G.R. No.

132922 April 21, 1998

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC.
and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:
In Osmeña v. COMELEC, G.R. No. 132231, decided March 31, 1998,1 we upheld the validity of
§ 11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for political
ads, except to the Commission on Elections under §90, of B.P. No. 881, the Omnibus Election
Code, with respect to print media, and §92, with respect to broadcast media. In the present case,
we consider the validity of §92 of B.P. Blg. No. 881 against claims that the requirement that radio
and television time be given free takes property without due process of law; that it violates the
eminent domain clause of the Constitution which provides for the payment of just compensation;
that it denies broadcast media the equal protection of the laws; and that, in any event, it violates
the terms of the franchise of petitioner GMA Network, Inc.
Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an organization
of lawyers of radio and television broadcasting companies. They are suing as citizens, taxpayers,
and registered voters. The other petitioner, GMA Network, Inc., operates radio and television
broadcasting stations throughout the Philippines under a franchise granted by Congress.
Petitioners challenge the validity of §92 on the ground (1) that it takes property without due
process of law and without just compensation; (2) that it denies radio and television broadcast
companies the equal protection of the laws; and (3) that it is in excess of the power given to the
COMELEC to supervise or regulate the operation of media of communication or information
during the period of election.
The Question of Standing
At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members assert an
interest as lawyers of radio and television broadcasting companies and as citizens, taxpayers,
and registered voters.
In those cases2 in which citizens were authorized to sue, this Court upheld their standing in view
of the "transcendental importance" of the constitutional question raised which justified the granting
of relief. In contrast, in the case at bar, as will presently be shown, petitioner's substantive claim
is without merit. To the extent, therefore, that a party's standing is determined by the substantive
merit of his case or preliminary estimate thereof, petitioner TELEBAP must be held to be without
standing. Indeed, a citizen will be allowed to raise a constitutional question only when he can
show that he has personally suffered some actual or threatened injury as a result of the allegedly
illegal conduct of the government; the injury fairly is fairly traceable to the challenged action; and
the injury is likely to be redressed by a favorable action.3 Members of petitioner have not shown
that they have suffered harm as a result of the operation of §92 of B.P. Blg. 881.
Nor do members of petitioner TELEBAP have an interest as registered voters since this case
does not concern their right of suffrage. Their interest in §92 of B.P. Blg. 881 should be precisely
in upholding its validity.
Much less do they have an interest as taxpayers since this case does not involve the exercise by
Congress of its taxing or spending power.4 A party suing as a taxpayer must specifically show
that he has a sufficient interest in preventing the illegal expenditure of money raised by taxation
and that he will sustain a direct injury as a result of the enforcement of the questioned statute.
Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio and
television broadcasting companies. Standing jus tertii will be recognized only if it can be shown
that the party suing has some substantial relation to the third party, or that the third party cannot
assert his constitutional right, or that the eight of the third party will be diluted unless the party in
court is allowed to espouse the third party's constitutional claim. None of these circumstances is
here present. The mere fact that TELEBAP is composed of lawyers in the broadcast industry does
not entitle them to bring this suit in their name as representatives of the affected companies.
Nevertheless, we have decided to take this case since the other petitioner, GMA Network, Inc.,
appears to have the requisite standing to bring this constitutional challenge. Petitioner operates
radio and television broadcast stations in the Philippines affected by the enforcement of §92 of
B.P. Blg. 881 requiring radio and television broadcast companies to provide free air time to the
COMELEC for the use of candidates for campaign and other political purposes.
Petitioner claims that it suffered losses running to several million pesos in providing COMELEC
Time in connection with the 1992 presidential election and the 1995 senatorial election and that
it stands to suffer even more should it be required to do so again this year. Petitioner's allegation
that it will suffer losses again because it is required to provide free air time is sufficient to give it
standing to question the validity of §92.5
Airing of COMELEC Time, a
Reasonable Condition for
Grant of Petitioner's
Franchise
As pointed out in our decision in Osmeña v. COMELEC, §11(b) of R.A. No. 6646 and §90 and
§92 of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize the
opportunity of candidates in an election in regard to the use of mass media for political campaigns.
These statutory provisions state in relevant parts:
R.A. No. 6646
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, 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 Section 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.
B.P. Blg. 881, (Omnibus Election Code)
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).
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)
Thus, the law prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time for allocation
to the candidates. It will be noted that while §90 of B.P. Blg. 881 requires the COMELEC to
procure print space which, as we have held, should be paid for, §92 states that air time shall be
procured by the COMELEC free of charge.
Petitioners contend that §92 of BP Blg. 881 violates the due process clause6 and the eminent
domain provision7 of the Constitution by taking air time from radio and television broadcasting
stations without payment of just compensation. Petitioners claim that the primary source of
revenue of the radio and television stations is the sale of air time to advertisers and that to require
these stations to provide free air time is to authorize a taking which is not "a de minimis temporary
limitation or restraint upon the use of private property." According to petitioners, in 1992, the GMA
Network, Inc. lost P22,498,560.00 in providing free air time of one (1) hour every morning from
Mondays to Fridays and one (1) hour on Tuesdays and Thursday from 7:00 to 8:00 p.m. (prime
time) and, in this year's elections, it stands to lose P58,980,850.00 in view of COMELEC'S
requirement that radio and television stations provide at least 30 minutes of prime time daily for
the COMELEC Time.8
Petitioners' argument is without merit, All broadcasting, whether by radio or by television stations,
is licensed by the government. Airwave frequencies have to be allocated as there are more
individuals who want to broadcast than there are frequencies to assign.9 A franchise is thus a
privilege subject, among other things, to amended by Congress in accordance with the
constitutional provision that "any such franchise or right granted . . . shall be subject to
amendment, alteration or repeal by the Congress when the common good so requires."10
The idea that broadcast stations may be required to provide COMELEC Time free of charge is
not new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:
Sec. 49. Regulation of election propaganda through mass media. — (a) The franchise of
all radio broadcasting and television stations are hereby amended so as to require each
such station to furnish free of charge, upon request of the Commission [on Elections],
during the period of sixty days before the election not more than fifteen minutes of prime
time once a week which shall be known as "Comelec Time" and which shall be used
exclusively by the Commission to disseminate vital election information. Said "Comelec
Time" shall be considered as part of the public service time said stations are required to
furnish the Government for the dissemination of public information and education under
their respective franchises or permits.
The provision was carried over with slight modification by the 1978 Election Code (P.D. No. 1296),
which provided:
Sec. 46. COMELEC Time. — The Commission [on Elections] 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 said radio and television
 stations. For this purpose, the franchises of all radio broadcasting and television stations
are hereby amended so as to require such stations to furnish the Commission radio or
television time, free of charge, during the period of the campaign, at least once but not
oftener than every other day.
Substantially the same provision is now embodied in §92 of B.P. Blg. 881.
Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of radio
and television broadcast stations and, until the present case was brought, such provisions had
not been thought of as taking property without just compensation. Art. XII, §11 of the Constitution
authorizes the amendment of franchises for "the common good." What better measure can be
conceived for the common good than one for free air time for the benefit not only of candidates
but even more of the public, particularly the voters, so that they will be fully informed of the issues
in an election? "[I]t is the right of the viewers and listeners, not the right of the broadcasters, which
is paramount."11
Nor indeed can there be any constitutional objection to the requirement that broadcast stations
give free air time. Even in the United States, there are responsible scholars who believe that
government controls on broadcast media can constitutionally be instituted to ensure diversity of
views and attention to public affairs to further the system of free expression. For this purpose,
broadcast stations may be required to give free air time to candidates in an election. 12 Thus,
Professor Cass R. Sunstein of the University of Chicago Law School, in urging reforms in
regulations affecting the broadcast industry, writes:
Elections. We could do a lot to improve coverage of electoral campaigns. Most important,
government should ensure free media time for candidates. Almost all European nations
make such provisions; the United States does not. Perhaps government should pay for
such time on its own. Perhaps broadcasters should have to offer it as a condition for
receiving a license. Perhaps a commitment to provide free time would count in favor of the
grant of a license in the first instance. Steps of this sort would simultaneously promote
attention to public affairs and greater diversity of view. They would also help overcome the
distorting effects of "soundbites" and the corrosive financial pressures faced by candidates
in seeking time on the media. 13
In truth, radio and television broadcasting companies, which are given franchises, do not own the
airwaves and frequencies through which they transmit broadcast signals and images. They are
merely given the temporary privilege of using them. Since a franchise is a mere privilege, the
exercise of the privilege may reasonably be burdened with the performance by the grantee of
some form of public service. Thus, in De Villata v. Stanley,14 a regulation requiring interisland
vessels licensed to engage in the interisland trade to carry mail and, for this purpose, to give
advance notice to postal authorities of date and hour of sailings of vessels and of changes of
sailing hours to enable them to tender mail for transportation at the last practicable hour prior to
the vessel's departure, was held to be a reasonable condition for the state grant of license.
Although the question of compensation for the carriage of mail was not in issue, the Court strongly
implied that such service could be without compensation, as in fact under Spanish sovereignty
the mail was carried free.15
In Philippine Long Distance Telephone Company v. NTC,16 the Court ordered the PLDT to allow
the interconnection of its domestic telephone system with the international gateway facility of
Eastern Telecom. The Court cited (1) the provisions of the legislative franchise allowing such
interconnection; (2) the absence of any physical, technical, or economic basis for restricting the
linking up of two separate telephone systems; and (3) the possibility of increase in the volume of
international traffic and more efficient service, at more moderate cost, as a result of
interconnection.
Similarly, in the earlier case of PLDT v. NTC,17 it was held:
Such regulation of the use and ownership of telecommunications systems is in the
exercise of the plenary police power of the State for the promotion of the general welfare.
The 1987 Constitution recognizes the existence of that power when it provides:
Sec. 6. The use of property bears a social function, and all economic agents
shall contribute to the common good. Individuals and private groups,
including corporations, cooperatives, and similar collective organizations,
shall have the right to own, establish, and operate economic enterprises,
subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands (Article XII).
The interconnection which has been required of PLDT is a form of "intervention" with
property rights dictated by "the objective of government to promote the rapid expansion of
telecommunications services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the vital role of
communications in nation building . . . and to ensure that all users of the public
telecommunications service have access to all other users of the service wherever they
may be within the Philippines at an acceptable standard of service and at reasonable cost"
(DOTC Circular No. 90-248). Undoubtedly, the encompassing objective is the common
good. The NTC, as the regulatory agency of the State, merely exercised its delegated
authority to regulate the use of telecommunications networks when it decreed
interconnection.
In the granting of the privilege to operate broadcast stations and thereafter supervising radio and
television stations, the state spends considerable public funds in licensing and supervising such
stations. 18 It would be strange if it cannot even require the licensees to render public service by
giving free air time.
Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the production
of television programs involves large expenditure and requires the use of equipment for which
huge investments have to be made. The dissent cites the claim of GMA Network that the grant of
free air time to the COMELEC for the duration of the 1998 campaign period would cost the
company P52,380,000, representing revenue it would otherwise earn if the air time were sold to
advertisers, and the amount of P6,600,850, representing the cost of producing a program for the
COMELEC Time, or the total amount of P58,980,850.
The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising is
based on the assumption that air time is "finished product" which, it is said, become the property
of the company, like oil produced from refining or similar natural resources after undergoing a
process for their production. But air time is not owned by broadcast companies. As held in Red
Lion Broadcasting Co. v. F.C.C.,19 which upheld the right of a party personally attacked to reply,
"licenses to broadcast do not confer ownership of designated frequencies, but only the temporary
privilege of using them." Consequently, "a license permits broadcasting, but the license has no
constitutional right to be the one who holds the license or to monopolize a radio frequency to the
exclusion of his fellow citizens. There is nothing in the First Amendment which prevents the
Government from requiring a licensee to share his frequency with others and to conduct himself
as a proxy or fiduciary with obligations to present those views and voices which are representative
of his community and which would otherwise, by necessity, be barred from the airwaves." 20 As
radio and television broadcast stations do not own the airwaves, no private property is taken by
the requirement that they provide air time to the COMELEC.
Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air
lanes themselves 'are not property because they cannot be appropriated for the benefit of any
individual.'" (p. 5) That means neither the State nor the stations own the air lanes. Yet the dissent
also says that "The franchise holders can recover their huge investments only by selling air time
to advertisers." (p. 13) If air lanes cannot be appropriated, how can they be used to produce air
time which the franchise holders can sell to recover their investment? There is a contradiction
here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a program
and it is for such items as "sets and props," "video tapes," "miscellaneous (other rental, supplies,
transportation, etc.)," and "technical facilities (technical crew such as director and cameraman as
well as 'on air plugs')." There is no basis for this claim. Expenses for these items will be for the
account of the candidates. COMELEC Resolution No. 2983, §6(d) specifically provides in this
connection:
(d) Additional services such as tape-recording or video-taping of programs, the
preparation of visual aids, terms and condition thereof, and consideration to be paid
therefor may be arranged by the candidates with the radio/television station concerned.
However, no radio/television station shall make any discrimination among candidates
relative to charges, terms, practices or facilities for in connection with the services
rendered.
It is unfortunate that in the effort to show that there is taking of private property worth millions of
pesos, the unsubstantiated charge is made that by its decision the Court permits the "grand
larceny of precious time," and allows itself to become "the people's unwitting oppressor." The
charge is really unfortunate. In Jackson v. Rosenbaun,21 Justice Holmes was so incensed by the
resistance of property owners to the erection of party walls that he was led to say in his original
draft, "a statute, which embodies the community's understanding of the reciprocal rights and
duties of neighboring landowners, does not need to invoke the penalty larceny of the police power
in its justification." Holmes's brethren corrected his taste, and Holmes had to amend the passage
so that in the end it spoke only of invoking "the police power."22 Justice Holmes spoke of the "petty
larceny" of the police power. Now we are being told of the "grand larceny [by means of the police
power] of precious air time."
Giving Free Air Time a Duty
Assumed by Petitioner
Petitioners claim that §92 is an invalid amendment of R.A. No. 7252 which granted GMA Network,
Inc. a franchise for the operation of radio and television broadcasting stations. They argue that
although §5 of R.A. No. 7252 gives the government the power to temporarily use and operate the
stations of petitioner GMA Network or to authorize such use and operation, the exercise of this
right must be compensated.
The cited provision of. R.A. No. 7252 states:
Sec. 5. Right of Government. — A special right is hereby reserved to the President of the
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or disturbance
of peace and order, to temporarily take over and operate the stations of the grantee, to
temporarily suspend the operation of any station in the interest of public safety, security
and public welfare, or to authorize the temporary use and operation thereof by any agency
of the Government, upon due compensation to the grantee, for the use of said stations
during the period when they shall be so operated.
The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC Time
constitutes the use and operation of the stations of the GMA Network, Inc., This is not so. Under
§92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio and television
stations but only the allocation of air time to the candidates for the purpose of ensuring, among
other things, equal opportunity, time, and the right to reply as mandated by the Constitution.23
Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P. Blg.
881, which is said to have amended R.A. No. 7252, actually antedated it. 24 The provision of §92
of B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No. 7252. And, indeed, §4 of
the latter statute does.
For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render "adequate
public service time" implements §92 of B.P. Blg. 881. Undoubtedly, its purpose is to enable the
government to communicate with the people on matters of public interest. Thus, R.A. No. 7252
provides:
Sec. 4. Responsibility to the Public. — The grantee shall provide adequate public service
time to enable the Government, through the said broadcasting stations, to reach the
population on important public issues; provide at all times sound and balanced
programming; promote public participation such as in community programming; assist in
the functions of public information and education; conform to the ethics of honest
enterprise; and not use its station for the broadcasting of obscene and indecent language,
speech, act or scene, or for the dissemination of deliberately false information or willful
misrepresentation, or to the detriment of the public interest, or to incite, encourage, or
assist in subversive or treasonable acts. (Emphasis added).
It is noteworthy that §40 of R.A. No. 6388, from which §92 of B.P. Blg. 881 was taken, expressly
provided that the COMELEC Time should "be considered as part of the public service time said
stations are required to furnish the Government for the dissemination of public information and
education under their respective franchises or permits." There is no reason to suppose that §92
of B.P. Blg. 881 considers the COMELEC Time therein provided to be otherwise than as a public
service which petitioner is required to render under §4 of its charter (R.A. No. 7252). In sum, B.P.
Blg. 881, §92 is not an invalid amendment of petitioner's franchise but the enforcement of a duty
voluntarily assumed by petitioner in accepting a public grant of privilege.
Thus far, we have confined the discussion to the provision of §92 of B.P. Blg. 881 for free air time
without taking into account COMELEC Resolution No. 2983-A, §2 of which states:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time", effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998. (Emphasis added).
This is because the amendment providing for the payment of "just compensation" is invalid, being
in contravention of §92 of B.P. Blg. 881 that radio and television time given during the period of
the campaign shall be "free of charge." Indeed, Resolution No. 2983 originally provided that the
time allocated shall be "free of charge," just as §92 requires such time to be given "free of charge."
The amendment appears to be a reaction to petitioner's claim in this case that the original
provision was unconstitutional because it allegedly authorized the taking of property without just
compensation.
The Solicitor General, relying on the amendment, claims that there should be no more dispute
because the payment of compensation is now provided for. It is basic, however, that an
administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress. Since
§2 of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.
Law Allows Flextime for Programming
by Stations, Not Confiscation of
Air Time by COMELEC
It is claimed that there is no standard in the law to guide the COMELEC in procuring free air time
and that "theoretically the COMELEC can demand all of the air time of such stations."25 Petitioners
do not claim that COMELEC Resolution No. 2983-A arbitrarily sequesters radio and television
time. What they claim is that because of the breadth of the statutory language, the provision in
question is susceptible of "unbridled, arbitrary and oppressive exercise."26
The contention has no basis. For one, the COMELEC is required to procure free air time for
candidates "within the area of coverage" of a particular radio or television broadcaster so that it
cannot, for example, procure such time for candidates outside that area. At what time of the day
and how much time the COMELEC may procure will have to be determined by it in relation to the
overall objective of informing the public about the candidates, their qualifications and their
programs of government. As stated in Osmeña v. COMELEC, the COMELEC Time provided for
in §92, as well as the COMELEC Space provided for in §90, is in lieu of paid ads which candidates
are prohibited to have under §11(b) of R.A. No. 6646. Accordingly, this objective must be kept in
mind in determining the details of the COMELEC Time as well as those of the COMELEC Space.
There would indeed be objection to the grant of power to the COMELEC if §92 were so detailed
as to leave no room for accommodation of the demands of radio and television programming. For
were that the case, there could be an intrusion into the editorial prerogatives of radio and television
stations.
Differential Treatment of
Broadcast Media Justified
Petitioners complain that B.P. Blg. 881, §92 singles out radio and television stations to provide
free air time. They contend that newspapers and magazines are not similarly required as, in fact,
in Philippine Press Institute v. COMELEC,27 we upheld their right to the payment of just
compensation for the print space they may provide under §90.
The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled to the
same treatment under the free speech guarantee of the Constitution as the print media. There
are important differences in the characteristics of the two media, however, which justify their
differential treatment for free speech purposes. Because of the physical limitations of the
broadcast spectrum, the government must, of necessity, allocate broadcast frequencies to those
wishing to use them. There is no similar justification for government allocation and regulation of
the print media.28
In the allocation of limited resources, relevant conditions may validly be imposed on the grantees
or licensees. The reason for this is that, as already noted, the government spends public funds
for the allocation and regulation of the broadcast industry, which it does not do in the case of the
print media. To require the radio and television broadcast industry to provide free air time for the
COMELEC Time is a fair exchange for what the industry gets.
From another point of view, this Court has also held that because of the unique and pervasive
influence of the broadcast media, "[n]ecessarily . . . the freedom of television and radio
broadcasting is somewhat lesser in scope than the freedom accorded to newspaper and print
media."29
The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there are
low income masses who find the cost of books, newspapers, and magazines beyond their humble
means. Basic needs like food and shelter perforce enjoy high priorities.
On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be within
reach of a blaring radio or television set. The materials broadcast over the airwaves reach
every person of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to inflammatory or
offensive speech would he difficult to monitor or predict. The impact of the vibrant speech
is forceful and immediate. Unlike readers of the printed work, the radio audience has lesser
opportunity to cogitate, analyze, and reject the utterance. 30
Petitioners' assertion therefore that §92 of B.P. Blg. 881 denies them the equal protection of the
law has no basis. In addition, their plea that §92 (free air time) and §11(b) of R.A. No. 6646 (ban
on paid political ads) should be invalidated would pave the way for a return to the old regime
where moneyed candidates could monopolize media advertising to the disadvantage of
candidates with less resources. That is what Congress tried to reform in 1987 with the enactment
of R.A. No. 6646. We are not free to set aside the judgment of Congress, especially in light of the
recent failure of interested parties to have the law repealed or at least modified.
Requirement of COMELEC Time, a
Reasonable Exercise of the
State's Power to Regulate
Use of Franchises
Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art. IX-
C, §4 of the Constitution does not include the power to prohibit. In the first place, what the
COMELEC is authorized to supervise or regulate by Art. IX-C, §4 of the Constitution,31 among
other things, is the use by media of information of their franchises or permits, while what Congress
(not the COMELEC) prohibits is the sale or donation of print space or air time for political ads. In
other words, the object of supervision or regulation is different from the object of the prohibition.
It is another fallacy for petitioners to contend that the power to regulate does not include the power
to prohibit. This may have force if the object of the power were the same.
In the second place, the prohibition in §11(b) of R.A. No. 6646 is only half of the regulatory
provision in the statute. The other half is the mandate to the COMELEC to procure print space
and air time for allocation to candidates. As we said in Osmeña v. COMELEC:
The term political "ad ban" when used to describe §11(b) of R.A. No. 6646, is misleading,
for even as §11(b) prohibits the sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself allocate to the candidates
space and time in the media. There is no suppression of political ads but only a regulation
of the time and manner of advertising.
xxx xxx xxx
. . . What is involved here is simply regulation of this nature. Instead of leaving candidates
to advertise freely in the mass media, the law provides for allocation, by the COMELEC of
print space and air time to give all candidates equal time and space for the purpose of
ensuring "free, orderly, honest, peaceful, and credible elections."
With the prohibition on media advertising by candidates themselves, the COMELEC Time and
COMELEC Space are about the only means through which candidates can advertise their
qualifications and programs of government. More than merely depriving their qualifications and
programs of government. More than merely depriving candidates of time for their ads, the failure
of broadcast stations to provide air time unless paid by the government would clearly deprive the
people of their right to know. Art III, §7 of the Constitution provides that "the right of the people to
information on matters of public concern shall be recognized," while Art. XII, §6 states that "the
use of property bears a social function [and] the right to own, establish, and operate economic
enterprises [is] subject to the duty of the State to promote distributive justice and to intervene
when the common good so demands."
To affirm the validity of §92 of B.P. Blg. 881 is to hold public broadcasters to their obligation to
see to it that the variety and vigor of public debate on issues in an election is maintained. For
while broadcast media are not mere common carriers but entities with free speech rights, they
are also public trustees charged with the duty of ensuring that the people have access to the
diversity of views on political issues. This right of the people is paramount to the autonomy of
broadcast media. To affirm the validity of §92, therefore, is likewise to uphold the people's right
to information on matters of public concern. The use of property bears a social function and is
subject to the state's duty to intervene for the common good. Broadcast media can find their just
and highest reward in the fact that whatever altruistic service they may render in connection with
the holding of elections is for that common good.
For the foregoing reasons, the petition is dismissed.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Bellosillo, Melo, Puno, Kapunan, Martinez and Quisumbing,
JJ., concur.

---------------------------------------------------------------------------
Separate Opinions

VITUG, J., separate opinion;

I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in
his ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in filing the
instant petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate
exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it is,
primordially, a business enterprise, it nevertheless, also addresses in many ways certain
imperatives of public service. In Stone vs. Mississippi (101, U.S. 814, cited in Cruz, Constitutional
Law, 1995 ed., p. 40.), a case involving a franchise to sell lotteries which petitioner claims to be
a contract which may not be impaired, the United States Supreme Court opined:
. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants
of property and franchises may be made if they do not impair the supreme authority to
make laws for the right government of the State; but no Legislature can curtail the power
of its successors to make such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its
lawful exercise, i.e., (a) that its utilization is demanded by the interests of the public, and (b) that
the means employed are reasonably necessary, and not unduly oppressive, for the
accomplishment of the purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is nothing in the law that prohibits the COMELEC from itself
procuring airtime, perhaps longer than that which can reasonably be allocated, if it believes that
in so opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just compensation. The power
of eminent domain is a power inherent in sovereignty and requires no constitutional provision to
give it force. It is the rightful authority which exists in every sovereignty, to control and regulate
those rights of a public nature which pertain to its citizens in common, and to appropriate and
control individual property for the public benefit as the public safety, necessity, convenience or
welfare demand.1 The right to appropriate private property to public use, however, lies dormant
in the state until legislative action is had, pointing out the occasions, the modes, the conditions
and agencies for its appropriation.2
Section 92 of BP 881 states
Sec. 92. — Comelec Time — The Comelec 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 and television stations are hereby attended so as to provide radio
and television time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution
2983-A, the pertinent provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time," effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with
radio and television time free of charge is a flagrant violation of the constitutional mandate that
private property shall not be taken for public use without just compensation. While it is inherent in
the State, the sovereign right to appropriate property has never been understood to include taking
property for public purposes without the duty and responsibility of ordering compensation to the
individual whose property has been sacrificed for the good of the community. Hence, Section 9
Article III of the 1987 Constitution which reads "No private property shall be taken for public use
without just compensation," gives us two limitations on the power of eminent domain: (1) the
purpose of taking must be for public use and (2) just compensation must be given to the owner of
the private property.
There is, of course, no question that the taking of the property in the case at bar is for public
use, i.e. to ensure that air time is allocated equally among the candidates, however, there is no
justification for the taking without payment of just compensation. While Resolution No. 2983-A
has provided that just compensation shall be paid for the 30 minutes of prime time granted by the
television stations to respondent Comelec, we note that the resolution was passed pursuant to
Section 92 of BP 881 which mandates that radio and television time be provided to respondent
Comelec free of charge. Since the legislative intent is the controlling element in determining the
administrative powers, rights, privileges and immunities granted,3 respondent Comelec may, at
any time, despite the resolution passed, compel television and radio stations to provide it with
airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation
which cannot be validly done. Police power must be distinguished from the power of eminent
domain. In the exercise of police power, there is a restriction of property interest to promote public
welfare or interest which involves no compensable taking. When the power of eminent domain,
however, is exercised, property interest is appropriated and applied to some public purpose,
necessitating compensation therefor. Traditional distinctions between police power and the power
of eminent domain precluded application of both powers at the same time in the same
subject.4 Hence, in the case of City of Baguio v. NAWASA,5 the Court held that a law requiring
the transfer of all municipal waterworks systems to NAWASA in exchange for its assets of
equivalent value involved the exercise of eminent domain because the property involved was
wholesome and intended for public use. Property condemned under the exercise of police power,
on the other hand, is noxious or intended for noxious purpose and, consequently, is not
compensable. Police power proceeds from the principle that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his use of it shall
not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the rights of the community. Rights of property, like all other social and
conventional rights, are subject to reasonable limitations in their enjoyment as shall prevent them
from being injurious, and to such reasonable restraits and regulations established by law as the
legislature, under the governing and controlling power vested in them by the constitution, may
think necessary and expedient.6
In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found
occasion to note that recent trends show a mingling of the police power and the power of eminent
domain, with the latter being used as an implement of the former like the power of taxation. Citing
the cases of Berman v. Parker7 and Penn Central Transportation Co. v. New York City8 where
owners of the Grand Central Terminal who were not allowed to construct a multi-story building to
preserve a historic landmark were allowed certain compensatory rights to mitigate the loss caused
by the regulation, this Court is Small Landowners of the Philippines, Inc. case held that measures
prescribing retention limits for landowners under the Agrarian Reform Law involved the exercise
of police power for the regulation of private property in accordance with the constitution. And,
where to carry out the regulation, it became necessary to deprive owners of whatever lands they
may own in excess of the maximum area allowed, the Court held that there was definitely a taking
under the power of eminent domain for which payment of just compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read
in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and
television stations during the campaign period to respondent Comelec, there is an exercise of
police power for the regulation of property in accordance with the Constitution. To the extent
however that Sec 92 of BP 881 mandates that airtime be provided free of charge to respondent
Comelec to be allocated equally among all candidates, the regulation exceeds the limits of police
power and should be recognized as a taking. In the case of Pennsylvania Coal v. Mahon,9 Justice
Holmes laid down the limits of police power in this wise," The general rule is that while property
may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a
taking."
While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. It is a settled rule that neither acquisition of title nor total
destruction of value is essential to taking and it is usually in cases where title remains with the
private owner that inquiry should be made to determine whether the impairment of a property is
merely regulated or amounts to a compensable taking. A regulation which deprives any person
of the profitable use of his property constitutes a taking and entitles him to compensation unless
the invasion of rights is so slight as to permit the regulation to be justified under the police power.
Similarly, a police regulation which unreasonably restricts the right to use business property for
business purposes, amounts to taking of private property and the owner may recover therefor.10 It
is also settled jurisprudence that acquisition of right of way easement falls within the purview of
eminent domain.11
While there is no taking or appropriation of title to, and possession of the expropriated property in
the case at bar, there is compensable taking inasmuch as them is a loss of the earnings for the
airtime which the petitioner-intervenors are compelled to donate. It is a loss which, to
paraphrase Philippine Press Institute v. Comelec,12 could hardly be considered "de minimis" if we
are to take into account the monetary value of the compulsory donation measured by the current
advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec,13 we had occasion to state that newspapers
and other print media are not compelled to donate free space to respondent Comelec inasmuch
as this would be in violation of the constitutional provision that no private property shall be taken
for public use without just compensation. We find no cogent reason why radio and television
stations should be treated considering that their operating expenses as compared to those of the
newspaper and other print media publishers involve considerably greater amount of financial
resources.
The fact that one needs a franchise from government to establish a radio and television station
while no license is needed to start a newspaper should not be made a basis for treating broadcast
media any differently from the print media in compelling the former to "donate" airtime to
respondent Comelec. While no franchises and rights are granted except under the condition that
it shall be subject to amendment, alteration, or repeal by the Congress when the common good
so requires,14 this provides no license for government to disregard the cardinal rule that
corporations with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and
television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code1 which
compels all broadcast stations in the country "to provide radio and television time, free of charge,
during the period of the [election] campaigns," which the Commission on Elections shall allocate
"equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this legal
provision is unconstitutional because it confiscates private property without due process of law
and without payment of just compensation, and denies broadcast media equal protection of the
law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,2 this Court ruled that print
media companies cannot be required to donate advertising space, free of charge, to the Comelec
for equal allocation among candidates, on the ground that such compulsory seizure of print space
is equivalent to a proscribed taking of private property for public use without payment of just
compensation.3
The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente
V. Mendoza, holds, however, that the foregoing PPI doctrine applies only to print media, not to
broadcast (radio and TV) networks, arguing that "radio and television broadcasting companies,
which are given franchises, do not own the airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the temporary privilege of using them. Since
a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service." In other words, the majority theorizes
that the forced donation of air time to the Comelec is a means by which the State gets
compensation for the grant of the franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction that does not
make any real difference. Theory must yield to reality. I respectfully submit the following
arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely allocates,
supervises and regulates their proper use. Thus, other than collecting supervision or regulatory
fees which it already does, it cannot exact any onerous and unreasonable post facto burdens
from the franchise holders, without due process and just compensation. Moreover, the invocation
of the "common good" does not excuse the unbridled and clearly excessive taking of a
franchisee's property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay
rental fees to the government for their use. Hence, the seizure of air time cannot be justified by
the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's humongous
investments amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence,
a forced donation of broadcast time is in actual fact a taking of such investments without due
process and without payment of just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It merely contends that
"broadcasting, whether by radio or by television stations, is licensed by the government. Airwave
frequencies have to be allocated as there are more individuals who want to broadcast than there
are frequencies to assign. A franchise is thus a privilege subject among other thing . . . to
amendment, alteration or repeal by the Congress when the common good so requires." 4 True
enough, a "franchise started out as a 'royal privilege or [a] branch of the King's prerogative,
subsisting in the hands of a subject.'"5
Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters,
mineral, coal, petroleum, and other mineral oils, all forces, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State," it
is silent as to the ownership of the airwaves and frequencies. It is then reasonable to say that no
one owns them. Like the air we breathe and the sunshine that sustains life, the air lanes
themselves "are not property because they cannot be appropriated for the benefit of any
individual,"6 but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies, the State —
in the exercise of its police power — allocates, supervises and regulates their use, so as to derive
maximum benefit for the general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the airwaves by assigning
to such companies their respective frequencies. The purpose is not to grant them the privilege of
using public property. For, as earlier stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by law to
institutionalize this regulation of the air lanes. To cover the administrative cost of supervision and
regulation, the NTC levies charges, which have been revised upwards in NTC Memorandum
Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA
Network, Inc., for the year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC
"supervision and regulation fee," as borne out by its Audited Consolidated Financial Statements
for said year, on file with the Securities and Exchange Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately compensated by the
broadcast media through the payment of fees unilaterally set by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature and
purpose of a franchise: other than serving the public benefit which is subject to government
regulation, it must also be to the franchise holder's advantage. Once granted, a franchise (not the
air lanes) together with concomitant private rights, becomes property of the grantee.7 It is
regarded by law precisely as other property and, as any other property, it is safeguarded by the
Constitution from arbitrary revocation or impairment.8 The rights under a franchise can be neither
taken nor curtailed for public use or purpose, even by the government as the grantor, without
payment of just compensation9 as guaranteed under our fundamental law.10 The fact that the
franchise relates to public use or purpose does not entitle the state to abrogate or impair its use
without just compensation.11
The majority further claims that, constitutionally,12 franchises are always subject to alteration by
Congress, "when the common good so requires." The question then boils down to this: Does
Section 92 of the Omnibus Election Code constitute a franchise modification for the "common
good," or an "unlawful taking of private property"? To answer this question, I go back to Philippine
Press Institute, Inc. vs. Commission on Elections, where a unanimous Supreme Court held:13
To compel print media companies to donate "Comelec space" of the dimensions specified
in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of
private personal property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the period from 6
March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as
often as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or
restraint upon the use of private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily charged by newspaper publishers
whether in cities or in non-urban areas, may be very substantial indeed. (Emphasis in
original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and
recurrence of the "donation" of air time that Comelec can demand from radio and TV stations.
There are no guidelines or standards provided as to the choice of stations, time and frequency of
airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of
a station. The fact that Comelec has not exercised its granted power arbitrarily is immaterial
because the law, as worded, admits of unbridled exercise.
 A statute is considered void for overbreadth when "it offends the constitutional principle
that a governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved. The breadth
of legislative abridgment must be viewed in the light of less drastic means for achieving
the same basic purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the absence of such
reasonable and definite standards in a legislation of its character is fatal. Where, as in the
case of the above paragraphs, the majority of the Court could discern "an overbreadth that
makes possible oppressive or capricious application" of the statutory provisions, the line
dividing the valid from the constitutionally infirm has been crossed. Such provisions offend
the constitutional principle that "a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the
Comelec) unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the government muscle."16
Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable. In
their Memorandum,17 petitioners allege (and this has not been rebutted at all) that during the 1992
election period, GMA Network has been compelled to donate P22,498.560 worth of advertising
revenues; and for the current election period, GMA stands to lose a staggering P58,980,850.
Now, clearly and most obviously, these amounts are not inconsequential or de minimis. They
constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation of public
utilities must not have the effect of depriving an owner of his property without due process of law,
nor of confiscating or appropriating private property without due process of law, nor of confiscating
or appropriating private property without just compensation, nor of limiting or prescribing
irrevocably vested rights or privileges lawfully acquired under a charter or franchise." The power
to regulate is subject to these constitutional limits.18 Consequently, "rights under a franchise
cannot be taken or damaged for a public use without the making of just compensation
therefor."19 To do so is clearly beyond the power of the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns the air lanes and
that, by its grant of a franchise, it should thus receive compensation for the use of said
frequencies. I say, however, that by remitting unreasonably high "annual fees and charges," which
as earlier stated amounts to millions of pesos yearly, television stations are in effect paying rental
fees for the use (not just the regulation) of said frequencies. Except for the annual inspection
conducted by the NTC, no other significant service is performed by the government in exchange
for the enormous fees charged the stations. Evidently, the sums collected by the NTC exceed the
cost of services performed by it, and are therefore more properly understood as rental fees for
the use of the frequencies granted them.20
Since the use of the air frequencies is already paid for annually by the broadcast entities, there is
no basis for the government, through the Comelec, to compel unbridled donation of the air time
of said companies without due process and without payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier — like oil, minerals and coal
— once the license to exploit and develop them is granted to a private corporation, the
government can no longer arbitrarily confiscate or appropriate them gratis under the guise of
serving the common good. Crude oil, for instance, once explored, drilled, and refined is thereafter
considered the property of the authorized explorer (or refiner) which can sell it to the public and
even to the government itself. The State simply cannot demand free gasoline for the operation of
public facilities even if they benefit the people in general. It still has to pay compensation therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee's use of a state-granted franchise or privilege
which occasions its acquisition of private property in the form of broadcast facilities and its
production of air time. These properties are distinct from its franchise. 21 The 1996 Audited
Consolidated Balance Sheet of Petitioner GMA, on file with the SEC, shows that its "property and
equipment," which it uses in its broadcast function, amount to over one billion pesos or, to be
exact, P1,245,741,487.22 This does not include the cost of producing the programs to be
broadcast, talent fees and other aspects of broadcasting. In their Memorandum,23 petitioners
explain that the total cost for GMA to stay on the air (for television) at present is approximately
P136,100 per hour, which includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The point is: The franchise holders can recover their huge
investments only by selling air time to advertisers. This is their "product," their valuable property
which Section 92 forcibly takes from them in massive amounts without payment of just
compensation.
It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo,
an unbridled taking of private property may be allowed. If such appropriation were only, to use
the words of PPI vs. Comelec, de minimis or insignificant — say, one hour once or twice a month
— perhaps, it can be justified by the promotion of the "common good." But a taking in the
gargantuan amount of over P58 million from Petitioner GMA for the 1998 election season alone
is an actual seizure of its private investment, and not at all a reasonable "compensation" or
"alteration" for the "common good." Certainly, this partakes of CONFISCATION of private
property.
What makes the taking of air time even more odious is its ex post facto nature. When the
broadcast companies acquired their franchises and set up their expensive facilities, they were not
informed of the immensity of the donations they are now compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the
"finished product" after a station uses its own broadcast facilities. The frequency is lust the specific
"route" or "channel" by which this medium reaches the TV sets of the general public. Technically,
therefore, the wholesale alteration by Section 92 of all broadcast franchise would appear
unrelated to the compelled donations. While the express modification is in the franchise, what
Section 92 really does is that it takes away the end product of the facilities which were set up
through the use of the entrepreneurs' investments and the broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the
need for just compensation. Thus, Section 2 of its Resolution No. 2983-A states that "[e]very radio
broadcasting and television station operating under franchise shall grant the Commission, upon
payment of just compensation, at least thirty (30) minutes of prime time daily to be known as
'Comelec Time' . . ." And yet, even with such a judicious legal position taken by the very agency
tasked by the Constitution to administer elections, the majority still insists on an arbitrary seizure
of precious property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise24 is no argument for seizing its profits.
The State cannot rob the rich to feed the poor in the guise of promoting the "common good." Truly,
the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded from GMA is huge
and exorbitant, amounting, I repeat, to over P58 million for the 1998 election season alone. If the
air time required from "every radio and television station" in the country in the magnitude stated
in the aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be
staggering — in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has required
payment of print media ads but, in this case, compels broadcast stations to donate their end
product on a massive scale. The simplistic distinction given — that radio and TV stations are mere
grantees of government franchises while newspaper companies are not — does not justify the
grand larceny of precious air time. This is a violation not only of private property, but also of the
constitutional right to equal protection itself. The proffered distinction between print and broadcast
media is too insignificant and too flimsy to be a valid justification for the discrimination. The print
and broadcast media are equal in the sense that both derive their revenues principally from paid
ads. They should thus be treated equally by the law in respect of such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:
1. No person, whether rich or poor, shall be deprived of property without due process.25
2. Such property shall not be taken by the government, even for the use of the general public,
without first paying just compensation to the owner.26
3. No one, regardless of social or financial status, shall be denied equal protection of the law.27
The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to
rely on the nebulous legal theory that broadcast stations are mere recipients of state-granted
franchises which can be altered or withdrawn anytime or otherwise burdened with post
facto elephantine yokes. By this short-circuited rationalization, the majority blithely ignores the
private entrepreneurs' billion-peso investments and the broadcast professionals' grit and toil in
transforming these invisible franchises into merchandisable property; and conveniently forgets
the grim reality that the taking of honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government,28 against which these constitutional rights to property were in
the first place written, prudently agrees to respect them and to pay adequate compensation for
their taking. But ironically, the majority rejects the exemplary observance by the government of
the people's rights and insists on the confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional
rights of the citizens and their ultimate protector against the tyrannies of their own government. I
am afraid that by this unfortunate Decision, the majority, in this instance, has instead converted
this honorable and majestic Court into the people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election
Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.

