to pay taxes and license fees to the government? Perhaps problems of
this nature should not be anticipated. They will be resolved when and if they ever arise. But with today's decision,
we may have created more problems than we have solved.

It cannot also be denied that the State has the right and even the duty to promote among its citizens, especially the
youth, love and country, respect for the flag and reverence for its national heroes. It cannot also be disputed that
the State has the right to adopt reasonable means by which these laudable objectives can be effectively pursued
and achieved. The flag ceremony is one such device intended to inspire patriotism and evoke the finest sentiments
of love of country and people.

In fine, the flag ceremony is a legitimate means to achieve legitimate (and noble) ends. For a select few to be exempt
from the flag ceremony and all that it represent seven if the exemption is predicated on respect for religious
scruples, could be divisive in its impact on the school population or community.

I would therefore submit that, henceforth, teachers and students who because of religious scruples or beliefs
cannot actively participate in the flag ceremony conducted in the school premises should be excluded beforehand
from such ceremony. Instead of allowing the religious objector to attend the flag ceremony and display therein his
inability to salute the flag, sing the national anthem and recite the pledge of loyalty to the Republic, he or she should
remain in the classroom while honors to the flag are conducted and manifested in the "quadrangle" or equivalent
place within school premises; or if the flag ceremony must be held in a hall, the religious objector must take his or
her place at the rear of (or outside) the hall while those who actively participate in the ceremony must take the
front places. This arrangement can, in my view, achieve an accommodation and, to a certain extent, harmonization
of a citizen's constitutional right to freedom of religion and a valid exercise of the State's fundamental and
legitimate authority to require homage and honor to the flag as the symbol of the Nation.