Separate Opinions
VITUG, J., separate opinion;
I assent in most part to the well-considered opinion written by Mr. Justice Vicente V. Mendoza in
his ponencia, particularly, in holding that petitioner TELEBAP lacks locus standi in filing the
instant petition and in declaring that Section 92 of Batas Pambansa Blg. 881 is a legitimate
exercise of police power of the State.
The grant of franchise to broadcast media is a privilege burdened with responsibilities. While it is,
primordially, a business enterprise, it nevertheless, also addresses in many ways certain
imperatives of public service. In Stone vs. Mississippi (101, U.S. 814, cited in Cruz, Constitutional
Law, 1995 ed., p. 40.), a case involving a franchise to sell lotteries which petitioner claims to be
a contract which may not be impaired, the United States Supreme Court opined:
. . . (T)he Legislature cannot bargain away the police power of a State. Irrevocable grants
of property and franchises may be made if they do not impair the supreme authority to
make laws for the right government of the State; but no Legislature can curtail the power
of its successors to make such laws as they may deem proper in matters of police. . .
In this case, the assailed law, in my view, has not failed in meeting the standards set forth for its
lawful exercise, i.e., (a) that its utilization is demanded by the interests of the public, and (b) that
the means employed are reasonably necessary, and not unduly oppressive, for the
accomplishment of the purposes and objectives of the law.
I cannot consider COMELEC Resolution No. 2983-A, particularly Section 2 thereof, as being in
contravention of B.P. No. 881. There is nothing in the law that prohibits the COMELEC from itself
procuring airtime, perhaps longer than that which can reasonably be allocated, if it believes that
in so opting, it does so for the public good.
I vote to DISMISS the petition.
ROMERO, J., dissenting;
Section 92 of BP 881 constitutes taking of private property without just compensation. The power
of eminent domain is a power inherent in sovereignty and requires no constitutional provision to
give it force. It is the rightful authority which exists in every sovereignty, to control and regulate
those rights of a public nature which pertain to its citizens in common, and to appropriate and
control individual property for the public benefit as the public safety, necessity, convenience or
welfare demand.1 The right to appropriate private property to public use, however, lies dormant
in the state until legislative action is had, pointing out the occasions, the modes, the conditions
and agencies for its appropriation.2
Section 92 of BP 881 states
Sec. 92. — Comelec Time — The Comelec 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 and television stations are hereby attended so as to provide radio
and television time free of charge during the period of election campaign.
Pursuant to Section 92 of BP 881, respondent COMELEC on March 3, 1998 passed Resolution
2983-A, the pertinent provision of which reads as follows:
Sec. 2. Grant of "Comelec Time." — Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just
compensation, at least thirty (30) minutes of prime time daily, to be known as "Comelec
Time," effective February 10, 1998 for candidates for President, Vice-President and
Senators, and effective March 27, 1998, for candidates for local elective offices, until May
9, 1998.
Section 92 of BP 881, insofar as it requires radio and television stations to provide Comelec with
radio and television time free of charge is a flagrant violation of the constitutional mandate that
private property shall not be taken for public use without just compensation. While it is inherent in
the State, the sovereign right to appropriate property has never been understood to include taking
property for public purposes without the duty and responsibility of ordering compensation to the
individual whose property has been sacrificed for the good of the community. Hence, Section 9
Article III of the 1987 Constitution which reads "No private property shall be taken for public use
without just compensation," gives us two limitations on the power of eminent domain: (1) the
purpose of taking must be for public use and (2) just compensation must be given to the owner of
the private property.
There is, of course, no question that the taking of the property in the case at bar is for public
use, i.e. to ensure that air time is allocated equally among the candidates, however, there is no
justification for the taking without payment of just compensation. While Resolution No. 2983-A
has provided that just compensation shall be paid for the 30 minutes of prime time granted by the
television stations to respondent Comelec, we note that the resolution was passed pursuant to
Section 92 of BP 881 which mandates that radio and television time be provided to respondent
Comelec free of charge. Since the legislative intent is the controlling element in determining the
administrative powers, rights, privileges and immunities granted,3 respondent Comelec may, at
any time, despite the resolution passed, compel television and radio stations to provide it with
airtime free of charge.
Apparently, Sec. 92 of BP 881 justices such taking under the guise of police power regulation
which cannot be validly done. Police power must be distinguished from the power of eminent
domain. In the exercise of police power, there is a restriction of property interest to promote public
welfare or interest which involves no compensable taking. When the power of eminent domain,
however, is exercised, property interest is appropriated and applied to some public purpose,
necessitating compensation therefor. Traditional distinctions between police power and the power
of eminent domain precluded application of both powers at the same time in the same
subject.4 Hence, in the case of City of Baguio v. NAWASA,5 the Court held that a law requiring
the transfer of all municipal waterworks systems to NAWASA in exchange for its assets of
equivalent value involved the exercise of eminent domain because the property involved was
wholesome and intended for public use. Property condemned under the exercise of police power,
on the other hand, is noxious or intended for noxious purpose and, consequently, is not
compensable. Police power proceeds from the principle that every holder of property, however
absolute and unqualified may be his title, holds it under the implied liability that his use of it shall
not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their
property, nor injurious to the rights of the community. Rights of property, like all other social and
conventional rights, are subject to reasonable limitations in their enjoyment as shall prevent them
from being injurious, and to such reasonable restraits and regulations established by law as the
legislature, under the governing and controlling power vested in them by the constitution, may
think necessary and expedient.6
In the case of Small Landowners of the Philippines Inc. v. Secretary of Agrarian Reform, we found
occasion to note that recent trends show a mingling of the police power and the power of eminent
domain, with the latter being used as an implement of the former like the power of taxation. Citing
the cases of Berman v. Parker7 and Penn Central Transportation Co. v. New York City8 where
owners of the Grand Central Terminal who were not allowed to construct a multi-story building to
preserve a historic landmark were allowed certain compensatory rights to mitigate the loss caused
by the regulation, this Court is Small Landowners of the Philippines, Inc. case held that measures
prescribing retention limits for landowners under the Agrarian Reform Law involved the exercise
of police power for the regulation of private property in accordance with the constitution. And,
where to carry out the regulation, it became necessary to deprive owners of whatever lands they
may own in excess of the maximum area allowed, the Court held that there was definitely a taking
under the power of eminent domain for which payment of just compensation was imperative.
The petition before us is no different from the above-cited case. Insofar as See 92 of BP 881 read
in conjunction with Sec 11(b) of RA 6646 restricts the sale or donation of airtime by radio and
television stations during the campaign period to respondent Comelec, there is an exercise of
police power for the regulation of property in accordance with the Constitution. To the extent
however that Sec 92 of BP 881 mandates that airtime be provided free of charge to respondent
Comelec to be allocated equally among all candidates, the regulation exceeds the limits of police
power and should be recognized as a taking. In the case of Pennsylvania Coal v. Mahon,9 Justice
Holmes laid down the limits of police power in this wise," The general rule is that while property
may be regulated to a certain extent, if the regulation goes too far, it will be recognized as a
taking."
While the power of eminent domain often results in the appropriation of title to or possession of
property, it need not always be the case. It is a settled rule that neither acquisition of title nor total
destruction of value is essential to taking and it is usually in cases where title remains with the
private owner that inquiry should be made to determine whether the impairment of a property is
merely regulated or amounts to a compensable taking. A regulation which deprives any person
of the profitable use of his property constitutes a taking and entitles him to compensation unless
the invasion of rights is so slight as to permit the regulation to be justified under the police power.
Similarly, a police regulation which unreasonably restricts the right to use business property for
business purposes, amounts to taking of private property and the owner may recover therefor.10 It
is also settled jurisprudence that acquisition of right of way easement falls within the purview of
eminent domain.11
While there is no taking or appropriation of title to, and possession of the expropriated property in
the case at bar, there is compensable taking inasmuch as them is a loss of the earnings for the
airtime which the petitioner-intervenors are compelled to donate. It is a loss which, to
paraphrase Philippine Press Institute v. Comelec,12 could hardly be considered "de minimis" if we
are to take into account the monetary value of the compulsory donation measured by the current
advertising rates of the radio and television stations.
In the case of Philippine Press Institute v. Comelec,13 we had occasion to state that newspapers
and other print media are not compelled to donate free space to respondent Comelec inasmuch
as this would be in violation of the constitutional provision that no private property shall be taken
for public use without just compensation. We find no cogent reason why radio and television
stations should be treated considering that their operating expenses as compared to those of the
newspaper and other print media publishers involve considerably greater amount of financial
resources.
The fact that one needs a franchise from government to establish a radio and television station
while no license is needed to start a newspaper should not be made a basis for treating broadcast
media any differently from the print media in compelling the former to "donate" airtime to
respondent Comelec. While no franchises and rights are granted except under the condition that
it shall be subject to amendment, alteration, or repeal by the Congress when the common good
so requires,14 this provides no license for government to disregard the cardinal rule that
corporations with franchises are as much entitled to due process and equal protection of laws
guaranteed under the Constitution.
ACCORDINGLY, I vote to declare Section 92 of BP 881 insofar as it mandates that radio and
television time be provided to respondent Comelec free of charge UNCONSTITUTIONAL.
PANGANIBAN, J., dissenting;
At issue in this case is the constitutionality of Section 92 of the Omnibus Election Code1 which
compels all broadcast stations in the country "to provide radio and television time, free of charge,
during the period of the [election] campaigns," which the Commission on Elections shall allocate
"equally and impartially among the candidates . . ." Petitioners contend, and I agree, that this legal
provision is unconstitutional because it confiscates private property without due process of law
and without payment of just compensation, and denies broadcast media equal protection of the
law.
In Philippine Press Institute, Inc. (PPI) vs. Commission on Elections,2 this Court ruled that print
media companies cannot be required to donate advertising space, free of charge, to the Comelec
for equal allocation among candidates, on the ground that such compulsory seizure of print space
is equivalent to a proscribed taking of private property for public use without payment of just
compensation.3
The Court's majority in the present case, speaking through the distinguished Mr. Justice Vicente
V. Mendoza, holds, however, that the foregoing PPI doctrine applies only to print media, not to
broadcast (radio and TV) networks, arguing that "radio and television broadcasting companies,
which are given franchises, do not own the airwaves and frequencies through which they transmit
broadcast signals and images. They are merely given the temporary privilege of using them. Since
a franchise is a mere privilege, the exercise of the privilege may reasonably be burdened with the
performance by the grantee of some form of public service." In other words, the majority theorizes
that the forced donation of air time to the Comelec is a means by which the State gets
compensation for the grant of the franchise and/or the use of the air lanes.
With all due respect, I disagree. The majority is relying on a theoretical distinction that does not
make any real difference. Theory must yield to reality. I respectfully submit the following
arguments to support my dissent:
1. The State does not own the airwaves and broadcast frequencies. It merely allocates,
supervises and regulates their proper use. Thus, other than collecting supervision or regulatory
fees which it already does, it cannot exact any onerous and unreasonable post facto burdens
from the franchise holders, without due process and just compensation. Moreover, the invocation
of the "common good" does not excuse the unbridled and clearly excessive taking of a
franchisee's property.
2. Assuming arguendo that the State owns the air lanes, the broadcasting companies already pay
rental fees to the government for their use. Hence, the seizure of air time cannot be justified by
the theory of compensation.
3. Airwaves and frequencies alone, without the radio and television owner's humongous
investments amounting to billions of pesos, cannot be utilized for broadcasting purposes. Hence,
a forced donation of broadcast time is in actual fact a taking of such investments without due
process and without payment of just compensation.
Let me explain further each of these arguments.
I. The State Does Not Own Air Lanes:
It Merely Regulates Their Proper Use;
"Common Good" Does Not Excuse Unbridled Taking.
Significantly, the majority does not claim that the State owns the air lanes. It merely contends that
"broadcasting, whether by radio or by television stations, is licensed by the government. Airwave
frequencies have to be allocated as there are more individuals who want to broadcast than there
are frequencies to assign. A franchise is thus a privilege subject among other thing . . . to
amendment, alteration or repeal by the Congress when the common good so requires." 4 True
enough, a "franchise started out as a 'royal privilege or [a] branch of the King's prerogative,
subsisting in the hands of a subject.'"5
Indeed, while the Constitution expressly provides that "[a]ll lands of the public domain, waters,
mineral, coal, petroleum, and other mineral oils, all forces, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna, and other natural resources are owned by the State," it
is silent as to the ownership of the airwaves and frequencies. It is then reasonable to say that no
one owns them. Like the air we breathe and the sunshine that sustains life, the air lanes
themselves "are not property because they cannot be appropriated for the benefit of any
individual,"6 but are to be used to the best advantage of all.
Because, as mentioned earlier, there are more prospective users than frequencies, the State —
in the exercise of its police power — allocates, supervises and regulates their use, so as to derive
maximum benefit for the general public. The franchise granted by the legislature to broadcasting
companies is essentially for the purpose of putting order in the use of the airwaves by assigning
to such companies their respective frequencies. The purpose is not to grant them the privilege of
using public property. For, as earlier stated, airwaves are not owned by the government.
Accordingly, the National Telecommunications Commission (NTC) was tasked by law to
institutionalize this regulation of the air lanes. To cover the administrative cost of supervision and
regulation, the NTC levies charges, which have been revised upwards in NTC Memorandum
Circular No. 14-8-94 dated August 26, 1994. In accordance with this Circular, Petitioner GMA
Network, Inc., for the year 1996, paid the NTC P2,880,591 of which P2,501,776.30 was NTC
"supervision and regulation fee," as borne out by its Audited Consolidated Financial Statements
for said year, on file with the Securities and Exchange Commission. In short, for its work of
allocation, supervision and regulation, the government is adequately compensated by the
broadcast media through the payment of fees unilaterally set by the former.
Franchisee's Property Cannot
Be Taken Without Just Compensation
In stamping unbridled donations with its imprimatur, the majority overlooks the twofold nature and
purpose of a franchise: other than serving the public benefit which is subject to government
regulation, it must also be to the franchise holder's advantage. Once granted, a franchise (not the
air lanes) together with concomitant private rights, becomes property of the grantee.7 It is
regarded by law precisely as other property and, as any other property, it is safeguarded by the
Constitution from arbitrary revocation or impairment.8 The rights under a franchise can be neither
taken nor curtailed for public use or purpose, even by the government as the grantor, without
payment of just compensation9 as guaranteed under our fundamental law.10 The fact that the
franchise relates to public use or purpose does not entitle the state to abrogate or impair its use
without just compensation.11
The majority further claims that, constitutionally,12 franchises are always subject to alteration by
Congress, "when the common good so requires." The question then boils down to this: Does
Section 92 of the Omnibus Election Code constitute a franchise modification for the "common
good," or an "unlawful taking of private property"? To answer this question, I go back to Philippine
Press Institute, Inc. vs. Commission on Elections, where a unanimous Supreme Court held:13
To compel print media companies to donate "Comelec space" of the dimensions specified
in Section 2 of Resolution No. 2772 (not less than one-half page), amounts to "taking" of
private personal property for public use or purposes. Section 2 failed to specify the
intended frequency of such compulsory "donation:" only once during the period from 6
March 1995 (or 21 March 1995) until 12 May 1995? or everyday or once a week? or as
often as Comelec may direct during the same period? The extent of the taking or
deprivation is not insubstantial; this is not a case of a de minimis temporary limitation or
restraint upon the use of private property. The monetary value of the compulsory
"donation," measured by the advertising rates ordinarily charged by newspaper publishers
whether in cities or in non-urban areas, may be very substantial indeed. (Emphasis in
original)
"Common Good" Does Not Justify Unbridled
Taking of Franchisee's Broadcast Time
Like the questioned resolution in PPI, Section 92 contains no limit as to the amount and
recurrence of the "donation" of air time that Comelec can demand from radio and TV stations.
There are no guidelines or standards provided as to the choice of stations, time and frequency of
airing, and programs to be aired. Theoretically, Comelec can compel the use of all the air time of
a station. The fact that Comelec has not exercised its granted power arbitrarily is immaterial
because the law, as worded, admits of unbridled exercise.
A statute is considered void for overbreadth when "it offends the constitutional principle
that a governmental purpose to control or prevent activities constitutionally subject to state
regulations may not be achieved by means which sweep unnecessarily broadly and
thereby invade the area of protected freedoms." (Zwickler v. Koota, 19 L ed 2d 444 [1967]).
In a series of decisions this Court has held that, even though the governmental purpose
be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved. The breadth
of legislative abridgment must be viewed in the light of less drastic means for achieving
the same basic purpose. 14
In a 1968 opinion, the American Supreme Court made clear that the absence of such
reasonable and definite standards in a legislation of its character is fatal. Where, as in the
case of the above paragraphs, the majority of the Court could discern "an overbreadth that
makes possible oppressive or capricious application" of the statutory provisions, the line
dividing the valid from the constitutionally infirm has been crossed. Such provisions offend
the constitutional principle that "a governmental purpose to control or prevent activities
constitutionally subject to state regulation may not be achieved by means which sweep
unnecessarily broadly and thereby invade the area of protected freedoms."
It is undeniable, therefore, that even though the governmental purpose be legitimate and
substantial, they cannot be pursued by means that broadly stifle fundamental personal
liberties when the end can be more narrowly achieved. For precision of regulation is the
touchstone in an area so closely related to our most precious freedoms. 15
As a rule, a statute may be said to be vague and invalid if "it leaves law enforces (in the case, the
Comelec) unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of
the government muscle."16
Moreover, the extent of the actual taking of air time is enormous, exorbitant and unreasonable. In
their Memorandum,17 petitioners allege (and this has not been rebutted at all) that during the 1992
election period, GMA Network has been compelled to donate P22,498.560 worth of advertising
revenues; and for the current election period, GMA stands to lose a staggering P58,980,850.
Now, clearly and most obviously, these amounts are not inconsequential or de minimis. They
constitute arbitrary taking on a grand scale!
American jurisprudence is replete with citations showing that "[l]egislative regulation of public
utilities must not have the effect of depriving an owner of his property without due process of law,
nor of confiscating or appropriating private property without due process of law, nor of confiscating
or appropriating private property without just compensation, nor of limiting or prescribing
irrevocably vested rights or privileges lawfully acquired under a charter or franchise." The power
to regulate is subject to these constitutional limits.18 Consequently, "rights under a franchise
cannot be taken or damaged for a public use without the making of just compensation
therefor."19 To do so is clearly beyond the power of the legislature to regulate.
II. Assuming That the State Owns Air Lanes,
Broadcast Companies Already Pay Rental Therefor.
Let me grant for the moment and for the sake of argument that the State owns the air lanes and
that, by its grant of a franchise, it should thus receive compensation for the use of said
frequencies. I say, however, that by remitting unreasonably high "annual fees and charges," which
as earlier stated amounts to millions of pesos yearly, television stations are in effect paying rental
fees for the use (not just the regulation) of said frequencies. Except for the annual inspection
conducted by the NTC, no other significant service is performed by the government in exchange
for the enormous fees charged the stations. Evidently, the sums collected by the NTC exceed the
cost of services performed by it, and are therefore more properly understood as rental fees for
the use of the frequencies granted them.20
Since the use of the air frequencies is already paid for annually by the broadcast entities, there is
no basis for the government, through the Comelec, to compel unbridled donation of the air time
of said companies without due process and without payment of just compensation.
In fact, even in the case of state-owned resources referred to earlier — like oil, minerals and coal
— once the license to exploit and develop them is granted to a private corporation, the
government can no longer arbitrarily confiscate or appropriate them gratis under the guise of
serving the common good. Crude oil, for instance, once explored, drilled, and refined is thereafter
considered the property of the authorized explorer (or refiner) which can sell it to the public and
even to the government itself. The State simply cannot demand free gasoline for the operation of
public facilities even if they benefit the people in general. It still has to pay compensation therefor.
III. Airwaves Useless Without Huge
Investment of Broadcast Companies
Setting up and operating a credible broadcasting network requires billions of pesos in
investments. It is precisely the broadcast licensee's use of a state-granted franchise or privilege
which occasions its acquisition of private property in the form of broadcast facilities and its
production of air time. These properties are distinct from its franchise. 21 The 1996 Audited
Consolidated Balance Sheet of Petitioner GMA, on file with the SEC, shows that its "property and
equipment," which it uses in its broadcast function, amount to over one billion pesos or, to be
exact, P1,245,741,487.22 This does not include the cost of producing the programs to be
broadcast, talent fees and other aspects of broadcasting. In their Memorandum,23 petitioners
explain that the total cost for GMA to stay on the air (for television) at present is approximately
P136,100 per hour, which includes electricity, depreciation, repairs and maintenance, technical
facilities, salaries, and so on. The point is: The franchise holders can recover their huge
investments only by selling air time to advertisers. This is their "product," their valuable property
which Section 92 forcibly takes from them in massive amounts without payment of just
compensation.
It is too simplistic to say that because the Constitution allows Congress to alter franchises, ergo,
an unbridled taking of private property may be allowed. If such appropriation were only, to use
the words of PPI vs. Comelec, de minimis or insignificant — say, one hour once or twice a month
— perhaps, it can be justified by the promotion of the "common good." But a taking in the
gargantuan amount of over P58 million from Petitioner GMA for the 1998 election season alone
is an actual seizure of its private investment, and not at all a reasonable "compensation" or
"alteration" for the "common good." Certainly, this partakes of CONFISCATION of private
property.
What makes the taking of air time even more odious is its ex post facto nature. When the
broadcast companies acquired their franchises and set up their expensive facilities, they were not
informed of the immensity of the donations they are now compelled to give.
Note should be made, too, of the fact that what Section 92 takes away is air time. Air time is the
"finished product" after a station uses its own broadcast facilities. The frequency is lust the specific
"route" or "channel" by which this medium reaches the TV sets of the general public. Technically,
therefore, the wholesale alteration by Section 92 of all broadcast franchise would appear
unrelated to the compelled donations. While the express modification is in the franchise, what
Section 92 really does is that it takes away the end product of the facilities which were set up
through the use of the entrepreneurs' investments and the broadcasters' work.
EPILOGUE
By way of epilogue, I must point out that even Respondent Comelec expressly recognizes the
need for just compensation. Thus, Section 2 of its Resolution No. 2983-A states that "[e]very radio
broadcasting and television station operating under franchise shall grant the Commission, upon
payment of just compensation, at least thirty (30) minutes of prime time daily to be known as
'Comelec Time' . . ." And yet, even with such a judicious legal position taken by the very agency
tasked by the Constitution to administer elections, the majority still insists on an arbitrary seizure
of precious property produced and owned by private enterprise.
That Petitioner GMA is a viable, even profitable, enterprise24 is no argument for seizing its profits.
The State cannot rob the rich to feed the poor in the guise of promoting the "common good." Truly,
the end never justifies the means.
It cannot be denied that the amount and the extent of the air time demanded from GMA is huge
and exorbitant, amounting, I repeat, to over P58 million for the 1998 election season alone. If the
air time required from "every radio and television station" in the country in the magnitude stated
in the aforesaid Comelec Resolution 2983-A is added up and costed, the total would indeed be
staggering — in several hundred million pesos.
Smacking of undisguised discrimination is the fact that in PPI vs. Comelec, this Court has required
payment of print media ads but, in this case, compels broadcast stations to donate their end
product on a massive scale. The simplistic distinction given — that radio and TV stations are mere
grantees of government franchises while newspaper companies are not — does not justify the
grand larceny of precious air time. This is a violation not only of private property, but also of the
constitutional right to equal protection itself. The proffered distinction between print and broadcast
media is too insignificant and too flimsy to be a valid justification for the discrimination. The print
and broadcast media are equal in the sense that both derive their revenues principally from paid
ads. They should thus be treated equally by the law in respect of such ads.
To sum up, the Bill of Rights of our Constitution expressly guarantees the following rights:
1. No person, whether rich or poor, shall be deprived of property without due process.25
2. Such property shall not be taken by the government, even for the use of the general public,
without first paying just compensation to the owner.26
3. No one, regardless of social or financial status, shall be denied equal protection of the law.27
The majority, however, peremptorily brushes aside all these sacred guarantees and prefers to
rely on the nebulous legal theory that broadcast stations are mere recipients of state-granted
franchises which can be altered or withdrawn anytime or otherwise burdened with post
facto elephantine yokes. By this short-circuited rationalization, the majority blithely ignores the
private entrepreneurs' billion-peso investments and the broadcast professionals' grit and toil in
transforming these invisible franchises into merchandisable property; and conveniently forgets
the grim reality that the taking of honestly earned media assets is unbridled, exorbitant and
arbitrary. Worse, the government,28 against which these constitutional rights to property were in
the first place written, prudently agrees to respect them and to pay adequate compensation for
their taking. But ironically, the majority rejects the exemplary observance by the government of
the people's rights and insists on the confiscation of their private property.
I have always believed that the Supreme Court is the ever vigilant guardian of the constitutional
rights of the citizens and their ultimate protector against the tyrannies of their own government. I
am afraid that by this unfortunate Decision, the majority, in this instance, has instead converted
this honorable and majestic Court into the people's unwitting oppressor.
WHEREFORE, I vote to GRANT the petition and to declare Section 92 of the Omnibus Election
Code UNCONSTITUTIONAL and VOID.
Purisima, J., dissents.

G.R. No. 133486 January 28, 2000

ABS-CBN BROADCASTING CORPORATION, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary,
exit polls — properly conducted and publicized — can be vital tools in eliminating the evils of
election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec
so as to minimize or suppress the incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on
Elections (Comelec) en banc Resolution No. 98-14191 dated April 21, 1998. In the said
Resolution, the poll body
RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other
groups, its agents or representatives from conducting such exit survey and to authorize
the Honorable Chairman to issue the same.
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source
that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV
coverage of the elections . . . and to make [an] exit survey of the . . . vote during the elections for
national officials particularly for President and Vice President, results of which shall be [broadcast]
immediately."2 The electoral body believed that such project might conflict with the official
Comelec count, as well as the unofficial quick count of the National Movement for Free Elections
(Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake
the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were
actually conducted and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave
abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of
a restraining order enjoining the petitioner or any [other group], its agents or representatives from
conducting exit polls during the . . . May 11 elections."3
In his Memorandum,4 the solicitor general, in seeking to dismiss the Petition, brings up additional
issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a reconsideration
of the assailed Comelec Resolution.
The Court's Ruling
The Petition5 is meritorious.
Procedural Issues:
Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11, 1998
election has already been held and done with. Allegedly, there is no longer any actual controversy
before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11,
1998 election, its implications on the people's fundamental freedom of expression transcend the
past election. The holding of periodic elections is a basic feature of our democratic government.
By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue
now will only postpone a task that could well crop up again in future elections.6
In any event, in Salonga v. Cruz Paño, the Court had occasion to reiterate that it "also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules. It
has the symbolic function of educating bench and bar on the extent of protection given by
constitutional guarantees."7 Since the fundamental freedoms of speech and of the press are being
invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise
protect the holding of exit polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's failure
to exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed over
to prevent a miscarriage of justice,8 when the issue involves the principle of social justice or the
protection of labor,9 when the decision or resolution sought to be set aside is a nullity,10 or when
the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy
available.11
The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only
on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time or the May 11, 1998 elections. Moreover,
not only is time of the essence; the Petition involves transcendental constitutional issues. Direct
resort to this Court through a special civil action for certiorari is therefore justified.
Main Issue:
Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or groups of
individuals for the purpose of determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for, immediately after they have officially
cast their ballots. The results of the survey are announced to the public, usually through the mass
media, to give an advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls had not been resorted to
until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of
the mass media, committed to report balanced election-related data, including "the exclusive
results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting their results are valid exercises
of the freedoms of speech and of the press. It submits that, in precipitately and unqualifiedly
restraining the holding and the reporting of exit polls, the Comelec gravely abused its discretion
and grossly violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution,
it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its
constitutional and statutory powers to promote a clean, honest, orderly and credible May 11, 1998
elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It
contends that "the conduct of exit surveys might unduly confuse and influence the voters," and
that the surveys were designed "to condition the minds of people and cause confusion as to who
are the winners and the [losers] in the election," which in turn may result in "violence and anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional principle to
preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots," in
violation of Section 2, Article V of the Constitution;12 and relevant provisions of the Omnibus
Election Code.13 It submits that the constitutionally protected freedoms invoked by petitioner "are
not immune to regulation by the State in the legitimate exercise of its police power," such as in
the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear
and present danger of destroying the credibility and integrity of the electoral process," considering
that they are not supervised by any government agency and can in general be manipulated easily.
He insists that these polls would sow confusion among the voters and would undermine the official
tabulation of votes conducted by the Commission, as well as the quick count undertaken by the
Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be
more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our jurisprudence on the freedoms of speech
and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a
'preferred' right and, therefore, stands on a higher level than substantive economic or other
liberties. . . . [T]his must be so because the lessons of history, both political and legal, illustrate
that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom."14
Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech
or of the press.15 In the landmark case Gonzales v. Comelec,16 this Court enunciated that at the
very least, free speech and a free press consist of the liberty to discuss publicly and truthfully any
matter of public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth,
of securing participation by the people in social and political decision-making, and of maintaining
the balance between stability and change.17 It represents a profound commitment to the principle
that debates on public issues should be uninhibited, robust, and wide open.18 It means more than
the right to approve existing political beliefs or economic arrangements, to lend support to official
measures, or to take refuge in the existing climate of opinion on any of public consequence. And
paraphrasing the eminent Justice Oliver Wendell Holmes,19 we stress that the freedom
encompasses the thought we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms
of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all
times and under all circumstances.20 They are not immune to regulation by the State in the
exercise of its police power.21 While the liberty to think is absolute, the power to express such
thought in words and deeds has limitations.
In Cabansag v. Fernandez22 this Court had occasion to discuss two theoretical test in determining
the validity of restrictions to such freedoms, as follows:
These are the "clear and present danger" rule and the "dangerous tendency" rule. The
first, as interpreted in a number of cases, means that the evil consequence of the comment
or utterance must be "extremely serious and the degree of imminence extremely high"
before the utterance can be punished. The danger to be guarded against is the
"substantive evil" sought to be prevented. . . .23
The "dangerous tendency" rule, on the other hand, . . . may be epitomized as follows: if
the words uttered create a dangerous tendency which the state has a right to prevent,
then such words are punishable. It is not necessary that some definite or immediate acts
of force, violence, or unlawfulness be advocated. It is sufficient that such acts be
advocated in general terms. Nor is it necessary that the language used be reasonably
calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the
natural tendency and probable effect of the utterance be to bring about the substantive
evil which the legislative body seeks to prevent.24
Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its
earlier decisions in Primicias v. Fugoso25 and American Bible Society v. City of Manila;26 as well
as in later ones, Vera v. Arca,27 Navarro v. Villegas,28 Imbong v. Ferrer,29 Blo Umpar Adiong
v. Comelec30 and, more recently, in Iglesia ni Cristo v. MTRCB.31 In setting the standard or test
for the "clear and present danger" doctrine, the Court echoed the words of Justice Holmes: "The
question in every case is whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent. It is a question of proximity and degree."32
A limitation on the freedom of expression may be justified only by a danger of such substantive
character that the state has a right to prevent. Unlike in the "dangerous tendency" doctrine, the
danger must not only be clear but also present. "Present" refers to the time element; the danger
must not only be probable but very likely to be inevitable.33 The evil sought to be avoided must be
so substantive as to justify a clamp over one's mouth or a restraint of a writing instrument.34
Justification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction
is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity.35 And it is respondent's burden to overthrow such presumption.
Any act that restrains speech should be greeted with furrowed brows,36 so it has been said.
To justify a restriction, the promotion of a substantial government interest must be clearly
shown.37 Thus:
A government regulation is sufficiently justified if it is within the constitutional power of the
government, if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest.38
Hence, even though the government's purposes are legitimate and substantial, they cannot be
pursued by means that broadly stifle fundamental personal liberties, when the end can be more
narrowly achieved.39
The freedoms of speech and of the press should all the more be upheld when what is sought to
be curtailed is the dissemination of information meant. to add meaning to the equally vital right of
suffrage.40 We cannot support any ruling or order "the effect of which would be to nullify so vital a
constitutional right as free speech."41 When faced with borderline situations in which the freedom
of a candidate or a party to speak or the freedom of the electorate to know is invoked against
actions allegedly made to assure clean and free elections, this Court shall lean in favor of freedom.
For in the ultimate analysis, the freedom of the citizen and the State's power to regulate should
not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them,
the freedom to speak and the right to know are unduly curtailed.42
True, the government has a stake in protecting the fundamental right to vote by providing voting
places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to
preserve the sanctity and the integrity of the electoral process. However, in order to justify a
restriction of the people's freedoms of speech and of the press, the state's responsibility of
ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research data
which may be used to study influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit
poll data not only for election-day projections, but also for long-term research.43
 Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant
to its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election.
While admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] . . .
an exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise
thereof creates a clear and present danger to the community or it has a dangerous tendency." It
then contends that "an exit poll has the tendency to sow confusion considering the randomness
of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that
the results of such exit poll may not be in harmony with the official count made by the Comelec .
. . is ever present. In other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey,
the interviewees or participants are selected at random, so that the results will as much as
possible be representative or reflective of the general sentiment or view of the community or group
polled. Second, the survey result is not meant to replace or be at par with the official Comelec
count. It consists merely of the opinion of the polling group as to who the electorate in general
has probably voted for, based on the limited data gathered from polled individuals. Finally, not at
stake here are the credibility and the integrity of the elections, which are exercises that are
separate and independent from the exit polls. The holding and the reporting of the results of exit
polls cannot undermine those of the elections, since the former is only part of the latter. If at all,
the outcome of one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls — disorder and
confusion in the voting centers — does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without qualification as to whether the
polling is disruptive or not.44 Concededly, the Omnibus Election Code prohibits disruptive behavior
around the voting centers.45 There is no showing, however, that exit polls or the means to interview
voters cause chaos in voting centers. Neither has any evidence been presented proving that the
presence of exit poll reporters near an election precinct tends to create disorder or confuse the
voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any
purpose. The valuable information and ideas that could be derived from them, based on the
voters' answer to the survey questions will forever remain unknown and unexplored. Unless the
ban is restrained, candidates, researchers, social scientists and the electorate in general would
be deprived of studies on the impact of current events and of election-day and other factors on
voters' choices.1âwphi1.nêt
In Daily Herald Co. v. Munro,46 the US Supreme Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early returns, was unconstitutional because such
purpose was impermissible, and the statute was neither narrowly tailored to advance a state
interest nor the least restrictive alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify speech regulation. Just as
curtailing election-day broadcasts and newspaper editorials for the reason that they might
indirectly affect the voters' choices is impermissible, so is impermissible, so is regulating speech
via an exit poll restriction.47
The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open
any alternative channel of communication to gather the type of information obtained through exit
polling. On the other hand, there are other valid and reasonable ways and means to achieve the
Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit
surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only professional
survey groups may be allowed to conduct the same. Pollsters may be kept at a reasonable
distance from the voting center. They may be required to explain to voters that the latter may
refuse interviewed, and that the interview is not part of the official balloting process. The pollsters
may further be required to wear distinctive clothing that would show they are not election
officials.48 Additionally, they may be required to undertake an information campaign on the nature
of the exercise and the results to be obtained therefrom. These measures, together with a general
prohibition of disruptive behavior, could ensure a clean, safe and orderly election.
For its part, petitioner ABS-CBN explains its survey methodology as follows: (1) communities are
randomly selected in each province; (2) residences to be polled in such communities are also
chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on
their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results
are released to the public only on the day after the elections.49 These precautions, together with
the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without
consequently and unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and
the electorate. Quite the contrary, instead of disrupting elections, exit polls — properly conducted
and publicized — can be vital tools for the holding of honest, orderly, peaceful and credible
elections; and for the elimination of election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots
cast by the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so as to
be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden
is the association of voters with their respective votes, for the purpose of assuring that the votes
have been cast in accordance with the instructions of a third party. This result cannot, however,
be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom
they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation
of whom an elector has voted for is not compulsory, but voluntary. Voters may also choose not to
reveal their identities. Indeed, narrowly tailored countermeasures may be prescribed by the
Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without
transgressing the fundamental rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued by
the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
Separate Opinions
KAPUNAN, J., dissenting opinion;
I share the view of Justice Jose C. Vitug in his Separate Opinion that the case is technically moot.
Since the Comelec has not declared exit polls to be illegal and neither did the petitioner present
its methodology or system of conducting the exit polls to the poll body, the nullification of the
Comelec's questioned resolution is bereft of empirical basis. The decision of this Court constitutes
a mere academic exercise in view of the premature nature of the issues and the lack of
"concreteness" of the controversy. I wish however, to express my thoughts on a few material
points.
The majority opinion cites the general rules that any restrictions to freedom of expression would
be burdened with a presumption of invalidity and should be greeted with "furrowed brews."1 While
this has been the traditional approach, this rules does not apply where, as in this case, the
Comelec exercised its Constitutional functions of securing the secrecy and sanctity of the ballots
and ensuring the integrity of the elections. Thus, Mr. Justice Feliciano in National Press (NPC)
v. Comelec2 wrote:
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 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
right 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
The NPC decision holds that if the right to free speech collides with a norm of constitutional
stature,4 the rule on heavy presumption of invalidity does not apply.
Our Constitution mandates the Comelec to enforce and administer laws and regulations relative
to the conduct of elections and to secure the secrecy and sanctity of the ballots to ensure orderly,
honest, credible and peaceful elections.5 This Constitutional provision effectively displaces the
general presumption of invalidity in favor of the presumption that Comelec acted in the exercise
of its constitutionally mandated powers. If no presumption of invalidity arises, I see no occasion
for the application of the "clear and present danger test." As this Court, through Mr. Justice
Mendoza, succinctly observed:
. . . the clear-and-present danger test is not, however, a sovereign remedy for all free
speech problems. As has been pointed out by a thoughtful student of constitutional law, it
was originally formulated for the criminal law and only later appropriated for free speech
cases. For the criminal law is necessarily concerned with the line at which innocent
preparation ends and guilty conspiracy or attempt begins. Clearly, it is inappropriate as a
test for determining the constitutional validity of law which, like §11(b) of R.A. No. 6646,
are not concerned with the content of political ads but only with their incidents. To apply
the clear-and-present danger test to such regulatory measures would be like using a
sledgehammer to drive a nail when a regular hammer is all that is needed.6
On the matter of methodology in conducting polls, petitioner gave assurance that the exit poll
results will only be made public a day after the elections, in order to allay fears of "trending,"
"bandwagon-effect" or disruption. This offers little comfort considering the state of our country's
electoral system. Unlike in other countries where voting and counting are computerized, our
elections are characterized by snail-paced counting. It is not infrequent that postponement, failure
or annulment of elections occur in some areas designated as election hot spots.7 Such being the
case, exit poll results made public after the day of voting in the regular elections but before the
conduct of special elections in these areas may potentially pose the danger of "trending,"
"bandwagon-effect" and disruption of elections.
In view of the foregoing discussion, I believe the Comelec committed no abuse of discretion in
issuing the assailed temporary restraining order stopping petitioner from conducting exit polls. I,
therefore, vote to DENY the petition.

VITUG, J., separate opinion;

The instant petition, now technically moot, presents issues so significantly that a slights change
of circumstances can have a decisive effect on, and possibly spell a difference in, the final
outcome of the case. I am not inclined to take the case in an academic fashion and pass upon
the views expressed by either party in preemptive judgment.
While I understand what the ponencia is saying quite laudably, I also appreciate, upon the other
hand, the concern of the Commission on Elections, i.e., that the conduct of exit polls can have
some adverse effects on the need to preserve the sanctity of the ballot. The Commission performs
an indispensable task of ensuring free, honest, and orderly elections and of guarding against any
frustration of the true will of the people. Expectedly, it utilizes all means available within its power
and authority to prevent the electoral process from being manipulated and rendered an absurdity.
Like my colleagues, I greatly prize the freedom of expression but, so also, I cherish no less the
right of the people to express their will by means of the ballot. In any case, I must accept the
reality that the right to information and free speech is not illimitable and immune from the valid
exercise of an ever demanding and pervasive police power. Whether any kind of restraint should
be upheld or declared invalid in the proper balancing of interest is one that must be resolved at
any given moment, not on perceived circumstances, but on prevailing facts.
Neither of the advocations proffered by the parties in this instance, I believe, should be foreclosed
by the Court at this time.
I vote, therefore, to dismiss the petition on the foregoing thesis.

G.R. No. 147571 May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING
CORPORATION, doing business as MANILA STANDARD, petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research
institution conducting surveys in various fields, including economics, politics, demography, and
social development, and thereafter processing, analyzing, and publicly reporting the results
thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila
Standard, a newspaper of general circulation, which features news- worthy items of information
including election surveys. 1âwphi1.nêt
Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing
§5.4 of RA. No.9006 (Fair Election Act), which provides:
 Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days be-
fore an election.
The term "election surveys" is defined in §5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidate's popularity, qualifications, platforms or a matter of public discussion
in relation to the election, including voters preference for candidates or publicly discussed
issues during the campaign period (hereafter referred to as "Survey").
The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins –
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days be-
fore an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of the
elections both at the national and local levels and release to the media the results of such survey
as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the other hand,
states that it intends to publish election survey results up to the last day of the elections on May
14,2001.
Petitioners argue that the restriction on the publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech without any clear and present danger to justify
such restraint. They claim that SWS and other pollsters conducted and published the results of
surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election
day without causing confusion among the voters and that there is neither empirical nor historical
evidence to support the conclusion that there is an immediate and inevitable danger to tile voting
process posed by election surveys. They point out that no similar restriction is imposed on
politicians from explaining their opinion or on newspapers or broadcast media from writing and
publishing articles concerning political issues up to the day of the election. Consequently, they
contend that there is no reason for ordinary voters to be denied access to the results of election
surveys, which are relatively objective. 1âwphi1.nêt
Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by unscrupulous
and erroneous surveys just before the election. It contends that (1) the prohibition on the
publication of election survey results during the period proscribed by law bears a rational
connection to the objective of the law, i.e., the prevention of the debasement of the electoral
process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is
narrowly tailored to meet the "evils" sought to be prevented; and (3) the impairment of freedom of
expression is minimal, the restriction being limited both in duration, i.e., the last 15 days before
the national election and the last 7 days before a local election, and in scope as it does not prohibit
election survey results but only require timeliness. Respondent claims that in National Press Club
v. COMELEC,1 a total ban on political advertisements, with candidates being merely allocated
broadcast time during the so-called COMELEC space or COMELEC hour, was upheld by this
Court. In contrast, according to respondent, it states that the prohibition in §5.4 of RA. No. 9006
is much more limited.
For reasons hereunder given, we hold that §5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the press.
To be sure, §5.4Iays a prior restraint on freedom of speech, expression, and the press prohibiting
the publication of election survey results affecting candidates within the prescribed periods of
fifteen (15) days immediately preceding a national election seven (7) days before a local election.
Because of tile preferred status of tile constitutional rights of speech, expression, and he press,
such a measure is vitiated by a weighty presumption of invalidity.2 Indeed, any system of prior
restraints of expression comes to this Court bearing a heavy Presumption against its constitutional
validity. ...The Government thus carries a heavy burden of showing justification for in enforcement
of such restraint. "'3 There, thus a reversal of the normal presumption of validity that inheres in
every legislation.
Nor may it be argued that because of Art. IX-C, §4 of the Constitution, which gives the COMELEC
supervisory power to regulate the enjoyment or utilization of franchise for the operation of media
of communication, no presumption of invalidity attaches to a measure like §5.4. For as we have
pointed out in sustaining tile ban on media political advertisements, the grant of power to the
COMELEC under Art. IX-C, §4 is limited to ensuring "equal opportunity, time, space, and the right
to reply" as well as uniform and reasonable rates of charges for the use of such media facilities
"public information campaigns and forums among candidates."4 This Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the Purpose of securing equal opportunity among
candidates for political office, although such supervision or regulation may result in some
limitation of the rights of free speech and free press.5
MR JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and present
danger for determining the validity of §5.4. Indeed, as has been pointed out in Osmeña v.
COMELEC,6 this test was originally formulated for the criminal law and only later appropriated for
free speech cases. Hence, while it may be useful for determining the validity of laws dealing with
inciting to sedition or incendiary speech, it may not be adequate for such regulations as the one
in question. For such a test is concerned with questions of the gravity and imminence of the
danger as basis for curtailing free speech, which is not the case of §5.4 and similar regulations.
Instead, MR JUSTICE KAPUNAN purports to engage in a form of balancing by "weighing and
balancing the circumstances to determine whether public interest [in free, orderly,
honest, peaceful and credible elections] is served by the regulation of the free enjoyment of the
rights" (page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute
pressure on voters, the creation of bandwagon effect to favor candidates, misinformation, the
junking" of weak and "losing" candidates by their parties, and the form of election cheating called
"dagdag-bawas" and invoking the State's power to supervise media of information during the
election period (pages 11-16), the dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, It may be
seen that its limiting impact on the rights of free speech and of the press is not unduly
repressive or unreasonable. In Indeed, it is a mere restriction, not an absolute prohibition,
on the publication of election surveys. It is limited in duration; it applies only during the
period when the voters are presumably contemplating whom they should elect and when
they are most susceptible to such unwarranted persuasion. These surveys may be
published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh the
value of freedom of expression. Instead, reliance is placed on Art. IX-C, §4. As already stated,
the purpose of Art. IX-C, §4 is to "ensure equal opportunity, time, and space and the right of reply,
including reasonable, equal rates therefor for public information campaigns and forums among
candidates. " Hence the validity of the ban on media advertising. It is noteworthy that R.A. No.
9006, § 14 has lifted the ban and now allows candidates to advertise their candidacies in print
and broadcast media. Indeed, to sustain the ban on the publication of survey results would
sanction the censorship of all speaking by candidates in an election on the ground that the usual
bombasts and hyperbolic claims made during the campaigns can confuse voters and thus debase
the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc balancing
predictably results in sustaining the challenged legislation and leaves freedom of speech,
expression, and the press with little protection. For anyone who can bring a plausible justification
forward can easily show a rational connection between the statute and a legitimate governmental
purpose. In contrast, the balancing of interest undertaken by then Justice Castro
in Gonzales v. COMELEC,7 from which the dissent in this case takes its cue, was a strong one
resulting in his conclusion that , §50-B of R.A. No. 4880, which limited the period of election
campaign and partisan political activity, was an unconstitutional abridgment of freedom of
expression.
Nor can the ban on election surveys be justified on the ground that there are other countries - 78,
according to the Solicitor General, while the dissent cites 28 - which similarly impose restrictions
on the publication of election surveys. At best this survey is inconclusive. It is note worthy that in
the United States no restriction on the publication of election survey results exists. It cannot be
argued that this is because the United States is a mature democracy. Neither are there laws
imposing an embargo on survey results, even for a limited period, in other countries. As pointed
out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland,
Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which
are no older nor more mature than the Philippines in political development, do not restrict the
publication of election survey results.
What test should then be employed to determine the constitutional validity of §5.4? The United
States Supreme Court, through Chief Justice Warren, held in United States v. O 'Brien:
[A] Government regulation is sufficiently justified [1] if it is within the constitutional power
of the Government; [2] if it furthers an important or substantial governmental interest; [3]
if the governmental interest is unrelated to the suppression of free expression; and [4] if
the incidental restriction on alleged First Amendment freedoms [of speech, expression
and press] is no greater than is essential to the furtherance of that interest.8
This is so far the most influential test for distinguishing content-based from content neutral
regulations and is said to have "become canonical in the review of such laws."9 is noteworthy that
the O 'Brien test has been applied by this Court in at least two cases.10
Under this test, even if a law furthers an important or substantial governmental interest, it should
be invalidated if such governmental interest is "not unrelated to the Expression of free
expression." Moreover, even if the purpose is unrelated to the suppression of free speech, the
law should nevertheless be invalidated if the restriction on freedom of expression is greater than
is necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to §5.4.
>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of
expression to the asserted governmental interest makes such interest "not related to the
suppression of free expression." By prohibiting the publication of election survey results because
of the possibility that such publication might undermine the integrity of the election, §5.4 actually
suppresses a whole class of expression, while allowing the expression of opinion concerning the
same subject matter by newspaper columnists, radio and TV commentators, armchair theorists,
and other opinion takers. In effect, §5.4 shows a bias for a particular subject matter, if not
viewpoint, by referring personal opinion to statistical results. The constitutional guarantee of
freedom of expression means that "the government has no power to restrict expression because
of its message, its ideas, its subject matter, or its content."11 The inhibition of speech should be
upheld only if the expression falls within one of the few unprotected categories dealt with
in Chaplinsky v. New Hampshire, 12 thus:
There are certain well-defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words
- those which by their very utterance inflict injury or tend to incite an immediate breach of
the peace. [S]uch utterances are no essential part of any exposition of ideas, and are of
such slight social value as a step to truth that any benefit that may be derived from them
is clearly outweighed by the social interest in order and morality
Nor is there justification for the prior restraint which §5.4Iays on protected speech. Near v.
Minnesota,13 it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the limitation
has been recognized only in exceptional cases…. No one would question but that a
government might prevent actual obstruction to its recruiting service or the publication of
the sailing dates transports or the number and location of troops. On similar grounds, the
primary requirements of decency may be enforced against obscene publications. The
security of the community life may be protected against incitements to acts of violence
and overthrow by force of orderly government…
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be
justified on the ground that it is only for a limited period and is only incidental. The prohibition may
be for a limited time, but the curtailment of the right of expression is direct, absolute, and
substantial. It constitutes a total suppression of a category of speech and is not made less so
because it is only for a period of fifteen (15) days immediately before a national election and seven
(7) days immediately before a local election. ..
This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid
in National Press Club v. COMELEC,14 and Osmeña v. COMELEC.15 For the ban imposed by
R.A. No. 6646, §11(b) is not only authorized by a specific constitutional provision,16 but it also
provided an alternative so that, as this Court pointed out in Osmeña, there was actually no ban
but only a substitution of media advertisements by the COMELEC space and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the suppression
of speech and the resulting restriction of free expression is only incidental, §5.4 nonetheless fails
to meet criterion [4] of the O 'Brien test, namely, that the restriction be not greater than is
necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of
last-minute pressure on voters, the creation of bandwagon effect, "junking" of weak or "losing"
candidates, and resort to the form of election cheating called "dagdag-bawas." Praiseworthy as
these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental
right of expression, when such aim can be more narrowly pursued by punishing
unlawful acts, rather than speech because of apprehension that such speech creates the danger
of such evils. Thus, under the Administrative Code of 1987,17 the COMELEC is given the power:
To stop any illegal activity, or confiscate, tear down, and stop
any unlawful, libelous, misleading or false election propaganda, after due notice and
hearing.
This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this
power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters.
Candidates can have their own surveys conducted. No right of reply can be invoked by others.
No principle of equality is involved. It is a free market to which each candidate brings his ideas.
As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the Government
can deal with this natural-enough tendency of some voters. Some voters want to be identified with
the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited
by suppressing the publication of survey results, which are a form of expression? It has been held
that "[mere] legislative preferences or beliefs respecting matters of public convenience may well
support regulation directed at other personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of democratic institutions."18
To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the
freedom of expression, (2) it is a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3) the governmental interest sought to
be promoted can be achieved by means other than suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its
decisions, orders, or resolution may be reviewed by this Court only certiorari. The flaws in this
argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, order, or
resolution" within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintain that
Resolution 3636 was "rendered" by the Commission. However, the Resolution does not purport
to adjudicate the right of any party. It is not an exercise by the COMELEC of its adjudicatory power
to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated
to implement the provisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim that
this petition for prohibition is inappropriate. Prohibition has been fund appropriate for testing the
constitutionality of various election laws, rules, and regulations.19
WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006 §24(h) of
COMELEC Resolution 3636, March 1, 2001, are declared unconstitutional. 1âwphi1.nêt
SO ORDERED.1âwphi1.nêt
Davide, JI:, C.J., Vitug, and Gonzaga-Reyes, JJ., concur.

A.M. No. 01-4-03-S.C. June 29, 2001

RE: REQUEST RADIO-TV COVERAGE OF THE TRIAL OF IN THE SANDIGANBAYAN OF
THE PLUNDER CASES AGAINST THE FORMER PRESIDENT JOSEPH E. ESTRADA.
SECRETARY OF JUSTICE HERNANDO PEREZ, KAPISANAN NG MGA BRODKASTER NG
PILIPINAS, CESAR SARINO, RENATO CAYETANO and ATTY. RICARDO ROMULO,
petitioners,
vs.
JOSEPH E. ESTRADA and INTEGRATED BAR OF THE PHILIPPINES, oppositors.

The travails of a deposed President continue. The Sandiganbayan reels to start hearing the
criminal charges against Mr. Joseph E. Estrada. Media seeks to cover the event via live television
and live radio broadcast and endeavors this Court to allow it that kind of access to the
proceedings.
On 13 March 2001, the Kapisanan ng mga BroadKaster ng Pilipinas (KBP), an association
representing duly franchised and authorized television and radio networks throughout the country,
sent a letter requesting this Court to allow live media coverage of the anticipated trial of the
plunder and other criminal cases filed against former President Joseph E. Estrada before the
Sandiganbayan in order "to assure the public of full transparency in the proceedings of an
unprecedented case in our history."2 The request was seconded by Mr. Cesar N. Sarino in his
letter of 05 April 2001 to the Chief Justice and, still later, by Senator Renato Cayetano and
Attorney Ricardo Romulo.
On 17 April 2001, the Honorable Secretary of Justice Hernando Perez formally filed the instant
petition,3 submitting the following exegesis:
"3. The foregoing criminal cases involve the previous acts of the former highest official of
the land, members of his family, his cohorts and, therefore, it cannot be over emphasized
that the prosecution thereof, definitely involves a matter of public concern and interest, or
a matter over which the entire citizenry has the right to know, be informed and made aware
of.
"4. There is no gainsaying that the constitutional right of the people to be informed on
matters of public concern, as in the instant cases, can best be recognized, served and
satisfied by allowing the live radio and television coverage of the concomitant court
proceedings.
"5. Moreover, the live radio and television coverage of the proceedings will also serve the
dual purpose of ensuring the desired transparency in the administration of justice in order
to disabuse the minds of the supporters of the past regime of any and all unfounded
notions, or ill-perceived attempts on the part of the present dispensation, to railroad the
instant criminal cases against the Former President Joseph Ejercito Estrada."4
Public interest, the petition further averred, should be evident bearing in mind the right of the
public to vital information affecting the nation.
In effect, the petition seeks a re-examination of the 23rd October 1991 resolution of this Court in
a case for libel filed by then President Corazon C. Aquino. The resolution read:
"The records of the Constitutional Commission are bereft of discussion regarding the
subject of cameras in the courtroom. Similarly, Philippine courts have not had the
opportunity to rule on the question squarely.
"While we take notice of the September 1990 report of the United States Judicial
Conference Ad Hoc Committee on Cameras in the Courtroom, still the current rule
obtaining in the Federal Courts of the United States prohibits the presence of television
cameras in criminal trials. Rule 53 of the Federal Rules of Criminal Procedure forbids the
taking of photographs during the progress of judicial proceedings or radio broadcasting of
such proceedings from the courtroom. A trial of any kind or in any court is a matter of
serious importance to all concerned and should not be treated as a means of
entertainment. To so treat it deprives the court of the dignity which pertains to it and
departs from the orderly and serious quest for truth for which our judicial proceedings are
formulated.
"Courts do not discriminate against radio and television media by forbidding the
broadcasting or televising of a trial while permitting the newspaper reporter access to the
courtroom, since a television or news reporter has the same privilege, as the news reporter
is not permitted to bring his typewriter or printing press into the courtroom.
"In Estes vs. Texas. the United States Supreme Court held that television coverage of
judicial proceedings involves an inherent denial of the due process rights of a criminal
defendant. Voting 5-4, the Court through Mr. Justice Clark identified four (4) areas of
potential prejudice which might arise from the impact of the cameras on the jury,
witnesses, the trial judge and the defendant. The decision in part pertinently stated:
 "Experience likewise has established the prejudicial effect of telecasting on
witnesses. Witnesses might be frightened, play to the camera, or become nervous.
They are subject to extraordinary out-of court influences which might affect their
testimony. Also, telecasting not only increases the trial judge's responsibility to
avoid actual prejudice to the defendant, it may as well affect his own performance.
Judges are human beings also and are subject to the same psychological
reactions as laymen. For the defendant, telecasting is a form of mental harassment
and subjects him to excessive public exposure and distracts him from the effective
presentation of his defense. 1âwphi1.nêt
'The television camera is a powerful weapon which intentionally or inadvertently
can destroy an accused and his case in the eyes of the public.'
"Representatives of the press have no special standing to apply for a writ of mandate to
compel a court to permit them to attend a trial, since within the courtroom, a reporter's
constitutional rights are no greater than those of any other member of the public. Massive
intrusion of representatives of the news media into the trial itself can so alter or destroy
the constitutionally necessary judicial atmosphere and decorum that the requirements of
impartiality imposed by due process of law are denied the defendant and a defendant in
a criminal proceeding should not be forced to run a gauntlet of reporters and
photographers each time he enters or leaves the courtroom.
"Considering the prejudice it poses to the defendant's right to due process as well as to
the fair and orderly administration of justice, and considering further that the freedom of
the press and the right of the people to information may be served and satisfied by less
distracting, degrading and prejudicial means, live radio and television coverage of court
proceedings shall not be allowed. Video footages of court hearings for news purposes
shall be restricted and limited to shots of the courtroom, the judicial officers, the parties
and their counsel taken prior to the commencement of official proceedings. No video shots
or photographs shall be permitted during the trial proper.
" Accordingly, in order to protect the parties' right to due process, to prevent the distraction
of the participants in the proceedings and in the last analysis, to avoid miscarriage of
justice, the Court resolved to PROHlBIT live radio and television coverage of court
proceedings. Video footage of court hearings for news purposes shall be limited and
restricted as above indicated."
Admittedly, the press is a mighty catalyst in awakening public consciousness, and it has become
an important instrument in the quest for truth. 5 Recent history exemplifies media's invigorating
presence, and its contribution to society is quite impressive. The Court, just recently, has taken
judicial notice of the enormous effect of media in stirring public sentience during the impeachment
trial, a partly judicial and partly political exercise, indeed the most-watched program in the boob-
tubes during those times, that would soon culminate in EDSA II.
The propriety of granting or denying the instant petition involve the weighing out of the
constitutional guarantees of freedom of the press and the right to public information, on the one
hand, and the fundamental rights of the accused, on the other hand, along with the constitutional
power of a court to control its proceedings in ensuring a fair and impartial trial.6
When these rights race against one another, jurisprudence7 tells us that the right of the accused
must be preferred to win.
With the possibility of losing not only the precious liberty but also the very life of an accused, it
behooves all to make absolutely certain that an accused receives a verdict solely on the basis of
a just and dispassionate judgment, a verdict that would come only after the presentation of
credible evidence testified to by unbiased witnesses unswayed by any kind of pressure, whether
open or subtle, in proceedings that are devoid of histrionics that might detract from its basic aim
to ferret veritable facts free from improper influence,8 and decreed by a judge with an unprejudiced
mind, unbridled by running emotions or passions.
Due process guarantees the accused a presumption of innocence until the contrary is proved in
a trial that is not lifted above its individual settings nor made an object of public's attention9 and
where the conclusions reached are induced not by any outside force or influence10 but only by
evidence and argument given in open court, where fitting dignity and calm ambiance is
demanded.
Witnesses and judges may very well be men and women of fortitude, able to thrive in hardy
climate, with every reason to presume firmness of mind and resolute endurance, but it must also
be conceded that "television can work profound changes in the behavior of the people it focuses
on."11
Even while it may be difficult to quantify the influence, or pressure that media can bring to bear
on them directly and through the shaping of public opinion, it is a fact, nonetheless, that, indeed,
it does so in so many ways and in varying degrees. The conscious or unconscious effect that
such a coverage may have on the testimony of witnesses and the decision of judges cannot be
evaluated but, it can likewise be said, it is not at all unlikely for a vote of guilt or innocence to yield
to it.12 It might be farcical to build around them an impregnable armor against the influence of the
most powerful media of public opinion.13
To say that actual prejudice should first be present would leave to near nirvana the subtle threats
to justice that a disturbance of the mind so indispensable to the calm and deliberate dispensation
of justice can create.14 The effect of television may escape the ordinary means of proof, but it is
not far-fetched for it to gradually erode our basal conception of a trial such as we know it now. 15
An accused has a right to a public trial but it is a right that belongs to him, more than anyone else,
where his life or liberty can be held critically in balance. A public trial aims to ensure that he is
fairly dealt with and would not be unjustly condemned and that his rights are not compromised in
secrete conclaves of long ago. A public trial is not synonymous with publicized trial; it only implies
that the court doors must be open to those who wish to come, sit in the available seats, conduct
themselves with decorum and observe the trial process. In the constitutional sense, a courtroom
should have enough facilities for a reasonable number of the public to observe the proceedings,
not too small as to render the openness negligible and not too large as to distract the trial
participants from their proper functions, who shall then be totally free to report what they have
observed during the proceedings.16
The courts recognize the constitutionally embodied freedom of the press and the right to public
information. It also approves of media's exalted power to provide the most accurate and
comprehensive means of conveying the proceedings to the public and in acquainting the public
with the judicial process in action; nevertheless, within the courthouse, the overriding
consideration is still the paramount right of the accused to due process17 which must never be
allowed to suffer diminution in its constitutional proportions. Justice Clark thusly pronounced,
"while a maximum freedom must be allowed the press in carrying out the important function of
informing the public in a democratic society, its exercise must necessarily be subject to the
maintenance of absolute fairness in the judicial process."18
This Court, in the instance19 already mentioned, citing Estes vs. Texas,20 the United States
Supreme Court holding the television coverage of judicial proceedings as an inherent denial of
due process rights of an accused, also identified the following as being likely prejudices:
 "1. The potential impact of television x x x is perhaps of the greatest significance. x x x.
From the moment the trial judge announces that a case will be televised it becomes a
cause celebre. The whole community, x x x becomes interested in all the morbid details
surrounding it. The approaching trial immediately assumes an important status in the
public press and the accused is highly publicized along with the offense with which he is
charged. Every juror carries with him into the jury box these solemn facts and thus
increases the chance of prejudice that is present in every criminal case. x x x.
"2. The quality of the testimony in criminal trials will often be impaired. The impact upon a
witness of the knowledge that he is being viewed by a vast audience is Simply incalculable.
Some may be demoralized and frightened, some cocky and given to overstatement;
memories may falter, as with anyone speaking publicly, and accuracy of statement may
be severely undermined. x x x. Indeed, the mere fact that the trial is to be televised might
render witnesses reluctant to appear and thereby impede the trial as well as the discovery
of the truth.
"3. A major aspect of the problem is the additional responsibilities the presence of
television places on the trial judge. His job is to make certain that the accused receives a
fair trial. This most difficult task requires his undivided attention. x x x
"4. Finally, we cannot ignore the impact of courtroom television on the defendant. Its
presence is a form of mental if not physical-harassment, resembling a police line-up or the
third degree. The inevitable close-up of his gestures and expressions during the ordeal of
his trial might well transgress his personal sensibilities, his dignity, and his ability to
concentrate on the proceedings before him -sometimes the difference between life and
death -dispassionately, freely and without the distraction of wide public surveillance. A
defendant on trial for a specific crime is entitled to his day in court, not in a stadium, or a
city or nationwide arena. The heightened public clamor resulting from radio and television
coverage will inevitably result in prejudice."
In his concurring opinion in Estes, Mr. Justice Harlan opined that live television and radio
coverage could have mischievous potentialities for intruding upon the detached atmosphere that
should always surround the judicial process.21
The Integrated Bar of the Philippines, in its Resolution of 16 Apri1 2001, expressed its own
concern on the live television and radio coverage of the criminal trials of Mr. Estrada; to
paraphrase: Live television and radio coverage can negate the rule on exclusion of witnesses
during the hearings intended to assure a fair trial; at stake in the criminal trial is not only the life
and liberty of the accused but the very credibility of the Philippine criminal justice system, and live
television and radio coverage of the trial could allow the "hooting throng" to arrogate unto
themselves the task of judging the guilt of the accused, such that the verdict of the court will be
acceptable only if popular; and live television and radio coverage of the trial will not subserve the
ends of justice but will only pander to the desire for publicity of a few grandstanding lawyers.
It may not be unlikely, if the minority position were to be adopted, to see protracted delays in the
prosecution of cases before trial courts brought about by petitions seeking a declaration of mistrial
on account of undue publicity and assailing a court a quo's action either allowing or disallowing
live media coverage of the court proceedings because of supposed abuse of discretion on the
part of the judge.
En passant, the minority would view the ponencia as having modified the case law on the matter.
Just to the contrary, the Court effectively reiterated its standing resolution of 23 October 1991.
Until 1991, the Court had yet to establish the case law on the matter, and when it did in its
23rd October resolution, it confirmed, in disallowing live television and radio coverage of court
proceedings, that "the records of the Constitutional Commission (were) bereft of discussion
regarding the subject of cameras in the courtroom" and that "Philippine courts (had) not (therefore)
had the opportunity to rule on the question squarely."
But were the cases decided by the U.S. courts and cited in the minority opinion really in point?
In Nebraska Press Association vs, Stewart,22 the Nebraska State trial judge issued an order
restraining news media from publishing accounts of confession or admissions made by the
accused or facts strongly implicating him. The order was struck down. In Richmond Newspaper;
Inc., vs, Virginia,23 the trial judge closed the courtroom to the public and all participants except
witnesses when they testify. The judge was reversed by the U.S. Supreme Court which ruled that
criminal trials were historically open. In Globe Newspaper vs. Superior Court,24 the US
Supreme Court voided a Massachusetts law that required trial judges to exclude the press and
the public from the courtroom during the testimony of a minor victim of certain sexual offenses.
Justice Steward, in Chandler vs. Florida,25 where two police officers charged with burglary
sought to overturn their conviction before the US Supreme Court upon the ground that the
television coverage had infringed their right to fair trial, explained that "the constitutional violation
perceived by the Estes Court did not stem from the physical disruption that might one day
disappear with technological advances in the television equipment but inhered, rather, in the
hypothesis that the mere presence of cameras and recording devices might have an effect on the
trial participants prejudicial to the accused."26
Parenthetically, the United States Supreme Court and other federal courts do not allow live
television and radio coverage of their proceedings.
The sad reality is that the criminal cases presently involved are of great dimensions so involving
as they do a former President of the Republic. It is undeniable that these cases have twice
become the nation's focal points in the two conflicting phenomena of EDSA II and EDSA III where
the magnitude of the events has left a still divided nation. Must these events be invited anew and
risk the relative stability that has thus far been achieved? The transcendental events in our midst
do not allow us to turn a blind eye to yet another possible extraordinary case of mass action being
allowed to now creep into even the business of the courts in the dispensation of justice under a
rule of law. At the very least, a change in the standing rule of the court contained in its resolution
of 23 October 1991 may not appear to be propitious.
Unlike other government offices, courts do not express the popular will of the people in any sense
which, instead, are tasked to only adjudicate justiciable controversies on the basis of what alone
is submitted before them.27 A trial is not a free trade of ideas, Nor is a competing market of
thoughts the known test of truth in a courtroom.28
The Court is not all that umnindful of recent technological and scientific advances but to chance
forthwith the life or liberty of any person in a hasty bid to use and apply them, even before ample
safety nets are provided and the concerns heretofore expressed are aptly addressed, is a price
too high to pay.
WHEREFORE, the petition is DENIED.
SO ORDERED.1âwphi1.nêt
Davide, Jr., C.J., Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Bellosillo, J. I join in the dissent of J. Puno.
Melo, J. I join the dissents.
Puno, J. Please see dissenting opinion.
Kapunan, J. See concurring opinion.
Mendoza, J. I concur in the majority opinion of Vitug, I. and join the separate opinion of Kapunan,
J.
Panganiban, J. See dissenting opinion.
Quisumbing, J. I join in the dissent of J. Puno.
Sandoval-Gutierrez, J. I concur. See my concurring opinion.
Ynares-Santiago, J. On leave.

G.R. Nos. 170270 & 179411 April 2, 2009

NEWSOUNDS BROADCASTING NETWORK INC. and CONSOLIDATED BROADCASTING
SYSTEM, INC., Petitioners,
vs.
HON. CEASAR G. DY, FELICISIMO G. MEER, BAGNOS MAXIMO, RACMA FERNANDEZ-
GARCIA and THE CITY OF CAUAYAN, Respondents.

Whenever the force of government or any of its political subdivisions bears upon to close down a
private broadcasting station, the issue of free speech infringement cannot be minimized, no matter
the legal justifications offered for the closure. In many respects, the present petitions offer a
textbook example of how the constitutional guarantee of freedom of speech, expression and of
the press may be unlawfully compromised. Tragically, the lower courts involved in this case failed
to recognize or assert the fundamental dimensions, and it is our duty to reverse, and to affirm the
Constitution and the most sacred rights it guarantees.
Before us are two petitions for review involving the same parties, the cases having been
consolidated by virtue of the Resolution of this Court dated 16 June 2008.1 Both petitions
emanated from a petition for mandamus2 filed with the Regional Trial Court (RTC) of Cauayan
City docketed as Special Civil Action No. Br. 20-171, the petition having been dismissed in a
Decision dated 14 September 2004 by the Cauayan City RTC, Branch 20.3 Consequently,
petitioners filed with the Court of Appeals a petition for certiorari under Rule 65 and an appeal to
the RTC decision. The appellate court ruled against petitioners in both instances. The petition in
G.R. No. 170270 assails the 27 October 2005 decision of the Court of Appeals in CA-G.R. SP
No. 87815,4 while the petition in G.R. 179411 assails the 30 May 2007 decision of the Court of
Appeals in C.A.-G.R. SP No. 88283.5
I.
Bombo Radyo Philippines ("Bombo Radyo") operates several radio stations under the AM and
FM band throughout the Philippines. These stations are operated by corporations organized and
incorporated by Bombo Radyo, particularly petitioners Newsounds Broadcasting Network, Inc.
("Newsounds") and Consolidated Broadcasting System, Inc. ("CBS"). Among the stations run by
Newsounds is Bombo Radyo DZNC Cauayan (DZNC), an AM radio broadcast station operating
out of Cauayan City, Isabela. CBS, in turn, runs Star FM DWIT Cauayan ("Star FM"), also
operating out of Cauayan City, airing on the FM band. The service areas of DZNC and Star FM
extend from the province of Isabela to throughout Region II and the Cordillera region.6
In 1996, Newsounds commenced relocation of its broadcasting stations, management office and
transmitters on property located in Minante 2, Cauayan City, Isabela. The property is owned by
CBS Development Corporation (CDC), an affiliate corporation under the Bombo Radyo network
which holds title over the properties used by Bombo Radyo stations throughout the country. 7 On
28 June 1996, CDC was issued by the then municipal government of Cauayan a building permit
authorizing the construction of a commercial establishment on the property.8 On 5 July 1996, the
Housing and Land Use Regulatory Board (HLURB) issued a Zoning Decision certifying the
property as commercial.9 That same day, the Office of the Municipal Planning and Development
Coordinator (OMPDC) of Cauayan affirmed that the commercial structure to be constructed by
CDC conformed to local zoning regulations, noting as well that the location "is classified as a
Commercial area."10 Similar certifications would be issued by OMPDC from 1997 to 2001.11
A building was consequently erected on the property, and therefrom, DZNC and Star FM operated
as radio stations. Both stations successfully secured all necessary operating documents,
including mayor’s permits from 1997 to 2001.12 During that period, CDC paid real property taxes
on the property based on the classification of the land as commercial.13
All that changed beginning in 2002. On 15 January of that year, petitioners applied for the renewal
of the mayor’s permit. The following day, the City Assessor’s Office in Cauayan City noted on
CDC’s Declaration of Real Property filed for 2002 confirmed that based on the existing file, CDC’s
property was classified as "commercial."14 On 28 January, representatives of petitioners formally
requested then City Zoning Administrator-Designate Bagnos Maximo (Maximo) to issue a zoning
clearance for the property.15 Maximo, however, required petitioners to submit "either an approved
land conversion papers from the Department of Agrarian Reform (DAR) showing that the property
was converted from prime agricultural land to commercial land, or an approved resolution from
the Sangguniang Bayan or Sangguniang Panglungsod authorizing the re-classification of the
property from agricultural to commercial land."16 Petitioners had never been required to submit
such papers before, and from 1996 to 2001, the OMPDC had consistently certified that the
property had been classified as commercial.
Due to this refusal by Maximo to issue the zoning clearance, petitioners were unable to secure a
mayor’s permit. Petitioners filed a petition for mandamus17 with the Regional Trial Court (RTC) of
Cauayan City to compel the issuance of the 2002 mayor’s permit. The case was raffled to Branch
19 of the Cauayan City RTC. When the RTC of Cauayan denied petitioners’ accompanying
application for injunctive relief, they filed a special civil action for certiorari with the Court of
Appeals,18 but this would be dismissed by the appellate court due to the availability of other
speedy remedies with the trial court. In February of 2003, the RTC dismissed the mandamus
action for being moot and academic.19
In the meantime, petitioners sought to obtain from the DAR Region II Office a formal recognition
of the conversion of the CDC property from agricultural to commercial. The matter was docketed
as Adm. Case No. A-0200A-07B-002. Then DAR Region II Director Abrino L. Aydinan (Director
Aydinan) granted the application and issued an Order that stated that "there remains no doubt on
the part of this Office of the non-agricultural classification of subject land before the effectivity of
Republic Act No. 6657 otherwise known as the Comprehensive Agrarian Reform Law of
1988."20 Consequently, the DAR Region II Office ordered the formal exclusion of the property
from the Comprehensive Agrarian Reform Program, and the waiver of any requirement for formal
clearance of the conversion of the subject land from agricultural to non-agricultural use."21
On 16 January 2003, petitioners filed their applications for renewal of mayor’s permit for the year
2003, attaching therein the DAR Order. Their application was approved. However, on 4 March
2003, respondent Felicisimo Meer, Acting City Administrator of Cauayan City, wrote to petitioners
claiming that the DAR Order was spurious or void, as the Regional Center for Land Use Policy
Planning and Implementation (RCLUPPI) supposedly reported that it did not have any record of
the DAR Order. A series of correspondences followed wherein petitioners defended the
authenticity of the DAR Order and the commercial character of the property, while respondent
Meer demanded independent proof showing the authenticity of the Aydinan Order. It does not
appear though that any action was taken against petitioners by respondents in 2003, and
petitioners that year paid realty taxes on the property based on the classification that said property
is commercial.22
The controversy continued into 2004. In January of that year, petitioners filed their respective
applications for their 2004 mayor’s permit, again with the DAR Order attached to the same. A
zonal clearance was issued in favor of petitioners. Yet in a letter dated 13 January 2004,
respondent Meer claimed that no record existed of DAR Adm. Case No. A-0200A-07B-002 with
the Office of the Regional Director of the DAR or with the RCLUPPI.23 As a result, petitioners were
informed that there was no basis for the issuance in their favor of the requisite zoning clearance
needed for the issuance of the mayor’s permit.24
Another series of correspondences ensued between Meer and the station manager of DZNC,
Charmy Sabigan (Sabigan). Sabigan reiterated the authenticity of the DAR Order and the
commercial character of the property, while Meer twice extended the period for application of the
mayor’s permit, while reminding them of the need to submit the certifications from the DAR or the
Sangguniang Panlalawigan that the property had been duly converted for commercial use.
The deadline for application for the mayor’s permit lapsed on 15 February 2004, despite
petitioners’ plea for another extension. On 17 February 2004, respondents Meer and Racma
Fernandez-Garcia, City Legal Officer of Cauayan City, arrived at the property and closed the radio
stations. Petitioners proceeded to file a petition with the Commission on Elections (COMELEC)
seeking enforcement of the Omnibus Election Code, which prohibited the closure of radio stations
during the then-pendency of the election period. On 23 March 2004, the COMELEC issued an
order directing the parties to maintain the status prevailing before 17 February 2004, thus allowing
the operation of the radio stations, and petitioners proceeded to operate the stations the following
day. Within hours, respondent Mayor Ceasar Dy issued a Closure Order dated 24 March 2004,
stating therein that since petitioners did not have the requisite permits before 17 February 2004,
the status quo meant that the stations were not in fact allowed to operate. 25 Through the
intervention of the COMELEC, petitioners were able to resume operation of the stations on 30
March 2004. On 9 May 2004, or two days before the general elections of that year, the COMELEC
denied the petition filed by petitioners and set aside the status quo order.26 However, this
Resolution was reconsidered just 9 days later, or on 16 May 2004, and the COMELEC directed
the maintenance of the status quo until 9 June 2004, the date of the end of the election period.
Petitioners were thus able to continue operations until 10 June 2004, the day when respondents
yet again closed the radio stations. This closure proved to be more permanent.
By this time, the instant legal battle over the sought-after mayor’s permits had already been well
under way. On 15 April 2004, petitioners filed a petition for mandamus, docketed as SCA No. 20-
171, with the RTC of Cauayan City, Branch 20. The petition was accompanied by an application
for the issuance of temporary restraining order and writ of preliminary prohibitory injunction, both
provisional reliefs being denied by the RTC through an Order dated 20 April 2004. Respondents
duly filed an Answer with Counterclaims on 3 May 2004. Due to the aforementioned closure of
the radio stations on 10 June 2004, petitioners filed with the RTC a Motion for the Issuance of a
Writ of Preliminary Mandatory Injunction dated 15 June 2004, praying that said writ be issued to
allow petitioners to resume operations of the radio stations. No hearing would be conducted on
the motion, nor would it be formally ruled on by the RTC.
On 14 September 2004, the RTC rendered a Decision denying the petition for mandamus.27 The
RTC upheld all the arguments of the respondents, including their right to deny the sought after
mayor’s permit unless they were duly satisfied that the subject property has been classified as
commercial in nature. The Decision made no reference to the application for a writ of preliminary
mandatory injunction. Petitioners filed a motion for reconsideration,28 citing the trial court’s failure
to hear and act on the motion for preliminary mandatory injunction as a violation of the right to
due process, and disputing the RTC’s conclusions with respect to their right to secure the mayor’s
permit. This motion was denied in an Order dated 1 December 2004.
Petitioners initiated two separate actions with the Court of Appeals following the rulings of the
RTC. On 13 December 2004, they filed a Petition for Certiorari under Rule 65, docketed as CA
G.R. No. 87815, raffled to the Fourteenth Division.29 This petition imputed grave abuse of
discretion on the part of the RTC for denying their application for preliminary mandatory injunction.
On the same day, petitioners also filed a Notice of Appeal with the RTC, this time in connection
with the denial of their petition for mandamus. This appeal was docketed as CA G.R. SP No.
88283 and raffled to the Eleventh Division.
Petitioners lost both of their cases with the Court of Appeals. On 27 October 2005, the Court of
Appeals in CA G.R. No. 87815 dismissed the Petition for Certiorari, ruling that the RTC did not
commit any grave abuse of discretion in impliedly denying the application for preliminary
mandatory injunction. On 30 May 2007, the Court of Appeals in CA-G.R. SP No. 88283 denied
the appeal by certiorari, affirming the right of the respondents to deny petitioners their mayor’s
permits. On both occasions, petitioners filed with this Court respective petitions for review under
Rule 45 – the instant petitions, now docketed as G.R. Nos. 170270 and 179411.
On 23 January 2006, the Court in G.R. No. 170270 issued a writ of preliminary injunction,
"enjoining respondents from implementing the closure order dated March 24, 2005, or otherwise
interfering with the operations of Bombo Radyo DZNC Cauayan (NBN) and STAR FM DWIT
Cauayan (CBS) in Cauayan City until final orders from this Court."30 On 21 January 2008, the
Court resolved to consolidate G.R. No. 170270 with G.R. No. 179411, which had been initially
dismissed outright but was reinstated on even date.31
Certiorari lies in both instances.
II.
The fundamental constitutional principle that informs our analysis of both petitions is the freedom
of speech, of expression or the press.32 Free speech and free press may be identified with the
liberty to discuss publicly and truthfully any matter of public interest without censorship and
punishment. There is to be no previous restraint on the communication of views or subsequent
liability whether in libel suits, prosecution for sedition, or action for damages, or contempt
proceedings unless there be a clear and present danger of substantive evil that Congress has a
right to prevent.33
Petitioners have taken great pains to depict their struggle as a textbook case of denial of the right
to free speech and of the press. In their tale, there is undeniable political color. They admit that in
2001, Bombo Radyo "was aggressive in exposing the widespread election irregularities in Isabela
that appear to have favored respondent Dy and other members of the Dy political
dynasty."34 Respondent Ceasar Dy is the brother of Faustino Dy, Jr., governor of Isabela from
2001 until he was defeated in his re-election bid in 2004 by Grace Padaca, a former assistant
station manager at petitioners’ own DZNC Bombo Radyo.35 A rival AM radio station in Cauayan
City, DWDY, is owned and operated by the Dy family.36 Petitioners likewise direct our attention to
a 20 February 2004 article printed in the Philippine Daily Inquirer where Dy is quoted as intending
"to file disenfranchisement proceedings against DZNC-AM."37
The partisan component of this dispute will no doubt sway many observers towards one opinion
or the other, but not us. The comfort offered by the constitutional shelter of free expression is
neutral as to personality, affinity, ideology and popularity. The judges tasked to enforce
constitutional order are expected to rule accordingly from the comfort of that neutral shelter.
Still, it cannot be denied that our Constitution has a systemic bias towards free speech. The
absolutist tenor of Section 4, Article III testifies to that fact. The individual discomforts to particular
people or enterprises engendered by the exercise of the right, for which at times remedies may
be due, do not diminish the indispensable nature of free expression to the democratic way of life.
The following undisputed facts bring the issue of free expression to fore. Petitioners are
authorized by law to operate radio stations in Cauayan City, and had been doing so for some
years undisturbed by local authorities. Beginning in 2002, respondents in their official capacities
have taken actions, whatever may be the motive, that have impeded the ability of petitioners to
freely broadcast, if not broadcast at all. These actions have ranged from withholding permits to
operate to the physical closure of those stations under color of legal authority. While once
petitioners were able to broadcast freely, the weight of government has since bore down upon
them to silence their voices on the airwaves. An elementary school child with a basic
understanding of civics lessons will recognize that free speech animates these cases.
Without taking into account any extenuating circumstances that may favor the respondents, we
can identify the bare acts of closing the radio stations or preventing their operations as an act of
prior restraint against speech, expression or of the press. Prior restraint refers to official
governmental restrictions on the press or other forms of expression in advance of actual
publication or dissemination.38 While any system of prior restraint comes to court bearing a heavy
burden against its constitutionality,39 not all prior restraints on speech are invalid.40
Nonetheless, there are added legal complexities to these cases which may not be necessarily
accessible to the layperson. The actions taken by respondents are colored with legal authority,
under the powers of local governments vested in the Local Government Code (LGC), or more
generally, the police powers of the State. We do not doubt that Local Government Units (LGU)
are capacitated to enact ordinances requiring the obtention of licenses or permits by businesses,
a term defined elsewhere in the LGC as "trade or commercial activity regularly engaged in as a
means of livelihood or with a view to profit."
And there is the fact that the mode of expression restrained in these cases – broadcast – is not
one which petitioners are physically able to accomplish without interacting with the regulatory arm
of the government. Expression in media such as print or the Internet is not burdened by such
requirements as congressional franchises or administrative licenses which bear upon broadcast
media. Broadcast is hampered by its utilization of the finite resources of the electromagnetic
spectrum, which long ago necessitated government intervention and administration to allow for
the orderly allocation of bandwidth, with broadcasters agreeing in turn to be subjected to
regulation. There is no issue herein that calls into question the authority under law of petitioners
to engage in broadcasting activity, yet these circumstances are well worth pointing out if only to
provide the correct perspective that broadcast media enjoys a somewhat lesser degree of
constitutional protection than print media or the Internet.
It emerges then that there exists tension between petitioners’ right to free expression, and
respondents’ authority by law to regulate local enterprises. What are the rules of adjudication that
govern the judicial resolution of this controversy?
B.
That the acts imputed against respondents constitute a prior restraint on the freedom of
expression of respondents who happen to be members of the press is clear enough. There is a
long-standing tradition of special judicial solicitude for free speech, meaning that governmental
action directed at expression must satisfy a greater burden of justification than governmental
action directed at most other forms of behavior.41 We had said in SWS v. COMELEC: "Because
of the preferred status of the constitutional rights of speech, expression, and the press, such a
measure is vitiated by a weighty presumption of invalidity. Indeed, ‘any system of prior restraints
of expression comes to this Court bearing a heavy presumption against its constitutional validity.
. . . The Government 'thus carries a heavy burden of showing justification for the enforcement of
such restraint.’ There is thus a reversal of the normal presumption of validity that inheres in every
legislation."42
At the same time, jurisprudence distinguishes between a content-neutral regulation, i.e., merely
concerned with the incidents of the speech, or one that merely controls the time, place or manner,
and under well defined standards; and a content-based restraint or censorship, i.e., the
restriction is based on the subject matter of the utterance or speech. 43 Content-based laws are
generally treated as more suspect than content-neutral laws because of judicial concern with
discrimination in the regulation of expression.44 Content-neutral regulations of speech or of
conduct that may amount to speech, are subject to lesser but still heightened scrutiny.45
Ostensibly, the act of an LGU requiring a business of proof that the property from which it operates
has been zoned for commercial use can be argued, when applied to a radio station, as content-
neutral since such a regulation would presumably apply to any other radio station or business
enterprise within the LGU.
However, the circumstances of this case dictate that we view the action of the respondents as a
content-based restraint. In their petition for mandamus filed with the RTC, petitioners make the
following relevant allegations:
6.1. With specific reference to DZNC, Newsounds, to this date, is engaged in discussing
public issues that include, among others, the conduct of public officials that are detrimental
to the constituents of Isabela, including Cauayan City. In view of its wide coverage, DZNC
has been a primary medium for the exercise of the people of Isabela of their constitutional
right to free speech. Corollarily, DZNC has always been at the forefront of the struggle to
maintain and uphold freedom of the press, and the people’s corollary right to freedom of
speech, expression and petition the government for redress of grievances.
6.2. Newsound’s only rival AM station in Cauayan and the rest of Isabela, DWDY, is owned
and operated by the family of respondent Dy.46
xxxx
35. Respondents closure of petitioners’ radio stations is clearly tainted with ill motives.
35.1. It must be pointed out that in the 2001 elections, Bombo Radyo was aggressive in exposing
the widespread election irregularities in Isabela that appear to have favored respondent Dy and
other members of the Dy political dynasty. It is just too coincidental that it was only after the 2001
elections (i.e., 2002) that the Mayor’s Office started questioning petitioners’ applications for
renewal of their mayor’s permits.
35.2. In an article found in the Philippine Daily inquirer dated 20 February 2004, respondent Dy
was quoted as saying that he will "disenfranchise the radio station." Such statement manifests
and confirms that respondents’ denial of petitioners’ renewal applications on the ground that the
Property is commercial is merely a pretext and that their real agenda is to remove petitioners from
Cauayan City and suppress the latter’s voice. This is a blatant violation of the petitioners’
constitutional right to press freedom.
A copy of the newspaper article is attached hereto as Annex "JJ."
35.3. The timing of respondents’ closure of petitioners’ radio stations is also very telling. The
closure comes at a most critical time when the people are set to exercise their right of suffrage.
Such timing emphasizes the ill motives of respondents.47
In their Answer with Comment48 to the petition for mandamus, respondents admitted that
petitioners had made such exposes during the 2001 elections, though they denied the nature and
truthfulness of such reports.49 They conceded that the Philippine Daily Inquirer story reported that
"Dy said he planned to file disenfranchisement proceedings against [DZNC]-AM."50 While
respondents assert that there are other AM radio stations in Isabela, they do not specifically refute
that station DWDY was owned by the Dy family, or that DZNC and DWDY are the two only stations
that operate out of Cauayan.51
Prior to 2002, petitioners had not been frustrated in securing the various local government
requirements for the operation of their stations. It was only in the beginning of 2002, after the
election of respondent Ceasar Dy as mayor of Cauayan, that the local government started to
impose these new requirements substantiating the conversion of CDC’s property for commercial
use. Petitioners admit that during the 2001 elections, Bombo Radyo "was aggressive in exposing
the widespread election irregularities in Isabela that appear to have favored Respondent Dy and
other members of the Dy political dynasty."52 Respondents’ efforts to close petitioners’ radio
station clearly intensified immediately before the May 2004 elections, where a former employee
of DZNC Bombo Radyo, Grace Padaca, was mounting a credible and ultimately successful
challenge against the incumbent Isabela governor, who happened to be the brother of respondent
Dy. It also bears notice that the requirements required of petitioners by the Cauayan City
government are frankly beyond the pale and not conventionally adopted by local governments
throughout the Philippines.
All those circumstances lead us to believe that the steps employed by respondents to ultimately
shut down petitioner’s radio station were ultimately content-based. The United States Supreme
Court generally treats restriction of the expression of a particular point of view as the paradigm
violation of the First Amendment.53 The facts confronting us now could have easily been drawn
up by a constitutional law professor eager to provide a plain example on how free speech may be
violated.
The Court is of the position that the actions of the respondents warrant heightened or strict
scrutiny from the Court, the test which we have deemed appropriate in assessing content-based
restrictions on free speech, as well as for laws dealing with freedom of the mind or restricting the
political process, of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection.54 The immediate
implication of the application of the "strict scrutiny" test is that the burden falls upon respondents
as agents of government to prove that their actions do not infringe upon petitioners’ constitutional
rights. As content regulation cannot be done in the absence of any compelling reason,55 the
burden lies with the government to establish such compelling reason to infringe the right to free
expression.
III.
We first turn to whether the implicit denial of the application for preliminary mandatory injunction
by the RTC was in fact attended with grave abuse of discretion. This is the main issue raised in
G.R. No. 170270.
To recall, the RTC on 20 April 2004 issued an order denying the prayer for the issuance of a writ
of preliminary injunction, claiming that "[t]here is insufficiency of allegation…[t]here is no certainty
that after the election period, the respondents will interfere with the operation of the radio stations
x x x which are now operating by virtue of the order of the COMELEC."56 Petitioners filed a motion
for reconsideration, which the RTC denied on 13 May 2004. The refusal of the RTC to grant
provisional relief gave way to the closure of petitioners’ radio stations on 10 June 2004, leading
for them to file a motion for the issuance of a writ of preliminary mandatory injunction on 25 June
2004. This motion had not yet been acted upon when on 14 September 2004, the RTC
promulgated its decision denying the petition for mandamus.
Among the arguments raised by petitioners in their motion for reconsideration before the RTC
was against the implied denial of their motion for the issuance of a writ of preliminary mandatory
injunction, claiming in particular that such implicit denial violated petitioners’ right to due process
of law since no hearing was conducted thereupon. However, when the RTC denied the motion
for reconsideration in its 1 December 2004 Order, it noted that its implied denial of the motion for
a writ of preliminary mandatory injunction was not a ground for reconsideration of its decision.
Petitioners maintain that the RTC acted with grave abuse of discretion when it impliedly denied
their motion for the issuance of a writ of preliminary mandatory injunction without any hearing.
The Court of Appeals pointed out that under Section 5 of Rule 58 of the 1997 Rules of Civil
Procedure, it is the granting of a writ of preliminary injunction that mandatorily requires a hearing.
The interpretation of the appellate court is supported by the language of the rule itself:
Sec. 5. Preliminary injunction not granted without notice; exception.― No preliminary injunction
shall be granted without hearing and prior notice to the party or person sought to be enjoined. If
it shall appear from facts shown by affidavits or by the verified application that great or irreparable
injury would result to the applicant before the matter can be heard on notice, the court to which
the application for preliminary injunction was made, may issue ex parte a temporary restraining
order to be effective only for a period of twenty (20) days from service on the party or person
sought to be enjoined, except as herein provided. x x x
Section 5 of Rule 58 prescribes a mandatory hearing and prior notice to the party or person sought
to be enjoined if preliminary injunction should be granted. It imposes no similar requirement if
such provisional relief were to be denied. We in fact agree with the Court of Appeals that "if on
the face of the pleadings, the applicant for preliminary injunction is not entitled thereto, courts may
outrightly deny the motion without conducting a hearing for the purpose."57 The Court is
disinclined to impose a mandatory hearing requirement on applications for injunction even if on
its face, injunctive relief is palpably without merit or impossible to grant. Otherwise, our trial courts
will be forced to hear out the sort of litigation-happy attention-deprived miscreants who abuse the
judicial processes by filing complaints against real or imaginary persons based on trivial or
inexistent slights.
We do not wish though to dwell on this point, as there is an even more fundamental point to
consider. Even as we decline to agree to a general that the denial of an application for injunction
requires a prior hearing, we believe in this case that petitioners deserved not only a hearing on
their motion, but the very writ itself.
As earlier stated, the burden of presuming valid the actions of respondents sought, fraught as
they were with alleged violations on petitioners’ constitutional right to expression, fell on
respondents themselves. This was true from the very moment the petition for mandamus was
filed. It was evident from the petition that the threat against petitioners was not wildly imagined,
or speculative in any way. Attached to the petition itself was the Closure Order dated 13 February
2004 issued by respondents against petitioners.58 There was no better evidence to substantiate
the claim that petitioners faced the live threat of their closure. Moreover, respondents in their
Answer admitted to issuing the Closure Order.59
At the moment the petition was filed, there was no basis for the RTC to assume that there was no
actual threat hovering over petitioners for the closure of their radio stations. The trial court should
have been cognizant of the constitutional implications of the case, and appreciated that the
burden now fell on respondents to defend the constitutionality of their actions. From that mindset,
the trial court could not have properly denied provisional relief without any hearing since absent
any extenuating defense offered by the respondents, their actions remained presumptively invalid.
Our conclusions hold true not only with respect to the implied denial of the motion for preliminary
injunction, but also with the initial denial without hearing on 20 April 2004 of the prayer for a writ
of preliminary injunction and temporary restraining order. Admittedly, such initial denial is not the
object of these petitions, yet we can observe that such action of the RTC was attended with grave
abuse of discretion, the trial court betraying ignorance of the constitutional implications of the
petition. With respect to the subsequent "implied denial" of the writ of preliminary mandatory
injunction, the grave abuse of discretion on the part of the trial court is even more glaring. At that
point, petitioners’ radio stations were not merely under threat of closure, they were already
actually closed. Petitioners’ constitutional rights were not merely under threat of infringement, they
were already definitely infringed.
The application of the strict scrutiny analysis to petitioners’ claims for provisional relief warrants
the inevitable conclusion that the trial court cannot deny provisional relief to the party alleging a
prima facie case alleging government infringement on the right to free expression without hearing
from the infringer the cause why its actions should be sustained provisionally. Such acts of
infringement are presumptively unconstitutional, thus the trial court cannot deny provisional relief
outright since to do so would lead to the sustention of a presumptively unconstitutional act. It
would be necessary for the infringer to appear in court and somehow rebut against the
presumption of unconstitutionality for the trial court to deny the injunctive relief sought for in cases
where there is a prima facie case establishing the infringement of the right to free expression.
Those above-stated guidelines, which pertain most particularly to the ex parte denial of provisional
relief in free expression cases, stand independently of the established requisites for a party to be
entitled to such provisional reliefs. With respect to writs of preliminary injunction, the requisite
grounds are spelled out in Section 3 of Rule 58 of the Rules of Court.
It may be pointed out that the application for preliminary mandatory injunction after petitioners’
radio stations had been closed was mooted by the RTC decision denying the petition for
mandamus. Ideally, the RTC should have acted on the motion asking for the issuance of the writ
before rendering its decision. Given the circumstances, petitioners were entitled to immediate
relief after they filed their motion on 25 June 2004, some two and a half months before the RTC
decision was promulgated on 14 September 2004. It is not immediately clear why the motion,
which had been set for hearing on 2 July 2004, had not been heard by the RTC, so we have no
basis for imputing bad faith on the part of the trial court in purposely delaying the hearing to render
it moot with the forthcoming rendition of the decision. Nonetheless, given the gravity of the
constitutional question involved, and the fact that the radio stations had already been actually
closed, a prudent judge would have strived to hear the motion and act on it accordingly
independent of the ultimate decision.
Since the prayer for the issuance of a writ of mandatory injunction in this case was impliedly
denied through the decision denying the main action, we have no choice but to presume that the
prayer for injunction was denied on the same bases as the denial of the petition for mandamus
itself. The time has come for us to review such denial, the main issue raised in G.R. No. 179411.
IV.
The perspective from which the parties present the matter for resolution in G.R. No. 179411 is
whether the property of CDC had been duly converted or classified for commercial use, with
petitioners arguing that it was while respondents claiming that the property remains agricultural in
character. This perspective, to our mind, is highly myopic and implicitly assumes that the
requirements imposed on petitioners by the Cauayan City government are in fact legitimate.
The LGC authorizes local legislative bodies to enact ordinances authorizing the issuance of
permits or licenses upon such conditions and for such purposes intended to promote the general
welfare of the inhabitants of the LGU.60 A municipal or city mayor is likewise authorized under the
LGC to "issue licenses and permits and suspend or revoke the same for any violation of the
conditions upon which said licenses or permits had been issued, pursuant to law or
ordinance."61 Generally, LGUs have exercised its authority to require permits or licenses from
business enterprises operating within its territorial jurisdiction.
A municipal license is essentially a governmental restriction upon private rights and is valid only
if based upon an exercise by the municipality of its police or taxing powers.62 The LGC subjects
the power of sanggunians to enact ordinances requiring licenses or permits within the parameters
of Book II of the Code, concerning "Local Taxation and Fiscal Matters." It also necessarily follows
that the exercise of this power should also be consistent with the Constitution as well as the other
laws of the land.
Nothing in national law exempts media entities that also operate as businesses such as
newspapers and broadcast stations such as petitioners from being required to obtain permits or
licenses from local governments in the same manner as other businesses are expected to do so.
While this may lead to some concern that requiring media entities to secure licenses or permits
from local government units infringes on the constitutional right to a free press, we see no concern
so long as such requirement has been duly ordained through local legislation and content-neutral
in character, i.e., applicable to all other similarly situated businesses.
Indeed, there are safeguards within the LGC against the arbitrary or unwarranted exercise of the
authority to issue licenses and permits. As earlier noted, the power of sanggunians to enact
ordinances authorizing the issuance of permits or licenses is subject to the provisions of Book
Two of the LGC. The power of the mayor to issue license and permits and suspend or revoke the
same must be exercised pursuant to law or ordinance.63
In the case of Cauayan City, the authority to require a mayor’s permit was enacted through
Ordinance No. 92-004, enacted in 1993 when Cauayan was still a municipality.1avvphi1.net We
quote therefrom:
Sec. 3A.01. Imposition of Fee. — There shall be imposed and collected an annual fee at the rates
provided hereunder for the issuance of Mayor’s Permit to every person that shall conduct
business, trade or activity within the Municipality of Cauayan.
The permit fee is payable for every separate or distinct establishment or place where the business
trade or activity is conducted. One line of business or activity does not become exempt by being
conducted with some other business or activity for which the permit fee has been paid.
xxxx
Sec. 3A.03. Application for Mayor’s Permit False Statements.― A written application for a permit
to operate a business shall be filed with the Office of the Mayor in three copies. The application
form shall set forth the name and address of the applicant, the description or style of business,
the place where the business shall be conducted and such other pertinent information or data as
may be required.
Upon submission of the application, it shall be the duty of the proper authorities to verify if the
other Municipal requirements regarding the operation of the business or activity are complied with.
The permit to operate shall be issued only upon such compliance and after the payment of the
corresponding taxes and fees as required by this revenue code and other municipal tax
ordinances.
Any false statement deliberately made by the applicant shall constitute sufficient ground for
denying or revoking the permit issued by the Mayor, and the applicant or licensee may further be
prosecuted in accordance with the penalties provided in this article.
A Mayor’s Permit shall be refused to any person:
(1) Whose business establishment or undertaking does not conform with zoning regulations and
safety, health and other requirements of the Municipality; (2) that has an unsettled tax obligations,
debt or other liability to the Municipal Government; and (3) that is disqualified under any provision
of law or ordinance to establish, or operate the business for which a permit is being applied.64
Petitioners do not challenge the validity of Ordinance No. 92-004. On its face, it operates as a
content-neutral regulation that does not impose any special impediment to the exercise of the
constitutional right to free expression. Still, it can be seen how under the veil of Ordinance No.
92-004 or any other similarly oriented ordinance, a local government unit such as Cauayan City
may attempt to infringe on such constitutional rights.
A local government can quite easily cite any of its regulatory ordinances to impose retaliatory
measures against persons who run afoul it, such as a business owned by an opponent of the
government, or a
crusading newspaper or radio station. While the ill-motives of a local government do not exempt
the injured regulatory subject from complying with the municipal laws, such laws themselves do
not insulate those ill-motives if they are attended with infringements of constitutional rights, such
as due process, equal protection and the right to free expression. Our system of laws especially
frown upon violations of the guarantee to free speech, expression and a free press, vital as these
are to our democratic regime.
Nothing in Ordinance No. 92-004 requires, as respondents did, that an applicant for a mayor’s
permit submit "either an approved land conversion papers from the DAR showing that its property
was converted from prime agricultural land to commercial land, or an approved resolution from
the Sangguniang Bayan or Sangguniang Panglungsod authorizing the re-classification of the
property from agricultural to commercial land."65 The aforecited provision which details the
procedure for applying for a mayor’s permit does not require any accompanying documents to
the application, much less those sought from petitioners by respondents. Moreover, Ordinance
No. 92-004 does not impose on the applicant any burden to establish that the property from where
the business was to operate had been duly classified as commercial in nature.
According to respondents, it was only in 2002 that "the more diligent Respondent Bagnos
Maximo" discovered "the mistake committed by his predecessor in the issuance of the Petitioners’
Zoning Certifications from 1996 to 2001."66 Assuming that were true, it would perhaps have given
cause for the local government in requiring the business so affected to submit additional
requirements not required of other applicants related to the classification of its property. Still, there
are multitude of circumstances that belie the claim that the previous certifications issued by the
OMPDC as to the commercial character of CDC’s property was incorrect.
On 5 July 1996, the HLURB issued a Zoning Decision that classified the property as
Commercial.67 The HLURB is vested with authority to "review, evaluate and approve or
disapprove…the zoning component of …subdivisions, condominiums or estate development
projects including industrial estates, of both the public and private sectors."68 In exercising such
power, the HLURB is required to use Development Plans and Zoning Ordinances of local
governments herein.69 There is no reason to doubt that when the HLURB acknowledged in 1996
that the property in question was commercial, it had consulted the development plans and zoning
ordinances of Cauayan.
Assuming that respondents are correct that the property was belatedly revealed as non-
commercial, it could only mean that even the HLURB, and not just the local government of
Cauayan erred when in 1996 it classified the property as commercial. Or, that between 1996 to
2002, the property somehow was reclassified from commercial to agricultural. There is neither
evidence nor suggestion from respondents that the latter circumstance obtained.
Petitioners are also armed with six certifications issued by the OMPDC for the consecutive years
1996 to 2001, all of which certify that the property is "classified as commercial area…in conformity
with the Land Use Plan of this municipality and does not in any way violate the existing Zoning
Ordinance of Cauayan, Isabela."70 In addition, from 1997 to 2004, petitioners paid real property
taxes on the property based on the classification of the property as commercial, without any
objections raised by respondents.71 These facts again tend to confirm that contrary to
respondents’ assertions, the property has long been classified as commercial.
Petitioners persuasively argue that this consistent recognition by the local government of
Cauayan of the commercial character of the property constitutes estoppel against respondents
from denying that fact before the courts. The lower courts had ruled that "the government of
Cauayan City is not bound by estoppel," but petitioners point out our holding in Republic v.
Sandiganbayan72 where it was clarified that "this concept is understood to refer to acts and
mistakes of its officials especially those which are irregular."73 Indeed, despite the general rule
that the State cannot be put in estoppel by the mistake or errors of its officials or agents, we have
also recognized, thus:
Estoppels against the public are little favored. They should not be invoked except in a rare
and unusual circumstances, and may not be invoked where they would operate to defeat
the effective operation of a policy adopted to protect the public. They must be applied with
circumspection and should be applied only in those special cases where the interests of
justice clearly require it. Nevertheless, the government must not be allowed to deal
dishonorably or capriciously with its citizens, and must not play an ignoble part or do a
shabby thing; and subject to limitations . . ., the doctrine of equitable estoppel may be
invoked against public authorities as well as against private individuals.[74]
Thus, when there is no convincing evidence to prove irregularity or negligence on the part of the
government official whose acts are being disowned other than the bare assertion on the part of
the State, we have declined to apply State immunity from estoppel.75 Herein, there is absolutely
no evidence other than the bare assertions of the respondents that the Cauayan City government
had previously erred when it certified that the property had been zoned for commercial use. One
would assume that if respondents were correct, they would have adduced the factual or legal
basis for their contention, such as the local government’s land use plan or zoning ordinance that
would indicate that the property was not commercial. Respondents did not do so, and the absence
of any evidence other than bare assertions that the 1996 to 2001 certifications were incorrect lead
to the ineluctable conclusion that respondents are estopped from asserting that the previous
recognition of the property as commercial was wrong.
The RTC nonetheless asserted that the previous certifications, issued by Deputy Zoning
Administrator Romeo N. Perez (Perez), were incorrect as "he had no authority to make the
conversion or reclassification of the land from agricultural to commercial."76 Yet contrary to the
premise of the RTC, the certifications issued by Perez did no such thing. Nowhere in the
certifications did it state that Perez was exercising the power to reclassify the land from agricultural
to commercial. What Perez attested to in those documents was that the property "is classified as
Commercial area," "in conformity with the Land Use Plan of this municipality and does not in any
way violate the existing Zoning Ordinance of Cauayan, Isabela." What these certifications confirm
is that according to the Land Use Plan and existing zoning ordinances of Cauayan, the property
in question is commercial.
Compounding its error, the RTC also stated that following Section 6577 of Rep. Act No. 6657, or
the Comprehensive Agrarian Reform Law, "only the DAR, upon proper application… can
authorize the reclassification or conversion of the use of the land from agricultural to residential,
commercial or industrial." The citation is misleading. Section 4 of the same law provides for the
scope of the agrarian reform program under the CARL as covering "all public and private
agricultural lands, as provided in Proclamation No. 131 and Executive Order No. 229, including
other lands of the public domain suitable for agriculture."78 Section 3(c) defines agricultural lands
as "land devoted to agricultural activity as defined in this Act and not classified as mineral, forest,
residential, commercial or industrial land."79 Obviously, if the property had already been classified
as commercial land at the time of the enactment of the CARL, it does not fall within the class of
agricultural lands which may be subject of conversion under Section 65 of that law. Section 65,
as relied upon by the trial court, would have been of relevance only if it had been demonstrated
by respondents that the property was still classified as agricultural when the CARL was enacted.
It is worth emphasizing that because the acts complained of the respondents led to the closure of
petitioners’ radio stations, at the height of election season no less, respondents actions warrant
strict scrutiny from the courts, and there can be no presumption that their acts are constitutional
or valid. In discharging the burden of establishing the validity of their actions, it is expected that
respondents, as a condition sine qua non, present the legal basis for their claim that the property
was not zoned commercially – the proclaimed reason for the closure of the radio stations. The
lower courts should have known better than to have swallowed respondents’ unsubstantiated
assertion hook, line and sinker.
We can also point out that aside from the evidence we have cited, petitioners’ contention that the
property had been duly classified for commercial use finds corroboration from the Order dated 14
March 2002 issued by DAR Region II Director Aydinan in Adm. Case No. A-0200A-07B-002. The
Order stated, viz:
Official records examined by this Office indicate continued use of subject land for purposes other
than agricultural since 1986. Back when Cauayan was still a municipality, the Office of the
Planning and Development Coordinator documented subject land under a commercial
classification. The Zoning Administrator deputized by the Housing and Land Use Regulatory
Board certified in 1998 that subject land’s attribution to the Commercial Zone "is in conformity
with the Land Use Plan of this municipality and does not in any way violate any existing Zoning
Ordinance of Cauayan, Isabela" adding the stipulation that a 15 meter setback from the centerline
of the National Road has to be observed.
If the area in which subject land is found was already classified non-agricultural even before urban
growth saw Cauayan became a city in 2001, assuming its reversion to the agricultural zone now
taxes logic. In any case, such a dubious assumption can find no support in any current land use
plan for Cauayan approved by the National Economic Development Authority.80
Petitioners’ citation of this Order has been viciously attacked by respondents, with approval from
the lower courts. Yet their challenges are quite off-base, and ultimately irrelevant.1avvphi1
The Order has been characterized by respondents as a forgery, based on a certification issued
by the Head of the RCLUPPI Secretariat that his office "has no official record nor case docketed
of the petition filed by CBS Development Corporation, represented by Charmy Sabigan and the
order issued bearing Docket No. ADM. Case No. A-02200A-07B-002 of the subject case, did not
emanate from RCLUPPI which has its own docketing system to applications for
conversion/exemption under DOJ Opinion No. 44, Series of 1990."81 Respondents thus hint at a
scenario where petitioners scrambled to create the Order out of nowhere in order to comply with
the sought-after requirements. However, an examination of the Order reveals an explanation that
attests to the veracity of the Order without denigrating from the truthfulness of the RCLUPPI
certification.
The Order notes that the petition had been filed by CDC with the DAR Region II "to, in effect,
officially remove from the agrarian reform sub-zone, in particular, and the broad agricultural, in
general, Petitioner’s land holding embraced by Transfer Certificate of Title No. T-254786 which is
located in [B]arangay Minante II of Cauayan City x x x."82 It goes on to state:
Herein petition can go through the normal procedure and, after the submission of certain
documentary supports that have to be gathered yet from various agencies, should be granted as
a matter of course. However, a new dimension has been introduced when the unformalized
conversion of the use of subject land from an agricultural to a non-agricultural mode has provided
an excuse to some official quarters to disallow existing commercial operation, nay, the broadcast
activities of Petitioner and, thus, perhaps threaten an essential freedom in our democratic setting,
the liberty of mass media organizations to dispense legitimate information to the public
unhampered by any extraneous obstacles. Hence, overarching public interest has made an
official declaration of subject landholding’s removal from the agricultural zone most urgent and,
thus immediate action on the case imperative.
To the extent that legitimate social interest are unnecessarily prejudiced otherwise, procedural
rules laid down by Government must yield to the living reason and to common sense in the
concrete world as long as the underlying principles of effective social-justice administration and
good governance are not unduly sacrificed. Thus, it is incumbent upon the Department of Agrarian
Reform, or DAR for brevity, to take into account in decision-making with respect to the case at
hand more basic principles in order to uphold the cause of conscientious and timely public service.
Needless to say, this Office, given the latitude of discretion inherent to it, can simultaneously
address the Petition and the procedural concerns collateral to it when subordinate offices tend to
treat such concerns as factors complicating the essential question or questions and view the
Petition as one that it is not amenable to ready problem-solving and immediate decision-making.
To forestall a cycle of helpless inaction or indecisive actions on the part of the subordinate offices
as customarily happens in cases of this nature, this Office shall proceed to treat the petition at
hand as a matter of original jurisdiction in line with its order of Assumption of Direct Jurisdiction
of 03 December 2001, a prior action taken, in general, by this Office over cases of Land-Tenure
Improvement, Failure, Problematic Coverage, Land-Owners’ and Special Concerns, Other
Potential Flash Points of Agrarian Conflict, and Long-Standing Problems Calling for Discretionary
Decision Making.83
In so many words, DAR Region II Director Aydinan manifested that he was assuming direct
jurisdiction over the petition, to the exclusion of subordinate offices such as that which issued the
certification at the behest of the respondents, the RCLUPPI of the DAR Region II Office. Thus,
the RCLUPPI could have validly attested that "the subject case did not emanate from the
RCLUPPI which has its own docketing system to applications for conversion/exemption under
DOJ Opinion No. 44, Series of 1990." One could quibble over whether Director Aydinan had
authority to assume direct jurisdiction over CDC’s petition to the exclusion of the RCLUPPI, but it
would not detract from the apparent fact that the Director of the DAR Region II Office did issue
the challenged Order. Assuming that the Order was issued without or in excess of jurisdiction, it
does not mean that the Order was forged or spurious, it would mean that the Order is void.
How necessary is it for us to delve into the validity or efficacy of the Aydinan Order? Certainly,
any conclusions we draw from the said Order are ultimately irrelevant to the resolution of these
petitions. The evidence is compelling enough that the property had already been duly classified
for commercial use long before the Aydinan Order was issued. Respondents, who had the burden
of proving that they were warranted in ordering the closure of the radio stations, failed to present
any evidence to dispute the long-standing commercial character of the property. The inevitable
conclusion is that respondents very well knew that the property, was commercial in character, yet
still proceeded without valid reason and on false pretenses, to refuse to issue the mayor’s permit
and subsequently close the radio stations. There is circumstantial evidence that these actions
were animated by naked political motive, by plain dislike by the Cauayan City powers-that-be of
the content of the broadcast emanating in particular from DZNC, which had ties to political
opponents of the respondents. Respondents were further estopped from disclaiming the previous
consistent recognition by the Cauayan City government that the property was commercially zoned
unless they had evidence, which they had none, that the local officials who issued such
certifications acted irregularly in doing so.
It is thus evident that respondents had no valid cause at all to even require petitioners to secure
"approved land conversion papers from the DAR showing that the property was converted from
prime agricultural land to commercial land." That requirement, assuming that it can be demanded
by a local government in the context of approving mayor’s permits, should only obtain upon clear
proof that the property from where the business would operate was classified as agricultural under
the LGU’s land use plan or zoning ordinances and other relevant laws. No evidence to that effect
was presented by the respondents either to the petitioners, or to the courts.
V.
Having established that respondents had violated petitioners’ legal and constitutional rights, let
us now turn to the appropriate reliefs that should be granted.
At the time petitioners filed their special civil action for mandamus on 15 April 2004, their radio
stations remained in operation despite an earlier attempt by respondents to close the same, by
virtue of an order rendered by the COMELEC. The mandamus action sought to compel
respondents to immediately issue petitioners’ zoning clearances and mayor’s permit for 2004.
During the pendency of the action for mandamus, respondents finally succeeded in closing the
radio stations, and it was possible at that stage for petitioners to have likewise sought the writs of
prohibition and/or certiorari. Petitioners instead opted to seek for a writ or preliminary mandatory
injunction from the trial court, a viable
recourse albeit one that remains ancillary to the main action for mandamus.
We had previously acknowledged that petitioners are entitled to a writ of preliminary mandatory
injunction that would have prevented the closure of the radio stations. In addition, we hold that
the writ of mandamus lies. Mandamus lies as the proper relief whenever a public officer unlawfully
neglects the performance of an act which the law specifically enjoins as a duty resulting from an
office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or
office to which such other is entitled, and there is no other plain, speedy and adequate remedy in
the ordinary course of law.84 For the year 2004, petitioners had duly complied with the
requirements for the issuance of the same mayor’s permit they had obtained without issue in
years prior. There was no basis for respondents to have withheld the zoning clearances, and
consequently the mayor’s permit, thereby depriving petitioners of the right to broadcast as certified
by the Constitution and their particular legislative franchise.
We turn to the issue of damages. Petitioners had sought to recover from respondents ₱8 Million
in temperate damages, ₱1 Million in exemplary damages, and ₱1 Million in attorney’s fees. Given
respondents’ clear violation of petitioners’ constitutional guarantee of free expression, the right to
damages from respondents is squarely assured by Article 32 (2) of the Civil Code, which provides:
Art. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following
rights and liberties of another person shall be liable to the latter for damages:
xxxx
(2) Freedom of speech;
We noted in Lim v. Ponce de Leon that "[p]ublic officials in the past have abused their powers on
the pretext of justifiable motives or good faith in the performance of their duties… [and] the object
of [Article 32 of the Civil Code] is to put an end to official abuse by plea of the good faith." 85 The
application of Article 32 not only serves as a measure of pecuniary recovery to mitigate the injury
to constitutional rights, it likewise serves notice to public officers and employees that any violation
on their part of any person’s guarantees under the Bill of Rights will meet with final reckoning.
The present prayer for temperate damages is premised on the existence of pecuniary injury to
petitioner due to the actions of respondents, the amount of which nevertheless being difficult to
prove.86 Temperate damages avail when the court finds that some pecuniary loss has been
suffered but its amount can not, from the nature of the case, be proved with certainty. 87 The
existence of pecuniary injury at bar cannot be denied. Petitioners had no way of knowing it when
they filed their petition, but the actions of respondents led to the closure of their radio stations
from June 2004 until this Court issued a writ of preliminary injunction in January 2006. 88 The lost
potential income during that one and a half year of closure can only be presumed as substantial
enough. Still, despite that fact, possibly unanticipated when the original amount for claimed
temperate damages was calculated, petitioners have maintained before this Court the same
amount, ₱8 Million, for temperate damages. We deem the amount of ₱4 Million "reasonable under
the circumstances."89
Exemplary damages can be awarded herein, since temperate damages are available. Public
officers who violate the Constitution they are sworn to uphold embody "a poison of wickedness
that may not run through the body politic."90 Respondents, by purposely denying the commercial
character of the property in order to deny petitioners’ the exercise of their constitutional rights and
their business, manifested bad faith in a wanton, fraudulent, oppressive and malevolent
manner.91 The amount of exemplary damages need not be proved where it is shown that plaintiff
is entitled to temperate damages,92 and the sought for amount of ₱1 Million is more than
appropriate. We likewise deem the amount of ₱500 Thousand in attorney’s fees as suitable under
the circumstances.
WHEREFORE, the petitions are GRANTED. The assailed decisions of the Court of Appeals and
the Regional Trial Court of Cauayan City, Branch 24, are hereby REVERSED and SET ASIDE.
The instant petition for mandamus is hereby GRANTED and respondents are directed to
immediately issue petitioners’ zoning clearances and mayor’s permits for 2004 to petitioners
Respondents Caesar G. Dy, Felicisimo G. Meer, Bagnos Maximo, and Racma Fernandez-Garcia
are hereby ORDERED to pay petitioners JOINTLY AND SEVERALLY the following amounts in
damages:
(1) FOUR MILLION PESOS (₱4,000,000.00) as TEMPERATE DAMAGES93;
(2) ONE MILLION PESOS (₱1,000,000.00) as EXEMPLARY DAMAGES;
(3) FIVE HUNDRED THOUSAND PESOS (₱ 500,000.00) as ATTORNEY’S FEES.
Costs against respondents.
SO ORDERED.
 G.R. No. 164437 May 15, 2009
HECTOR C. VILLANUEVA, Petitioner,
vs.
PHILIPPINE DAILY INQUIRER, INC., LETTY JIMENEZ MAGSANOC, ROSAURO G.
ACOSTA, JOSE MARIA NOLASCO, ARTEMIO T. ENGRACIA, JR., RAFAEL CHEEKEE, and
MANILA DAILY BULLETIN PUBLISHING CORPORATION, NAPOLEON G. RAMA, BEN F.
RODRIGUEZ, ARTHUR S. SALES, CRIS J. ICBAN, JR., Respondents.

This petition for review on certiorari assails the Amended Decision1 dated May 25, 2004 of the
Court of Appeals in CA-G.R. CV No. 54134, reversing the Decision2 of the Regional Trial Court
(RTC) of Negros Oriental, Dumaguete City, Branch 44 in Civil Case No. 206-B, which had
awarded damages to petitioner for respondents’ false reporting.
The basic facts in this case are uncomplicated.
Petitioner was one of the mayoralty candidates in Bais, Negros Oriental during the May 11, 1992
elections.
On March 30, 1990, Ricardo Nolan, another mayoralty candidate, petitioned for the
disqualification of petitioner from running in the elections. Said petition, however, was denied by
the COMELEC.3
Two days before the elections, or on May 9, 1992, respondent Manila Daily Bulletin Publishing
Corporation (Manila Bulletin) published the following story:
The Comelec has disqualified Hector G. Villanueva as Lakas-NUCD candidate for mayor of
Bais City for having been convicted in three administrative cases for grave abuse of authority
and harassment in 1987, while he was officer-in-charge of the mayor’s office of Bais
City.4 [Emphasis and underscoring supplied.]
A day before the elections or on May 10, 1992, respondent Philippine Daily Inquirer, Inc. (PDI)
also came out with a similar story, to wit:
The Commission on Elections disqualified Hector G. Villanueva as Lakas-NUCD candidate
for mayor of Bais City for having been convicted in three administrative cases for grave
abuse of authority and harassment in 1987, while he was the officer-in-charge of the
mayor’s office in the city.
The Comelec upheld the recommendation of the Comelec office in Bais City, stressing that
Villanueva’s conviction in the administrative cases barred him from seeking any elective office.
The Comelec cited Section 40 of the Local Government Code of 1991, which provides that among
those who are disqualified from running for any elective position are "those removed from office
as a result of an administrative case."
Villanueva was appointed Bais City OIC on April 18, 1986 by then Local Government Minister
Aquilino Pimentel. Sometime during the same year, three administrative cases were instituted
against Villanueva before the Department of Local Government upon complaint of Rebecco V.
Fernandez and Dr. Harte C. Fuentes.
Sometime in May 1987, the ministry found Villanueva "guilty as charged" and ordered him
removed from his position as OIC of the city government, which decision was approved by
Minister Jaime Ferrer.
In the same month, Francisco G. Villanueva was appointed OIC Mayor to replace Hector
Villanueva who had been removed from office.
The poll body also stated that insofar as the penalty of the removal is concerned, this cannot be
reversed anymore, and consequently cannot be the subject matter of an appeal.
The indefinite term as OIC to which respondent was appointed in 1986 already lapsed, with the
holding of the 1988 local elections and the assumption of office of those elected
therein.5 [Emphasis and underscoring supplied.]
On May 11, 1992, the national and local elections were held as scheduled. When results came
out, it turned out that petitioner failed in his mayoralty bid.
Believing that his defeat was caused by the publication of the above-quoted stories, petitioner
sued respondents PDI and Manila Bulletin as well as their publishers and editors for damages
before the RTC of Bais City. He alleged that the articles were "maliciously timed" to defeat him.
He claimed he should have won by landslide, but his supporters reportedly believed the news
items distributed by his rivals and voted for other candidates. He asked for actual damages of
₱270,000 for the amount he spent for the campaign, moral damages of ₱10,000,000, an
unspecified amount of exemplary damages, attorney’s fees of ₱300,000 and costs of suit.6
Respondents disclaimed liability. They asserted that no malice can be attributed to them as they
did not know petitioner and had no interest in the outcome of the election, stressing that the stories
were privileged in nature.7
According to Manila Bulletin reporter Edgardo T. Suarez, he got the story during a COMELEC
commissioner’s press briefing. He, however, came in late and only a fellow reporter told him that
the disqualification case against petitioner was granted. He did not bother to get a confirmation
from anyone as he had a deadline to beat.8
PDI political section editor Carlos Hidalgo, on the other hand, said that he got the story from a
press release. He claimed that he found the press release on his desk the day Manila Bulletin
published the same story. The press release bore COMELEC’s letterhead and was signed by one
Sonia Dimasupil, a former Malaya newspaper editor who was in-charge of COMELEC press
releases. He tried to contact her but she was out of the office. Since the news item was also
published in the Manila Bulletin, he felt confident the press release was authentic. He however
failed to produce the press release in court.9
On April 18, 1996, the trial court rendered a decision in favor of petitioner as follows:
WHEREFORE FOREGOING CONSIDERED, this Court holds that defendants Philippine Daily
Inquirer, [Inc.] and Manila [Daily] Bulletin Publishing Corporation with their respective officers are
liable [for] damages to plaintiff in the following manner:
1. As moral damages, the Philippine Daily Inquirer, [Inc.] and the Manila [Daily] Bulletin
Publishing Corporation are ordered to pay ₱1,000,000.00 each to plaintiff;
2. Both defendants are likewise ordered to pay an exemplary damage in the amount of
₱500,000.00 each;
3. To pay plaintiff’s attorney’s fees in the amount of ₱100,000.00;
4. And to pay the costs.
SO ORDERED.10
The trial court found the news items derogatory and injurious to petitioner’s reputation and
candidacy. It faulted respondents for failing to verify the truth of the news tips they published and
held respondents liable for negligence, citing Policarpio v. Manila Times Pub. Co., Inc.11 The trial
court also ruled that because the news items lacked truth and fairness, they were not privileged
communications.
On appeal by respondents, the Court of Appeals dismissed the complaint. It explained that
although the stories were false and not privileged, as there is no proof they were obtained from a
press conference or release, respondents were not impelled by malice or improper motive. There
was also no proof that petitioner’s supporters junked him due to the reports. Neither was there
any proof he would win, making his action unfounded.
Before us, petitioner raises the lone issue of whether:
[THE] HONORABLE APPELLATE COURT COMMITTED … GRAVE ABUSE OF DISCRETION
AMOUNTING TO UTTER LACK OF JURISDICTION WHEN IT UNILATERALLY,
UNPROCEDURALLY AND ARBITRARILY CHANGED THE PLEADING-BORNE AND PRE-
TRIAL ORDER DELINEATED THEORY OF QUASI-DELICT OF APPELLEE, THEREBY
DISMISSING THE CASE FOR FAILURE TO EVIDENCE AN ESSENTIAL REQUISITE OF ITS
IMPOSED IRRELEVANT THEORY.12
Simply stated, we are asked to resolve the issue of whether petitioner is required to prove malice
to be entitled to damages.
Petitioner argues that his cause of action is based on quasi-delict which only requires proof of
fault or negligence, not proof of malice beyond reasonable doubt as required in a criminal
prosecution for libel. He argues that the case is entirely different and separate from an
independent civil action arising from libel under Article 10013 of the Revised Penal Code. He
claims he proffered proofs sustaining his claim for damages under quasi-delict, not under the law
on libel, as malice is hard to prove. He stresses that nowhere in the complaint did he mention
libel, and nothing in his complaint shows that his cause of action had some shade of libel as
defined in the Revised Penal Code. He also did not hint a resort to a criminal proceeding for libel.14
PDI and its officers argue that petitioner’s complaint clearly lays a cause of action arising from
libel as it highlights malice underlying the publications. And as malice is an element of libel, the
appellate court committed no error in characterizing the case as one arising from libel. 15
For their part, Manila Bulletin and its officers claim that petitioner changed his theory, which must
be disallowed as it violates respondents’ right to due process. Although petitioner’s claim for
damages before the trial court hinged on the erroneous publications, which he alleged were
maliciously timed, he claims in his petition before this Court that his cause of action is actually
one for quasi-delict or tort. They stress that the prayer and allegations in petitioner’s complaint,
which never alleged quasi-delict or tort but malicious publication as basis for the claim for
damages, control his case theory. Thus, it may not be altered unless there was an amendment of
the complaint to change the cause of action. They claim that petitioner’s initiatory pleading and
the trial court’s pre-trial order and decision reveal that his cause of action for damages arose from
the publications of the "malicious" articles; hence, he should have proved actual malice to be
entitled to any award of damages. They added that the appellate court correctly ruled that the
articles were not published with actual malice.161avvphil.zw+
We rule in favor of the respondents.
Basic is the rule that what determines the nature of an action as well as which court has jurisdiction
over it are the allegations of the complaint and the character of the relief sought. 17 The nature of
a pleading is determined by allegations therein made in good faith, the stage of the proceeding at
which it is filed, and the primary objective of the party filing the same. The ground chosen or the
rationale adopted by the court in resolving the case does not determine or change the real nature
thereof.
The complaint was denominated as one for "damages", and a perusal of its content reveals that
the factual allegations constituted a complaint for damages based on malicious publication. It
specifically pointed out that petitioner lost the election because of the bad publicity created by the
malicious publication of respondents PDI and Manila Bulletin. It is alleged numerous times that
the action for damages stemmed from respondents’ malicious publication. Petitioner sought that
respondents be declared guilty of irresponsible and malicious publication and be made liable for
damages. The fact that petitioner later on changed his theory to quasi-delict does not change the
nature of petitioner’s complaint and convert petitioner’s action into quasi-delict. The complaint
remains to be one for damages based on malicious publication.
Consequently, as the issue of malice was raised, it was incumbent on petitioner to prove the
same. The basic rule is that mere allegation is not evidence, and is not equivalent to proof. 18 As
correctly stated by the Court of Appeals, while the questioned news item was found to be untrue,
this does not necessarily render the same malicious.
To fully appreciate the import of the complaint alleging malice and damages, we must recall the
essence of libel.
Libel is defined as "a public and malicious imputation of a crime, or of a vice or defect, real or
imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor,
discredit, or contempt of a natural person or juridical person, or to blacken the memory of one
who is dead."19 Any of these imputations is defamatory and under the general rule stated in Article
354 of the Revised Penal Code, every defamatory imputation is presumed to be malicious.20 The
presumption of malice, however, does not exist in the following instances:
1. A private communication made by any person to another in the performance of any
legal, moral, or social duty; and
2. A fair and true report, made in good faith, without any comments or remarks, of any
judicial, legislative, or other official proceedings which are not of confidential nature, or of
any statement, report, or speech delivered in said proceedings, or of any other act
performed by public officers in the exercise of their functions.21
We note that the publications or articles in question are neither private communications nor true
reports of official proceedings without any comments or remarks. However, this does not
necessarily mean that the questioned articles are not privileged. The enumeration under Art.
354 is not an exclusive list of qualified privileged communications since fair commentaries
on matters of public interest are likewise privileged and constitute a valid defense in an
action for libel or slander.22 The rule on privileged communication had its genesis not in the
nation’s penal code but in the Bill of Rights of the Constitution guaranteeing freedom of speech
and of the press. As early as 1918, in United States v. Cañete,23 this Court ruled that publications
which are privileged for reasons of public policy are protected by the constitutional guaranty of
freedom of speech.24
In the instant case, there is no denying that the questioned articles dealt with matters of public
interest. These are matters about which the public has the right to be informed, taking into account
the very public character of the election itself. For this reason, they attracted media mileage and
drew public attention not only to the election itself but to the candidates. As one of the candidates,
petitioner consequently assumed the status of a public figure within the purview of Ayers
Productions Pty. Ltd. v. Capulong.25
But even assuming a person would not qualify as a public figure, it would not necessarily follow
that he could not validly be the subject of a public comment. For he could; for instance, if and
when he would be involved in a public issue. If a matter is a subject of public or general interest,
it cannot suddenly become less so merely because a private individual is involved or because in
some sense the individual did not voluntarily choose to become involved. The public’s primary
interest is in the event; the public focus is on the conduct of the participant and the
content, effect and significance of the conduct, not the participant’s prior anonymity or
notoriety.26
In any event, having been OIC-Mayor of Bais City after the People Power Revolution, petitioner
in this case as early as 1992 was already a well-known official and public figure.
However, it must be stressed that the fact that a communication or publication is privileged does
not mean that it is not actionable; the privileged character simply does away with the presumption
of malice, which the plaintiff has to prove in such a case.27 That proof in a civil case must of course
be based on preponderance of evidence. This, however, petitioner failed to do in this case.
Under the current state of our jurisprudence, to be considered malicious, the libelous statement
must be shown to have been written or published with the knowledge that they are false or in
reckless disregard of whether they are false or not. "Reckless disregard of what is false or not"
means that the author or publisher entertains serious doubt as to the truth of the publication, or
that he possesses a high degree of awareness of their probable falsity.28
In the instant case, we find no conclusive showing that the published articles in question were
written with knowledge that these were false or in reckless disregard of what was false or not.
According to Manila Bulletin reporter Edgardo T. Suarez, he got the story from a fellow reporter
who told him that the disqualification case against petitioner was granted. PDI, on the other hand,
said that they got the story from a press release the very same day the Manila Bulletin published
the same story. PDI claims that the press release bore COMELEC’s letterhead, signed by one
Sonia Dimasupil, who was in-charge of COMELEC press releases. They also tried to contact her
but she was out of the office. Since the news item was already published in the Manila Bulletin,
they felt confident the press release was authentic. Following the narration of events narrated by
respondents, it cannot be said that the publications, were published with reckless disregard of
what is false or not.
Nevertheless, even assuming that the contents of the articles turned out to be false, mere error,
inaccuracy or even falsity alone does not prove actual malice. Errors or misstatements are
inevitable in any scheme of truly free expression and debate. Consistent with good faith and
reasonable care, the press should not be held to account, to a point of suppression, for honest
mistakes or imperfections in the choice of language. There must be some room for misstatement
of fact as well as for misjudgment. Only by giving them much leeway and tolerance can they
courageously and effectively function as critical agencies in our democracy.29
A newspaper, especially one national in reach and coverage, should be free to report on events
and developments in which the public has a legitimate interest with minimum fear of being hauled
to court by one group or another on criminal or civil charges for malice or damages, i.e. libel, so
long as the newspaper respects and keeps within the standards of morality and civility prevailing
within the general community.30
Likewise, in our view respondents’ failure to counter-check their report or present their informant
should not be a reason to hold them liable. While substantiation of the facts supplied is an
important reporting standard, still, a reporter may rely on information given by a lone source
although it
reflects only one side of the story provided the reporter does not entertain a "high degree of
awareness of [its] probable falsity."31 Petitioner, in this case, presented no proof that respondents
entertained such awareness. Failure to present respondents’ informant before the court should
not be taken against them.32
Worth stressing, jurisprudence instructs us that a privileged communication should not be
subjected to microscopic examination to discover grounds for malice or falsity. Such excessive
scrutiny would defeat the protection which the law throws over privileged communications. The
ultimate test is that of bona fides.33
Further, worthy of note, before the filing of the complaint, respondents herein received no word of
protest, exception or objection from petitioner. Had the error in the news reports in question been
pointed out by interested parties to the respondents, their publishers and editors could have
promptly made a rectification through print and broadcast media just before and during the
election day deflecting thereby any prejudice to petitioner’s political or personal interest.
As aptly observed in Quisumbing v. Lopez, et al.:34
Every citizen of course has the right to enjoy a good name and reputation, but we do not consider
that the respondents, under the circumstances of this case, had violated said right or abused the
freedom of the press. The newspapers should be given such leeway and tolerance as to
enable them to courageously and effectively perform their important role in our
democracy. In the preparation of stories, press reporters and edition usually have to race with
their deadlines; and consistently with good faith and reasonable care, they should not be held
to account, to a point of suppression, for honest mistakes or imperfection in the choice of
words.35 [Emphasis supplied.]
We find respondents entitled to the protection of the rules concerning qualified privilege, growing
out of constitutional guaranties in our Bill of Rights. We cannot punish journalists including
publishers for an honest endeavor to serve the public when moved by a sense of civic duty and
prodded by their sense of responsibility as news media to report what they perceived to be a
genuine report.
Media men are always reminded of their responsibilities as such. This time, there is also a need
to remind public figures of the consequences of being one. Fittingly, as held in Time, Inc. v.
Hill,36 one of the costs associated with participation in public affairs is an attendant loss of privacy.
Exposure of the self to others in varying degrees is a concomitant of life in a civilized community.
The risk of this exposure is an essential incident of life in a society which places a primary value
on freedom of speech and of press. "Freedom of discussion, if it would fulfill its historic function
in this nation, must embrace all issues about which information is needed or appropriate to enable
the members of society to cope with the exigencies of their period."37
On petitioner’s claim for damages, we find no evidence to support their award. Indeed, it cannot
be said that respondents published the questioned articles for the sole purpose of harassing
petitioner. Proof and motive that the publication was prompted by a sinister design to vex and
humiliate petitioner has not been clearly and preponderantly established to entitle the petitioner
to damages. There remains unfulfilled the need to prove that the publications were made with
actual malice – that is, with the knowledge of the publications’ falsity or with reckless disregard of
whether they were false or not.38
Thus, from American jurisprudence as amplified in Lopez v. Court of Appeals:
For liability to arise then without offending press freedom, there is this test to meet: "The
constitutional guarantees require, we think, a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves
that the statement was made with ‘actual malice’— that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." The United States Supreme Court went
further in Curtis Publishing Co. v. Butts,39 where such immunity, was held as covering
statements concerning public figures regardless of whether or not they are government
officials. Why there should be such an extension is understandable in the light of the broad
scope enjoyed by press freedom which certainly allows a full and free discussion of public
issues. What can be more logical and appropriate, then, than such an expansion of the principle.
As noted by a commentator: "Since discussion of public issues cannot be meaningful
without reference to the men involved on both sides of such issues, and since such men
will not necessarily be public officials, one cannot but agree that the Court was right in
Curtis to extend the Times40 rule to all public figures."41 [Emphasis supplied.]
Furthermore, the guarantee of press freedom has also come to ensure that claims for damages
arising from the utilization of the freedom be not unreasonable or exorbitant as to practically cause
a chilling effect on the exercise thereof. Damages, in our view, could not simply arise from an
inaccurate or false statement without irrefutable proof of actual malice as element of the assailed
publication.
WHEREFORE, the assailed Amended Decision dated May 25, 2004 of the Court of Appeals in
CA-G.R. CV No. 54134 is AFFIRMED.
SO ORDERED.

G.R. No. 180291 July 27, 2010

GOVERNMENT SERVICE INSURANCE SYSTEM (GSIS) and WINSTON F. GARCIA, in his
capacity as PRESIDENT and GENERAL MANAGER of the GSIS, Petitioners,
vs.
DINNAH VILLAVIZA, ELIZABETH DUQUE, ADRONICO A. ECHAVEZ, RODEL RUBIO,
ROWENA THERESE B. GRACIA, PILAR LAYCO, and ANTONIO JOSE
LEGARDA, Respondents.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to reverse
and set aside the August 31, 2007 Decision1 of the Court of Appeals (CA), in CA-G.R. SP No.
98952, dismissing the petition for certiorari of Government Service Insurance System (GSIS)
assailing the Civil Service Commission's Resolution No. 062177.
THE FACTS:
Petitioner Winston Garcia (PGM Garcia), as President and General Manager of the GSIS, filed
separate formal charges against respondents Dinnah Villaviza, Elizabeth Duque, Adronico A.
Echavez, Rodel Rubio, Rowena Therese B. Gracia, Pilar Layco, and Antonio Jose Legarda for
Grave Misconduct and/or Conduct Prejudicial to the Best Interest of the Service pursuant to the
Rules of Procedure in Administrative Investigation (RPAI) of GSIS Employees and Officials, III,
D, (1, c, f) in relation to Section 52A (3), (20), Rule IV, of the Uniform Rules on Administrative
Cases in the Civil Service (URACCS), in accordance with Book V of the Administrative Code of
1987, committed as follows:
That on 27 May 2005, respondent, wearing red shirt together with some employees, marched to
or appeared simultaneously at or just outside the office of the Investigation Unit in a mass
demonstration/rally of protest and support for Messrs. Mario Molina and Albert Velasco, the latter
having surreptitiously entered the GSIS premises;
xxx xxx xxx
That some of these employees badmouthed the security guards and the GSIS management and
defiantly raised clenched fists led by Atty. Velasco who was barred by Hearing Officer Marvin R.
Gatpayat in an Order dated 24 May 2005 from appearing as counsel for Atty. Molina pursuant to
Section 7 (b) (2) of R.A. 6713 otherwise known as the Code of Conduct and Ethical Standards for
Public Officials and Employees;
That respondent, together with other employees in utter contempt of CSC Resolution No. 021316,
dated 11 October 2002, otherwise known as Omnibus Rules on Prohibited Concerted Mass
Actions in the Public Sector caused alarm and heightened some employees and disrupted the
work at the Investigation Unit during office hours.2
This episode was earlier reported to PGM Garcia, through an office memorandum dated May 31,
2005, by the Manager of the GSIS Security Department (GSIS-SD), Dennis Nagtalon. On the
same day, the Manager of the GSIS Investigation Unit (GSIS-IU), Atty. Lutgardo Barbo, issued a
memorandum to each of the seven (7) respondents requiring them to explain in writing and under
oath within three (3) days why they should not be administratively dealt with.3
Respondents Duque, Echavez, Rubio, Gracia, Layco, and Legarda, together with two others,
submitted a letter-explanation to Atty. Barbo dated June 6, 2005. Denying that there was a
planned mass action, the respondents explained that their act of going to the office of the GSIS-
IU was a spontaneous reaction after learning that their former union president was there. Aside
from some of them wanting to show their support, they were interested in that hearing as it might
also affect them. For her part, respondent Villaviza submitted a separate letter explaining that she
had a scheduled pre-hearing at the GSIS-IU that day and that she had informed her immediate
supervisor about it, attaching a copy of the order of pre-hearing. These letters were not under
oath.4
PGM Garcia then filed the above-mentioned formal charges for Grave Misconduct and/or Conduct
Prejudicial to the Best Interest of the Service against each of the respondents, all dated June 4,
2005. Respondents were again directed to submit their written answers under oath within three
(3) days from receipt thereof.5 None was filed.
On June 29, 2005, PGM Garcia issued separate but similarly worded decisions finding all seven
(7) respondents guilty of the charges and meting out the penalty of one (1) year suspension plus
the accessory penalties appurtenant thereto.
On appeal, the Civil Service Commission (CSC) found the respondents guilty of the lesser offense
of Violation of Reasonable Office Rules and Regulations and reduced the penalty to reprimand.
The CSC ruled that respondents were not denied their right to due process but there was no
substantial evidence to hold them guilty of Conduct Prejudicial to the Best Interest of the Service.
Instead,
x x x. The actuation of the appellants in going to the IU, wearing red shirts, to witness a public
hearing cannot be considered as constitutive of such offense. Appellants' (respondents herein)
assembly at the said office to express support to Velasco, their Union President, who pledged to
defend them against any oppression by the GSIS management, can be considered as an exercise
of their freedom of expression, a constitutionally guaranteed right.6 x x x
PGM Garcia sought reconsideration but was denied. Thus, PGM Garcia went to the Court of
Appeals via a Petition for Review under Rule 43 of the Rules on Civil Procedure.7 The CA upheld
the CSC in this wise:
The Civil Service Commission is correct when it found that the act sought to be punished hardly
falls within the definition of a prohibited concerted activity or mass action. The petitioners failed to
prove that the supposed concerted activity of the respondents resulted in work stoppage and
caused prejudice to the public service. Only about twenty (20) out of more than a hundred
employees at the main office, joined the activity sought to be punished. These employees, now
respondents in this case, were assigned at different offices of the petitioner GSIS. Hence, despite
the belated claim of the petitioners that the act complained of had created substantial disturbance
inside the petitioner GSIS' premises during office hours, there is nothing in the record that could
support the claim that the operational capacity of petitioner GSIS was affected or reduced to
substantial percentage when respondents gathered at the Investigation Unit. Despite the hazy
claim of the petitioners that the gathering was intended to force the Investigation Unit and
petitioner GSIS to be lenient in the handling of Atty. Molina's case and allow Atty. Velasco to
represent Atty. Molina in his administrative case before petitioner GSIS, there is likewise no
concrete and convincing evidence to prove that the gathering was made to demand or force
concessions, economic or otherwise from the GSIS management or from the government. In fact,
in the separate formal charges filed against the respondents, petitioners clearly alleged that
respondents "marched to or appeared simultaneously at or just outside the office of the
Investigation Unit in a mass demonstration/rally of protest and support for Mssrs. Mario Molina
and Albert Velasco, the latter surreptitiously entered the GSIS premises." Thus, petitioners are
aware at the outset that the only apparent intention of the respondents in going to the IU was to
show support to Atty. Mario Molina and Albert Velasco, their union officers. The belated assertion
that the intention of the respondents in going to the IU was to disrupt the operation and pressure
the GSIS administration to be lenient with Atty. Mario Molina and Albert Velasco, is only an
afterthought.8
Not in conformity, PGM Garcia is now before us via this Petition for Review presenting the
following:
STATEMENT OF THE ISSUES
I
WHETHER AN ADMINISTRATIVE TRIBUNAL MAY APPLY SUPPLETORILY THE
PROVISIONS OF THE RULES OF COURT ON THE EFFECT OF FAILURE TO DENY THE
ALLEGATIONS IN THE COMPLAINT AND FAILURE TO FILE ANSWER, WHERE THE
RESPONDENTS IN THE ADMINISTRATIVE PROCEEDINGS DID NOT FILE ANY
RESPONSIVE PLEADING TO THE FORMAL CHARGES AGAINST THEM.
II
WHETHER THE RULE THAT ADMINISTRATIVE DUE PROCESS CANNOT BE EQUATED
WITH DUE PROCESS IN JUDICIAL SENSE AUTHORIZES AN ADMINISTRATIVE TRIBUNAL
TO CONSIDER IN EVIDENCE AND GIVE FULL PROBATIVE VALUE TO UNNOTARIZED
LETTERS THAT DID NOT FORM PART OF THE CASE RECORD.
III
WHETHER A DECISION THAT MAKES CONCLUSIONS OF FACTS BASED ON EVIDENCE
ON RECORD BUT MAKES A CONCLUSION OF LAW BASED ON THE ALLEGATIONS OF A
DOCUMENT THAT NEVER FORMED PART OF THE CASE RECORDS IS VALID.
IV
WHETHER FURTHER PROOF OF SUSBTANTIAL REDUCTION OF THE OPERATIONAL
CAPACITY OF AN AGENCY, DUE TO UNRULY MASS GATHERING OF GOVERNMENT
EMPLOYEES INSIDE OFFICE PREMISES AND WITHIN OFFICE HOURS, IS REQUIRED TO
HOLD THE SAID EMPLOYEES LIABLE FOR CONDUCT PREJUDICIAL TO THE BEST
INTEREST OF THE SERVICE PURSUANT TO CSC RESOLUTION NO. 021316.
V
WHETHER AN UNRULY MASS GATHERING OF TWENTY EMPLOYEES, LASTING FOR
MORE THAN AN HOUR DURING OFFICE HOURS, INSIDE OFFICE PREMISES AND WITHIN
A UNIT TASKED TO HEAR AN ADMINISTRATIVE CASE, TO PROTEST THE PROHIBITION
AGAINST THE APPEARANCE OF THEIR LEADER AS COUNSEL IN THE SAID
ADMINISTRATIVE CASE, FALLS WITHIN THE PURVIEW OF THE CONSTITUTIONAL
GUARANTEE TO FREEDOM OF EXPRESSION AND PEACEFUL ASSEMBLY.
VI
WHETHER THE CONCERTED ABANDONMENT OF EMPLOYEES OF THEIR POSTS FOR
MORE THAN AN HOUR TO HOLD AN UNRULY PROTEST INSIDE OFFICE PREMISES ONLY
CONSTITUTES THE ADMINISTRATIVE OFFENSE OF VIOLATION OF REASONABLE OFFICE
RULES AND REGULATIONS.9
The Court finds no merit in the petition.
Petitioners primarily question the probative value accorded to respondents' letters of explanation
in response to the memorandum of the GSIS-IU Manager. The respondents never filed their
answers to the formal charges. The petitioners argue that there being no answers, the allegations
in the formal charges that they filed should have been deemed admitted pursuant to Section 11,
Rule 8 of the Rules of Court which provides:
SECTION 11. Allegations not specifically denied deemed admitted.- Material averment in the
complaint, other than those as to the amount of liquidated damages, shall be deemed admitted
when not specifically denied. Allegations of usury in a complaint to recover usurious interest are
deemed admitted if not denied specifically and under oath.
According to the petitioners, this rule is applicable to the case at bench pursuant to Rule 1, Section
4 of the Rules of Court which reads:
SECTION 4. In what cases not applicable. - These Rules shall not apply to election cases, land
registration, cadastral, naturalization and insolvency proceedings, and other cases not herein
provided for, except by analogy or in a suppletory character and whenever practicable and
convenient. (underscoring supplied)
The Court does not subscribe to the argument of the petitioners. Petitioners' own rules, Rule XI,
Section 4 of the GSIS' Amended Policy and Procedural Guidelines No. 178-04, specifically
provides:
If the respondent fails to file his Answer within five (5) working days from receipt of the Formal
Charge for the supporting evidence, when requested, he shall be considered to have waived his
right to file an answer and the PGM or the Board of Trustees, in proper cases, shall render
judgment, as may be warranted by the facts and evidence submitted by the prosecution.
A perusal of said section readily discloses that the failure of a respondent to file an answer merely
translates to a waiver of "his right to file an answer." There is nothing in the rule that says that the
charges are deemed admitted. It has not done away with the burden of the complainant to prove
the charges with clear and convincing evidence.
It is true that Section 4 of the Rules of Court provides that the rules can be applied in a "suppletory
character." Suppletory is defined as "supplying deficiencies."10 It means that the provisions in the
Rules of Court will be made to apply only where there is an insufficiency in the applicable rule.
There is, however, no such deficiency as the rules of the GSIS are explicit in case of failure to file
the required answer. What is clearly stated there is that GSIS may "render judgment as may be
warranted by the facts and evidence submitted by the prosecution."
Even granting that Rule 8, Section 11 of the Rules of Court finds application in this case,
petitioners must remember that there remain averments that are not deemed admitted by the
failure to deny the same. Among them are immaterial allegations and incorrect conclusions drawn
from facts set out in the complaint.11 Thus, even if respondents failed to file their answer, it does
not mean that all averments found in the complaint will be considered as true and correct in their
entirety, and that the forthcoming decision will be rendered in favor of the petitioners. We must
not forget that even in administrative proceedings, it is still the complainant, or in this case the
petitioners, who have the burden of proving, with substantial evidence, the allegations in the
complaint or in the formal charges.12
A perusal of the decisions of the CA and of the CSC will reveal that the case was resolved against
petitioners based, not on the absence of respondents' evidence, but on the weakness of that of
the petitioners. Thus, the CA wrote:
Petitioners correctly submitted the administrative cases for resolution without the respondents'
respective answer to the separate formal charges in accordance with Section 4, Rule XI of the
RPAI. Being in full control of the administrative proceeding and having effectively prevented
respondents from further submitting their responsive answer and evidence for the defense,
petitioners were in the most advantageous position to prove the merit of their allegations in the
formal charges. When petitioner Winston Garcia issued those similarly worded decisions in the
administrative cases against the respondents, it is presumed that all evidence in their favor were
duly submitted and justly considered independent of the weakness of respondent's evidence in
view of the principle that ''the burden of proof belongs to the one who alleges and not the one who
denies."13
On the merits, what needs to be resolved in the case at bench is the question of whether or not
there was a violation of Section 5 of CSC Resolution No. 02-1316. Stated differently, whether or
not respondents' actions on May 27, 2005 amounted to a "prohibited concerted activity or mass
action." Pertinently, the said provision states:
Section 5. As used in this Omnibus Rules, the phrase ''prohibited concerted activity or mass
action'' shall be understood to refer to any collective activity undertaken by government
employees, by themselves or through their employees organizations, with intent of effecting work
stoppage or service disruption in order to realize their demands of force concession, economic or
otherwise, from their respective agencies or the government. It shall include mass leaves,
walkouts, pickets and acts of similar nature. (underscoring supplied)
In this case, CSC found that the acts of respondents in going to the GSIS-IU office wearing red
shirts to witness a public hearing do not amount to a concerted activity or mass action proscribed
above. CSC even added that their actuations can be deemed an exercise of their constitutional
right to freedom of expression. The CA found no cogent reason to deviate therefrom.
As defined in Section 5 of CSC Resolution No. 02-1316 which serves to regulate the political
rights of those in the government service, the concerted activity or mass action proscribed must
be coupled with the "intent of effecting work stoppage or service disruption in order to realize their
demands of force concession." Wearing similarly colored shirts, attending a public hearing at the
GSIS-IU office, bringing with them recording gadgets, clenching their fists, some even
badmouthing the guards and PGM Garcia, are acts not constitutive of an (i) intent to effect work
stoppage or service disruption and (ii) for the purpose of realizing their demands of force
concession.
Precisely, the limitations or qualifications found in Section 5 of CSC Resolution No. 02-1316 are
there to temper and focus the application of such prohibition. Not all collective activity or mass
undertaking of government employees is prohibited. Otherwise, we would be totally depriving our
brothers and sisters in the government service of their constitutional right to freedom of
expression.
Government workers, whatever their ranks, have as much right as any person in the land to voice
out their protests against what they believe to be a violation of their rights and interests. Civil
Service does not deprive them of their freedom of expression. It would be unfair to hold that by
joining the government service, the members thereof have renounced or waived this basic liberty.
This freedom can be reasonably regulated only but can never be taken away.
A review of PGM Garcia's formal charges against the respondents reveals that he himself was
not even certain whether the respondents and the rest of the twenty or so GSIS employees who
were at the GSIS-IU office that fateful day marched there or just simply appeared there
simultaneously.14 Thus, the petitioners were not even sure if the spontaneous act of each of the
twenty or so GSIS employees on May 27, 2005 was a concerted one. The report of Manager
Nagtalon of the GSIS-SD which was the basis for PGM Garcia's formal charges reflected such
uncertainty. Thus,
Of these red shirt protesters, only Mr. Molina has official business at the Investigation Unit during
this time. The rest abandoned their post and duties for the duration of this incident which lasted
until 10:55 A.M. It was also observed that the protesters, some of whom raised their clenched left
fists, carefully planned this illegal action as evident in their behavior of arrogance, defiance and
provocation, the presence of various recording gadgets such as VCRs, voice recorders and digital
cameras, the bad mouthing of the security guards and the PGM, the uniformity in their attire and
the collusion regarding the anomalous entry of Mr. Albert Velasco to the premises as reported
earlier.15
The said report of Nagtalon contained only bare facts. It did not show respondents' unified intent
to effect disruption or stoppage in their work. It also failed to show that their purpose was to
demand a force concession.
In the recent case of GSIS v. Kapisanan ng mga Manggagawa sa GSIS,16 the Court upheld the
position of petitioner GSIS because its employees, numbering between 300 and 800 each day,
staged a walkout and participated in a mass protest or demonstration outside the GSIS for four
straight days. We cannot say the same for the 20 or so employees in this case. To equate their
wearing of red shirts and going to the GSIS-IU office for just over an hour with that four-day mass
action in Kapisanan ng mga Manggagawa sa GSIS case and to punish them in the same manner
would most certainly be unfair and unjust.
Recent analogous decisions in the United States, while recognizing the government's right as an
employer to lay down certain standards of conduct, tend to lean towards a broad definition of
"public concern speech" which is protected by their First Amendment. One such case is that of
Scott v. Meters.17 In said case, the New York Transit Authority (NYTA), responsible for operation
of New York City's mass transit service, issued a rule prohibiting employees from wearing badges
or buttons on their uniforms. A number of union members wore union buttons promoting their
opposition to a collective bargaining agreement. Consequently, the NYTA tried to enforce its rule
and threatened to subject these union members to discipline. The court, though recognizing the
government's right to impose reasonable restrictions, held that the NYTA's rule was
"unconstitutionally overboard."
In another case, Communication Workers of America v. Ector County Hospital District,18 it was
held that,
A county hospital employee's wearing of a "Union Yes" lapel pin during a union organization drive
constituted speech on a matter of public concern, and the county's proffered interest in enforcing
the anti-adornment provision of its dress code was outweighed by the employee's interest in
exercising his First Amendment speech and associational rights by wearing a pro-union lapel
button.19
Thus, respondents' freedom of speech and of expression remains intact, and CSC's Resolution
No. 02-1316 defining what a prohibited concerted activity or mass action has only tempered or
regulated these rights. Measured against that definition, respondents' actuations did not amount
to a prohibited concerted activity or mass action. The CSC and the CA were both correct in arriving
at said conclusion.
WHEREFORE, the assailed August 31, 2007 Decision of the Court of Appeals as well as its
October 16, 2007 Resolution in CA G.R. SP No. 98952 are hereby AFFIRMED.
SO ORDERED.

G.R. No. 164785 March 15, 2010

ELISEO F. SORIANO, Petitioner,
vs.
MA. CONSOLIZA P. LAGUARDIA, in her capacity as Chairperson of the Movie and
Television Review and Classification Board, MOVIE AND TELEVISION REVIEW AND
CLASSIFICATION BOARD, JESSIE L. GALAPON, ANABEL M. DELA CRUZ, MANUEL M.
HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S. YARIA, JR., MICHAEL
M. SANDOVAL, and ROLDAN A. GAVINO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 165636
ELISEO F. SORIANO, Petitioner,
vs.
MOVIE AND TELEVISION REVIEW AND CLASSIFICATION BOARD, ZOSIMO G. ALEGRE,
JACKIE AQUINO-GAVINO, NOEL R. DEL PRADO, EMMANUEL BORLAZA, JOSE E.
ROMERO IV, and FLORIMONDO C. ROUS, in their capacity as members of the Hearing
and Adjudication Committee of the MTRCB, JESSIE L. GALAPON, ANABEL M. DELA
CRUZ, MANUEL M. HERNANDEZ, JOSE L. LOPEZ, CRISANTO SORIANO, BERNABE S.
YARIA, JR., MICHAEL M. SANDOVAL, and ROLDAN A. GAVINO, in their capacity as
complainants before the MTRCB, Respondents.

Before us is this motion of petitioner Eliseo F. Soriano for reconsideration of the Decision of the
Court dated April 29, 2009, modifying that of the Movie and Television Review and Classification
Board (MTRCB) by imposing the penalty of three-month suspension on the television show Ang
Dating Daan, instead of on petitioner Soriano, as host of that program.
Petitioner seeks reconsideration on the following grounds or issues: (1) the suspension thus
meted out to the program constitutes prior restraint; (2) the Court erred in ruling that his
utterances1 did not constitute exercise of religion; (3) the Court erred in finding the language used
as offensive and obscene; (4) the Court should have applied its policy of non-interference in cases
of conflict between religious groups; and (5) the Court erred in penalizing the television program
for the acts of petitioner.
The motion has no merit.
Petitioner’s threshold posture that the suspension thus imposed constitutes prior restraint and an
abridgement of his exercise of religion and freedom of expression is a mere rehash of the position
he articulated in the underlying petitions for certiorari and expounded in his memorandum.2 So
are the supportive arguments and some of the citations of decisional law, Philippine and
American, holding it together. They have been considered, sufficiently discussed in some detail,
and found to be without merit in our Decision. It would, thus, make little sense to embark on
another lengthy discussion of the same issues and arguments.
Suffice it to reiterate that the sanction imposed on the TV program in question does not, under
the factual milieu of the case, constitute prior restraint, but partakes of the nature of subsequent
punishment for past violation committed by petitioner in the course of the broadcast of the program
on August 10, 2004. To be sure, petitioner has not contested the fact of his having made
statements on the air that were contextually violative of the program’s "G" rating. To merit a "G"
rating, the program must be "suitable for all ages," which, in turn, means that the "material for
television [does not], in the judgment of the [MTRCB], x x x contain anything unsuitable for children
and minors, and may be viewed without adult guidance or supervision."3 As previously discussed
by the Court, the vulgar language petitioner used on prime-time television can in no way be
characterized as suitable for all ages, and is wholly inappropriate for children.
Petitioner next harps on the primacy of his freedoms, referring particularly to the exercise of his
religious beliefs and profession, as presiding minister of his flock, over the right and duty of the
state as parens patriae. Petitioner’s position may be accorded some cogency, but for the fact that
it fails to consider that the medium he used to make his statements was a television broadcast,
which is accessible to children of virtually all ages. As already laid down in the Decision subject
of this recourse, the interest of the government in protecting children who may be subjected to
petitioner’s invectives must take precedence over his desire to air publicly his dirty laundry. The
public soapbox that is television must be guarded by the state, which purpose the MTRCB serves,
and has served, in suspending Ang Dating Daan for petitioner’s statements. As emphasized in
Gonzalez v. Kalaw Katigbak,4 the freedom of broadcast media is, in terms of degree of protection
it deserves, lesser in scope, especially as regards television, which reaches every home where
there is a set, and where children will likely be among the avid viewers of the programs shown.
The same case also laid the basis for the classification system of the MTRCB when it stated, "It
cannot be denied though that the State as parens patriae is called upon to manifest an attitude of
caring for the welfare of the young."5
The penalty of suspension imposed on petitioner has driven him to liken the Court to "a blind man
who was asked to describe an elephant, and by his description he stubbornly believed that an
elephant is just the same as a Meralco post after touching one if its legs." 6 Petitioner makes this
comparison with the view that the factual backdrop against which his statements were made was
purportedly not considered by the Court. As he presently argues:
The Honorable Court should have rendered its decision in light of the surrounding circumstances
why and what prompted herein petitioner to utter those words. Clearly, he was provoked because
of the malicious and blatant splicing by the INC ministers of his recorded voice. Verily, Petitioner
submits that the choice of words he used has been harsh but strongly maintains that the same
was consistent with his constitutional right of freedom of speech and religion.
Contrary to petitioner’s impression, the Court has, in fact, considered the factual antecedents of
and his motive in making his utterances, and has found those circumstances wanting as defense
for violating the program’s "G" rating. Consider the following excerpts from the Court’s Decision:
There is nothing in petitioner’s statements subject of the complaints expressing any particular
religious belief, nothing furthering his avowed evangelical mission. The fact that he came out with
his statements in a televised bible exposition program does not automatically accord them the
character of a religious discourse. Plain and simple insults directed at another person cannot be
elevated to the status of religious speech. Even petitioner’s attempts to place his words in context
show that he was moved by anger and the need to seek retribution, not by any religious conviction.
His claim, assuming its veracity, that some INC ministers distorted his statements respecting
amounts Ang Dating Daan owed to a TV station does not convert the foul language used in
retaliation as religious speech. We cannot accept that petitioner made his statements in defense
of his reputation and religion, as they constitute no intelligible defense or refutation of the alleged
lies being spread by a rival religious group. They simply illustrate that petitioner had descended
to the level of name-calling and foul-language discourse. Petitioner could have chosen to
contradict and disprove his detractors, but opted for the low road.
And just to set things straight, the penalty imposed is on the program, not on petitioner.
Petitioner would next have the Court adopt a hands-off approach to the conflict between him and
the Iglesia Ni Cristo. In support of his urging, he cites Iglesia ni Cristo v. Court of Appeals.7
Petitioner’s invocation of Iglesia ni Cristo to support his hands-off thesis is erroneous. Obviously,
he fails to appreciate what the Court stated in that particular case when it rejected the argument
that a religious program is beyond MTRCB’s review and regulatory authority. We reproduce what
the Court pertinently wrote in Iglesia ni Cristo:
We thus reject petitioner’s postulate that its religious program is per se beyond review by the
respondent [MTRCB]. Its public broadcast on TV of its religious program brings it out of the bosom
of internal belief. Television is a medium that reaches even the eyes and ears of children. The
Court iterates the rule that the exercise of religious freedom can be regulated by the
State when it will bring about the clear and present danger of some substantive evil which the
State is duty bound to prevent, i.e. serious detriment to the more overriding interest of public
health, public morals, or public welfare. A laissez faire policy on the exercise of religion can be
seductive to the liberal mind but history counsels the Court against its blind adoption as religion
is and continues to be a volatile area of concern in our country today. Across the sea and in our
shore, the bloodiest and bitterest wars fought by men were caused by irreconcilable religious
differences. Our country is still not safe from the recurrence of this stultifying strife considering
our warring religious beliefs and the fanaticism with which some of us cling and claw to these
beliefs. x x x For when religion divides and its exercise destroys, the State should not stand
still.8 (Emphasis added.)
Lastly, petitioner claims that there was violation of due process of law, alleging that the registered
producer of the program is not a party to the proceedings. Hence, the program cannot, so
petitioner asserts, be penalized.
We will let the records speak for themselves to refute that argument.
As per petitioner’s admission in his petition for certiorari filed with the Court, he is "the Executive
Producer of Ang Dating Daan, a televised bible exposition program produced by the Philippine-
based religious organization, Church of God International."9 It is unclear, then, which producer
the movant is referring to in claiming that there was no representation before the MTRCB. He was
and is the representative of Ang Dating Daan, and the claim that there was no due process of law
is simply bereft of merit.
Even as the foregoing disquisitions would suffice to write finis to the instant motion, certain
relevant issues have been raised by some members of the Court that ought to be addressed if
only to put things in their proper perspective. We refer to the matter of obscenity.
As stressed at every possible turn in the challenged Court’s Decision, the defining standards to
be employed in judging the harmful effects of the statements petitioner used would be those for
the average child, not those for the average adult. We note that the ratings and regulation of
television broadcasts take into account the protection of the child, and it is from the child’s narrow
viewpoint that the utterances must be considered, if not measured. The ratings "G," "PG" (parental
guidance), "PG-13," and "R" (restricted or for adults only) suggest as much. The concern was
then, as now, that the program petitioner hosted and produced would reach an unintended
audience, the average child, and so it is how this audience would view his words that matters.
The average child would not be concerned with colorful speech, but, instead, focus on the literal,
everyday meaning of words used. It was this literal approach that rendered petitioner’s utterances
obscene.1avvphi1
The Court has taken stock of Action for Children’s Television v. FCC,10 but finds this U.S. case
not to be of governing application to this jurisdiction under the present state of things. The so-
called "safe harbor" of 10:00 p.m. to 6:00 a.m., adverted to in Action for Children’s Television as
the time wherein broadcast of indecent material may be permitted, is believed inapplicable here.
As it were, there is no legislative enactment or executive issuance setting a similar period in the
Philippines wherein indecent material may be broadcast. Rather than fix a period for allowing
indecent programming, what is used in this jurisdiction is the system of classification of television
programs, which the petitioner violated. His program was rated "G," purported to be suitable for
all ages. We cannot lose sight of the violation of his program’s classification that carried with it
the producer’s implied assurance that the program did not contain anything unsuitable for children
and minors. The hour at which it was broadcasted was of little moment in light of the guarantee
that the program was safe for children’s viewing.
The suspension of the program has not been arrived at lightly. Taking into account all the factors
involved and the arguments pressed on the Court, the suspension of the program is a sufficiently
limited disciplinary action, both to address the violation and to serve as an object lesson for the
future. The likelihood is great that any disciplinary action imposed on petitioner would be met with
an equally energetic defense as has been put up here. The simple but stubborn fact is that there
has been a violation of government regulations that have been put in place with a laudable
purpose, and this violation must accordingly be dealt with. We are not unmindful of the concerns
on the restriction of freedoms that may occur in imposing sanctions upon erring individuals and
institutions, but it cannot be over-emphasized that the freedoms encased in the Bill of Rights are
far from absolute. Each has its own limits, responsibilities, and obligations. Everyone is expected
to bear the burden implicit in the exercise of these freedoms. So it must be here.
WHEREFORE, petitioner’s motion for reconsideration is hereby DENIED.
No further pleadings shall be entertained in this case. Let entry of judgment be made in due
course.
SO ORDERED.

G.R. No. 178552 October 5, 2010

SOUTHERN HEMISPHERE ENGAGEMENT NETWORK, INC., on behalf of the South-South
Network (SSN) for Non-State Armed Group Engagement, and ATTY. SOLIMAN M.
SANTOS, JR., Petitioners,
vs.
ANTI-TERRORISM COUNCIL, THE EXECUTIVE SECRETARY, THE SECRETARY OF
JUSTICE, THE SECRETARY OF FOREIGN AFFAIRS, THE SECRETARY OF NATIONAL
DEFENSE, THE SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, THE
SECRETARY OF FINANCE, THE NATIONAL SECURITY ADVISER, THE CHIEF OF STAFF
OF THE ARMED FORCES OF THE PHILIPPINES, AND THE CHIEF OF THE PHILIPPINE
NATIONAL POLICE, Respondents.
Before the Court are six petitions challenging the constitutionality of Republic Act No. 9372 (RA
9372), "An Act to Secure the State and Protect our People from Terrorism," otherwise known as
the Human Security Act of 2007,1 signed into law on March 6, 2007.
Following the effectivity of RA 9372 on July 15, 2007,2 petitioner Southern Hemisphere
Engagement Network, Inc., a non-government organization, and Atty. Soliman Santos, Jr., a
concerned citizen, taxpayer and lawyer, filed a petition for certiorari and prohibition on July 16,
2007 docketed as G.R. No. 178552. On even date, petitioners Kilusang Mayo Uno (KMU),
National Federation of Labor Unions-Kilusang Mayo Uno (NAFLU-KMU), and Center for Trade
Union and Human Rights (CTUHR), represented by their respective officers3 who are also
bringing the action in their capacity as citizens, filed a petition for certiorari and prohibition
docketed as G.R. No. 178554.
The following day, July 17, 2007, organizations Bagong Alyansang Makabayan (BAYAN),
General Alliance Binding Women for Reforms, Integrity, Equality, Leadership and Action
(GABRIELA), Kilusang Magbubukid ng Pilipinas (KMP), Movement of Concerned Citizens for Civil
Liberties (MCCCL), Confederation for Unity, Recognition and Advancement of Government
Employees (COURAGE), Kalipunan ng Damayang Mahihirap (KADAMAY), Solidarity of Cavite
Workers (SCW), League of Filipino Students (LFS), Anakbayan, Pambansang Lakas ng Kilusang
Mamamalakaya (PAMALAKAYA), Alliance of Concerned Teachers (ACT), Migrante, Health
Alliance for Democracy (HEAD), and Agham, represented by their respective officers,4 and joined
by concerned citizens and taxpayers Teofisto Guingona, Jr., Dr. Bienvenido Lumbera, Renato
Constantino, Jr., Sister Mary John Manansan, OSB, Dean Consuelo Paz, Atty. Josefina Lichauco,
Retired Col. Gerry Cunanan, Carlitos Siguion-Reyna, Dr. Carolina Pagaduan-Araullo, Renato
Reyes, Danilo Ramos, Emerenciana de Jesus, Rita Baua and Rey Claro Casambre filed a petition
for certiorari and prohibition docketed as G.R. No. 178581.
On August 6, 2007, Karapatan and its alliance member organizations Hustisya, Desaparecidos,
Samahan ng mga Ex-Detainees Laban sa Detensyon at para sa Amnestiya (SELDA), Ecumenical
Movement for Justice and Peace (EMJP), and Promotion of Church People’s Response (PCPR),
which were represented by their respective officers5 who are also bringing action on their own
behalf, filed a petition for certiorari and prohibition docketed as G.R. No. 178890.
On August 29, 2007, the Integrated Bar of the Philippines (IBP), Counsels for the Defense of
Liberty (CODAL),6 Senator Ma. Ana Consuelo A.S. Madrigal, Sergio Osmeña III, and Wigberto E.
Tañada filed a petition for certiorari and prohibition docketed as G.R. No. 179157.
Bagong Alyansang Makabayan-Southern Tagalog (BAYAN-ST), other regional chapters and
organizations mostly based in the Southern Tagalog Region,7 and individuals8 followed suit by
filing on September 19, 2007 a petition for certiorari and prohibition docketed as G.R. No. 179461
that replicates the allegations raised in the BAYAN petition in G.R. No. 178581.
Impleaded as respondents in the various petitions are the Anti-Terrorism Council9 composed of,
at the time of the filing of the petitions, Executive Secretary Eduardo Ermita as Chairperson,
Justice Secretary Raul Gonzales as Vice Chairperson, and Foreign Affairs Secretary Alberto
Romulo, Acting Defense Secretary and National Security Adviser Norberto Gonzales, Interior and
Local Government Secretary Ronaldo Puno, and Finance Secretary Margarito Teves as
members. All the petitions, except that of the IBP, also impleaded Armed Forces of the Philippines
(AFP) Chief of Staff Gen. Hermogenes Esperon and Philippine National Police (PNP) Chief Gen.
Oscar Calderon.
The Karapatan, BAYAN and BAYAN-ST petitions likewise impleaded President Gloria
Macapagal-Arroyo and the support agencies for the Anti-Terrorism Council like the National
Intelligence Coordinating Agency, National Bureau of Investigation, Bureau of Immigration, Office
of Civil Defense, Intelligence Service of the AFP, Anti-Money Laundering Center, Philippine
Center on Transnational Crime, and the PNP intelligence and investigative elements.
The petitions fail.
Petitioners’ resort to certiorari is improper
Preliminarily, certiorari does not lie against respondents who do not exercise judicial or quasi-
judicial functions. Section 1, Rule 65 of the Rules of Court is clear:
Section 1. Petition for certiorari.—When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of
discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain,
speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file
a verified petition in the proper court, alleging the facts with certainty and praying that judgment
be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting
such incidental reliefs as law and justice may require. (Emphasis and underscoring supplied)
Parenthetically, petitioners do not even allege with any modicum of particularity how respondents
acted without or in excess of their respective jurisdictions, or with grave abuse of discretion
amounting to lack or excess of jurisdiction.
The impropriety of certiorari as a remedy aside, the petitions fail just the same.
In constitutional litigations, the power of judicial review is limited by four exacting requisites, viz:
(a) there must be an actual case or controversy; (b) petitioners must possess locus standi; (c) the
question of constitutionality must be raised at the earliest opportunity; and (d) the issue of
constitutionality must be the lis mota of the case.10
In the present case, the dismal absence of the first two requisites, which are the most essential,
renders the discussion of the last two superfluous.
Petitioners lack locus standi
Locus standi or legal standing requires a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions.11
Anak Mindanao Party-List Group v. The Executive Secretary12 summarized the rule on locus
standi, thus:
Locus standi or legal standing has been defined as a personal and substantial interest in a case
such that the party has sustained or will sustain direct injury as a result of the governmental act
that is being challenged. The gist of the question on standing is whether a party alleges such
personal stake in the outcome of the controversy as to assure that concrete adverseness which
sharpens the presentation of issues upon which the court depends for illumination of difficult
constitutional questions.
[A] party who assails the constitutionality of a statute must have a direct and personal interest. It
must show not only that the law or any governmental act is invalid, but also that it sustained or is
in immediate danger of sustaining some direct injury as a result of its enforcement, and not merely
that it suffers thereby in some indefinite way. It must show that it has been or is about to be denied
some right or privilege to which it is lawfully entitled or that it is about to be subjected to some
burdens or penalties by reason of the statute or act complained of.
For a concerned party to be allowed to raise a constitutional question, it must show that (1) it
has personally suffered some actual or threatened injury as a result of the allegedly illegal conduct
of the government, (2) the injury is fairly traceable to the challenged action, and (3) the injury is
likely to be redressed by a favorable action. (emphasis and underscoring supplied.)
Petitioner-organizations assert locus standi on the basis of being suspected "communist fronts"
by the government, especially the military; whereas individual petitioners invariably invoke the
"transcendental importance" doctrine and their status as citizens and taxpayers.
While Chavez v. PCGG13 holds that transcendental public importance dispenses with the
requirement that petitioner has experienced or is in actual danger of suffering direct and personal
injury, cases involving the constitutionality of penal legislation belong to an altogether different
genus of constitutional litigation. Compelling State and societal interests in the proscription of
harmful conduct, as will later be elucidated, necessitate a closer judicial scrutiny of locus standi.
Petitioners have not presented any personal stake in the outcome of the controversy. None of
them faces any charge under RA 9372.
KARAPATAN, Hustisya, Desaparecidos, SELDA, EMJP and PCR, petitioners in G.R. No.
178890, allege that they have been subjected to "close security surveillance by state security
forces," their members followed by "suspicious persons" and "vehicles with dark windshields,"
and their offices monitored by "men with military build." They likewise claim that they have been
branded as "enemies of the [S]tate."14
Even conceding such gratuitous allegations, the Office of the Solicitor General (OSG) correctly
points out that petitioners have yet to show any connection between the
purported "surveillance" and the implementation of RA 9372.
BAYAN, GABRIELA, KMP, MCCCL, COURAGE, KADAMAY, SCW, LFS, Anakbayan,
PAMALAKAYA, ACT, Migrante, HEAD and Agham, petitioner-organizations in G.R. No. 178581,
would like the Court to take judicial notice of respondents’ alleged action of tagging them as
militant organizations fronting for the Communist Party of the Philippines (CPP) and its armed
wing, the National People’s Army (NPA). The tagging, according to petitioners, is tantamount to
the effects of proscription without following the procedure under the law.15 The petition of BAYAN-
ST, et al. in G.R. No. 179461 pleads the same allegations.
The Court cannot take judicial notice of the alleged "tagging" of petitioners.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter must
be one of common and general knowledge; (2) it must be well and authoritatively settled and not
doubtful or uncertain; and (3) it must be known to be within the limits of the jurisdiction of the
court. The principal guide in determining what facts may be assumed to be judicially known is that
of notoriety. Hence, it can be said that judicial notice is limited to facts evidenced by public records
and facts of general notoriety. Moreover, a judicially noticed fact must be one not subject to a
reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the
trial court; or (2) capable of accurate and ready determination by resorting to sources whose
accuracy cannot reasonably be questionable.
Things of "common knowledge," of which courts take judicial matters coming to the knowledge of
men generally in the course of the ordinary experiences of life, or they may be matters which are
generally accepted by mankind as true and are capable of ready and unquestioned
demonstration. Thus, facts which are universally known, and which may be found in
encyclopedias, dictionaries or other publications, are judicially noticed, provided, they are of such
universal notoriety and so generally understood that they may be regarded as forming part of the
common knowledge of every person. As the common knowledge of man ranges far and wide, a
wide variety of particular facts have been judicially noticed as being matters of common
knowledge. But a court cannot take judicial notice of any fact which, in part, is dependent on the
existence or non-existence of a fact of which the court has no constructive
knowledge.16 (emphasis and underscoring supplied.)
No ground was properly established by petitioners for the taking of judicial notice. Petitioners’
apprehension is insufficient to substantiate their plea. That no specific charge or proscription
under RA 9372 has been filed against them, three years after its effectivity, belies any claim
of imminence of their perceived threat emanating from the so-called tagging.
The same is true with petitioners KMU, NAFLU and CTUHR in G.R. No. 178554, who merely harp
as well on their supposed "link" to the CPP and NPA. They fail to particularize how the
implementation of specific provisions of RA 9372 would result in direct injury to their organization
and members.
While in our jurisdiction there is still no judicially declared terrorist organization, the United States
of America17 (US) and the European Union18 (EU) have both classified the CPP, NPA and Abu
Sayyaf Group as foreign terrorist organizations. The Court takes note of the joint statement of
Executive Secretary Eduardo Ermita and Justice Secretary Raul Gonzales that the Arroyo
Administration would adopt the US and EU classification of the CPP and NPA as terrorist
organizations.19 Such statement notwithstanding, there is yet to be filed before the courts an
application to declare the CPP and NPA organizations as domestic terrorist or outlawed
organizations under RA 9372. Again, RA 9372 has been in effect for three years now. From July
2007 up to the present, petitioner-organizations have conducted their activities fully and freely
without any threat of, much less an actual, prosecution or proscription under RA 9372.
Parenthetically, the Fourteenth Congress, in a resolution initiated by Party-list Representatives
Saturnino Ocampo, Teodoro Casiño, Rafael Mariano and Luzviminda Ilagan,20 urged the
government to resume peace negotiations with the NDF by removing the impediments thereto,
one of which is the adoption of designation of the CPP and NPA by the US and EU as foreign
terrorist organizations. Considering the policy statement of the Aquino Administration21 of
resuming peace talks with the NDF, the government is not imminently disposed to ask for the
judicial proscription of the CPP-NPA consortium and its allied organizations.
More important, there are other parties not before the Court with direct and specific interests in
the questions being raised.22 Of recent development is the filing of the first case for proscription
under Section 1723 of RA 9372 by the Department of Justice before the Basilan Regional Trial
Court against the Abu Sayyaf Group.24 Petitioner-organizations do not in the least allege any link
to the Abu Sayyaf Group.
Some petitioners attempt, in vain though, to show the imminence of a prosecution under RA 9372
by alluding to past rebellion charges against them.
In Ladlad v. Velasco,25 the Court ordered the dismissal of rebellion charges filed in 2006 against
then Party-List Representatives Crispin Beltran and Rafael Mariano of Anakpawis, Liza Maza of
GABRIELA, and Joel Virador, Teodoro Casiño and Saturnino Ocampo of Bayan Muna. Also
named in the dismissed rebellion charges were petitioners Rey Claro Casambre, Carolina
Pagaduan-Araullo, Renato Reyes, Rita Baua, Emerencia de Jesus and Danilo Ramos; and
accused of being front organizations for the Communist movement were petitioner-organizations
KMU, BAYAN, GABRIELA, PAMALAKAYA, KMP, KADAMAY, LFS and COURAGE.26
The dismissed rebellion charges, however, do not save the day for petitioners. For one, those
charges were filed in 2006, prior to the enactment of RA 9372, and dismissed by this Court. For
another, rebellion is defined and punished under the Revised Penal Code. Prosecution for
rebellion is not made more imminent by the enactment of RA 9372, nor does the enactment
thereof make it easier to charge a person with rebellion, its elements not having been altered.
Conversely, previously filed but dismissed rebellion charges bear no relation to prospective
charges under RA 9372. It cannot be overemphasized that three years after the enactment of RA
9372, none of petitioners has been charged.
Petitioners IBP and CODAL in G.R. No. 179157 base their claim of locus standi on their sworn
duty to uphold the Constitution. The IBP zeroes in on Section 21 of RA 9372 directing it to render
assistance to those arrested or detained under the law.
The mere invocation of the duty to preserve the rule of law does not, however, suffice to clothe
the IBP or any of its members with standing.27 The IBP failed to sufficiently demonstrate how its
mandate under the assailed statute revolts against its constitutional rights and duties. Moreover,
both the IBP and CODAL have not pointed to even a single arrest or detention effected under RA
9372.
Former Senator Ma. Ana Consuelo Madrigal, who claims to have been the subject of "political
surveillance," also lacks locus standi. Prescinding from the veracity, let alone legal basis, of the
claim of "political surveillance," the Court finds that she has not shown even the slightest threat
of being charged under RA 9372. Similarly lacking in locus standi are former Senator Wigberto
Tañada and Senator Sergio Osmeña III, who cite their being respectively a human rights advocate
and an oppositor to the passage of RA 9372. Outside these gratuitous statements, no concrete
injury to them has been pinpointed.
Petitioners Southern Hemisphere Engagement Network and Atty. Soliman Santos Jr. in G.R. No.
178552 also conveniently state that the issues they raise are of transcendental importance, "which
must be settled early" and are of "far-reaching implications," without mention of any specific
provision of RA 9372 under which they have been charged, or may be charged. Mere invocation
of human rights advocacy has nowhere been held sufficient to clothe litigants with locus standi.
Petitioners must show an actual, or immediate danger of sustaining, direct injury as a result of the
law’s enforcement. To rule otherwise would be to corrupt the settled doctrine of locus standi, as
every worthy cause is an interest shared by the general public.
Neither can locus standi be conferred upon individual petitioners as taxpayers and citizens. A
taxpayer suit is proper only when there is an exercise of the spending or taxing power of
Congress,28 whereas citizen standing must rest on direct and personal interest in the
proceeding.29
RA 9372 is a penal statute and does not even provide for any appropriation from Congress for its
implementation, while none of the individual petitioner-citizens has alleged any direct and
personal interest in the implementation of the law.
It bears to stress that generalized interests, albeit accompanied by the assertion of a public right,
do not establish locus standi. Evidence of a direct and personal interest is key.
Petitioners fail to present an actual case or controversy
By constitutional fiat, judicial power operates only when there is an actual case or controversy.
Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as
may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether or not there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.30 (emphasis and underscoring supplied.)
As early as Angara v. Electoral Commission,31 the Court ruled that the power of judicial review is
limited to actual cases or controversies to be exercised after full opportunity of argument by the
parties. Any attempt at abstraction could only lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities.
An actual case or controversy means an existing case or controversy that is appropriate or ripe
for determination, not conjectural or anticipatory, lest the decision of the court would amount to
an advisory opinion.32
Information Technology Foundation of the Philippines v. COMELEC33 cannot be more emphatic:
[C]ourts do not sit to adjudicate mere academic questions to satisfy scholarly interest, however
intellectually challenging. The controversy must be justiciable—definite and concrete, touching on
the legal relations of parties having adverse legal interests. In other words, the pleadings must
show an active antagonistic assertion of a legal right, on the one hand, and a denial thereof on
the other hand; that is, it must concern a real and not merely a theoretical question or issue. There
ought to be an actual and substantial controversy admitting of specific relief through a decree
conclusive in nature, as distinguished from an opinion advising what the law would be upon a
hypothetical state of facts. (Emphasis and underscoring supplied)
Thus, a petition to declare unconstitutional a law converting the Municipality of Makati into a Highly
Urbanized City was held to be premature as it was tacked on uncertain, contingent
events.34 Similarly, a petition that fails to allege that an application for a license to operate a radio
or television station has been denied or granted by the authorities does not present a justiciable
controversy, and merely wheedles the Court to rule on a hypothetical problem.35
The Court dismissed the petition in Philippine Press Institute v. Commission on Elections 36 for
failure to cite any specific affirmative action of the Commission on Elections to implement the
assailed resolution. It refused, in Abbas v. Commission on Elections,37 to rule on the religious
freedom claim of the therein petitioners based merely on a perceived potential conflict between
the provisions of the Muslim Code and those of the national law, there being no actual controversy
between real litigants.
The list of cases denying claims resting on purely hypothetical or anticipatory grounds goes on
ad infinitum.
The Court is not unaware that a reasonable certainty of the occurrence of a perceived threat to
any constitutional interest suffices to provide a basis for mounting a constitutional challenge. This,
however, is qualified by the requirement that there must be sufficient facts to enable the Court to
intelligently adjudicate the issues.38
Very recently, the US Supreme Court, in Holder v. Humanitarian Law Project,39 allowed the pre-
enforcement review of a criminal statute, challenged on vagueness grounds, since plaintiffs faced
a "credible threat of prosecution" and "should not be required to await and undergo a criminal
prosecution as the sole means of seeking relief."40 The plaintiffs therein filed an action before a
federal court to assail the constitutionality of the material support statute, 18 U.S.C. §2339B (a)
(1),41 proscribing the provision of material support to organizations declared by the Secretary of
State as foreign terrorist organizations. They claimed that they intended to provide support for the
humanitarian and political activities of two such organizations.
Prevailing American jurisprudence allows an adjudication on the merits when an anticipatory
petition clearly shows that the challenged prohibition forbids the conduct or activity that a
petitioner seeks to do, as there would then be a justiciable controversy.42
Unlike the plaintiffs in Holder, however, herein petitioners have failed to show that the challenged
provisions of RA 9372 forbid constitutionally protected conduct or activity that they seek to do. No
demonstrable threat has been established, much less a real and existing one.
Petitioners’ obscure allegations of sporadic "surveillance" and supposedly being tagged as
"communist fronts" in no way approximate a credible threat of prosecution. From these
allegations, the Court is being lured to render an advisory opinion, which is not its function.43
Without any justiciable controversy, the petitions have become pleas for declaratory relief, over
which the Court has no original jurisdiction. Then again, declaratory actions characterized by
"double contingency," where both the activity the petitioners intend to undertake and the
anticipated reaction to it of a public official are merely theorized, lie beyond judicial review for lack
of ripeness.44
The possibility of abuse in the implementation of RA 9372 does not avail to take the present
petitions out of the realm of the surreal and merely imagined. Such possibility is not peculiar to
RA 9372 since the exercise of any power granted by law may be abused. 45 Allegations of abuse
must be anchored on real events before courts may step in to settle actual controversies involving
rights which are legally demandable and enforceable.
A facial invalidation of a statute is allowed only in free speech cases, wherein certain rules
of constitutional litigation are rightly excepted
Petitioners assail for being intrinsically vague and impermissibly broad the definition of the crime
of terrorism46 under RA 9372 in that terms like "widespread and extraordinary fear and panic
among the populace" and "coerce the government to give in to an unlawful demand" are nebulous,
leaving law enforcement agencies with no standard to measure the prohibited acts.
Respondents, through the OSG, counter that the doctrines of void-for-vagueness and overbreadth
find no application in the present case since these doctrines apply only to free speech cases; and
that RA 9372 regulates conduct, not speech.
For a jurisprudentially guided understanding of these doctrines, it is imperative to outline the
schools of thought on whether the void-for-vagueness and overbreadth doctrines are equally
applicable grounds to assail a penal statute.
Respondents interpret recent jurisprudence as slanting toward the idea of limiting the application
of the two doctrines to free speech cases. They particularly cite Romualdez v. Hon.
Sandiganbayan47 and Estrada v. Sandiganbayan.48
The Court clarifies.
At issue in Romualdez v. Sandiganbayan was whether the word "intervene" in Section 549 of the
Anti-Graft and Corrupt Practices Act was intrinsically vague and impermissibly broad. The Court
stated that "the overbreadth and the vagueness doctrines have special application only to free-
speech cases," and are "not appropriate for testing the validity of penal statutes."50 It added that,
at any rate, the challenged provision, under which the therein petitioner was charged, is not
vague.51
While in the subsequent case of Romualdez v. Commission on Elections,52 the Court stated that
a facial invalidation of criminal statutes is not appropriate, it nonetheless proceeded to conduct a
vagueness analysis, and concluded that the therein subject election offense53 under the Voter’s
Registration Act of 1996, with which the therein petitioners were charged, is couched in precise
language.54
The two Romualdez cases rely heavily on the Separate Opinion55 of Justice Vicente V. Mendoza
in the Estrada case, where the Court found the Anti-Plunder Law (Republic Act No. 7080) clear
and free from ambiguity respecting the definition of the crime of plunder.
The position taken by Justice Mendoza in Estrada relates these two doctrines to the concept of a
"facial" invalidation as opposed to an "as-applied" challenge. He basically postulated that
allegations that a penal statute is vague and overbroad do not justify a facial review of its validity.
The pertinent portion of the Concurring Opinion of Justice Mendoza, which was quoted at length
in the main Estrada decision, reads:
A facial challenge is allowed to be made to a vague statute and to one which is overbroad because
of possible "chilling effect" upon protected speech. The theory is that "[w]hen statutes regulate or
proscribe speech and no readily apparent construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify allowing attacks on overly broad statutes
with no requirement that the person making the attack demonstrate that his own conduct could
not be regulated by a statute drawn with narrow specificity." The possible harm to society in
permitting some unprotected speech to go unpunished is outweighed by the possibility that the
protected speech of others may be deterred and perceived grievances left to fester because of
possible inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal statutes have general in terrorem effect
resulting from their very existence, and, if facial challenge is allowed for this reason alone, the
State may well be prevented from enacting laws against socially harmful conduct. In the area of
criminal law, the law cannot take chances as in the area of free speech.
The overbreadth and vagueness doctrines then have special application only to free speech
cases. They are inapt for testing the validity of penal statutes. As the U.S. Supreme Court put it,
in an opinion by Chief Justice Rehnquist, "we have not recognized an 'overbreadth' doctrine
outside the limited context of the First Amendment." In Broadrick v. Oklahoma, the Court ruled
that "claims of facial overbreadth have been entertained in cases involving statutes which, by their
terms, seek to regulate only spoken words" and, again, that "overbreadth claims, if entertained at
all, have been curtailed when invoked against ordinary criminal laws that are sought to be applied
to protected conduct." For this reason, it has been held that "a facial challenge to a legislative act
is the most difficult challenge to mount successfully, since the challenger must establish that no
set of circumstances exists under which the Act would be valid." As for the vagueness doctrine,
it is said that a litigant may challenge a statute on its face only if it is vague in all its possible
applications. "A plaintiff who engages in some conduct that is clearly proscribed cannot complain
of the vagueness of the law as applied to the conduct of others."
In sum, the doctrines of strict scrutiny, overbreadth, and vagueness are analytical tools developed
for testing "on their faces" statutes in free speech cases or, as they are called in American law,
First Amendment cases. They cannot be made to do service when what is involved is a criminal
statute. With respect to such statute, the established rule is that "one to whom application of a
statute is constitutional will not be heard to attack the statute on the ground that impliedly it might
also be taken as applying to other persons or other situations in which its application might be
unconstitutional." As has been pointed out, "vagueness challenges in the First Amendment
context, like overbreadth challenges typically produce facial invalidation, while statutes found
vague as a matter of due process typically are invalidated [only] 'as applied' to a particular
defendant." Consequently, there is no basis for petitioner's claim that this Court review the Anti-
Plunder Law on its face and in its entirety.
Indeed, "on its face" invalidation of statutes results in striking them down entirely on the ground
that they might be applied to parties not before the Court whose activities are constitutionally
protected. It constitutes a departure from the case and controversy requirement of the Constitution
and permits decisions to be made without concrete factual settings and in sterile abstract
contexts. But, as the U.S. Supreme Court pointed out in Younger v. Harris
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of
these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the
judiciary. The combination of the relative remoteness of the controversy, the impact on the
legislative process of the relief sought, and above all the speculative and amorphous nature of
the required line-by-line analysis of detailed statutes, . . . ordinarily results in a kind of case that
is wholly unsatisfactory for deciding constitutional questions, whichever way they might be
decided.
For these reasons, "on its face" invalidation of statutes has been described as "manifestly strong
medicine," to be employed "sparingly and only as a last resort," and is generally disfavored. In
determining the constitutionality of a statute, therefore, its provisions which are alleged to have
been violated in a case must be examined in the light of the conduct with which the defendant is
charged.56 (Underscoring supplied.)
The confusion apparently stems from the interlocking relation of the overbreadth and vagueness
doctrines as grounds for a facial or as-applied challenge against a penal statute (under a claim of
violation of due process of law) or a speech regulation (under a claim of abridgement of the
freedom of speech and cognate rights).
To be sure, the doctrine of vagueness and the doctrine of overbreadth do not operate on the same
plane.
A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that
men of common intelligence must necessarily guess at its meaning and differ as to its application.
It is repugnant to the Constitution in two 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.57 The overbreadth doctrine, meanwhile, decrees that a governmental
purpose to control or prevent activities constitutionally subject to state regulations may not be
achieved by means which sweep unnecessarily broadly and thereby invade the area of protected
freedoms.58
As distinguished from the vagueness doctrine, the overbreadth doctrine assumes that individuals
will understand what a statute prohibits and will accordingly refrain from that behavior, even
though some of it is protected.59
A "facial" challenge is likewise different from an "as-applied" challenge.
Distinguished from an as-applied challenge which considers only extant facts
affecting real litigants, a facial invalidation is an examination of the entire law, pinpointing its flaws
and defects, not only on the basis of its actual operation to the parties, but also on the assumption
or prediction that its very existence may cause others not before the court to refrain from
constitutionally protected speech or activities.60
Justice Mendoza accurately phrased the subtitle61 in his concurring opinion that the vagueness
and overbreadth doctrines, as grounds for a facial challenge, are not applicable to penal laws. A
litigant cannot thus successfully mount a facial challenge against a criminal statute on either
vagueness or overbreadth grounds.
The allowance of a facial challenge in free speech cases is justified by the aim to avert the "chilling
effect" on protected speech, the exercise of which should not at all times be abridged. 62 As
reflected earlier, this rationale is inapplicable to plain penal statutes that generally bear an "in
terrorem effect" in deterring socially harmful conduct. In fact, the legislature may even forbid and
penalize acts formerly considered innocent and lawful, so long as it refrains from diminishing or
dissuading the exercise of constitutionally protected rights.63
The Court reiterated that there are "critical limitations by which a criminal statute may be
challenged" and "underscored that an ‘on-its-face’ invalidation of penal statutes x x x may not be
allowed."64
[T]he rule established in our jurisdiction is, only statutes on free speech, religious freedom, and
other fundamental rights may be facially challenged. Under no case may ordinary penal statutes
be subjected to a facial challenge. The rationale is obvious. If a facial challenge to a penal statute
is permitted, the prosecution of crimes may be hampered. No prosecution would be possible. A
strong criticism against employing a facial challenge in the case of penal statutes, if the same is
allowed, would effectively go against the grain of the doctrinal requirement of an existing and
concrete controversy before judicial power may be appropriately exercised. A facial challenge
against a penal statute is, at best, amorphous and speculative. It would, essentially, force the
court to consider third parties who are not before it. As I have said in my opposition to the
allowance of a facial challenge to attack penal statutes, such a test will impair the State’s ability
to deal with crime. If warranted, there would be nothing that can hinder an accused from defeating
the State’s power to prosecute on a mere showing that, as applied to third parties, the penal
statute is vague or overbroad, notwithstanding that the law is clear as applied to him.65 (Emphasis
and underscoring supplied)
It is settled, on the other hand, that the application of the overbreadth doctrine is limited to a
facial kind of challenge and, owing to the given rationale of a facial challenge, applicable
only to free speech cases.
By its nature, the overbreadth doctrine has to necessarily apply a facial type of invalidation in
order to plot areas of protected speech, inevitably almost always under situations not before the
court, that are impermissibly swept by the substantially overbroad regulation. Otherwise stated, a
statute cannot be properly analyzed for being substantially overbroad if the court confines itself
only to facts as applied to the litigants.
The most distinctive feature of the overbreadth technique is that it marks an exception to some of
the usual rules of constitutional litigation. Ordinarily, a particular litigant claims that a statute is
unconstitutional as applied to him or her; if the litigant prevails, the courts carve away the
unconstitutional aspects of the law by invalidating its improper applications on a case to case
basis. Moreover, challengers to a law are not permitted to raise the rights of third parties and can
only assert their own interests. In overbreadth analysis, those rules give way; challenges are
permitted to raise the rights of third parties; and the court invalidates the entire statute "on its
face," not merely "as applied for" so that the overbroad law becomes unenforceable until a
properly authorized court construes it more narrowly. The factor that motivates courts to depart
from the normal adjudicatory rules is the concern with the "chilling;" deterrent effect of the
overbroad statute on third parties not courageous enough to bring suit. The Court assumes that
an overbroad law’s "very existence may cause others not before the court to refrain from
constitutionally protected speech or expression." An overbreadth ruling is designed to remove
that deterrent effect on the speech of those third parties.66 (Emphasis in the original omitted;
underscoring supplied.)
In restricting the overbreadth doctrine to free speech claims, the Court, in at least two
cases,67 observed that the US Supreme Court has not recognized an overbreadth doctrine
outside the limited context of the First Amendment,68 and that claims of facial overbreadth have
been entertained in cases involving statutes which, by their terms, seek to regulate only spoken
words.69 In Virginia v. Hicks,70 it was held that rarely, if ever, will an overbreadth challenge
succeed against a law or regulation that is not specifically addressed to speech or speech-related
conduct. Attacks on overly broad statutes are justified by the "transcendent value to all society of
constitutionally protected expression."71
Since a penal statute may only be assailed for being vague as applied to petitioners,
a limited vagueness analysis of the definition of "terrorism" in RA 9372 is legally impermissible
absent an actual or imminent charge against them
While Estrada did not apply the overbreadth doctrine, it did not preclude the operation of the
vagueness test on the Anti-Plunder Law as applied to the therein petitioner, finding, however, that
there was no basis to review the law "on its face and in its entirety." 72 It stressed that "statutes
found vague as a matter of due process typically are invalidated only 'as applied' to a particular
defendant."73
American jurisprudence74 instructs that "vagueness challenges that do not involve the First
Amendment must be examined in light of the specific facts of the case at hand and not with regard
to the statute's facial validity."
For more than 125 years, the US Supreme Court has evaluated defendants’ claims that criminal
statutes are unconstitutionally vague, developing a doctrine hailed as "among the most important
guarantees of liberty under law."75
In this jurisdiction, the void-for-vagueness doctrine asserted under the due process clause has
been utilized in examining the constitutionality of criminal statutes. In at least three cases, 76 the
Court brought the doctrine into play in analyzing an ordinance penalizing the non-payment of
municipal tax on fishponds, the crime of illegal recruitment punishable under Article 132(b) of the
Labor Code, and the vagrancy provision under Article 202 (2) of the Revised Penal Code. Notably,
the petitioners in these three cases, similar to those in the two Romualdez and Estrada cases,
were actually charged with the therein assailed penal statute, unlike in the present case.
There is no merit in the claim that RA 9372 regulates speech so as to permit a facial analysis of
its validity
From the definition of the crime of terrorism in the earlier cited Section 3 of RA 9372, the following
elements may be culled: (1) the offender commits an act punishable under any of the cited
provisions of the Revised Penal Code, or under any of the enumerated special penal laws; (2) the
commission of the predicate crime sows and creates a condition of widespread and extraordinary
fear and panic among the populace; and (3) the offender is actuated by the desire to coerce the
government to give in to an unlawful demand.
In insisting on a facial challenge on the invocation that the law penalizes speech, petitioners
contend that the element of "unlawful demand" in the definition of terrorism77 must necessarily be
transmitted through some form of expression protected by the free speech clause.
The argument does not persuade. What the law seeks to penalize is conduct, not speech.
Before a charge for terrorism may be filed under RA 9372, there must first be a predicate crime
actually committed to trigger the operation of the key qualifying phrases in the other elements of
the crime, including the coercion of the government to accede to an "unlawful demand." Given
the presence of the first element, any attempt at singling out or highlighting the communicative
component of the prohibition cannot recategorize the unprotected conduct into a protected
speech.
Petitioners’ notion on the transmission of message is entirely inaccurate, as it unduly focuses on
just one particle of an element of the crime. Almost every commission of a crime entails some
mincing of words on the part of the offender like in declaring to launch overt criminal acts against
a victim, in haggling on the amount of ransom or conditions, or in negotiating a deceitful
transaction. An analogy in one U.S. case78 illustrated that the fact that the prohibition on
discrimination in hiring on the basis of race will require an employer to take down a sign reading
"White Applicants Only" hardly means that the law should be analyzed as one regulating speech
rather than conduct.
Utterances not elemental but inevitably incidental to the doing of the criminal conduct alter neither
the intent of the law to punish socially harmful conduct nor the essence of the whole act as conduct
and not speech. This holds true a fortiori in the present case where the expression figures only
as an inevitable incident of making the element of coercion perceptible.
[I]t is true that the agreements and course of conduct here were as in most instances brought
about through speaking or writing. But it has never been deemed an abridgement of freedom of
speech or press to make a course of conduct illegal merely because the conduct was, in part,
initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Such
an expansive interpretation of the constitutional guaranties of speech and press would make it
practically impossible ever to enforce laws against agreements in restraint of trade as well as
many other agreements and conspiracies deemed injurious to society.79 (italics and underscoring
supplied)
Certain kinds of speech have been treated as unprotected conduct, because they merely
evidence a prohibited conduct.80 Since speech is not involved here, the Court cannot heed the
call for a facial analysis.1avvphi1
IN FINE, Estrada and the other cited authorities engaged in a vagueness analysis of the therein
subject penal statute as applied to the therein petitioners inasmuch as they were actually charged
with the pertinent crimes challenged on vagueness grounds. The Court in said cases, however,
found no basis to review the assailed penal statute on its face and in its entirety.
In Holder, on the other hand, the US Supreme Court allowed the pre-enforcement review of a
criminal statute, challenged on vagueness grounds, since the therein plaintiffs faced a "credible
threat of prosecution" and "should not be required to await and undergo a criminal prosecution
as the sole means of seeking relief."
As earlier reflected, petitioners have established neither an actual charge nor a credible threat of
prosecution under RA 9372. Even a limited vagueness analysis of the assailed definition of
"terrorism" is thus legally impermissible. The Court reminds litigants that judicial power neither
contemplates speculative counseling on a statute’s future effect on hypothetical scenarios nor
allows the courts to be used as an extension of a failed legislative lobbying in Congress.
WHEREFORE, the petitions are DISMISSED.
SO ORDERED.

G.R. No. 205728 January 21, 2015

THE DIOCESE OF BACOLOD, REPRESENTED BY THE MOST REV. BISHOP VICENTE M.
NAVARRA and THE BISHOP HIMSELF IN HIS PERSONAL CAPACITY, Petitioners,
vs.
COMMISSION ON ELECTIONS AND THE ELECTION OFFICER OF BACOLOD CITY, ATTY.
MAVIL V. MAJARUCON, Respondents.

"The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them." – Article II, Section 1, Constitution
All governmental authority emanates from our people. No unreasonable restrictions of the
fundamental and preferred right to expression of the electorate during political contests no matter
how seemingly benign will be tolerated.
This case defines the extent that our people may shape the debates during elections. It is
significant and of first impression. We are asked to decide whether the Commission on Elections
(COMELEC) has the competence to limit expressions made by the citizens — who are not
candidates — during elections.
Before us is a special civil action for certiorari and prohibition with application for preliminary
injunction and temporary restraining order1 under Rule 65 of the Rules of Court seeking to nullify
COMELEC’s Notice to Remove Campaign Materials2 dated February 22, 2013 and letter3 issued
on February 27, 2013.
The facts are not disputed.
On February 21, 2013, petitioners posted two (2) tarpaulins within a private compound housing
the San Sebastian Cathedral of Bacolod. Each tarpaulin was approximately six feet (6') by ten
feet (10') in size. They were posted on the front walls of the cathedral within public view. The first
tarpaulin contains the message "IBASURA RH Law" referring to the Reproductive Health Law of
2012 or Republic Act No. 10354. The second tarpaulin is the subject of the present case.4 This
tarpaulin contains the heading "Conscience Vote" and lists candidates as either "(Anti-RH) Team
Buhay" with a check mark, or "(Pro-RH) Team Patay" with an "X" mark.5 The electoral candidates
were classified according to their vote on the adoption of Republic Act No. 10354, otherwise
known as the RH Law.6 Those who voted for the passing of the law were classified by petitioners
as comprising "Team Patay," while those who voted against it form "Team Buhay":7

TEAM BUHAY TEAM PATAY

Estrada, JV Angara, Juan Edgardo

Honasan, Gregorio Casiño, Teddy

Magsaysay, Mitos Cayetano, Alan Peter

Pimentel, Koko Enrile, Jackie

Trillanes, Antonio Escudero, Francis

Villar, Cynthia Hontiveros, Risa

Party List Buhay Legarda, Loren

Party List Ang Pamilya Party List Gabriela

Party List Akbayan

Party List Bayan Muna

 Party List Anak Pawis

During oral arguments, respondents conceded that the tarpaulin was neither sponsored nor paid
for by any candidate. Petitioners also conceded that the tarpaulin contains names ofcandidates
for the 2013 elections, but not of politicians who helped in the passage of the RH Law but were
not candidates for that election.
On February 22, 2013, respondent Atty. Mavil V. Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign Materials8 addressed to petitioner Most Rev.
Bishop Vicente M. Navarra. The election officer ordered the tarpaulin’s removal within three (3)
days from receipt for being oversized. COMELEC Resolution No. 9615 provides for the size
requirement of two feet (2’) by three feet (3’).9
On February 25, 2013, petitioners replied10 requesting, among others, that (1) petitioner Bishop
be given a definite ruling by COMELEC Law Department regarding the tarpaulin; and (2) pending
this opinion and the availment of legal remedies, the tarpaulin be allowed to remain.11
On February 27, 2013, COMELEC Law Department issued a letter12 ordering the immediate
removal of the tarpaulin; otherwise, it will be constrained to file an election offense against
petitioners. The letter of COMELEC Law Department was silenton the remedies available to
petitioners. The letter provides as follows:
Dear Bishop Navarra:
It has reached this Office that our Election Officer for this City, Atty. Mavil Majarucon, had already
given you notice on February 22, 2013 as regards the election propaganda material posted on
the church vicinity promoting for or against the candidates and party-list groups with the following
names and messages, particularly described as follows:
Material size : six feet (6’) by ten feet (10’)
Description : FULL COLOR TARPAULIN
Image of : SEE ATTACHED PICTURES
Message : CONSCIENCE VOTE (ANTI RH) TEAM
BUHAY; (PRO RH) TEAM PATAY
Location : POSTED ON THE CHURCH VICINITY
OF THE DIOCESE OF BACOLOD CITY
The three (3) – day notice expired on February 25, 2013.
Considering that the above-mentioned material is found to be in violation of Comelec Resolution
No. 9615 promulgated on January 15, 2013 particularly on the size (even with the subsequent
division of the said tarpaulin into two), as the lawful size for election propaganda material is only
two feet (2’) by three feet (3’), please order/cause the immediate removal of said election
propaganda material, otherwise, we shall be constrained to file an election offense case against
you.
We pray that the Catholic Church will be the first institution to help the Commission on Elections
inensuring the conduct of peaceful, orderly, honest and credible elections.
Thank you and God Bless!
[signed]
ATTY. ESMERALDA AMORA-LADRA
Director IV13
Concerned about the imminent threatof prosecution for their exercise of free speech, petitioners
initiated this case through this petition for certiorari and prohibition with application for preliminary
injunction and temporary restraining order.14 They question respondents’ notice dated February
22, 2013 and letter issued on February 27, 2013. They pray that: (1) the petition be given due
course; (2) a temporary restraining order (TRO) and/or a writ of preliminary injunction be issued
restraining respondents from further proceeding in enforcing their orders for the removal of the
Team Patay tarpaulin; and (3) after notice and hearing, a decision be rendered declaring the
questioned orders of respondents as unconstitutional and void, and permanently restraining
respondents from enforcing them or any other similar order.15
After due deliberation, this court, on March 5, 2013, issued a temporary restraining order enjoining
respondents from enforcing the assailed notice and letter, and set oral arguments on March 19,
2013.16
On March 13, 2013, respondents filed their comment17 arguing that (1) a petition for certiorari and
prohibition under Rule 65 of the Rules of Court filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2) the tarpaulin is an election propaganda
subject to regulation by COMELEC pursuant to its mandate under Article IX-C, Section 4 of the
Constitution. Hence, respondents claim that the issuances ordering its removal for being
oversized are valid and constitutional.18
During the hearing held on March 19, 2013, the parties were directed to file their respective
memoranda within 10 days or by April 1, 2013, taking into consideration the intervening holidays.19
The issues, which also served as guide for the oral arguments, are:20
I.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ORDER BY ELECTION OFFICER MAJARUCON
AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT ARE
CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE COMELEC WHICH
WOULD WARRANT A REVIEW OF THIS COURT VIA RULE 65 PETITION[;]
A. WHETHER PETITIONERS VIOLATED THE HIERARCHY OF COURTS
DOCTRINE AND JURISPRUDENTIAL RULES GOVERNING APPEALS FROM
COMELEC DECISIONS;
B. ASSUMING ARGUENDO THAT THE AFOREMENTIONED ORDERS ARE
NOT CONSIDERED JUDGMENTS/FINAL ORDERS/RESOLUTIONS OF THE
COMELEC, WHETHER THERE ARE EXCEPTIONAL CIRCUMSTANCES
WHICH WOULD ALLOW THIS COURT TO TAKE COGNIZANCE OF THE
CASE[;]
II.
WHETHER IT IS RELEVANT TODETERMINE WHETHER THE TARPAULINS ARE "POLITICAL
ADVERTISEMENT" OR "ELECTION PROPAGANDA" CONSIDERING THAT PETITIONER IS
NOT A POLITICAL CANDIDATE[;]
III.
WHETHER THE TARPAULINS ARE A FORM OR EXPRESSION (PROTECTED SPEECH), OR
ELECTION PROPAGANDA/POLITICAL ADVERTISEMENT[;]
 A. ASSUMING ARGUENDO THAT THE TARPAULINS ARE A FORM OF
EXPRESSION, WHETHER THE COMELEC POSSESSES THE AUTHORITY TO
REGULATE THE SAME[;]
B. WHETHER THIS FORM OF EXPRESSION MAY BE REGULATED[;]
IV.
WHETHER THE 22 FEBRUARY 2013 NOTICE/ ORDER BY ELECTION OFFICER
MAJARUCON AND THE 27 FEBRUARY 2013 ORDER BY THE COMELEC LAW DEPARTMENT
VIOLATES THE PRINCIPLE OF SEPARATION OF CHURCH AND STATE[;] [AND]
V.
WHETHER THE ACTION OF THE PETITIONERS IN POSTING ITS TARPAULIN VIOLATES
THE CONSTITUTIONAL PRINCIPLE OF SEPARATION OF CHURCH AND STATE.
I
PROCEDURAL ISSUES
I.A
This court’s jurisdiction over COMELEC cases
Respondents ask that this petition be dismissed on the ground that the notice and letter are not
final orders, decisions, rulings, or judgments of the COMELEC En Banc issued in the exercise of
its adjudicatory powers, reviewable via Rule 64 of the Rules of Court.21
Rule 64 is not the exclusive remedy for all acts of the COMELEC. Rule 65 is applicable especially
to raise objections relating to a grave abuse of discretion resulting in the ouster of jurisdiction.22 As
a special civil action, there must also be a showing that there be no plain, speedy, and adequate
remedy in the ordinary course of the law.
Respondents contend that the assailed notice and letter are not subject to review by this court,
whose power to review is "limited only to final decisions, rulings and orders of the COMELEC En
Banc rendered in the exercise of its adjudicatory or quasi-judicial power."23 Instead, respondents
claim that the assailed notice and letter are reviewable only by COMELEC itself pursuant to Article
IX-C, Section 2(3) of the Constitution24 on COMELEC’s power to decide all questions affecting
elections.25 Respondents invoke the cases of Ambil, Jr. v. COMELEC,26 Repol v.
COMELEC,27 Soriano, Jr. v. COMELEC,28 Blanco v. COMELEC,29 and Cayetano v.
COMELEC,30 to illustrate how judicialintervention is limited to final decisions, orders, rulings and
judgments of the COMELEC En Banc.31
These cases are not applicable.
In Ambil, Jr. v. COMELEC, the losing party in the gubernatorial race of Eastern Samar filed the
election protest.32 At issue was the validity of the promulgation of a COMELEC Division
resolution.33 No motion for reconsideration was filed to raise this issue before the COMELEC En
Banc. This court declared that it did not have jurisdiction and clarified:
We have interpreted [Section 7, Article IX-A of the Constitution]34 to mean final orders, rulings and
decisionsof the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers."
This decision must be a final decision or resolution of the Comelec en banc, not of a division,
certainly not an interlocutory order of a division.The Supreme Court has no power to review
viacertiorari, an interlocutory order or even a final resolution of a Division of the Commission on
Elections.35 (Emphasis in the original, citations omitted)
However, in the next case cited by respondents, Repol v. COMELEC, this court provided
exceptions to this general rule. Repolwas another election protest case, involving the mayoralty
elections in Pagsanghan, Samar.36 This time, the case was brought to this court because the
COMELEC First Division issued a status quo ante order against the Regional Trial Court
executing its decision pending appeal.37 This court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take jurisdiction to review interlocutory orders of a
COMELEC Division.38 However, consistent with ABS-CBN Broadcasting Corporation v.
COMELEC,39 it clarified the exception:
This Court, however, has ruled in the past that this procedural requirement [of filing a motion for
reconsideration] may be glossed over to prevent miscarriage of justice, when the issue involves
the principle of social justice or the protection of labor, when the decision or resolution sought to
be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only
adequate and speedy remedy available.40
Based on ABS-CBN, this court could review orders and decisions of COMELEC — in electoral
contests — despite not being reviewed by the COMELEC En Banc, if:
1) It will prevent the miscarriage of justice;
2) The issue involves a principle of social justice;
3) The issue involves the protection of labor;
4) The decision or resolution sought tobe set aside is a nullity; or
5) The need for relief is extremely urgent and certiorari is the only adequate and speedy
remedy available.
Ultimately, this court took jurisdiction in Repoland decided that the status quo anteorder issued
by the COMELEC Division was unconstitutional.
Respondents also cite Soriano, Jr. v. COMELEC.This case was also an election protest case
involving candidates for the city council of Muntinlupa City.41 Petitioners in Soriano, Jr.filed before
this court a petition for certiorari against an interlocutory order of the COMELEC First
Division.42 While the petition was pending in this court, the COMELEC First Division dismissed
the main election protest case.43 Sorianoapplied the general rule that only final orders should be
questioned with this court. The ponencia for this court, however, acknowledged the exceptions to
the general rule in ABS-CBN.44
Blanco v. COMELEC, another case cited by respondents, was a disqualification case of one of
the mayoralty candidates of Meycauayan, Bulacan.45 The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due to the findings in an administrative case that
he engaged in vote buying in the 1995 elections.46 No motion for reconsideration was filed before
the COMELEC En Banc. This court, however, took cognizance of this case applying one of the
exceptions in ABS-CBN: The assailed resolution was a nullity.47
Finally, respondents cited Cayetano v. COMELEC, a recent election protest case involving the
mayoralty candidates of Taguig City.48 Petitioner assailed a resolution of the COMELEC denying
her motion for reconsideration to dismiss the election protest petition for lack of form and
substance.49 This court clarified the general rule and refused to take cognizance of the review of
the COMELEC order. While recognizing the exceptions in ABS-CBN, this court ruled that these
exceptions did not apply.50
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by respondents do not operate as
precedents to oust this court from taking jurisdiction over this case. All these cases cited involve
election protests or disqualification cases filed by the losing candidate against the winning
candidate.
In the present case, petitioners are not candidates seeking for public office. Their petition is filed
to assert their fundamental right to expression.
Furthermore, all these cases cited by respondents pertained to COMELEC’s exercise of its
adjudicatory or quasi-judicial power. This case pertains to acts of COMELEC in the
implementation of its regulatory powers. When it issued the notice and letter, the COMELEC was
allegedly enforcingelection laws.
I.B
Rule 65, grave abuse of discretion,
and limitations on political speech
The main subject of thiscase is an alleged constitutional violation: the infringement on speech and
the "chilling effect" caused by respondent COMELEC’s notice and letter.
Petitioners allege that respondents committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the notice51 dated February 22,2013 and letter52 dated February
27, 2013 ordering the removal of the tarpaulin.53 It is their position that these infringe on their
fundamental right to freedom of expression and violate the principle of separation of church and
state and, thus, are unconstitutional.54
The jurisdiction of this court over the subject matter is determined from the allegations in the
petition. Subject matter jurisdiction is defined as the authority "to hear and determine cases of the
general class to which the proceedings in question belong and is conferred by the sovereign
authority which organizes the court and defines its powers."55 Definitely, the subject matter in this
case is different from the cases cited by respondents.
Nothing less than the electorate’s political speech will be affected by the restrictions imposed by
COMELEC. Political speech is motivated by the desire to be heard and understood, to move
people to action. It is concerned with the sovereign right to change the contours of power whether
through the election of representatives in a republican government or the revision of the basic text
of the Constitution. The zeal with which we protect this kind of speech does not depend on our
evaluation of the cogency of the message. Neither do we assess whether we should protect
speech based on the motives of COMELEC. We evaluate restrictions on freedom of expression
from their effects. We protect both speech and medium because the quality of this freedom in
practice will define the quality of deliberation in our democratic society.
COMELEC’s notice and letter affect preferred speech. Respondents’ acts are capable of
repetition. Under the conditions in which it was issued and in view of the novelty of this case,it
could result in a "chilling effect" that would affect other citizens who want their voices heard on
issues during the elections. Other citizens who wish to express their views regarding the election
and other related issues may choose not to, for fear of reprisal or sanction by the COMELEC.
Direct resort to this court is allowed to avoid such proscribed conditions. Rule 65 is also the
procedural platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction. For petitioners, it referred to this
court’s expanded exercise of certiorari as provided by the Constitution as follows:
Judicial power includes the duty of the courts of justice to settle actual controversies involving
rights which are legally demandable and enforceable, and to determine whether ornot there has
been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the Government.56 (Emphasis supplied)
On the other hand, respondents relied on its constitutional mandate to decide all questions
affectingelections. Article IX-C, Section 2(3) of the Constitution, provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(3) Decide, except those involving the right to vote, all questions affecting elections, including
determination of the number and location of polling places, appointment of election officials and
inspectors, and registration of voters.
Respondents’ reliance on this provision is misplaced.
We are not confronted here with the question of whether the COMELEC, in its exercise of
jurisdiction, gravely abused it. We are confronted with the question as to whether the COMELEC
had any jurisdiction at all with its acts threatening imminent criminal action effectively abridging
meaningful political speech.
It is clear that the subject matter of the controversy is the effect of COMELEC’s notice and letter
on free speech. This does not fall under Article IX-C, Section 2(3) of the Constitution. The use of
the word "affecting" in this provision cannot be interpreted to mean that COMELEC has the
exclusive power to decide any and allquestions that arise during elections. COMELEC’s
constitutional competencies during elections should not operate to divest this court of its own
jurisdiction.
The more relevant provision for jurisdiction in this case is Article VIII, Section 5(1) of the
Constitution.This provision provides for this court’s original jurisdiction over petitions for certiorari
and prohibition. This should be read alongside the expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
Certainly, a breach of the fundamental right of expression by COMELEC is grave abuse of
discretion. Thus, the constitutionality of the notice and letter coming from COMELEC is within this
court’s power to review.
During elections, we have the power and the duty to correct any grave abuse of discretion or any
act tainted with unconstitutionality on the part of any government branch or instrumentality. This
includes actions by the COMELEC. Furthermore, it is this court’s constitutional mandate to protect
the people against government’s infringement of their fundamental rights. This constitutional
mandate out weighs the jurisdiction vested with the COMELEC.
It will, thus, be manifest injustice if the court does not take jurisdiction over this case.
I.C
Hierarchy of courts
This brings us to the issue of whether petitioners violated the doctrine of hierarchy of courts in
directly filing their petition before this court.
Respondents contend that petitioners’ failure to file the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of their petition.57 They add that observation of
the hierarchy of courts is compulsory, citing Heirs of Bertuldo Hinog v. Melicor.58 While
respondents claim that while there are exceptions to the general rule on hierarchy of courts, none
of these are present in this case.59
On the other hand, petitioners cite Fortich v. Corona60 on this court’s discretionary power to take
cognizance of a petition filed directly to it if warranted by "compelling reasons, or [by] the nature
and importance of the issues raised. . . ."61 Petitioners submit that there are "exceptional and
compelling reasons to justify a direct resort [with] this Court."62
In Bañez, Jr. v. Concepcion,63 we explained the necessity of the application of the hierarchy of
courts:
The Court must enjoin the observance of the policy on the hierarchy of courts, and now affirms
that the policy is not to be ignored without serious consequences. The strictness of the policy is
designed to shield the Court from having to deal with causes that are also well within the
competence of the lower courts, and thus leave time to the Court to deal with the more
fundamental and more essential tasks that the Constitution has assigned to it. The Court may act
on petitions for the extraordinary writs of certiorari, prohibition and mandamus only when
absolutely necessary or when serious and important reasons exist to justify an exception to the
policy.64
In Bañez, we also elaborated on the reasons why lower courts are allowed to issue writs of
certiorari, prohibition, and mandamus, citing Vergara v. Suelto:65
The Supreme Court is a court of lastresort, and must so remain if it is to satisfactorily perform the
functions assigned to it by the fundamental charter and immemorial tradition. It cannot and should
not be burdened with the task of dealing with causes in the first instance. Its original jurisdiction
to issue the so-called extraordinary writs should be exercised only where absolutely necessary or
where serious and important reasons exist therefore. Hence, that jurisdiction should generally be
exercised relative to actions or proceedings before the Court of Appeals, or before constitutional
or other tribunals, bodies or agencies whose acts for some reason or another are not controllable
by the Court of Appeals. Where the issuance of an extraordinary writ is also within the competence
of the Court of Appeals or a Regional Trial Court, it is in either of these courts that the specific
action for the writ’s procurement must be presented. This is and should continue to be the policy
in this regard, a policy that courts and lawyers must strictly observe.66 (Emphasis omitted)
The doctrine that requires respect for the hierarchy of courts was created by this court to ensure
that every level of the judiciary performs its designated roles in an effective and efficient manner.
Trial courts do not only determine the facts from the evaluation of the evidence presented before
them. They are likewise competent to determine issues of law which may include the validity of
an ordinance, statute, or even an executive issuance in relation to the Constitution.67 To
effectively perform these functions, they are territorially organized into regions and then into
branches. Their writs generally reach within those territorial boundaries. Necessarily, they mostly
perform the all-important task of inferring the facts from the evidence as these are physically
presented before them. In many instances, the facts occur within their territorial jurisdiction, which
properly present the ‘actual case’ that makes ripe a determination of the constitutionality of such
action. The consequences, of course, would be national in scope. There are, however, some
cases where resort to courts at their level would not be practical considering their decisions could
still be appealed before the higher courts, such as the Court of Appeals.
The Court of Appeals is primarily designed as an appellate court that reviews the determination
of facts and law made by the trial courts. It is collegiate in nature. This nature ensures more
standpoints in the review of the actions of the trial court. But the Court of Appeals also has original
jurisdiction over most special civil actions. Unlike the trial courts, its writs can have a nationwide
scope. It is competent to determine facts and, ideally, should act on constitutional issues thatmay
not necessarily be novel unless there are factual questions to determine.
This court, on the other hand, leads the judiciary by breaking new ground or further reiterating —
in the light of new circumstances or in the light of some confusions of bench or bar — existing
precedents. Rather than a court of first instance or as a repetition of the actions of the Court of
Appeals, this court promulgates these doctrinal devices in order that it truly performs that role.
In other words, the Supreme Court’s role to interpret the Constitution and act in order to protect
constitutional rights when these become exigent should not be emasculated by the doctrine in
respect of the hierarchy of courts. That has never been the purpose of such doctrine.
Thus, the doctrine of hierarchy of courts is not an iron-clad rule.68 This court has "full discretionary
power to take cognizance and assume jurisdiction [over] special civil actions for certiorari . . .filed
directly with it for exceptionally compelling reasons69 or if warranted by the nature of the issues
clearly and specifically raised in the petition."70 As correctly pointed out by petitioners,71 we have
provided exceptions to this doctrine:
First, a direct resort to this court is allowed when there are genuine issues of constitutionality that
must be addressed at the most immediate time. A direct resort to this court includes availing of
the remedies of certiorari and prohibition toassail the constitutionality of actions of both legislative
and executive branches of the government.72
In this case, the assailed issuances of respondents prejudice not only petitioners’ right to freedom
of expression in the present case, but also of others in future similar cases. The case before this
court involves an active effort on the part of the electorate to reform the political landscape. This
has become a rare occasion when private citizens actively engage the public in political discourse.
To quote an eminent political theorist:
[T]he theory of freedom of expression involves more than a technique for arriving at better social
judgments through democratic procedures. It comprehends a vision of society, a faith and a whole
way of life. The theory grew out of an age that was awakened and invigorated by the idea of new
society in which man's mind was free, his fate determined by his own powers of reason, and his
prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as
a prescription for attaining a creative, progressive, exciting and intellectually robust community. It
contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative,
will allow man to realize his full potentialities.It spurns the alternative of a society that is tyrannical,
conformist, irrational and stagnant.73
In a democracy, the citizen’s right tofreely participate in the exchange of ideas in furtherance of
political decision-making is recognized. It deserves the highest protection the courts may provide,
as public participation in nation-building isa fundamental principle in our Constitution. As such,
their right to engage in free expression of ideas must be given immediate protection by this court.
A second exception is when the issuesinvolved are of transcendental importance.74 In these
cases, the imminence and clarity of the threat to fundamental constitutional rights outweigh the
necessity for prudence. The doctrine relating to constitutional issues of transcendental importance
prevents courts from the paralysis of procedural niceties when clearly faced with the need for
substantial protection.
In the case before this court, there is a clear threat to the paramount right of freedom of speech
and freedom of expression which warrants invocation of relief from this court. The principles laid
down in this decision will likely influence the discourse of freedom of speech in the future,
especially in the context of elections. The right to suffrage not only includes the right to vote for
one’s chosen candidate, but also the right to vocalize that choice to the public in general, in the
hope of influencing their votes. It may be said that in an election year, the right to vote necessarily
includes the right to free speech and expression. The protection of these fundamental
constitutional rights, therefore, allows for the immediate resort to this court.
Third, cases of first impression75 warrant a direct resort to this court. In cases of first impression,
no jurisprudence yet exists that will guide the lower courts on this matter. In Government of the
United States v. Purganan,76 this court took cognizance of the case as a matter of first impression
that may guide the lower courts:
In the interest of justice and to settle once and for all the important issue of bail in extradition
proceedings, we deem it best to take cognizance of the present case. Such proceedings
constitute a matter of first impression over which there is, as yet, no local jurisprudence to guide
lower courts.77
This court finds that this is indeed a case of first impression involving as it does the issue of
whether the right of suffrage includes the right of freedom of expression. This is a question which
this court has yet to provide substantial answers to, through jurisprudence. Thus, direct resort to
this court is allowed.
Fourth, the constitutional issues raisedare better decided by this court. In Drilon v. Lim,78 this court
held that:
. . . it will be prudent for such courts, if only out of a becoming modesty, to defer to the higher
judgmentof this Court in the consideration of its validity, which is better determined after a
thorough deliberation by a collegiate body and with the concurrence of the majority of those who
participated in its discussion.79 (Citation omitted)
In this case, it is this court, with its constitutionally enshrined judicial power, that can rule with
finality on whether COMELEC committed grave abuse of discretion or performed acts contrary to
the Constitution through the assailed issuances.
Fifth, the time element presented in this case cannot be ignored. This case was filed during the
2013 election period. Although the elections have already been concluded, future cases may be
filed that necessitate urgency in its resolution. Exigency in certain situations would qualify as an
exception for direct resort to this court.
Sixth, the filed petition reviews the act of a constitutional organ. COMELEC is a constitutional
body. In Albano v. Arranz,80 cited by petitioners, this court held that "[i]t is easy to realize the
chaos that would ensue if the Court of First Instance ofeach and every province were [to] arrogate
itself the power to disregard, suspend, or contradict any order of the Commission on Elections:
that constitutional body would be speedily reduced to impotence."81
In this case, if petitioners sought to annul the actions of COMELEC through pursuing remedies
with the lower courts, any ruling on their part would not have been binding for other citizens whom
respondents may place in the same situation. Besides, thiscourt affords great respect to the
Constitution and the powers and duties imposed upon COMELEC. Hence, a ruling by this court
would be in the best interest of respondents, in order that their actions may be guided accordingly
in the future.
Seventh, petitioners rightly claim that they had no other plain, speedy, and adequate remedy in
the ordinary course of law that could free them from the injurious effects of respondents’ acts in
violation of their right to freedom of expression.
In this case, the repercussions of the assailed issuances on this basic right constitute an
exceptionally compelling reason to justify the direct resort to this court. The lack of other sufficient
remedies in the course of law alone is sufficient ground to allow direct resort to this court.
Eighth, the petition includes questionsthat are "dictated by public welfare and the advancement
of public policy, or demanded by the broader interest of justice, or the orders complained of were
found to be patent nullities, or the appeal was consideredas clearly an inappropriate remedy."82 In
the past, questions similar to these which this court ruled on immediately despite the doctrine of
hierarchy of courts included citizens’ right to bear arms,83 government contracts involving
modernization of voters’ registration lists,84 and the status and existence of a public office.85
This case also poses a question of similar, if not greater import. Hence, a direct action to this court
is permitted.
It is not, however, necessary that all of these exceptions must occur at the same time to justify a
direct resort to this court. While generally, the hierarchy of courts is respected, the present case
falls under the recognized exceptions and, as such, may be resolved by this court directly.
I.D
The concept of a political question
Respondents argue further that the size limitation and its reasonableness is a political question,
hence not within the ambit of this court’s power of review. They cite Justice Vitug’s separate
opinion in Osmeña v. COMELEC86 to support their position:
It might be worth mentioning that Section 26, Article II, of the Constitution also states that the
"State shall guarantee equal access to opportunities for public service, and prohibit political
dynasties as may be defined by law." I see neither Article IX (C)(4) nor Section 26, Article II, of
the Constitution to be all that adversarial or irreconcilably inconsistent with the right of free
expression. In any event, the latter, being one of general application, must yield to the specific
demands of the Constitution. The freedom of expression concededly holds, it is true, a vantage
point in hierarchy of constitutionally-enshrined rights but, like all fundamental rights, it is not
without limitations.
The case is not about a fight between the "rich" and the "poor" or between the "powerful" and the
"weak" in our society but it is to me a genuine attempt on the part of Congress and the Commission
on Elections to ensure that all candidates are given an equal chance to media coverage and
thereby be equally perceived as giving real life to the candidates’ right of free expression rather
than being viewed as an undue restriction of that freedom. The wisdom in the enactment of the
law, i.e., that which the legislature deems to be best in giving life to the Constitutional mandate,
is not for the Court to question; it is a matter that lies beyond the normal prerogatives of the Court
to pass upon.87
This separate opinion is cogent for the purpose it was said. But it is not in point in this case.
The present petition does not involve a dispute between the rich and poor, or the powerful and
weak, on their equal opportunities for media coverage of candidates and their right to freedom of
expression. This case concerns the right of petitioners, who are non-candidates, to post the
tarpaulin in their private property, asan exercise of their right of free expression. Despite the
invocation of the political question doctrine by respondents, this court is not proscribed from
deciding on the merits of this case.
In Tañada v. Cuenco,88 this court previously elaborated on the concept of what constitutes a
political question:
What is generally meant, when it is said that a question is political, and not judicial, is that it is a
matter which is to be exercised by the people in their primary political capacity, or that it has been
specifically delegated to some other department or particular officer of the government,
withdiscretionary power to act.89 (Emphasis omitted)
It is not for this court to rehearse and re-enact political debates on what the text of the law should
be. In political forums, particularly the legislature, the creation of the textof the law is based on a
general discussion of factual circumstances, broadly construed in order to allow for general
application by the executive branch. Thus, the creation of the law is not limited by particular and
specific facts that affect the rights of certain individuals, per se.
Courts, on the other hand, rule on adversarial positions based on existing facts established on a
specific case-to-case basis, where parties affected by the legal provision seek the courts’
understanding of the law.
The complementary nature of the political and judicial branches of government is essential in
order to ensure that the rights of the general public are upheld at all times. In order to preserve
this balance, branches of government must afford due respectand deference for the duties and
functions constitutionally delegated to the other. Courts cannot rush to invalidate a law or rule.
Prudence dictates that we are careful not to veto political acts unless we can craft doctrine
narrowly tailored to the circumstances of the case.
The case before this court does not call for the exercise of prudence or modesty. There is no
political question. It can be acted upon by this court through the expanded jurisdiction granted to
this court through Article VIII, Section 1 of the Constitution.
A political question arises in constitutional issues relating to the powers or competence of different
agencies and departments of the executive or those of the legislature. The political question
doctrine is used as a defense when the petition asks this court to nullify certain acts that are
exclusively within the domain of their respective competencies, as provided by the Constitution
or the law. In such situation, presumptively, this court should act with deference. It will decline to
void an act unless the exercise of that power was so capricious and arbitrary so as to amount to
grave abuse of discretion.
The concept of a political question, however, never precludes judicial review when the act of a
constitutional organ infringes upon a fundamental individual or collective right. Even assuming
arguendo that the COMELEC did have the discretion to choose the manner of regulation of the
tarpaulin in question, it cannot do so by abridging the fundamental right to expression.
Marcos v. Manglapus90 limited the use of the political question doctrine:
When political questions are involved, the Constitution limits the determination to whether or not
there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of the official whose action is being questioned. If grave abuse is not established, the Court will
not substitute its judgment for that of the official concerned and decide a matter which by its nature
or by law is for the latter alone to decide.91
How this court has chosen to address the political question doctrine has undergone an evolution
since the timethat it had been first invoked in Marcos v. Manglapus. Increasingly, this court has
taken the historical and social context of the case and the relevance of pronouncements of
carefully and narrowly tailored constitutional doctrines. This trend was followed in cases such as
Daza v. Singson92 and Coseteng v. Mitra Jr.93
Daza and Coseteng involved a question as to the application of Article VI, Section 18 of the 1987
Constitution involving the removal of petitioners from the Commission on Appointments. In times
past, this would have involved a quint essentially political question as it related to the dominance
of political parties in Congress. However, in these cases, this court exercised its power of judicial
review noting that the requirement of interpreting the constitutional provision involved the legality
and not the wisdom of a manner by which a constitutional duty or power was exercised. This
approach was again reiterated in Defensor Santiago v. Guingona, Jr.94
In Integrated Bar of the Philippines v. Zamora,95 this court declared again that the possible
existence ofa political question did not bar an examination of whether the exercise of discretion
was done with grave abuse of discretion. In that case, this court ruled on the question of whether
there was grave abuse of discretion in the President’s use of his power to call out the armed
forces to prevent and suppress lawless violence.
In Estrada v. Desierto,96 this court ruled that the legal question as to whether a former President
resigned was not a political question even if the consequences would be to ascertain the political
legitimacy of a successor President.
Many constitutional cases arise from political crises. The actors in such crises may use the
resolution of constitutional issues as leverage. But the expanded jurisdiction of this court now
mandates a duty for it to exercise its power of judicial review expanding on principles that may
avert catastrophe or resolve social conflict.
This court’s understanding of the political question has not been static or unbending. In Llamas
v. Executive Secretary Oscar Orbos,97 this court held:
While it is true that courts cannot inquire into the manner in which the President's discretionary
powers are exercised or into the wisdom for its exercise, it is also a settled rule that when the
issue involved concerns the validity of such discretionary powers or whether said powers are
within the limits prescribed by the Constitution, We will not decline to exercise our power of judicial
review. And such review does not constitute a modification or correction of the act of the
President, nor does it constitute interference with the functions of the President.98
The concept of judicial power in relation to the concept of the political question was discussed
most extensively in Francisco v. HRET.99 In this case, the House of Representatives arguedthat
the question of the validity of the second impeachment complaint that was filed against former
Chief Justice Hilario Davide was a political question beyond the ambit of this court. Former Chief
Justice Reynato Puno elaborated on this concept in his concurring and dissenting opinion:
To be sure, the force to impugn the jurisdiction of this Court becomes more feeble in light of the
new Constitution which expanded the definition of judicial power as including "the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and
enforceable, and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the
Government." As well observed by retired Justice Isagani Cruz, this expanded definition of judicial
power considerably constricted the scope of political question. He opined that the language
luminously suggests that this duty (and power) is available even against the executive and
legislative departments including the President and the Congress, in the exercise of their
discretionary powers.100 (Emphasis in the original, citations omitted)
Francisco also provides the cases which show the evolution of the political question, as applied
in the following cases:
In Marcos v. Manglapus, this Court, speaking through Madame Justice Irene Cortes, held: The
present Constitution limits resort to the political question doctrine and broadens the scope of
judicial inquiry into areas which the Court,under previous constitutions, would have normally left
to the political departments to decide. x x x
In Bengzon v. Senate Blue Ribbon Committee, through Justice Teodoro Padilla, this Court
declared:
The "allocation of constitutional boundaries" is a task that this Court must perform under the
Constitution. Moreover, as held in a recent case, "(t)he political question doctrine neither
interposes an obstacle to judicial determination of the rival claims. The jurisdiction to delimit
constitutional boundaries has been given to this Court. It cannot abdicate that obligation
mandated by the 1987 Constitution, although said provision by no means does away with the
applicability of the principle in appropriate cases." (Emphasis and italics supplied)
And in Daza v. Singson, speaking through Justice Isagani Cruz, this Court ruled:
In the case now before us, the jurisdictional objection becomes even less tenable and decisive.
The reason is that, even if we were to assume that the issue presented before us was political in
nature, we would still not be precluded from resolving it under the expanded jurisdiction conferred
upon us that now covers, in proper cases, even the political question.x x x (Emphasis and italics
supplied.)
....
In our jurisdiction, the determination of whether an issue involves a truly political and non-
justiciable question lies in the answer to the question of whether there are constitutionally imposed
limits on powers or functions conferred upon political bodies. If there are, then our courts are duty-
bound to examine whether the branch or instrumentality of the government properly acted within
such limits.101 (Citations omitted)
As stated in Francisco, a political question will not be considered justiciable if there are no
constitutionally imposed limits on powers or functions conferred upon political bodies. Hence, the
existence of constitutionally imposed limits justifies subjecting the official actions of the body to
the scrutiny and review of this court.
In this case, the Bill of Rights gives the utmost deference to the right to free speech. Any instance
that this right may be abridged demands judicial scrutiny. It does not fall squarely into any doubt
that a political question brings.
I.E
Exhaustion of administrative remedies
Respondents allege that petitioners violated the principle of exhaustion of administrative
remedies. Respondents insist that petitioners should have first brought the matter to the
COMELEC En Banc or any of its divisions.102
Respondents point out that petitioners failed to comply with the requirement in Rule 65 that "there
is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law." 103 They
add that the proper venue to assail the validity of the assailed issuances was in the course of an
administrative hearing to be conducted by COMELEC.104 In the event that an election offense is
filed against petitioners for posting the tarpaulin, they claim that petitioners should resort to the
remedies prescribed in Rule 34 of the COMELEC Rules of Procedure.105
The argument on exhaustion of administrative remedies is not proper in this case.
Despite the alleged non-exhaustion of administrative remedies, it is clear that the controversy is
already ripe for adjudication. Ripeness is the "prerequisite that something had by then been
accomplished or performed by either branch [or in this case, organ of government] before a court
may come into the picture."106
Petitioners’ exercise of their rightto speech, given the message and their medium, had
understandable relevance especially during the elections. COMELEC’s letter threatening the filing
of the election offense against petitioners is already an actionable infringement of this right. The
impending threat of criminal litigation is enough to curtail petitioners’ speech.
In the context of this case, exhaustion of their administrative remedies as COMELEC suggested
in their pleadings prolongs the violation of their freedom of speech.
Political speech enjoys preferred protection within our constitutional order. In Chavez v.
Gonzales,107 Justice Carpio in a separate opinion emphasized: "[i]f everthere is a hierarchy of
protected expressions, political expression would occupy the highest rank, and among different
kinds of political expression, the subject of fair and honest elections would be at the
top."108 Sovereignty resides in the people.109 Political speech is a direct exercise of the
sovereignty. The principle of exhaustion of administrative remedies yields in order to protect this
fundamental right.
Even assuming that the principle of exhaustion of administrative remedies is applicable, the
current controversy is within the exceptions to the principle. In Chua v. Ang,110 this court held:
On the other hand, prior exhaustion of administrative remedies may be dispensed with and judicial
action may be validly resorted to immediately: (a) when there is a violation of due process; (b)
when the issue involved is purely a legal question; (c) when the administrative action is patently
illegal amounting to lack or excess of jurisdiction; (d) when there is estoppel on the part ofthe
administrative agency concerned; (e) when there is irreparable injury; (f) when the respondent is
a department secretary whose acts as analter ego of the President bear the implied and assumed
approval of the latter; (g) when to require exhaustion of administrative remedies would be
unreasonable; (h) when it would amount to a nullification of a claim; (i) when the subject matter is
a private land in land case proceedings; (j) whenthe rule does not provide a plain, speedy and
adequate remedy; or (k) when there are circumstances indicating the urgency of judicial
intervention."111 (Emphasis supplied, citation omitted)
The circumstances emphasized are squarely applicable with the present case. First, petitioners
allegethat the assailed issuances violated their right to freedom of expression and the principle of
separation of church and state. This is a purely legal question. Second, the circumstances of the
present case indicate the urgency of judicial intervention considering the issue then on the RH
Law as well as the upcoming elections. Thus, to require the exhaustion of administrative remedies
in this case would be unreasonable.
Time and again, we have held that this court "has the power to relax or suspend the rules or to
except a case from their operation when compelling reasons so warrant, or whenthe purpose of
justice requires it, [and when] [w]hat constitutes [as] good and sufficient cause that will merit
suspension of the rules is discretionary upon the court".112 Certainly, this case of first impression
where COMELEC has threatenedto prosecute private parties who seek to participate in the
elections by calling attention to issues they want debated by the publicin the manner they feel
would be effective is one of those cases.
II
SUBSTANTIVE ISSUES
II.A
COMELEC had no legal basis to regulate expressions made by private citizens
Respondents cite the Constitution, laws, and jurisprudence to support their position that they had
the power to regulate the tarpaulin.113 However, all of these provisions pertain to candidates and
political parties. Petitioners are not candidates. Neither do theybelong to any political party.
COMELEC does not have the authority to regulate the enjoyment of the preferred right to freedom
of expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the Constitution, which provides:
Section 4. The Commission may,during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by
the Government or any subdivision, agency, or instrumentality thereof, including any government-
owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible elections.114 (Emphasis
supplied)
Sanidad v. COMELEC115 involved the rules promulgated by COMELEC during the plebiscite for
the creation of the Cordillera Autonomous Region.116 Columnist Pablito V. Sanidad questioned
the provision prohibiting journalists from covering plebiscite issues on the day before and on
plebiscite day.117 Sanidad argued that the prohibition was a violation of the "constitutional
guarantees of the freedom of expression and of the press. . . ."118 We held that the "evil sought to
be prevented by this provision is the possibility that a franchise holder may favor or give any
undue advantage to a candidate in terms of advertising space or radio or television time."119 This
court found that "[m]edia practitioners exercising their freedom of expression during plebiscite
periods are neither the franchise holders nor the candidates[,]"120 thus, their right to expression
during this period may not be regulated by COMELEC.121
Similar to the media, petitioners in the case at bar are neither franchise holders nor candidates.
II.A.2
Respondents likewise cite Article IX-C, Section 2(7) of the Constitution as follows:122
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on actsthat may be penalized, it will be inferred that this provision
only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials" issued by COMELEC. This was
followed bythe assailed letter regarding the "election propaganda material posted on the church
vicinity promoting for or against the candidates and party-list groups. . . ."123
Section 9 of the Fair Election Act124 on the posting of campaign materials only mentions "parties"
and "candidates":
Sec. 9. Posting of Campaign Materials. - The COMELEC may authorize political parties and party-
list groups to erect common poster areas for their candidates in not more than ten (10) public
places such as plazas, markets, barangay centers and the like, wherein candidates can post,
display or exhibit election propaganda: Provided, That the size ofthe poster areas shall not exceed
twelve (12) by sixteen (16) feet or its equivalent. Independent candidates with no political parties
may likewise be authorized to erect common poster areas in not more than ten (10) public places,
the size of which shall not exceed four (4) by six (6) feet or its equivalent. Candidates may post
any lawful propaganda material in private places with the consent of the owner thereof, and in
public places or property which shall be allocated equitably and impartially among the candidates.
(Emphasis supplied)
Similarly, Section 17 of COMELEC Resolution No. 9615, the rules and regulations implementing
the Fair Election Act, provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and candidates may post any lawful
campaign material in:
a. Authorized common poster areasin public places subject to the requirements and/or
limitations set forth in the next following section; and
b. Private places provided it has the consent of the owner thereof.
The posting of campaign materials in public places outside of the designated common poster
areas and those enumerated under Section 7 (g) of these Rules and the like is prohibited. Persons
posting the same shall be liable together with the candidates and other persons who caused the
posting. It will be presumed that the candidates and parties caused the posting of campaign
materials outside the common poster areas if they do not remove the same within three (3) days
from notice which shall be issued by the Election Officer of the city or municipality where the
unlawful election propaganda are posted or displayed.
Members of the PNP and other law enforcement agencies called upon by the Election Officeror
other officials of the COMELEC shall apprehend the violators caught in the act, and file the
appropriate charges against them. (Emphasis supplied)
Respondents considered the tarpaulin as a campaign material in their issuances. The above
provisions regulating the posting of campaign materials only apply to candidates and political
parties, and petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election Propaganda" also states that these are
"allowed for all registered political parties, national, regional, sectoral parties or organizations
participating under the party-list elections and for all bona fide candidates seeking national and
local elective positions subject to the limitation on authorized expenses of candidates and political
parties. . . ." Section 6 of COMELEC Resolution No. 9615 provides for a similar wording. These
provisions show that election propaganda refers to matter done by or on behalf of and in
coordination with candidates and political parties. Some level of coordination with the candidates
and political parties for whom the election propaganda are released would ensure that these
candidates and political parties maintain within the authorized expenses limitation.
The tarpaulin was not paid for byany candidate or political party.125 There was no allegation that
petitioners coordinated with any of the persons named in the tarpaulin regarding its posting. On
the other hand, petitioners posted the tarpaulin as part of their advocacy against the RH Law.
Respondents also cite National Press Club v. COMELEC126 in arguing that its regulatory power
under the Constitution, to some extent, set a limit on the right to free speech during election
period.127
National Press Club involved the prohibition on the sale and donation of space and time for
political advertisements, limiting political advertisements to COMELEC-designated space and
time. This case was brought by representatives of mass media and two candidates for office in
the 1992 elections. They argued that the prohibition on the sale and donation of space and time
for political advertisements is tantamount to censorship, which necessarily infringes on the
freedom of speech of the candidates.128
This court upheld the constitutionality of the COMELEC prohibition in National Press Club.
However, this case does not apply as most of the petitioners were electoral candidates, unlike
petitioners in the instant case. Moreover, the subject matter of National Press Club, Section 11(b)
of Republic Act No. 6646,129 only refers to a particular kind of media such as newspapers, radio
broadcasting, or television.130 Justice Feliciano emphasized that the provision did not infringe
upon the right of reporters or broadcasters to air their commentaries and opinions regarding the
candidates, their qualifications, and program for government. Compared to Sanidadwherein the
columnists lost their ability to give their commentary on the issues involving the plebiscite,
National Press Clubdoes not involve the same infringement.
In the case at bar, petitioners lost their ability to give a commentary on the candidates for the
2013 national elections because of the COMELEC notice and letter. It was not merelya regulation
on the campaigns of candidates vying for public office. Thus, National Press Clubdoes not apply
to this case.
Finally, Section 79 of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
defines an"election campaign" as follows:
....
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for
the purpose of soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or
against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or
oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts ifperformed for the purpose of enhancing the chances of aspirants
for nomination for candidacy to a public office by a political party, aggroupment, or coalition of
parties shall not be considered as election campaign or partisan election activity. Public
expressions or opinions or discussions of probable issues in a forthcoming electionor on attributes
of or criticisms against probable candidates proposed to be nominated in a forthcoming political
party convention shall not be construed as part of any election campaign or partisan political
activity contemplated under this Article. (Emphasis supplied)
True, there is no mention whether election campaign is limited only to the candidates and political
parties themselves. The focus of the definition is that the act must be "designed to promote the
election or defeat of a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter of public concern, that is, a statement of
either appreciation or criticism on votes made in the passing of the RH law. Thus, petitioners
invoke their right to freedom of expression.
II.B
The violation of the constitutional right
to freedom of speech and expression
Petitioners contend that the assailed notice and letter for the removal of the tarpaulin violate their
fundamental right to freedom of expression.
On the other hand, respondents contend that the tarpaulin is an election propaganda subject to
their regulation pursuant to their mandate under Article IX-C, Section 4 of the Constitution. Thus,
the assailed notice and letter ordering itsremoval for being oversized are valid and
constitutional.131
II.B.1
Fundamental to the consideration of this issue is Article III, Section 4 of the Constitution:
Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble and petition the government for redress of
grievances.132
No law. . .
While it is true that the present petition assails not a law but an opinion by the COMELEC Law
Department, this court has applied Article III, Section 4 of the Constitution even to governmental
acts.
In Primicias v. Fugoso,133 respondent Mayor applied by analogy Section 1119 of the Revised
Ordinances of 1927 of Manila for the public meeting and assembly organized by petitioner
Primicias.134 Section 1119 requires a Mayor’s permit for the use of streets and public places for
purposes such as athletic games, sports, or celebration of national holidays.135 What was
questioned was not a law but the Mayor’s refusal to issue a permit for the holding of petitioner’s
public meeting.136 Nevertheless, this court recognized the constitutional right to freedom of
speech, to peaceful assembly and to petition for redress of grievances, albeit not absolute,137 and
the petition for mandamus to compel respondent Mayor to issue the permit was granted.138
In ABS-CBN v. COMELEC, what was assailed was not a law but COMELEC En Banc Resolution
No. 98-1419 where the COMELEC resolved to approve the issuance of a restraining order to stop
ABS-CBN from conducting exit surveys.139 The right to freedom of expression was similarly
upheld in this case and, consequently, the assailed resolution was nullified and set aside.140
. . . shall be passed abridging. . .
All regulations will have an impact directly or indirectly on expression. The prohibition against the
abridgment of speech should not mean an absolute prohibition against regulation. The primary
and incidental burden on speech must be weighed against a compelling state interest clearly
allowed in the Constitution. The test depends on the relevant theory of speech implicit in the kind
of society framed by our Constitution.
. . . of expression. . .
Our Constitution has also explicitly included the freedom of expression, separate and in addition
to the freedom of speech and of the press provided in the US Constitution. The word "expression"
was added in the 1987 Constitution by Commissioner Brocka for having a wider scope:
MR. BROCKA: This is a very minor amendment, Mr. Presiding Officer. On Section 9, page 2, line
29, it says: "No law shall be passed abridging the freedom of speech." I would like to recommend
to the Committee the change of the word "speech" to EXPRESSION; or if not, add the words AND
EXPRESSION after the word "speech," because it is more expansive, it has a wider scope, and
it would refer to means of expression other than speech.
THE PRESIDING OFFICER (Mr.Bengzon): What does the Committee say?
FR. BERNAS: "Expression" is more broad than speech. We accept it.
MR. BROCKA: Thank you.
THE PRESIDING OFFICER (Mr.Bengzon): Is it accepted?
FR. BERNAS: Yes.
THE PRESIDING OFFICER (Mr.Bengzon): Is there any objection? (Silence) The Chair hears
none; the amendment is approved.
FR. BERNAS: So, that provision will now read: "No law shall be passed abridging the freedom of
speech, expression or of the press . . . ."141 Speech may be said to be inextricably linked to
freedom itself as "[t]he right to think is the beginning of freedom, and speech must be protected
from the government because speech is the beginning of thought."142
II.B.2
Communication is an essential outcome of protected speech.143 Communication exists when "(1)
a speaker, seeking to signal others, uses conventional actions because he orshe reasonably
believes that such actions will be taken by the audience in the manner intended; and (2) the
audience so takes the actions."144 "[I]n communicative action[,] the hearer may respond to the
claims by . . . either accepting the speech act’s claims or opposing them with criticism or requests
for justification."145
Speech is not limited to vocal communication. "[C]onduct is treated as a form of speech
sometimes referred to as ‘symbolic speech[,]’"146 such that "‘when ‘speech’ and ‘nonspeech’
elements are combined in the same course of conduct,’ the ‘communicative element’ of the
conduct may be ‘sufficient to bring into play the [right to freedom of expression].’"147
The right to freedom of expression, thus, applies to the entire continuum of speech from
utterances made to conduct enacted, and even to inaction itself as a symbolic manner of
communication.
In Ebralinag v. The Division Superintendent of Schools of Cebu,148 students who were members
of the religious sect Jehovah’s Witnesses were to be expelled from school for refusing to salute
the flag, sing the national anthem, and recite the patriotic pledge.149 In his concurring opinion,
Justice Cruz discussed how the salute is a symbolic manner of communication and a valid form
of expression.150 He adds that freedom of speech includes even the right to be silent:
Freedom of speech includes the right to be silent. Aptly has it been said that the Bill of Rights that
guarantees to the individual the liberty to utter what is in his mind also guarantees to him the
liberty not to utter what is not in his mind. The salute is a symbolic manner of communication that
conveys its messageas clearly as the written or spoken word. As a valid form of expression, it
cannot be compelled any more than it can be prohibited in the face of valid religious objections
like those raised in this petition. To impose it on the petitioners is to deny them the right not to
speak when their religion bids them to be silent. This coercion of conscience has no place in the
free society.
The democratic system provides for the accommodation of diverse ideas, including the
unconventional and even the bizarre or eccentric. The will of the majority prevails, but it cannot
regiment thought by prescribing the recitation by rote of its opinions or proscribing the assertion
of unorthodox or unpopular views as inthis case. The conscientious objections of the petitioners,
no less than the impatience of those who disagree with them, are protected by the Constitution.
The State cannot make the individual speak when the soul within rebels.151
Even before freedom "of expression" was included in Article III, Section 4 of the present
Constitution,this court has applied its precedent version to expressions other than verbal
utterances.
In the 1985 case of Gonzalez v. Chairman Katigbak,152 petitioners objected to the classification
of the motion picture "Kapit sa Patalim" as "For Adults Only." They contend that the classification
"is without legal and factual basis and is exercised as impermissible restraint of artistic
expression."153 This court recognized that "[m]otion pictures are important both as a medium for
the communication of ideas and the expression of the artistic impulse."154 It adds that "every
writer,actor, or producer, no matter what medium of expression he may use, should be freed from
the censor."155 This court found that "[the Board’s] perception of what constitutes obscenity
appears to be unduly restrictive."156 However, the petition was dismissed solely on the ground
that there were not enough votes for a ruling of grave abuse of discretion in the classification
made by the Board.157
II.B.3
Size does matter
The form of expression is just as important as the information conveyed that it forms part of the
expression. The present case is in point.
It is easy to discern why size matters.
First, it enhances efficiency in communication. A larger tarpaulin allows larger fonts which make
it easier to view its messages from greater distances. Furthermore, a larger tarpaulin makes it
easier for passengers inside moving vehicles to read its content. Compared with the pedestrians,
the passengers inside moving vehicles have lesser time to view the content of a tarpaulin. The
larger the fonts and images, the greater the probability that it will catch their attention and, thus,
the greater the possibility that they will understand its message.
Second, the size of the tarpaulin may underscore the importance of the message to the reader.
From an ordinary person’s perspective, those who post their messages in larger fonts care more
about their message than those who carry their messages in smaller media. The perceived
importance given by the speakers, in this case petitioners, to their cause is also part of the
message. The effectivity of communication sometimes relies on the emphasis put by the speakers
and onthe credibility of the speakers themselves. Certainly, larger segments of the public may
tend to be more convinced of the point made by authoritative figures when they make the effort
to emphasize their messages.
Third, larger spaces allow for more messages. Larger spaces, therefore, may translate to more
opportunities to amplify, explain, and argue points which the speakers might want to
communicate. Rather than simply placing the names and images of political candidates and an
expression of support, larger spaces can allow for brief but memorable presentations of the
candidates’ platforms for governance. Larger spaces allow for more precise inceptions of ideas,
catalyze reactions to advocacies, and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase the possibilities of both good governance
and accountability in our government.
These points become more salient when it is the electorate, not the candidates or the political
parties, that speaks. Too often, the terms of public discussion during elections are framed and
kept hostage by brief and catchy but meaningless sound bites extolling the character of the
candidate. Worse, elections sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech, government should in fact encourage
it. Between the candidates and the electorate, the latter have the better incentive to demand
discussion of the more important issues. Between the candidates and the electorate, the former
have better incentives to avoid difficult political standpoints and instead focus on appearances
and empty promises.
Large tarpaulins, therefore, are not analogous to time and place.158 They are fundamentally part
of expression protected under Article III, Section 4 of the Constitution.
II.B.4
There are several theories and schools of thought that strengthen the need to protect the basic
right to freedom of expression.
First, this relates to the right ofthe people to participate in public affairs, including the right to
criticize government actions.
Proponents of the political theory on "deliberative democracy" submit that "substantial, open, [and]
ethical dialogue isa critical, and indeed defining, feature of a good polity."159 This theory may be
considered broad, but it definitely "includes [a] collective decision making with the participation of
all who will beaffected by the decision."160 It anchors on the principle that the cornerstone of every
democracy is that sovereignty resides in the people.161 To ensure order in running the state’s
affairs, sovereign powers were delegated and individuals would be elected or nominated in key
government positions to represent the people. On this note, the theory on deliberative democracy
may evolve to the right of the people to make government accountable. Necessarily, this includes
the right of the people to criticize acts made pursuant to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out grievances and political discontent,
should thus be protected and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable
government; that the path of safety lies in the opportunity to discuss freely supposed grievances
and proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of society and the maintenance of good
government demand a full discussion of public affairs."163 This court has, thus, adopted the
principle that "debate on public issues should be uninhibited, robust,and wide open . . . [including
even] unpleasantly sharp attacks on government and public officials."164
Second, free speech should be encouraged under the concept of a market place of ideas. This
theory was articulated by Justice Holmes in that "the ultimate good desired is better reached by
[the] free trade in ideas:"165
When men have realized that time has upset many fighting faiths, they may come to believe even
more than they believe the very foundations of their own conduct that the ultimate good desired
is better reached by free trade in ideas - that the best test of truth is the power of the thought to
get itself accepted in the competition of the market, and that truth is the only ground upon which
their wishes safely can be carried out.166
The way it works, the exposure to the ideas of others allows one to "consider, test, and develop
their own conclusions."167 A free, open, and dynamic market place of ideas is constantly shaping
new ones. This promotes both stability and change where recurring points may crystallize and
weak ones may develop. Of course, free speech is more than the right to approve existing political
beliefs and economic arrangements as it includes, "[t]o paraphrase Justice Holmes, [the] freedom
for the thought that we hate, no less than for the thought that agrees with us." 168 In fact, free
speech may "best serve its high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people to anger."169 It is in this context
that we should guard against any curtailment of the people’s right to participate in the free trade
of ideas.
Third, free speech involves self-expression that enhances human dignity. This right is "a means
of assuring individual self-fulfillment,"170 among others. In Philippine Blooming Mills Employees
Organization v. Philippine Blooming Mills Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are not only civil rights but also political
rights essential to man's enjoyment of his life, to his happiness and to his full and complete
fulfillment.Thru these freedoms the citizens can participate not merely in the periodic
establishment of the government through their suffrage but also in the administration of public
affairs as well as in the discipline of abusive public officers. The citizen is accorded these rights
so that he can appeal to the appropriate governmental officers or agencies for redress and
protection as well as for the imposition of the lawful sanctions on erring public officers and
employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one, "[v]oluntary associations perform [an]
important democratic role [in providing] forums for the development of civil skills, for deliberation,
and for the formation of identity and community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer between individuals and the state - a
free space for the development of individual personality, distinct group identity, and dissident
ideas - and a potential source of opposition to the state."174 Free speech must be protected as the
vehicle to find those who have similar and shared values and ideals, to join together and forward
common goals.
Fifth, the Bill of Rights, free speech included, is supposed to "protect individuals and minorities
against majoritarian abuses perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison were concerned about two potentially
vulnerable groups: "the citizenry at large - majorities - who might be tyrannized or plundered by
despotic federal officials"176 and the minorities who may be oppressed by "dominant factions of
the electorate [that] capture [the] government for their own selfish ends[.]"177 According to
Madison, "[i]t is of great importance in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society against the injustice of the other
part."178 We should strive to ensure that free speech is protected especially in light of any potential
oppression against those who find themselves in the fringes on public issues.
Lastly, free speech must be protected under the safety valve theory.179 This provides that
"nonviolent manifestations of dissent reduce the likelihood of violence[.]"180 "[A] dam about to
burst . . . resulting in the ‘banking up of a menacing flood of sullen anger behind the walls of
restriction’"181 has been used to describe the effect of repressing nonviolent outlets.182 In order to
avoid this situation and prevent people from resorting to violence, there is a need for peaceful
methods in making passionate dissent. This includes "free expression and political
participation"183 in that they can "vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature alerting other citizens of their
concerns[,]"184 and conduct peaceful rallies and other similar acts.185 Free speech must, thus, be
protected as a peaceful means of achieving one’s goal, considering the possibility that repression
of nonviolent dissent may spill over to violent means just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys a high degree of protection.
Respondents argue that the tarpaulinis election propaganda, being petitioners’ way of endorsing
candidates who voted against the RH Law and rejecting those who voted for it.186 As such, it is
subject to regulation by COMELEC under its constitutional mandate.187 Election propaganda is
defined under Section 1(4) of COMELEC Resolution No. 9615 as follows: SECTION 1. Definitions
...
....
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or
a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate
or candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation.
On the other hand, petitioners invoke their "constitutional right to communicate their opinions,
views and beliefs about issues and candidates."188 They argue that the tarpaulin was their
statement of approval and appreciation of the named public officials’ act of voting against the RH
Law, and their criticism toward those who voted in its favor.189 It was "part of their advocacy
campaign against the RH Law,"190 which was not paid for by any candidate or political
party.191 Thus, "the questioned orders which . . . effectively restrain[ed] and curtail[ed] [their]
freedom of expression should be declared unconstitutional and void."192
This court has held free speech and other intellectual freedoms as "highly ranked in our scheme
of constitutional values."193 These rights enjoy precedence and primacy.194 In Philippine Blooming
Mills, this court discussed the preferred position occupied by freedom of expression:
Property and property rights can belost thru prescription; but human rights are imprescriptible. If
human rights are extinguished by the passage of time, then the Bill of Rights is a useless attempt
to limit the power of government and ceases to be an efficacious shield against the tyranny of
officials, of majorities, ofthe influential and powerful, and of oligarchs - political, economic or
otherwise.
In the hierarchy of civil liberties, the rights of free expression and of assembly occupy a preferred
position as they are essential to the preservation and vitality of our civil and political institutions;
and such priority "gives these liberties the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when what may be curtailed is the
dissemination of information to make more meaningful the equally vital right of suffrage."196 A
similar idea appeared in our jurisprudence as early as 1969, which was Justice Barredo’s
concurring and dissenting opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the fundamental point others miss, that genuine
democracy thrives only where the power and right of the people toelect the men to whom they
would entrust the privilege to run the affairs of the state exist. In the language of the declaration
of principles of our Constitution, "The Philippines is a republican state. Sovereignty resides in the
people and all government authority emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because and solely because the people in
it can be governed only by officials whom they themselves have placed in office by their votes.
And in it is on this cornerstone that I hold it tobe self-evident that when the freedoms of speech,
press and peaceful assembly and redress of grievances are being exercised in relation to suffrage
or asa means to enjoy the inalienable right of the qualified citizen to vote, they are absolute and
timeless. If our democracy and republicanism are to be worthwhile, the conduct of public affairs
by our officials must be allowed to suffer incessant and unabating scrutiny, favorable or
unfavorable, everyday and at all times. Every holder of power in our government must be ready
to undergo exposure any moment of the day or night, from January to December every year, as
it is only in this way that he can rightfully gain the confidence of the people. I have no patience for
those who would regard public dissection of the establishment as an attribute to be indulged by
the people only at certain periods of time. I consider the freedoms of speech, press and peaceful
assembly and redress of grievances, when exercised in the name of suffrage, as the very means
by which the right itself to vote can only be properly enjoyed.It stands to reason therefore, that
suffrage itself would be next to useless if these liberties cannot be untrammelled [sic] whether as
to degree or time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales, this court discussed that some types
of speech may be subject to regulation:
Some types of speech may be subjected to some regulation by the State under its pervasive
police power, in order that it may not be injurious to the equal right of others or those of the
community or society. The difference in treatment is expected because the relevant interests of
one type of speech, e.g., political speech, may vary from those of another, e.g., obscene speech.
Distinctionshave therefore been made in the treatment, analysis, and evaluation ofthe permissible
scope of restrictions on various categories of speech. We have ruled, for example, that in our
jurisdiction slander or libel, lewd and obscene speech, as well as "fighting words" are not entitled
to constitutional protection and may be penalized.199 (Citations omitted)
We distinguish between politicaland commercial speech. Political speech refers to speech "both
intended and received as a contribution to public deliberation about some issue,"200 "foster[ing]
informed and civicminded deliberation."201 On the other hand, commercial speech has been
defined as speech that does "no more than propose a commercial transaction."202 The expression
resulting from the content of the tarpaulin is, however, definitely political speech. In Justice Brion’s
dissenting opinion, he discussed that "[t]he content of the tarpaulin, as well as the timing of its
posting, makes it subject of the regulations in RA 9006 and Comelec Resolution No. 9615."203 He
adds that "[w]hile indeed the RH issue, by itself,is not an electoralmatter, the slant that the
petitioners gave the issue converted the non-election issue into a live election one hence, Team
Buhay and Team Patay and the plea to support one and oppose the other."204
While the tarpaulin may influence the success or failure of the named candidates and political
parties, this does not necessarily mean it is election propaganda. The tarpaulin was not paid for
or posted "in return for consideration" by any candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC Resolution No. 9615, or the rules and
regulations implementing Republic Act No. 9006 as an aid to interpret the law insofar as the facts
of this case requires, states:
4. The term "political advertisement" or "election propaganda" refers to any matter broadcasted,
published, printed, displayed or exhibited, in any medium, which contain the name, image, logo,
brand, insignia, color motif, initials, and other symbol or graphic representation that is capable of
being associated with a candidate or party, and is intended to draw the attention of the public or
a segment thereof to promote or oppose, directly or indirectly, the election of the said candidate
or candidates to a public office. In broadcast media, political advertisements may take the form of
spots, appearances on TV shows and radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used by commercial advertisers. Political
advertising includes matters, not falling within the scope of personal opinion, that appear on any
Internet website, including, but not limited to, social networks, blogging sites, and micro-blogging
sites, in return for consideration, or otherwise capable of pecuniary estimation. (Emphasis
supplied)
It is clear that this paragraph suggests that personal opinions are not included, while sponsored
messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity" refers to an act designed to promote
the election or defeat of a particular candidate or candidates to a public office, and shall include
any of the following:
....
Personal opinions, views, and preferences for candidates, contained in blogs shall not be
considered acts of election campaigning or partisan politicalactivity unless expressed by
government officials in the Executive Department, the Legislative Department, the Judiciary, the
Constitutional Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace, and its effects and parameters
should be deemed narrowly tailored only in relation to the facts and issues in this case. It also
appears that such wording in COMELEC Resolution No. 9615 does not similarly appear in
Republic Act No. 9006, the law it implements.
We should interpret in this manner because of the value of political speech.
As early as 1918, in United States v. Bustos,205 this court recognized the need for full discussion
of public affairs. We acknowledged that free speech includes the right to criticize the conduct of
public men:
The interest of society and the maintenance of good government demand a full discussion of
public affairs. Complete liberty to comment on the conduct of public men is a scalpel in the case
of free speech. The sharp incision of its probe relieves the abscesses of official dom. Men in public
life may suffer under a hostile and an unjust accusation; the wound can be assuaged with the
balm of a clear conscience. A public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence and dignity of the individual be
exalted.206
Subsequent jurisprudence developed the right to petition the government for redress of
grievances, allowing for criticism, save for some exceptions.207 In the 1951 case of Espuelas v.
People,208 this court noted every citizen’s privilege to criticize his or her government, provided it
is "specific and therefore constructive, reasoned or tempered, and not a contemptuous
condemnation of the entire government set-up."209
The 1927 case of People v. Titular210 involved an alleged violation of the Election Law provision
"penaliz[ing] the anonymous criticism of a candidate by means of posters or circulars." 211 This
court explained that it is the poster’s anonymous character that is being penalized.212 The ponente
adds that he would "dislike very muchto see this decision made the vehicle for the suppression
of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of allowing individuals to vent their
views. According to this court, "[i]ts value may lie in the fact that there may be something worth
hearing from the dissenter [and] [t]hat is to ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive criticisms against their government
contributes to every society’s goal for development. It puts forward matters that may be changed
for the better and ideas that may be deliberated on to attain that purpose. Necessarily, it also
makes the government accountable for acts that violate constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of Republic Act No. 6646, which prohibits
mass media from selling print space and air time for campaign except to the COMELEC, to be a
democracy-enhancing measure.216 This court mentioned how "discussion of public issues and
debate on the qualifications of candidates in an election are essential to the proper functioning of
the government established by our Constitution."217
As pointed out by petitioners, "speech serves one of its greatest public purposes in the context of
elections when the free exercise thereof informs the people what the issues are, and who are
supporting what issues."218 At the heart of democracy is every advocate’s right to make known
what the people need to know,219 while the meaningful exercise of one’s right of suffrage includes
the right of every voter to know what they need to know in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the importance of debate on public issues,
and the freedom of expression especially in relation to information that ensures the meaningful
exercise of the right of suffrage:
We have adopted the principle that debate on public issues should be uninhibited, robust, and
wide open and that it may well include vehement, caustic and sometimes unpleasantly sharp
attacks on government and public officials. Too many restrictions will deny to people the robust,
uninhibited, and wide open debate, the generating of interest essential if our elections will truly be
free, clean and honest.
We have also ruled that the preferred freedom of expression calls all the more for the utmost
respect when what may be curtailed is the dissemination of information to make more meaningful
the equally vital right of suffrage.221 (Emphasis supplied, citations omitted)
Speech with political consequences isat the core of the freedom of expression and must be
protected by this court.
Justice Brion pointed out that freedomof expression "is not the god of rights to which all other
rights and even government protection of state interest must bow."222
The right to freedom of expression isindeed not absolute. Even some forms of protected speech
are still subjectto some restrictions. The degree of restriction may depend on whether the
regulation is content-based or content-neutral.223 Content-based regulations can either be based
on the viewpoint of the speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the tarpaulin is a content-neutral regulation.
The order was made simply because petitioners failed to comply with the maximum size limitation
for lawful election propaganda.224
On the other hand, petitioners argue that the present size regulation is content-based as it applies
only to political speech and not to other forms of speech such as commercial
speech.225 "[A]ssuming arguendo that the size restriction sought to be applied . . . is a mere time,
place, and manner regulation, it’s still unconstitutional for lack of a clear and reasonable nexus
with a constitutionally sanctioned objective."226
The regulation may reasonably be considered as either content-neutral or content-
based.227 Regardless, the disposition of this case will be the same. Generally, compared with
other forms of speech, the proposed speech is content-based.
As pointed out by petitioners, the interpretation of COMELEC contained in the questioned order
applies only to posters and tarpaulins that may affect the elections because they deliver opinions
that shape both their choices. It does not cover, for instance, commercial speech.
Worse, COMELEC does not point to a definite view of what kind of expression of non-candidates
will be adjudged as "election paraphernalia." There are no existing bright lines to categorize
speech as election-related and those that are not. This is especially true when citizens will want
to use their resources to be able to raise public issues that should be tackled by the candidates
as what has happened in this case. COMELEC’s discretion to limit speech in this case is
fundamentally unbridled.
Size limitations during elections hit ata core part of expression. The content of the tarpaulin is not
easily divorced from the size of its medium.
Content-based regulation bears a heavy presumption of invalidity, and this court has used the
clear and present danger rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy presumption of invalidity and is measured
against the clear and present danger rule. The latter will pass constitutional muster only if justified
by a compelling reason, and the restrictions imposedare neither overbroad nor
vague.229 (Citations omitted)
Under this rule, "the evil consequences sought to be prevented must be substantive, ‘extremely
serious and the degree of imminence extremely high.’"230 "Only when the challenged act has
overcome the clear and present danger rule will it pass constitutional muster, with the government
having the burden of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed to justify the regulation. There is
no compelling and substantial state interest endangered by the posting of the tarpaulinas to justify
curtailment of the right of freedom of expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their private property. The size of the
tarpaulin does not affect anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions "based on the subject matter of the
utterance or speech."232 In contrast, content-neutral regulation includes controls merely on the
incidents of the speech such as time, place, or manner of the speech.233
This court has attempted to define "content-neutral" restraints starting with the 1948 case of
Primicias v. Fugoso.234 The ordinance in this case was construed to grant the Mayor discretion
only to determine the public places that may be used for the procession ormeeting, but not the
power to refuse the issuance of a permit for such procession or meeting.235 This court explained
that free speech and peaceful assembly are "not absolute for it may be so regulated that it shall
not beinjurious to the equal enjoyment of others having equal rights, nor injurious to the rights of
the community or society."236
The earlier case of Calalang v. Williams237 involved the National Traffic Commission resolution
that prohibited the passing of animal-drawn vehicles along certain roads at specific hours.238 This
court similarly discussed police power in that the assailed rules carry outthe legislative policy that
"aims to promote safe transit upon and avoid obstructions on national roads, in the interest and
convenience of the public."239
As early as 1907, United States v. Apurado240 recognized that "more or less disorder will mark
the public assembly of the people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high pitch of excitement. . . ."241 It is
with this backdrop that the state is justified in imposing restrictions on incidental matters as time,
place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court summarized the steps that permit
applicants must follow which include informing the licensing authority ahead of time as regards
the date, public place, and time of the assembly.242 This would afford the public official time to
inform applicants if there would be valid objections, provided that the clear and present danger
test is the standard used for his decision and the applicants are given the opportunity to be
heard.243 This ruling was practically codified in Batas Pambansa No. 880, otherwise known as the
Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No. 880 as a valid content-neutral
regulation. In the 2006 case of Bayan v. Ermita,244 this court discussed how Batas Pambansa No.
880 does not prohibit assemblies but simply regulates their time, place, and manner. 245 In 2010,
this court found in Integrated Bar of the Philippines v. Atienza246 that respondent Mayor Atienza
committed grave abuse of discretion when he modified the rally permit by changing the venue
from Mendiola Bridge to Plaza Miranda without first affording petitioners the opportunity to be
heard.247
We reiterate that the regulation involved at bar is content-based. The tarpaulin content is not
easily divorced from the size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the provisions imposing a size limit for
tarpaulins are content-neutral regulations as these "restrict the mannerby which speech is relayed
but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the questioned acts of COMELEC will not pass
the three requirements for evaluating such restraints on freedom of speech.249 "When the speech
restraints take the form of a content-neutral regulation, only a substantial governmental interest
is required for its validity,"250 and it is subject only to the intermediate approach.251
This intermediate approach is based on the test that we have prescribed in several cases. 252 A
content-neutral government regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to the suppression
of free expression; and [4] if the incident restriction on alleged [freedom of speech & expression]
is no greater than is essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers of the COMELEC to regulate the
tarpaulin. As discussed earlier, this is protected speech by petitioners who are non-candidates.
On the second requirement, not only must the governmental interest be important or substantial,
it must also be compelling as to justify the restrictions made.
Compelling governmental interest would include constitutionally declared principles. We have
held, for example, that "the welfare of children and the State’s mandate to protect and care for
them, as parens patriae,254 constitute a substantial and compelling government interest in
regulating . . . utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal opportunity for public information
campaigns among candidates in connection with the holding of a free, orderly, honest, peaceful,
and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize limits to posters are necessary to
ensure equality of public information campaigns among candidates, as allowing posters with
different sizes gives candidates and their supporters the incentive to post larger posters[,] [and]
[t]his places candidates with more money and/or with deep-pocket supporters at an undue
advantage against candidates with more humble financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not as important as the right of [a private
citizen] to freely express his choice and exercise his right of free speech."258 In any case, faced
with both rights to freedom of speech and equality, a prudent course would be to "try to resolve
the tension in a way that protects the right of participation."259
Second, the pertinent election lawsrelated to private property only require that the private property
owner’s consent be obtained when posting election propaganda in the property.260 This is
consistent with the fundamental right against deprivation of property without due process of
law.261 The present facts do not involve such posting of election propaganda absent consent from
the property owner. Thus, this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their authority to recommend effective measures
to minimize election spending. Specifically, Article IX-C, Section 2(7) provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
....
(7) Recommend to the Congress effective measures to minimize election spending, including
limitation of places where propaganda materials shall be posted, and to prevent and penalize all
forms of election frauds, offenses, malpractices, and nuisance candidates. (Emphasis supplied)
This does not qualify as a compelling and substantial government interest to justify regulation of
the preferred right to freedom of expression.
The assailed issuances for the removal of the tarpaulin are based on the two feet (2’) by three
feet (3’) size limitation under Section 6(c) of COMELEC Resolution No. 9615. This resolution
implements the Fair Election Act that provides for the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to the paramount interest of the State in
guaranteeing freedom of expression, any financial considerations behind the regulation are of
marginal significance."264 In fact, speech with political consequences, as in this case, should be
encouraged and not curtailed. As petitioners pointed out, the size limitation will not serve the
objective of minimizing election spending considering there is no limit on the number of tarpaulins
that may be posted.265
The third requisite is likewise lacking. We look not only at the legislative intent or motive in
imposing the restriction, but more so at the effects of such restriction, if implemented. The
restriction must not be narrowly tailored to achieve the purpose. It must be demonstrable. It must
allow alternative avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the suppression of speech. Limiting the
maximum sizeof the tarpaulin would render ineffective petitioners’ message and violate their right
to exercise freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin has the effect of dissuading
expressions with political consequences. These should be encouraged, more so when exercised
to make more meaningful the equally important right to suffrage.
The restriction in the present case does not pass even the lower test of intermediate scrutiny for
content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent to further speech by the electorate.
Given the stature of petitioners and their message, there are indicators that this will cause a
"chilling effect" on robust discussion during elections.
The form of expression is just as important as the message itself. In the words of Marshall
McLuhan, "the medium is the message."266 McLuhan’s colleague and mentor Harold Innis has
earlier asserted that "the materials on which words were written down have often counted for
more than the words themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help of private individuals for the
endorsement of their electoral campaigns.
On the one extreme, this can take illicit forms such as when endorsement materials in the form of
tarpaulins, posters, or media advertisements are made ostensibly by "friends" but in reality are
really paid for by the candidate or political party. This skirts the constitutional value that provides
for equal opportunities for all candidates.
However, as agreed by the parties during the oral arguments in this case, this is not the situation
that confronts us. In such cases, it will simply be a matter for investigation and proof of fraud on
the part of the COMELEC.
The guarantee of freedom of expression to individuals without any relationship to any political
candidate should not be held hostage by the possibility of abuse by those seeking to be elected.
It is true that there can be underhanded, covert, or illicit dealings so as to hide the candidate’s
real levels of expenditures. However, labelling all expressions of private parties that tend to have
an effect on the debate in the elections as election paraphernalia would be too broad a remedy
that can stifle genuine speech like in this case. Instead, to address this evil, better and more
effective enforcement will be the least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the message of a candidate, others will
spend their own resources in order to lend support for the campaigns. This may be without
agreement between the speaker and the candidate or his or her political party. In lieu of donating
funds to the campaign, they will instead use their resources directly in a way that the candidate
or political party would have doneso. This may effectively skirt the constitutional and statutory
limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be what candidates and political parties
will carry in their election posters or media ads. The message of petitioner, taken as a whole, is
an advocacy of a social issue that it deeply believes. Through rhetorical devices, it communicates
the desire of Diocese that the positions of those who run for a political position on this social issue
be determinative of how the public will vote. It primarily advocates a stand on a social issue; only
secondarily — even almost incidentally — will cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire is a "literary form that employs such
devices as sarcasm, irony and ridicule to deride prevailing vices or follies,"268 and this may target
any individual or group in society, private and government alike. It seeks to effectively
communicate a greater purpose, often used for "political and social criticism"269 "because it tears
down facades, deflates stuffed shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty lampooned and spoofed."270 Northrop Frye,
wellknown in this literary field, claimed that satire had two defining features: "one is wit or humor
founded on fantasy or a sense of the grotesque and absurd, the other is an object of
attack."271 Thus, satire frequently uses exaggeration, analogy, and other rhetorical devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not refer to a list of dead individuals nor
could the Archbishop of the Diocese of Bacolod have intended it to mean that the entire plan of
the candidates in his list was to cause death intentionally. The tarpaulin caricatures political
parties and parodies the intention of those in the list. Furthermore, the list of "Team Patay" is
juxtaposed with the list of "Team Buhay" that further emphasizes the theme of its author:
Reproductive health is an important marker for the church of petitioners to endorse.
The messages in the tarpaulins are different from the usual messages of candidates. Election
paraphernalia from candidates and political parties are more declarative and descriptive and
contain no sophisticated literary allusion to any social objective. Thus, they usually simply exhort
the public to vote for a person with a brief description of the attributes of the candidate. For
example "Vote for [x], Sipag at Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba kami sa
Makati."
This court’s construction of the guarantee of freedom of expression has always been wary of
censorship or subsequent punishment that entails evaluation of the speaker’s viewpoint or the
content of one’s speech. This is especially true when the expression involved has political
consequences. In this case, it hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human institution no matter how endowed with
the secular ability to decide legal controversies with finality entails that we are not the keepers of
all wisdom.
Humanity’s lack of omniscience, even acting collectively, provides space for the weakest dissent.
Tolerance has always been a libertarian virtue whose version is embedded in our Billof Rights.
There are occasional heretics of yesterday that have become our visionaries. Heterodoxies have
always given us pause. The unforgiving but insistent nuance that the majority surely and
comfortably disregards provides us with the checks upon reality that may soon evolve into creative
solutions to grave social problems. This is the utilitarian version. It could also be that it is just part
of human necessity to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical document. It contains other provisions
which, taken together with the guarantee of free expression, enhances each other’s value. Among
these are the provisions that acknowledge the idea of equality. In shaping doctrine construing
these constitutional values, this court needs to exercise extraordinary prudence and produce
narrowly tailored guidance fit to the facts as given so as not to unwittingly cause the undesired
effect of diluting freedoms as exercised in reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two paradigms of free speech that separate
at the point of giving priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged speech prevails over regulation[,] but
regulation promoting political equality prevails over speech."273 This view allows the government
leeway to redistribute or equalize ‘speaking power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued within society’s ideological
ladder.274 This view acknowledges that there are dominant political actors who, through authority,
power, resources, identity, or status, have capabilities that may drown out the messages of others.
This is especially true in a developing or emerging economy that is part of the majoritarian world
like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as to find one’s authentic self or to
participate in the self determination of one’s communities is not new only to law. It has always
been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and social theorist Herbert Marcuse
recognized how institutionalized inequality exists as a background limitation, rendering freedoms
exercised within such limitation as merely "protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the normal course of events" within an unequal
society, without subversion, only strengthens existing interests of those in power and control.276
In other words, abstract guarantees of fundamental rights like freedom of expression may become
meaningless if not taken in a real context. This tendency to tackle rights in the abstract
compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a tautology, but a tautology which results
from a whole series of synthetic judgments. It stipulates the ability to determine one’s own life: to
be able to determine what to do and what not to do, what to suffer and what not. But the subject
of this autonomy is never the contingent, private individual as that which he actually is or happens
to be; it is rather the individual as a human being who is capable of being free with the others.
And the problem of making possible such a harmony between every individual liberty and the
other is not that of finding a compromise between competitors, or between freedom and law,
between general and individual interest, common and private welfare in an established society,
but of creating the society in which man is no longer enslaved by institutions which vitiate self-
determination from the beginning. In other words, freedom is still to be created even for the freest
of the existing societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument — with all opinions presented to and deliberated
by the people — "implies a necessary condition, namely, that the people must be capable of
deliberating and choosing on the basis of knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be the result of autonomous
thought."278 He submits that "[d]ifferent opinions and ‘philosophies’ can no longer compete
peacefully for adherence and persuasion on rational grounds: the ‘marketplace of ideas’ is
organized and delimited by those who determine the national and the individual interest."279 A
slant toward left manifests from his belief that "there is a ‘natural right’ of resistance for oppressed
and overpowered minorities to use extralegal means if the legal ones have proved to be
inadequate."280 Marcuse, thus, stands for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations. The tolerance of libertarian society
he refers to as "repressive tolerance."
Legal scholars
The 20th century also bears witness to strong support from legal scholars for "stringent
protections of expressive liberty,"281 especially by political egalitarians. Considerations such as
"expressive, deliberative, and informational interests,"282 costs or the price of expression, and
background facts, when taken together, produce bases for a system of stringent protections for
expressive liberties.283
Many legal scholars discuss the interest and value of expressive liberties. Justice Brandeis
proposed that "public discussion is a political duty."284 Cass Sustein placed political speech on
the upper tier of his twotier model for freedom of expression, thus, warranting stringent
protection.285 He defined political speech as "both intended and received as a contribution to
public deliberation about some issue."286
But this is usually related also tofair access to opportunities for such liberties.287 Fair access to
opportunity is suggested to mean substantive equality and not mere formal equalitysince
"favorable conditions for realizing the expressive interest will include some assurance of the
resources required for expression and some guarantee that efforts to express views on matters
of common concern will not be drowned out by the speech of betterendowed citizens."288 Justice
Brandeis’ solution is to "remedy the harms of speech with more speech."289 This view moves away
from playing down the danger as merely exaggerated, toward "tak[ing] the costs seriously and
embrac[ing] expression as the preferred strategy for addressing them."290 However, in some
cases, the idea of more speech may not be enough. Professor Laurence Tribe observed the need
for context and "the specification of substantive values before [equality] has full
meaning."291 Professor Catherine A. MacKinnon adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus, more speech can only mean more speech from
the few who are dominant rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v. COMELEC on the validity of Section 11(b)
ofthe Electoral Reforms Law of 1987.293 This section "prohibits mass media from selling or giving
free of charge print space or air time for campaign or other political purposes, except to the
Commission on Elections."294 This court explained that this provision only regulates the time and
manner of advertising in order to ensure media equality among candidates.295 This court
grounded this measure on constitutional provisions mandating political equality:296 Article IX-C,
Section 4
Section 4. The Commission may, during the election period, supervise or regulate the enjoyment
or utilization of all franchises or permits for the operation of transportation and other public utilities,
media of communication or information, all grants, special privileges, or concessions granted by
the Government or any subdivision, agency, or instrumentality thereof, including any government-
owned or controlled corporation or its subsidiary. Such supervision or regulation shall aim to
ensure equal opportunity, time, and space, and the right to reply, including reasonable, equal
rates therefor, for public information campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and credible elections. (Emphasis
supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the enactment of measures that protect and
enhance the right of all the people to human dignity, reducesocial, economic, and political
inequalities, and remove cultural inequities by equitably diffusing wealth and political power for
the common good.
To this end, the State shall regulate the acquisition, ownership, use, and disposition of property
and its increments. (Emphasis supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to opportunities for public service, and
prohibit political dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s guarantee for more substantive
expressive freedoms that take equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that considerations of equality of opportunity or
equality inthe ability of citizens as speakers should not have a bearing in free speech doctrine.
Under this view, "members of the public are trusted to make their own individual evaluations of
speech, and government is forbidden to intervene for paternalistic or redistributive reasons . . .
[thus,] ideas are best left to a freely competitive ideological market."297 This is consistent with the
libertarian suspicion on the use of viewpoint as well as content to evaluate the constitutional
validity or invalidity of speech.
The textual basis of this view is that the constitutional provision uses negative rather than
affirmative language. It uses ‘speech’ as its subject and not ‘speakers’.298 Consequently, the
Constitution protects free speech per se, indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave speakers and listeners in the private order
to their own devices in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC formulates this view that freedom
of speech includes "not only the right to express one’s views, but also other cognate rights
relevant to the free communication [of] ideas, not excluding the right to be informed on matters of
public concern."301 She adds:
And since so many imponderables may affect the outcome of elections — qualifications of voters
and candidates, education, means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter’s resistance to pressure — the utmost ventilation
of opinion of men and issues, through assembly, association and organizations, both by the
candidate and the voter, becomes a sine qua non for elections to truly reflect the will of the
electorate.302 (Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if only to emphasize free speech
primacy such that"courts, as a rule are wary to impose greater restrictions as to any attempt to
curtail speeches with political content,"303 thus:
the concept that the government may restrict the speech of some elements in our society in order
to enhance the relative voice of the others is wholly foreign to the First Amendment which was
designed to "secure the widest possible dissemination of information from diverse and
antagonistic sources" and "to assure unfettered interchange of ideas for the bringing about of
political and social changes desired by the people."304
This echoes Justice Oliver Wendell Holmes’ submission "that the market place of ideas is still the
best alternative to censorship."305
Parenthetically and just to provide the whole detail of the argument, the majority of the US
Supreme Court in the campaign expenditures case of Buckley v. Valeo "condemned restrictions
(even if content-neutral) on expressive liberty imposed in the name of ‘enhanc[ing] the relative
voice of others’ and thereby ‘equaliz[ing] access to the political arena."306 The majority did not use
the equality-based paradigm.
One flaw of campaign expenditurelimits is that "any limit placed on the amount which a person
can speak, which takes out of his exclusive judgment the decision of when enough is enough,
deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political campaigning inherently constricts the
sum of public information and runs counter to our ‘profound national commitment that debate on
public issues should be uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been able to raise funds does not ease the
plight of those without funds in the first place . . . [and] even if one’s main concern isslowing the
increase in political costs, it may be more effective torely on market forces toachieve that result
than on active legal intervention."309 According to Herbert Alexander, "[t]o oppose limitations is
not necessarily to argue that the sky’s the limit [because in] any campaign there are saturation
levels and a point where spending no longer pays off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into consideration the constitutional respect
for human potentiality and the effect of speech. It valorizes the ability of human beings to express
and their necessity to relate. On the other hand, a complete guarantee must also take into
consideration the effects it will have in a deliberative democracy. Skewed distribution of resources
as well as the cultural hegemony of the majority may have the effect of drowning out the speech
and the messages of those in the minority. In a sense, social inequality does have its effect on
the exercise and effect of the guarantee of free speech. Those who have more will have better
access to media that reaches a wider audience than those who have less. Those who espouse
the more popular ideas will have better reception than the subversive and the dissenters of
society.To be really heard and understood, the marginalized view normally undergoes its own
degree of struggle.
The traditional view has been to tolerate the viewpoint of the speaker and the content of his or
her expression. This view, thus, restricts laws or regulation that allows public officials to make
judgments of the value of such viewpoint or message content. This should still be the principal
approach.
However, the requirements of the Constitution regarding equality in opportunity must provide
limits to some expression during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral campaigns made by candidates or
the members of their political parties or their political parties may be regulated as to time, place,
and manner. This is the effect of our rulings in Osmeña v. COMELEC and National Press Club v.
COMELEC.
Regulation of speech in the context of electoral campaigns made by persons who are not
candidates or who do not speak as members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must consider during elections is
unconstitutional. Such regulation is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by a private citizen which will not
amount toan election paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be constitutionally valid if it reaches into speech of
persons who are not candidates or who do not speak as members of a political party if they are
not candidates, only if what is regulated is declarative speech that, taken as a whole, has for its
principal object the endorsement of a candidate only. The regulation (a) should be provided by
law, (b) reasonable, (c) narrowly tailored to meet the objective of enhancing the opportunity of all
candidates to be heard and considering the primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object. The regulation must only be with
respect to the time, place, and manner of the rendition of the message. In no situation may the
speech be prohibited or censored onthe basis of its content. For this purpose, it will notmatter
whether the speech is made with or on private property.
This is not the situation, however, in this case for two reasons. First, as discussed, the principal
message in the twin tarpaulins of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice Antonio Carpio, the present law —
Section 3.3 of Republic Act No. 9006 and Section 6(c) of COMELEC Resolution No. 9615 — if
applied to this case, will not pass the test of reasonability. A fixed size for election posters or
tarpaulins without any relation to the distance from the intended average audience will be
arbitrary. At certain distances, posters measuring 2 by 3 feet could no longer be read by the
general public and, hence, would render speech meaningless. It will amount to the abridgement
of speech with political consequences.
IV
Right to property
Other than the right to freedom of expression311 and the meaningful exercise of the right to
suffrage,312 the present case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the circumvention of regulations
relating to election propaganda by applying such regulations to private individuals.314 Certainly,
any provision or regulation can be circumvented. But we are not confronted with this possibility.
Respondents agree that the tarpaulin in question belongs to petitioners. Respondents have also
agreed, during the oral arguments, that petitioners were neither commissioned nor paid by any
candidate or political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the tarpaulin remains the private property
of petitioners. Their right to use their property is likewise protected by the Constitution.
In Philippine Communications Satellite Corporation v. Alcuaz:315
Any regulation, therefore, which operates as an effective confiscation of private property or
constitutes an arbitrary or unreasonable infringement of property rights is void, because it is
repugnant to the constitutional guaranties of due process and equal protection of the
laws.316 (Citation omitted)
This court in Adiong held that a restriction that regulates where decals and stickers should be
posted is "so broad that it encompasses even the citizen’s private property."317 Consequently, it
violates Article III, Section 1 of the Constitution which provides thatno person shall be deprived of
his property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it includes the right to acquire, use,
and dispose of it; and the Constitution, in the 14th Amendment, protects these essential attributes.
Property is more than the mere thing which a person owns. It is elementary that it includes the
right to acquire, use, and dispose of it. The Constitution protects these essential attributes of
property. Holden v. Hardy, 169 U.S. 366, 391, 41 L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property
consists of the free use, enjoyment, and disposal of a person’s acquisitions without control or
diminution save by the law of the land. 1 Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60
[1917])318
This court ruled that the regulation in Adiong violates private property rights:
The right to property may be subject to a greater degree of regulation but when this right is joined
by a "liberty" interest, the burden of justification on the part of the Government must be
exceptionally convincing and irrefutable. The burden is not met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive that it prohibits the posting or
display of election propaganda in any place, whether public or private, except inthe common
poster areas sanctioned by COMELEC. This means that a private person cannot post his own
crudely prepared personal poster on his own front dooror on a post in his yard. While the
COMELEC will certainly never require the absurd, there are no limits to what overzealous and
partisan police officers, armed with a copy of the statute or regulation, may do. 319 Respondents
ordered petitioners, who are private citizens, to remove the tarpaulin from their own property. The
absurdity of the situation is in itself an indication of the unconstitutionality of COMELEC’s
interpretation of its powers.
Freedom of expression can be intimately related with the right to property. There may be no
expression when there is no place where the expression may be made. COMELEC’s infringement
upon petitioners’ property rights as in the present case also reaches out to infringement on their
fundamental right to speech.
Respondents have not demonstrated thatthe present state interest they seek to promote justifies
the intrusion into petitioners’ property rights. Election laws and regulations must be reasonable. It
must also acknowledge a private individual’s right to exercise property rights. Otherwise, the due
process clause will be violated.
COMELEC Resolution No. 9615 and the Fair Election Act intend to prevent the posting of election
propaganda in private property without the consent of the owners of such private property.
COMELEC has incorrectly implemented these regulations. Consistent with our ruling in Adiong,
we find that the act of respondents in seeking to restrain petitioners from posting the tarpaulin in
their own private property is an impermissible encroachments on the right to property.
V
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the COMELEC in issuing the questioned
notice and letter violated the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of church and state.320 This takes many
forms. Article III, Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment of religion, or prohibiting the free
exercise thereof. The free exercise and enjoyment of religious profession and worship, without
discrimination or preference, shall forever be allowed. Noreligious test shall be required for the
exercise of civil or political rights.
There are two aspects of this provision.321 The first is the none stablishment clause.322 Second is
the free exercise and enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops, ustadz, imams, or any other religious
make such act immune from any secular regulation.324 The religious also have a secular
existence. They exist within a society that is regulated by law.
The Bishop of Bacolod caused the posting of the tarpaulin. But not all acts of a bishop amounts
to religious expression. This notwithstanding petitioners’ claim that "the views and position of the
petitioners, the Bishop and the Diocese of Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems from the reality that every act can be
motivated by moral, ethical, and religious considerations. In terms of their effect on the corporeal
world, these acts range from belief, to expressions of these faiths, to religious ceremonies, and
then to acts of a secular character that may, from the point of view of others who do not share the
same faith or may not subscribe to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts are not conclusive on this court.
Certainly, our powers of adjudication cannot be blinded by bare claims that acts are religious in
nature.
Petitioners erroneously relied on the case of Ebralinag v. The Division Superintendent of Schools
of Cebu326 in claiming that the court "emphatically" held that the adherents ofa particular religion
shall be the ones to determine whether a particular matter shall be considered ecclesiastical in
nature.327 This court in Ebralinagexempted Jehovah’s Witnesses from participating in the flag
ceremony "out of respect for their religious beliefs, [no matter how] "bizarre" those beliefsmay
seem to others."328 This court found a balance between the assertion of a religious practice and
the compelling necessities of a secular command. It was an early attempt at accommodation of
religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of benevolent neutrality:
With religion looked upon with benevolence and not hostility, benevolent neutrality allows
accommodation of religion under certain circumstances. Accommodations are government
policies that take religion specifically intoaccount not to promote the government’s favored form
of religion, but to allow individuals and groups to exercise their religion without hindrance. Their
purpose or effect therefore is to remove a burden on, or facilitate the exercise of, a person’s or
institution’s religion. As Justice Brennan explained, the "government [may] take religion into
account . . . to exempt, when possible, from generally applicable governmental regulation
individuals whose religious beliefs and practices would otherwise thereby be infringed, or to create
without state involvement an atmosphere in which voluntary religious exercise may flourish."330
This court also discussed the Lemon test in that case, such that a regulation is constitutional
when: (1) it has a secular legislative purpose; (2) it neither advances nor inhibits religion; and (3)
it does not foster an excessive entanglement with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its face, "does not convey any religious
doctrine of the Catholic church."332 That the position of the Catholic church appears to coincide
with the message of the tarpaulin regarding the RH Law does not, by itself, bring the expression
within the ambit of religious speech. On the contrary, the tarpaulin clearly refers to candidates
classified under "Team Patay" and "Team Buhay" according to their respective votes on the RH
Law.
The same may be said of petitioners’ reliance on papal encyclicals to support their claim that the
expression onthe tarpaulin is an ecclesiastical matter. With all due respect to the Catholic faithful,
the church doctrines relied upon by petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law does not suffice to qualify the posting
by one of its members of a tarpaulin as religious speech solely on such basis. The enumeration
of candidates on the face of the tarpaulin precludes any doubtas to its nature as speech with
political consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in Austria v. National Labor Relations
Commission333 cited by petitioners finds no application in the present case. The posting of the
tarpaulin does not fall within the category of matters that are beyond the jurisdiction of civil courts
as enumerated in the Austriacase such as "proceedings for excommunication, ordinations of
religious ministers, administration of sacraments and other activities withattached religious
significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to do what it thought was its duty in this
case. However, it was misdirected.
COMELEC’s general role includes a mandate to ensure equal opportunities and reduce spending
among candidates and their registered political parties. It is not to regulate or limit the speech of
the electorate as it strives to participate inthe electoral exercise.
The tarpaulin in question may be viewed as producing a caricature of those who are running for
public office.Their message may be construed generalizations of very complex individuals and
party-list organizations.
They are classified into black and white: as belonging to "Team Patay" or "Team Buhay."
But this caricature, though not agreeable to some, is still protected speech.
That petitioners chose to categorize them as purveyors of death or of life on the basis of a single
issue — and a complex piece of legislation at that — can easily be interpreted as anattempt to
stereo type the candidates and party-list organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses that chose not to follow the example
of petitioners.
Some may have thought that there should be more room to consider being more broad-minded
and non-judgmental. Some may have expected that the authors would give more space to
practice forgiveness and humility.
But, the Bill of Rights enumerated in our Constitution is an enumeration of our fundamental
liberties. It is not a detailed code that prescribes good conduct. It provides space for all to be
guided by their conscience, not only in the act that they do to others but also in judgment of the
acts of others.
Freedom for the thought we can disagree with can be wielded not only by those in the minority.
This can often be expressed by dominant institutions, even religious ones. That they made their
point dramatically and in a large way does not necessarily mean that their statements are true, or
that they have basis, or that they have been expressed in good taste.
Embedded in the tarpaulin, however, are opinions expressed by petitioners. It is a specie of
expression protected by our fundamental law. It is an expression designed to invite attention,
cause debate, and hopefully, persuade. It may be motivated by the interpretation of petitioners of
their ecclesiastical duty, but their parishioner’s actions will have very real secular consequences.
Certainly, provocative messages do matter for the elections.
What is involved in this case is the most sacred of speech forms: expression by the electorate
that tends to rouse the public to debate contemporary issues. This is not speechby candidates or
political parties to entice votes. It is a portion of the electorate telling candidates the conditions for
their election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy that we should all deserve. It is
protected as a fundamental and primordial right by our Constitution. The expression in the
medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The temporary restraining order previously
issued is hereby made permanent. The act of the COMELEC in issuing the assailed notice dated
February 22, 2013 and letter dated February 27, 2013 is declared unconstitutional.
SO ORDERED.